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Australian Indigenous Law Reporter |
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Federal Court of Australia (French J)
10 June 2005
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 Native Title Act 1993 (Cth) ss 47A and 47B — whether pearl oyster farm lease is a commercial lease — whether lease for aquacultural purposes — whether extinguishment of ceremonial and subsistence rights by pearling legislation
On 1 September 1995 the Bardi and Jawi people of the Dampier Peninsula and islands of the Buccaneer Archipelago filed an application for a native title determination. After registration and public notification processes were followed, 155 persons were joined as parties to the application.
Initially, the applicants sought a native title determination in regard to land, waters, water courses, reefs, seas and seabed in the Northern Dampier and King Sound Regions of the Western Kimberley–Lombadina and One Arm Point, Western Australia. The native title rights and interests that were claimed included rights to the possession, occupation, use and enjoyment of the area as against the whole world, and included a number of specific rights of control and access. The right to maintain and protect cultural knowledge was also claimed.
On 27 February 2004, a second application was filed in relation to the Brue Reef area. The rights and interests claimed included rights of access, use and enjoyment of the reef.
Western Australia, the Commonwealth of Australia, the Western Australian Fishing Industry Council (‘WAFIC’) and Telstra were opposed to the application. When mediation at the Tribunal was unsuccessful, the President of the Tribunal directed the Registrar to lodge the application in the Federal Court.
The respondents argued that the Aboriginal society within the claim area had not existed since the time of annexation, and that the members of the native title claim group, being both Bardi and Jawa people, could not now be described as members of that society. The applicant Bardi and Jawi people gave evidence that they consider themselves to be one people through intermarriage and shared laws and ceremonies.
1. In order to establish that traditional laws and customs give rise to native title rights and interests according to the Native Title Act 1993 (Cth) s 223, it is necessary to demonstrate that the system of law and customs has existed continuously since sovereignty. It must also be shown that the society practicing those laws and customs has continued to exist from sovereignty to the present date ‘as a body united by its acknowledgment and observance of the laws and customs’: [962]–[963]; Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 cited.
2. Rights and interests may nevertheless be transmitted according to rules of transmission which existed at sovereignty. Traditional law and custom may undergo significant adaptation but only if they find their origin in pre-sovereignty law and custom: [961]; Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 cited.
3. The continuity required is not absolute. Change and adaptation of traditional laws and customs will not necessarily be fatal to a native title claim. Continuity may be demonstrated through the use of historical, archaeological, linguistic, anthropological and geneological evidence, as well as the direct testimony of Aboriginal witnesses: [964]; Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 cited.
4. In this case, a body of traditional laws and customs, observed by members of Bardi society, has existed, substantially uninterrupted, since the time of sovereignty: [1051].
5. The inclusion of the Jawi in contemporary Bardi society has not broken its continuity with the original Bardi society that existed at the time of colonisation of Western Australia: [4]–[5], [967]; Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 [967] discussed; De Rose v State of South Australia (No 2) [2005] FCAFC 110 distinguished.
6. The native title rights and interests of the Bardi people are held by the whole of that community in relation to the whole of their territory, and are not to be mapped buru (family group estate) by buru. The rights and interests of clan and family members are intramural distributions within that collective communal ownership: [1069].
7. There is sufficient evidence of ongoing visitation and the assertion of the relevant relationship to country by Aboriginal witnesses to establish that the requisite connection of the Bardi people, as a whole, to the land, exists: [1079]; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Brennan J) referred to.
8. The grant of a pearl oyster farm lease prior to 23 December 1996 falls into the aquacultural exception to the definition of prior exclusive possession act under the Native Title Act 1993 (Cth) and does not attract the extinguishing application of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA): [1139].
9. The legislative regimes of the Pearling Act 1912 and Pearling Act 1990 do not evidence, and should not be imputed to evidence, an intention to exclude rights such as the right to take pearl oysters or shells for subsistence or ceremonial purposes. In this case, s 211 of Native Title Act 1993 (Cth) would apply to the preservation of such rights: [1146]–[1147].
10. Section 47A(2) of the Native Title Act does not apply to require disregarding of extinguishment brought about by the construction or establishment of a public work prior to 23 December 1996: [1148]–[1149]; Erubam Le (Darnley Islanders) (No 1) v State of Queensland [2003] FCAFC 227; (2003) 202 ALR 312 referred to.
11. The applicants do hold native title in 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: [1151].
12. There is no native title in Alam Shoals or Brue Reef. The native title right asserted regarding Alam Shoals involved a right of exclusive possession, which is not recognised by common law in offshore areas. Evidence regarding Brue Reef did not establish that native title rights and interests devolved on the applicants under their traditional law and custom: [7], [1112]–[1113], [1116].
961. The rights and interests must originate in a normative system of traditional law and custom which existed at the time of colonisation or the acquisition of sovereignty by the Crown. Post sovereignty that system could not validly create new rights, duties or interests in the land or waters which were cognisable by the common law (Yorta Yorta [Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422]at 443, [43]). Rights and interests may nevertheless be transmitted according to rules of transmission which existed at sovereignty. Traditional law and custom may undergo significant adaptation but (at Yorta Yorta at 444, [44]):
the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.
962. The joint judgment turned then to the consequences of these considerations for the application of pars (a) and (b) of the definition of native title rights and interests in s 223. Here the word ‘societies’ was used (Yorta Yorta at 444, [46]):
the origin of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.
The relevant normative system must have had ‘a continuous existence and vitality since sovereignty’ (444, [47]). If there were an interregnum in the existence of the normative system the rights and interests which owed their existence to it would have ceased to exist and could not be revived (445, [47]).
963. … If the society ceases to exist so do the laws and customs which it observes. … When a society that existed at sovereignty ceases to exist and its laws and customs are adopted post-sovereignty by some new society the rights and interests to which they give rise will not be rooted in post-sovereignty laws and customs (447, [55]):
laws and customs and the society which acknowledges and observes them are inextricably interlinked.
What this means is that the relevant inquiry in relation to native title rights and interests under s 223 requires consideration of the relationship between traditional laws and customs now acknowledged and observed and those which were acknowledged and observed before sovereignty. It must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist from sovereignty to the present date ‘... as a body united by its acknowledgment and observance of the laws and customs’ (457, [89]).
964. It is important to note that the continuity required is not some simplistic absolute. Change to or adaptation of traditional laws and customs or some interruption of the enjoyment or exercise of native title rights is not necessarily fatal to a native title claim (455, [83]). The mode of proof of continuity in traditional laws and customs and the society to which they relate involves consideration of the historical, archaeological, linguistic and anthropological evidence in the light of the direct testimony of Aboriginal witnesses. Reference may be made to genealogies to support an inference of continuity with the society that existed at the time of colonisation.
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967. The first issue of substance agitated in closing submissions, and perhaps the most important issue in the case, was whether the Bardi and Jawi people, said to constitute the native title claim group, comprise a group in whose favour a determination of native title can be made. To apply the criterion enunciated in the joint judgment in Yorta Yorta that requires consideration of whether the members of the group are the members of a society which has existed from sovereignty to the present time as a body united by its acknowledgment of the laws and customs under which native title rights and interests claimed are said to be possessed. This, it should be noted, is not a case of the kind that fell for consideration in De Rose v State of South Australia (No 2) [2005] FCAFC 110 in which individual or small group rights were claimed on the basis of the laws and customs of a larger traditional ‘bloc’ which comprised the relevant society. In this case the application is made on behalf of the group said to constitute the society whose traditional laws and customs give rise to native title rights and interests.
968. There are two enquiries required by the principal question. The first is whether there is a society of the requisite kind in existence today. The second is whether that society can be said to have existed since sovereignty. The competing contentions gave the impression that the parties saw the issue as one whose resolution was a matter of logically simple, even if factually complex, inference from the evidence.
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1017. [The evidence given by the witnesses in this case,] in my opinion, supports the view that the Bardi and Jawi people today see themselves essentially as one people united by common laws and customs. … I am satisfied that … generally the Bardi and Jawi people who have responsibility today for maintaining and communicating traditional laws and customs regard themselves as one people, united by one law. That of course leaves open the critical question whether the Court can conclude that there has been one such society which can be traced back to the time of colonisation. …
1043. In this case, in my opinion, the inferences that can be drawn about the characterisation of Bardi and Jawi communities at the time that the Crown acquired sovereignty are limited. They were, I think, at all material times … distinct but closely related groups. Their members identified themselves as either Bardi or Jawi. I am prepared to infer that intermarriage between the groups was extensive and dated back to the time of sovereignty. … There were similar cosmologies and similar laws and customs defining the rights and responsibilities of clans and families with respect to particular burus. There were similar patterns of exploitation of marine resources although I consider that the Jawi relied to a much greater extent than Bardi on resources beyond the intertidal and reef zones and used rafts to a much greater extent for that purpose. There were common ceremonies in relation to initiations.
1044. I respect and accept the view of the Aboriginal witnesses who said that they are one people united by one law. I find that the contemporary practice of initiation ceremonies relies upon a common creation cosmology for both Bardi and Jawi which is reflected, inter alia, in the seating arrangements of those being initiated. But while I do not accept the State’s bald proposition of the ‘notoriously shallow’ memory associated with these oral traditions, I do not find that the oral evidence enables me to draw the inference which is sought on this issue. I am not persuaded that I can draw with confidence from the Aboriginal testimony the inference that there was one society of Bardi and Jawi at the time of colonisation. … The evidence of shared ceremonial [practices] is not, in my opinion, conclusive of the question. It is a consequence in part of geographical proximity and common mythologies which were not unusual in the region.
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1046. The evidence does not allow me to infer that one society of Bardi and Jawi people occupied the claim area at sovereignty and were united by a single set of traditional laws and customs acknowledged and observed by that society today. Nor am I able to conclude that there was one such society which, in effect, communally held the land and waters of the claim area under such a body of law and custom, which was, in effect, the applicants’ case. In my opinion, however, the evidence does establish a society of Bardi people at the time of sovereignty which was able, under its traditional laws and customs, to receive into its membership at least, by a process of intermarriage, people from the Jawi community. … So much being said, the land and waters which may be the subject of a native title determination in favour of the Bardi people could not extend beyond the land and waters which the Bardi society, as it existed at the time of sovereignty, held under the native title rights and interests conferred by its historical laws and customs. In so saying I note that there are no rules of succession identified which would allow consideration of the incorporation of Jawi traditional territories in the Bardi territory.
1047. The preceding conclusions do not involve a positive finding about the nature and membership of a distinct Jawi society at the time of sovereignty. In particular, I make no finding on whether Jawi society as at sovereignty would have been limited to the islands to the immediate north-west of Hadley Passage, including Sunday Island, or whether it extended into and incorporated the Mayala people who are also referred to in evidence as Jawi or Eastern Jawi. Having regard to the way in which the applicants’ case has been put and the evidence led in support of it, I do not consider that I can identify a distinct Jawi society, presently in existence, which acknowledges traditional laws and observes traditional customs under which native title rights and interests are possessed by its members. The necessary consequence of my findings would seem to be that such Jawi society as did exist in respect of the islands north-east of the Dampier Peninsula has been subsumed in Bardi society in the time that has elapsed since sovereignty. I accept that this may have been a process which was going to occur independently of the colonisation of Western Australia. Absent further argument or agreement, I am not prepared to make a separate determination in favour of surviving Jawi people in relation to Sunday Island or other islands within the claim area said to have comprised the traditional territory of the Jawi. … It will be a matter for the parties to consider whether, in the light of my findings, it is open to me to make a separate determination in respect of surviving Jawi people.
1048. The determination I am prepared to make is a determination in favour of the native title claim group as defined in the amended application. This includes Jawi people who, in my opinion, form part of the contemporary Bardi society. Their inclusion in that society has not destroyed its continuity with the original Bardi society that existed at the time of colonisation of Western Australia. The process of inclusion by intermarriage was, in all probability, already in place at the time of sovereignty. … The Bardi society includes Jawi people who have intermarried with Bardi people and the descendants of people who are the products of Bardi and Jawi marriages. It will include people who are recognised as part of the Bardi community by adoption or otherwise in accordance with its traditional laws and customs.
1049. I am satisfied that the unity of the Bardi and Jawi people today represents an integration of Jawi people into Bardi society. The self-designation ‘Bardi/Jawi’ which was used by many of the witnesses is not inconsistent with that conclusion. That assimilation has not created a ‘composite society’. It is a process which had been going on through intermarriage and as a result of the numerical superiority of the Bardi for some considerable time. Indeed it was a process which was probably occurring, although perhaps to a lesser extent, at the time of sovereignty.
1050. It follows from the contemporary unity of Bardi and Jawi people, albeit as an expression of an evolving Bardi society, that all the members of the native title claim group are members of Bardi society for the purposes of a native title determination. The conclusions that I have reached adverse to the contention that there was a single Bardi and Jawi society at sovereignty affects only the area of land and waters that can be the subject of a determination. It does not affect the composition of the native title claim group which has the communal ownership of traditional Bardi territory. I accept that on this basis there may be Jawi people who are part of the Bardi community but hold no specific estate interests even though they share, as part of the whole community, in its native title rights and interests which it holds communally.
1051. On the basis of the evidence already reviewed, I am satisfied that there is a body of traditional laws acknowledged by the members of Bardi society and traditional customs observed by its members which have existed, substantially uninterrupted, since the time of sovereignty.
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1053. The Law so understood, in my opinion, embodied the fundamental principle that the Bardi people as a community hold the traditional territory which is defined by the Law and is to be used and enjoyed in accordance with its rules.
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1056. The first question arising out of the content of the native title rights and interests asserted in the amended application is whether or not there is a native title right of a communal character devolving upon the whole Bardi community to the occupation of the land and waters in the claim area. This is not a question of the precise boundaries of the area in which native title may subsist. It is rather whether native title subsists in the Bardi people in respect of the whole of their country or is limited to the families associated with particular estates.
1057. The applicants contended for a ‘one country’ native title. The area of the claim was described repeatedly by Aboriginal witnesses as ‘one country’. This was a reference not simply to the ‘one society’ question but also to the way in which the Law generated a unitary relationship between the people and their territory.
1058. As the applicants acknowledged, under traditional law and custom, the country is internally arranged into coastal estates or burus, clan areas or regional aggregates and the Nimidiman or Pindan which is shared middle country. Various of the witnesses referred to the burus as part of the country for which they could speak. Their rights and associated obligations evolved upon them under the Law. Different numbers of estates or burus have been variously identified by different observers over time. …
1059. The applicants pointed out in their submissions that their rights and interests spring from one communal source of authority namely the Law. The rights that individuals and families have in coastal burus are heavily qualified or restricted in favour of interests of the whole community. …
1062. In summary it was submitted for the applicants that the internal organisation of and distribution of rights and interests under the law essentially proved that there was one country not seven-twenty.
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1069. In my opinion … the considerations referred to by the applicants, which were derived for the most part from the evidence of the Aboriginal witnesses, points strongly to the conclusion that the native title rights and interests of the Bardi people are held by the whole of that community in relation to the whole of their territory. The rights and interests of clan and family members are intramural distributions within that collective communal ownership. In my opinion the buru by buru mapping of native title rights and interests which is proposed involves a descent into fractal detail that is the antithesis of the policy of the legislation and the process of recognition which it seeks to advance. Primarily it is, in my opinion, at odds with the evidence. I am prepared to make a determination of native title rights and interests in the general form proposed by the applicants, albeit it will be limited to what I find to be the traditional territory of the Bardi society within the claim area.
1070. The applicants assert a right of exclusive possession of the land area under claim. They rely upon the evidence as to their use and occupation of it and the express evidence of exclusivity under traditional law and custom which was given at the second trial. That evidence, it was said, established that the applicants use and occupy the land for all the social, material and spiritual purposes of their lives and control the land in every respect.
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1072. The reference to ‘use and enjoyment’ in the context of exclusivity is, in my opinion, too widely stated and could pick up a variety of rights not contemplated by traditional law and custom. Use and enjoyment rights are best defined more specifically. The right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation.
1073. In my opinion the following specific rights reflecting the terms of the amended application are supported by the evidence:
I do not consider that the claimed right to ‘care for, maintain and protect the land ...’ defines with any useful precision the nature of the entitlement which it confers or the activities which it would authorise. The right to access and use the resources of the land was expanded in the applicants’ submissions by reference to evidence in a way ultimately reflected in the above formulation.
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1075. The question whether the applicants, by their traditional laws and customs, have ‘a connection with the land and waters’ that are the subject of the application is a question required to be considered by s 223(1)(b). The meaning of the word ‘connection’ in this context has not been the subject of extensive judicial exposition.
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1077. It is important to bear in mind that where native title rights and interests are said to arise under traditional laws and customs the relevant connection of the applicants with their land or waters must be ‘by those laws and customs’. I take that to mean that the connection must be a relationship that exists by virtue of those laws and customs. This may be interpreted in more than one way. The connection may be constituted because of the authority conferred by traditional law and custom to enjoy and exercise the rights and interests which arise under it. On that construction the ‘connection’ requirement under s 223(1)(b) would mean little more than the requirement under s 223(1)(a) that the applicants have rights and interests in relation to the land or waters. It would render s 223(1)(b) largely redundant.
1078. The word ‘connection’ could refer to a spiritual relationship which extends beyond mere rights and interests. That is to say it would indicate a relationship between people and their land and waters which is more than merely juridical. Such a construction would have the virtue of consistency with the widely recognised feature of indigenous association with country that is, as Brennan J said in Meneling Station [(1982) [1982] HCA 69; 158 CLR 327] (at 358), ‘primarily a spiritual affair rather than a bundle of rights’.
1079. The origin of the term ‘connection’ in the native title context however is to be found in the judgment of Brennan J in Mabo. One of the rules for the recognition of native title rights and interests there set down was that the group said to hold native title must show a continuing connection with the land in question. The emphasis of the collocation ‘continuing connection’ may have been on continuity rather than connection and intended to exclude the case where the land had been abandoned. Abandonment, which his Honour, elsewhere in the judgment, subsumed in the concept of extinguishment, is not a necessary consequence of physical absence which may be forced by colonising or other non-indigenous activities or circumstances. Physical presence is plainly relevant to connection in this sense but not necessary to establish it. The use of connection in the sense which emphasises continuity of association under traditional law and custom fits best with its origins in the Mabo judgment and has work to do in the definition of native title rights and interests. Approached in this way, the connection requirement involves the continuing internal and external assertion by the group of its traditional relationship to the country defined by its laws and customs and which may be expressed by its physical presence there or otherwise. Applying that construction to the present case, the evidence establishes the necessary connection at the communal level. This is so notwithstanding that particular estates may have fallen vacant or people moved around within the claim area to live in convenient centres. There was sufficient evidence of ongoing visitation and the assertion of the relevant relationship to country by Aboriginal witnesses to establish that the requisite connection of the Bardi people, as a whole, exists.
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1081. The Commonwealth relied upon Yarmirr [Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1]; Ward [Ward v Western Australia [2002] HCA 28; (2002) 213 CLR 1] and Yorta Yorta. The Commonwealth also made the point, flowing from Yarmirr, that the common law will not recognise native title rights to exclusive possession of offshore areas below the high water mark. No exclusive rights are sought in relation to the offshore areas claimed. Subject to questions of extinguishment yet to be considered, I am satisfied that the native title rights and interests the subject of the proposed determination are recognised by the common law. Certain of the rights claimed in the amended application are, in my opinion, probably incapable of recognition by the common law because incapable of enforcement. These have been discussed earlier in these reasons.
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1110. In summary, the portion of the claim area for which a determination will be made is the Dampier Peninsula as far south as the Barrambar site on Pender Bay on the west side and Cunningham Point on the east. A southern boundary may be defined by a line joining them but I will entertain further submissions on that question. The area of the determination will also include the intertidal zone and exposed reefs adjacent to it or otherwise identified by witnesses in the course of their evidence together with the waters in and around those features.
1111. The next question is whether Alarm Shoals can be the subject of a determination of native title rights and interests. …
1112. Restricted evidence was given about Alarm Shoals … The evidence was directed to the spiritual significance of the area and the necessity to keep people away from it. The right to care for and protect it referred to in the claim, was underpinned by evidence that was entirely directed to a need to exclude people from visiting it. It is clear, however, that no right to exclude other people from visiting Alarm Shoals would be recognised by the common law. The broadly framed right to care for and protect the area does not convey, in my opinion, any other right cognisable by the common law.
1113. On the evidence … the non-exclusive right to go to the area and move about on it could only be incidental to a right to exclude or prevent others from crossing the area or visiting it. Given that the common law cannot recognise the true primary right being sought in this case, the ancillary right cannot be recognised.
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1116. In my opinion the fact of the existence of a mythological story about Brue Reef, whether or not it dates from pre-sovereignty time, does not establish native title rights and interests in relation to it under traditional laws and customs, whether they be the laws and customs of the Bardi people or those of the Jawi. There is force in the proposition that the content of the Brue Reef story is inconsistent with anyone having rights to it. … In my opinion, whether claimed by Bardi or Jawi or both, there is no basis disclosed on the evidence for the existence of native title rights and interests in Brue Reef. It follows from this also that the Bardi/Jawi No 2 application will be dismissed.
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1132. In Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 at 143, Olney J, referring to the word ‘occupy’ in s 47B said (at 144, [162]):
The occupation of land should be understood in the sense that the indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, have its customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.
1133. In Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 at [449], Beaumont and von Doussa JJ said:
We think a broad view should be taken of the word ‘occupy’ in the requirement in s 47A(1)(c) that one or more members of the native title claim group occupy the area. We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the land so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so.
See also Passi on behalf of Meriam People v Queensland [2001] FCA 697 at [29] per Black CJ; Rubibi Community v Western Australia [2001] FCA 607; (2001) 112 FCR 409 at 450, [182] per Merkel J; Daniel v Western Australia [2003] FCA 666 per Nicholson J.
1134. Applying these authorities by reference to the findings I have already made about the communal ownership of the whole of the land the subject of the proposed determination, I am satisfied that at the time of the application it was occupied in the relevant sense by one or more members of the native title claim group. I am satisfied therefore that, in respect of the areas identified by the State, the requirements of ss 47A and 47B are met and prior extinguishment is able to be disregarded.
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1144. I accept that aquacultural licences granted over parts of the determination area under the Fish Resources Management Act 1994 (Cth) will prevail over any native title rights and interests to the extent of any inconsistency.
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1151. 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.
1152. 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.
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