North and Mansfield JJ
The Bardi Jawi appeal decision was handed down in April 2010 (Sampi on behalf of the Bardi and Jawi People v State of Western Australia  FCAFC 26). In that case, the Bardi and Jawi peoples’ native title rights and interests over their traditional lands were recognised. Orders were made for the parties to seek agreement to form a consent determination. The parties had substantially reached an agreement but the following areas of contention remained: the manner in which the right to care for, maintain and protect should be defined; the clarity with which Brue Reef should be defined and whether the determination should identify the rock feature known as Lalriny.
The right to care for, maintain and protect
Although it was not explicitly stated that the right to care for, maintain and protect was non-exclusive, North and Mansfield JJ stated the reasons and the decisions the Full Court referred to make this clear. The right to protect does not amount to an exclusive right.
The Court held that Brue Reef would be included in the list of areas in which no native title exists. It was found that this was adequate and that it was not necessary (as the State and Commonwealth had suggested) to mention it specifically in other schedules.
The appellants requested that the exact location of Lalariny (a rock formation) not be revealed in the determination as it was not revealed in primary Judge’s decision and its disclosure would be culturally problematic.
Justices North and Mansfield stated that they understood the concerns of the appellants, however, the omission of the location of Lalariny from the determination would create serious difficulties in the enforcement of native title rights and interests and future act processes in relation to it.
With the above mentioned disputes resolved, the Court was able to make the determination. Native title rights and interests are held by the Bardi and Jawi people, and exist in relation to certain parts of the determination area but not in others.
In areas where there has been no extinguishment or areas where extinguishment has been disregarded, the native title rights and interests in relation to the land and waters are the right of possession, occupation, use and enjoyment of that part as against the whole world. These include the right to live on the land, to access, move about on and use the land and waters, the right to hunt and gather on the land and waters, the right to engage in spiritual and cultural activities on the land and waters, 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, the right to refuse, regulate and control the use and enjoyment by others of the land and its resources, the right to have access to and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.
In areas seaward of the mean high watermark, the native title rights and interests include the right to access, move about, in and on and use and enjoy those areas, the right to hunt and gather including for dugong and turtle, 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.
The native title rights and interests in relation to the Lalariny and the Alarm Shoals are the right to care for, maintain and protect those areas but do not include the right to access, move about in or on or use those parts, the right to hunt or gather in those parts, the right to access, use or take any of the resources on those parts.
There are no exclusive native title rights or interests in waters which flow within any river, creek, stream or brook or waters from and including an underground water source. There are no native title rights to minerals, petroleum or gas.
The native title rights and interests must be exercised in accordance with the traditional laws and customs of the traditional owners and the laws of the States and the Commonwealth. If these native title rights and interests prevent the doing of any activity permitted by any other rights and interests, the other rights and interests prevail over the native title rights and interests, but do not extinguish them.