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Sampi v State of Western Australia (No 3) [2005] FCA 1716 | | Category: | Case Law | | | Binomial Name: | Federal Court of Australia | | | Date: | 30 November 2005 | | | Sub Category: | Litigated Determination | | Place: | Dampier Peninsula | | State/Country: | Western Australia, Australia | | Area 1
Commencing at the point of Latitude 16.130035deg.S, Longitude 123.122964deg.E, and extending generally southerly, passing through the following points:
Latitude Sdeg. Longitude Edeg
16.166376 123.136837
16.311724 123.251283
16.333598 123.268504
16.466374 123.301283
16.599152 123.201283
16.748595 123.378165
16.782207 123.417948
16.794801 123.417959
Then west to a point on the northern boundary of Reserve 1834 (as it was at 1st September 1995) at Longitude 123.140564deg.E, then generally westerly along the northern boundaries of that reserve to Longitude 122.663627deg.E, then north to a point in Pender Bay at Latitude 16.751355deg.S, then west to intersect the three nautical mile limit, then generally north-easterly along the three nautical mile limit to a southern boundary of Alarm Shoal at Latitude 16.322907deg.S, then generally westerly and generally north-easterly along the boundaries of Alarm Shoal to again intersect the three nautical mile limit, passing through the following points:
Latitude Sdeg. Longitude Edeg
16.322907 122.916127
16.324328 122.910444
16.323144 122.908550
16.320776 122.908550
16.318172 122.911155
16.315330 122.918732
16.315093 122.926072
16.315162 122.928403
Again, generally north-easterly along the three nautical mile limit back to the commencement point.
Area 2
That part of Brue Reef that lies within the 12 nautical mile limit. | | Legal Status: | Registered on the National Native Title Register | | | Legal Reference: | Federal Court No: WAD49/1998; WAD 6001/2004; National Native Title Tribunal No.: WCD2005/003 | | | Alternative Names: | Bardi and Jawi Native Title Determination
| | Subject Matter: | Native Title | Recognition of Traditional Rights and Interests | Water | | URL: | http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/2005/1716.html | | | Summary Information: | | | Sampi v State of Western Australia (No 3) [2005] FCA 1716 (30 November 2005)
Between: Paul Sampi and Others on behalf of the Bardi & Jawi People (APPLICANTS) AND
The State of Western Australia and Others (RESPONDENTS)
Judge: French J
Where made: One Arm Point
Determination: Native title exists in relation to parts of the determination area.
Location: Lombadina and One Arm Point, Northern Dampier and King Sound regions, West Kimberley, Western Australia.
The native title holders are the Bardi and Jawi people (as described in Schedule 6).
This determination covers two native title applications, that of WAD 49 of 1998 and WAD 6001 of 2004.
The determination area covers areas in which:
There has been no extinguishment of native title, and exclusive native title rights continue to exist (refer to Schedule 3), excluding certain reserves; all minerals, gas and petroleum; the Leveque Radio Site and validly constructed roads;
Non-exclusive native title rights are found to exist, including in relation to certain intertidal areas and adjacent and offshore reefs and islets, as well as the waters in their immediate vicinity (refer to Schedule 4); and
Native title rights have been totally extinguished, being those areas covered by native title claim WAD 6001 of 2004 over the Brue Reef.
The native title rights found to exist in the areas where exclusive native title rights exist are encompassed by the exclusive right to possess and occupy the area as against the whole world, including:
“(a) the right to live on the land;
(b) the right to access, move about on and use the land and waters;
(c) the right to hunt and gather on the land and waters;
(d) the right to engage in spiritual and cultural activities on the land and waters;
(e) the right to access, use and take any of the resources of the land and waters (including ochre) for food, shelter, medicine, fishing and trapping fish, weapons for hunting, cultural, religious, spiritual, ceremonial, artistic and communal purposes;
(f) the right to refuse, regulate and control the use and enjoyment by others of the land and its resources; and
(g) the right to have access to and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.” (para 4 [2005] FCA 1716).
In relation to certain intertidal areas and adjacent and offshore reefs and islets, as well as the waters in their immediate vicinity where native title has been partially extinguished, the following rights are held by the Bardi and Jawi people:
“(a) the right to access, move about in and on and use and enjoy those areas;
(b) the right to hunt and gather including for dugong and turtle; and
(c) the right to access, use and take any of the resources thereof (including water and ochre) for food, trapping fish, religious, spiritual, ceremonial and communal purposes.”(para 5 [2005] FCA 1716).
These rights are exercisable in accordance with the traditional laws and customs of the native title holders, and the laws of the State and Commonwealth. These rights are also held subject to certain other rights and interests, including various Reserves set up for the ‘Use and Benefit of Aborigines’; fishing and aquaculture licences; pearl oyster farm leases; the interests of Telstra Corporation Limited; the public right to fish and navigate in tidal waters and the international right of ‘innocent passage’. No exclusive native title rights are held in relation to any flowing or underground waters, and the taking of resources cannot be done for commercial purposes. | | Detailed Information: | | | This native title determination follows the judgment made by Justice French on 10 June 2005 that found that the Bardi, and those Jarwi with traditional rights to Bardi country, had succeeded in establishing that native title continued to exist over parts of the claimed areas, which are approx. 1,037 sq km. The traditional owners of the Dampier Peninsula first lodged their native title application in 1995, and their claims have been the subject of two Federal Court claims. They were represented in these claims by the Kimberley Land Council.
According to the NNTT media release, this region in Western Australia “is second only to the Torres Strait for the number of determinations recognising the existence of native title since the Mabo decision in 1992.” In relation to areas in which native title was found to no longer exist, Justice French notes that “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 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.” (para 8 [2005] FCA 1716). | |
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