Native Title

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Focus: Successful Kimberley native title appeal

14 April 2010

In brief: The Full Court of the Federal Court of Australia recently handed down its decision in an important native title appeal, relating to land and waters in the Kimberley region of Western Australia. Senior Associate Robyn Glindemann, Lawyer Sunili Govinnage and Law Graduate Robert Merriam report.

How does it affect you?

The Full Court has overturned the 2005 findings of the trial judge on who may hold native title rights and where those rights will be able to be exercised. The Full Court's decision also sheds light on the meaning of:

  • sections 223 and 225 of the Native Title Act 1993 (Cth) (the Act) and when native title rights can be exercised; and
  • phrases that are commonly used in native title determinations, being rights to 'care for, maintain and protect the land' and 'use and enjoyment',

which will be relevant to native title determinations, regardless of where they are made. The court's comments will be useful when considering what sort of activities may be carried out by native title holders on their country.

A single society

In Sampi on behalf of the Bardi and Jawi People v State of Western Australia1, the Full Court of the Federal Court decided that Justice French (now Chief Justice French of the High Court) had made an error in relation to the constitution of the Bardi and Jawi society, which led the judge incorrectly to exclude territory traditionally occupied by the Jawi people from the original native title determination.

At first instance, Justice French accepted that while the Bardi and Jawi constituted a single society today, they did not form a single society at sovereignty.  His Honour found that native title rights continued to exist over traditional Bardi territory on the mainland and adjacent areas, but not over the islands and sea areas that were part of Jawi territory at sovereignty. 

The Full Court noted that the test set out by the High Court in the Yorta Yorta case2 for whether the claimants are members of a 'society' depends upon whether the group is united by an acknowledgement of traditional laws and customs relating to rights and interests in land and waters.  The Full Court found that the unchallenged evidence of Aboriginal witnesses describing a system of unity of belief shared by both groups led to the inference that the Bardi and Jawi were a single society at sovereignty.  This inference was not precluded by the existence of differences between the Bardi and Jawi, such as dialectal differences, the existence of distinct Bardi and Jawi territories and the use of 'self-referents' as 'Bardi' or 'Jawi'.  The evidence established that the Bardi and Jawi shared one system of law at least as far back as the latter part of the 19th century, and that it was unlikely that this system arose in the 'relatively short period' between sovereignty and the late 19th century.  The Full Court held that Justice French 'should have inferred that the Bardi and Jawi people are, and have since the time of sovereignty, been united by their acknowledgement of a common set of laws and their observance of a common set of customs'.3

Accordingly, the Full Court decided that both Bardi and Jawi territories should be included in the native title determination.

Temporal limitations

Justice French's determination at first instance included a proviso that certain native title rights were 'limited to reefs ... when they are exposed or covered by not more than 2 metres of water'.  The Bardi and Jawi argued on appeal that sections 223 and 225 of the Act do not contemplate the imposition of temporal limitations in native title determinations.  They argued that s223 defines native title rights as rights 'in relation to land or waters' and that 'land and waters' are defined to mean areas of three-dimensional space.  Section 225 defines a determination of native title as a determination of whether or not native title exists in relation to a particular area of land and waters.  The Bardi and Jawi argued that, according to these sections, native title either exists over an area or it does not and that native title rights could not come and go with the tide.  Alternatively, they argued that the proviso was an unnecessary specification of a limitation on the ability of native title holders to exercise native title rights.

The Full Court agreed with the Bardi and Jawi and said 'to require temporal limitations to be imposed in determinations of native title would give rise to the need for very detailed and complex enquiries relating to the times at which the particular rights were exercised'.4

The right to 'care for, maintain and protect the land'

At first instance, Justice French did '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 will authorise'.

The Full Court indicated that they would not reject a claim to such a right on the ground that it lacked sufficient precision. The Full Court said:

Once the statutory requirements for the recognition of native title are established, there is no warrant for limiting the rights and interests by adding a gloss to the statutory requirements in the form of a stipulation for a particular level of precision in the articulation of rights or interests.5


Exclusivity and 'use and enjoyment'

The Bardi and Jawi claimed the right of 'possession, occupation, use and enjoyment as against the whole world' in respect of the mainland claim area.  Justice French accepted that there existed a right to possession and occupation, but said:

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.


The Full Court agreed with the respondents' submission that the words 'use and enjoyment' do not add anything to the rights of possession and occupation, noting that the 'right to use and enjoy is implicit in the right to possess and occupy'.  However, the Full Court went on to say that this does not mean that the expanded phrase should not be used.

Next steps

Justice French's decision at first instance will be set aside in due course.  The Full Court has directed the parties to negotiate an agreed form of orders and a determination to reflect the conclusions reached by the court.

  1. [2010] FCAFC 26 (18 March 2010).
  2. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
  3. At paragraph 66.
  4. At paragraph 94.
  5. At paragraph 120.

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