Editors --- "Sampi v State of Western Australia (No 3) [2005] FCA 1716 - Case Summary" [2006] AUIndigLawRpr 3; (2006) 10(1) Australian Indigenous Law Reporter 18

• SAMPI V STATE OF WESTERN AUSTRALIA (NO 3)
• Justice French:

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SAMPI V STATE OF WESTERN AUSTRALIA (NO 3)

Federal Court of Australia (French J)

30 November 2005

[2005] FCA 1716

Native title — native title determination application — recognition of native title — Native Title Act 1993 (Cth) — native title claim group — whether two distinct societies at sovereignty — continuity and evolutionary change post-sovereignty — clan and family estates — whether native title held by native title claim group or distinct estate groups —whether native title lost — nature of relationship to land and waters — offshore rights — intertidal zone — reefs — operation of ss 47A and 47B of Native Title Act 1993 (Cth) — whether pearl oyster farm lease is a commercial lease — whether lease for aquacultural purposes — whether extinguishment of ceremonial and subsistence rights by pearling legislation

Justice French:

1. On 10 June 2005 I published reasons for judgment on the application of the Bardi and Jawi People for a native title determination over their traditional lands on and around the Dampier Peninsula – Sampi v State of Western Australia [2005] FCA 777. I found that native title existed and could be recognised on the mainland part of the areas covered by the application. I also found that native title rights and interests existed in the intertidal zone and on reefs adjacent to it which were exposed at least at low tide. Orders were made requiring the applicants to file and serve a draft determination to give effect to the reasons for judgment. A related application, WAD 6001 of 2004, for a native title determination with respect to Brue Reef was dismissed.

2. On 4 November 2005 I published a draft determination based on a draft submitted by the applicants and variations to it which were proposed by the other parties. In accordance with the reasons for judgment then published, the hearing was adjourned to enable pronouncement of a formal determination on country in accordance with the terms of the determination which was annexed to the reasons – Sampi v State of Western Australia (No 2) [2005] FCA 1567. The parties were given leave to propose drafting changes to the terms of the determination set out in that judgment.

3. Subsequently it was pointed out that, in light of the findings on the Brue Reef application, there should have been incorporated in the determination a determination that native title does not exist on Brue Reef. On 21 November 2005 I made an order vacating the dismissal order in the Brue Reef proceedings, WAD 6001 of 2004, and foreshadowed, by order, that a determination that no native title existed in that area would be made.

4. On 25 November 2005 I made an order by consent consolidating the main native title determination application WAD 49 of 1998 and the Brue Reef application WAD 6001 of 2004, so that a single determination covering Brue Reef and the area the subject of the principal application could be made. On the same day counsel for the applicants raised a last minute problem about the application of s 47A of the Native Title Act 1993 (Cth) (the NTA) to certain small areas covered by the determination. This could not be resolved immediately without further consideration by the State and an opportunity for the State’s advisors to obtain instructions. It was agreed that at the formal determination on country the application should be adjourned in so far as it related to these small areas. The principal determination will proceed notwithstanding that adjournment.

5. The Bardi and Jawi People of the Dampier Peninsula have struggled long and hard for the recognition of their native title. Their application under the NTA was lodged with the National Native Title Tribunal (the Tribunal) in 1995. It has been the subject of two trials in the Federal Court. The second trial became necessary because the illness of the first trial judge meant that he was unable to continue hearing the case in 2003.

6. The Bardi and Jawi People have established the existence of native title rights and interests on the mainland Dampier Peninsula south to the vicinity of Barrambar at Pender Bay in the west and Cunningham Point on the east. They have also established non-exclusive native title rights and interests in the intertidal zone and associated reefs and nearby reefs which are exposed at least at low tide.

7. The Bardi and Jawi People hold their native title rights and interests as a group. It is as a group that they have observed one set of traditional laws and customs under which their native title rights and interests have arisen. Their existence as a society of Aboriginal people and their traditional laws and customs may be traced back to before the time at which Western Australia was colonised. The rights recognised in the determination are rights to the possession and occupation of the land and ancillary rights. They have also established non-exclusive offshore native title rights and interests.

8. I congratulate the Bardi and Jawi People on their achievement in securing the recognition of their native title rights and interests. I know that some will be disappointed that the native title determination did not extend to offshore islands in and around the Buccaneer Archipelago. The proof of native title rights and interests is not an easy matter and the Court is only empowered to make determinations on the evidence before it. The absence of any determination on the islands does not, of course, prevent Bardi and Jawi People from continuing their association with them or even from making arrangements with government about the use of some or all of them.

9. I thank the other parties for their efficiency and constructive conduct of the proceedings. I will now formally pronounce the orders comprising the determination.

These are the final orders made in respect of litigation commenced in September 1995. Reasons for judgment were handed down on 10 June 2005 in Sampi v Western Australia [2005] FCA 777. These reasons for judgment are extracted in 9(3) Australian Indigenous Law Reporter 40.