NATIVE TITLE – native title determination application – recognition of native title – principles – Native Title Act 1993 (Cth) – statutory purpose – native title claim group – composite group – whether two distinct societies at sovereignty – continuity and evolutionary change post-sovereignty – native title rights and interests – clan and family estates – whether native title held by native title claim group or distinct estate groups – vacant estates – whether native title lost – connection – nature of relationship to land and waters – offshore rights – intertidal zone – reefs – extinguishment – operation of ss 47A and 47B of Native Title Act – occupy – previous exclusive possession acts – pearl oyster farm lease – whether commercial lease – whether lease for aquacultural purposes – whether extinguishment of ceremonial and subsistence rights by pearling legislation
PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI AND JAWI PEOPLE v THE STATE OF WESTERN AUSTRALIA WAD49 OF 1998 JIMMY EJAI AND OTHERS ON BEHALF OF THE BARDI AND JAWI PEOPLE v THE STATE OF WESTERN AUSTRALIA WAD6001 OF 2004
FRENCH J 10 JUNE 2005 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD49 OF 1998
BETWEEN:
PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE APPLICANTS
AND:
STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
JUDGE:
FRENCH J
DATE OF ORDER:
10 JUNE 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Sampi v Western Australia
Sign in free to access the full text
Details
AGLC
Sampi v Western Australia [2005] FCA 777
Case
[2005] FCA 777
Decision Date
CaseChat Overview and Summary
The case of Sampi v Western Australia involved native title claims over the Dampier Peninsula and surrounding areas. The applicants sought recognition of their traditional rights to access, use, and care for Brue Reef and surrounding waters. The case was heard in the Federal Court of Australia. The legal issues centred around the extent of native title rights over land and waters, including intertidal zones and adjacent reefs, and the impact of existing interests and extinguishing acts on these rights.
The court carefully reviewed the evidence provided by Aboriginal witnesses, focusing on their traditional laws and customs. The evidence of deceased witnesses was accepted based on statements provided by the Kimberley Land Council. The court also considered submissions from Telstra regarding their interests in the area. The determination of native title rights was subject to these existing interests and any relevant extinguishing acts. The court concluded that a determination of native title should be made for the specified area, including the intertidal zone and adjacent reefs, subject to the terms outlined.
In its decision, the court agreed to amend the application to reflect the proposed changes and requested the applicants to draft a determination within a specified timeframe. The court also sought confirmation from the Kimberley Land Council regarding the management of the native title, including the nomination of a trustee if desired. The case was listed for further directions to allow the parties to address these matters. Ultimately, the court dismissed the application but provided for a new determination to be made based on the outlined terms.
Orders
Orders of the court
1. The application is amended pursuant to the applicants’ motion filed 27 February 2004 so far as it relates to the land and waters the subject of the application, the native title rights and interests claimed and the addition of Benedict Dilay to the list of apical ancestors.
2. The applicants are to file and serve a draft determination to give effect to these reasons within twenty eight (28) days.
3. The Kimberley Land Council, as representative of the applicants, is requested to indicate whether the applicants intend to have their native title held in trust and if so to:
(a) nominate in writing, given to the Court within twenty eight (28) days, or such further period as the Court may allow, a prescribed body corporate to be trustee of the native title;
(b) include with the nomination the written consent of the body corporate.
4. There is liberty to apply.
5. The application is listed for further directions on 11 July 2005 at 9.30am.
Note:
1. The application is dismissed.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The native title rights and interests claimed are shortly expressed as the rights to: (i) access, move about in and on and use and enjoy Brue Reef; (ii)access, use and take any of the resources of Brue Reef and to manufacture any object or thing from those resources; (iii)care for, maintain and protect the cultural significance of Brue Reef; and (iv)a right of seaward access by the most convenient route beginning in the vicinity of One Arm Point taking into account the natural direction and the extent of the currents in the sea.Subject to: (i)to the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants; (ii)to the extent that the native title rights and interests claimed relate to waters in an offshore place, those rights and interests are not claimed to the exclusion of other rights and interests validly created by a law of the Commonwealth or the State of Western Australia or accorded under international law in relation to the whole or any part of the offshore place.Evidence of Aboriginal witnesses A number of Aboriginal witnesses gave evidence at the trial before Beaumont J and at the second trial. Their testimony about their traditional laws and customs and their rights and responsibilities with respect to land and waters, deriving from them, is of the highest importance. All else is second order evidence. It is necessary therefore to review the evidence of the Aboriginal witnesses in some detail. Statements of the substance of the evidence to be given by each of these witnesses were filed in Court in advance of the first trial. For the most part their evidence was led orally without the statements themselves being received. As Beaumont J observed on day six of the first trial, in discussion with counsel for the applicants, ‘... the purpose of the substance is to give the other side notice of what the evidence is’. Counsel agreed. At the second trial, statements of the substance of the evidence of thirteen witnesses were provided exhibited to an affidavit of a solicitor from the Kimberly Land Council, Ms Guest. The evidence of these witnesses was given on the basis that certain parts of their statements could be read into the record as evidence-in-chief adopted by them with oral evidence being read in the usual way for those parts in respect of which one or more of the respondents so required. In reviewing the evidence of the Aboriginal witnesses it is convenient to follow the sequence in which they were called at the first trial. The evidence given by each of them at the second trial will be reviewed in that sequence. A number of the witnesses are now deceased and are referred to by designations proposed by the Kimberley Land Council. The designations use each deceased person’s surname or the surname with their first initial. Khaki Stumpagee’s deceased wife is referred to as ‘Khaki’s wife’. (i) Frank Davey
Decision
Reasons for decision
FRENCH J
I accept that the determination should include in the statement of ‘other interests in the determination area’ reference to the interests of Telstra as formulated by Telstra in its submission filed 30 October 2003.Conclusion For the reasons set out above I am prepared to make a determination of native title along the lines indicated in these reasons in favour of the applicants for the area of the Dampier Peninsula to the Bluebone Rocks in Pender Bay on the south-west side and Cunningham Point on the south-east side bounded otherwise to the south by a line joining those two points or such other line as may be agreed between the parties. The determination would extend to the intertidal zone and adjacent reefs exposed at low tide as well as other reefs in the area which are exposed and particularly those visible from the shore or from the intertidal zone. I will hear from the parties as to the way in which the determination should define the limits of such reefs. The parties may wish to prepare a list of the relevant reefs as the most accurate way of representing the area covered by the determination. The determination of native title rights and interests will be subject to the other interests which have been referred to and subject to the extinguishing acts which have been identified. The parties will have liberty to apply on the question whether any further determination should be made in respect of land lying within traditional Jawi territories.