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Rubibi Community v State of Western Australia (No 7)  FCA 459
|Binomial Name:||Federal Court of Australia|
|Date:||28 April 2006|
|Sub Category:||Litigated Determination|
|Location:||Broome, Western Australia, Australia|
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|Broome, Western Australia|
|Legal Status:||Registered on the National Native Title Register.|
|Legal Reference:||Federal Court File No: WAD6006/1998; National Nati|
|Subject Matter:||Native Title | Native Title - Extinguishment | Recognition of Traditional Rights and Interests|
|Rubibi Community v State of Western Australia (No7)  FCA 459|
Between: Frank Sebastian and Others (Applicants) and State of Western Australia and Others (Respondents)
Judge: Merkel J
Where made: Town Beach, Broome, Western Australia
This case concerns the process started in 1994 by which Yaruwu people sought to have their native title rights over the town of Broome and its surrounds recognised. Native Title was found to exist in principle in earlier decisions by Merkel J. Rubibi No 7 deals with the extent to which native title has been extinguished in relation to a consolidated group of native title applications.
Decision No. 7 contains the actual determination, the second determination to date in relation to native title claims by the Rubibi community. The first Rubibi determination related specifically to the Kunin traditional law ground.
|In two earlier decisions regarding the Rubibi Native Title claim, Merkel J decided that the Yawuru community possessed communal native title rights and interests in the Yawuru claim area. In an 'interim' decision (Rubibi No 5), Merkel J found that the rights were held communally rather than on a group or clan basis. He also concluded that there was evidence to support an inference that the native title rights and interests held by the Yawuru community included a right of exclusive possession and occupation of the Yawuru claim area (excluding the inter-tidal zone) where there had been no extinguishment of that right. In Rubibi No 6 he reserved the question of extinguishment. That question is decided in Rubibi No 7 along with several other issues including:|
* the operation of a native title right to exclusive possession over areas in 'common use' such as public beaches;
* whether native title rights in relation to natural resources should expressly be limited to 'non-commercial' purposes;
* whether the 'special attachment' of clan members should be noted in the determination as an 'interest' under s225(c) of the Native Title Act 1993 (Cth);
* the description of the native title holders and the circumstances in which 'self-identification' was required;
* the validity of certain freehold grants, reserves and a special lease;
* whether a license to occupy created a legally enforceable right ot a grant of freehold;
* the effect on native title of certain 'improvements' to areas subject to non-exclusive pastoral leases and mining leasees; and
* the application of ss47A and 47B.
The Yawuru claimants' successes in relation to this determination include:
* the claim succeeded, in whole or in part, over approximately 4900km2 of the Yawuru Community's traditional country in and around Broome;
* they established a communal native title entitlement to exclusive possession over a small area of their traditional country.
However, Merkel J found that the the native title rights and interests in respect of most areas claimed were 'non-exclusive'. A determination of native title was made in light of the reasons given in Rubibi 5 and Rubibi 6. However the part of the determination recognising the existence of native title will not take effect until the native title holding community has a Prescribed Body Corporate registered on the National Native Title Register.
The determination that native title is wholly extinguished over some areas took effect immediately upon the making of the orders.
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