Sampi v State of Western Australia

REASONS FOR JUDGMENT ON LATE JOINDER OF PARTIES, SEPARATE DETERMINATION AND FINAL TEXT OF DETERMINATION Introduction 1 The Bardi and Jawi People of the Dampier Peninsula and the islands of the Buccaneer Archipelago lodged an application for a native title determination in respect of their traditional country in 1995. The application was lodged initially with the National Native Title Tribunal (the Tribunal) and then referred to the Court for determination. A first trial, held in 2001, was unable to be completed because of the illness of the trial judge. A second trial was held in 2003 and 2004. It took in, inter alia, evidence from the first trial. 2 For reasons published on 10 June 2005, Sampi v State of Western Australia [2005] FCA 777, I made a number of findings including the following: 1. Native title can be recognised over the traditional territory of the Bardi people, which territory comprises the Dampier Peninsula south to the vicinity of Barrambara at Pender Bay in the west and Cunningham Point to the east. 2. Native title rights and interests subsist in the intertidal zone and associated reefs and nearby reefs which are exposed and were referred to in evidence (not including the rock feature known as Lalariny). 3. Sections 47A and 47B of the Native Title Act 1993 (Cth) (the Act) extend to the intertidal zone and the applicants occupied that zone at the time they made their application. 4. The applicants comprise both Bardi and Jawi People who together form part of a contemporary Bardi society which has existed since sovereignty. 5. The evidence did not allow the inference 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 preserved by that society today. 6. The evidence did not allow identification of 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 members of such Jawi society as did exist in respect of the Islands north-east of the Dampier Peninsula had become part of Bardi society in the time that elapsed from sovereignty. 3 The form of determination foreshadowed in the reasons for judgment incorporated the following native title rights and interests: '(1) In relation to: (a) unallocated Crown land where there are no prior inconsistent grants; (b) unallocated Crown land where there were prior inconsistent grants to which s 47B applies; (c) Crown land subject to lease or reservation for Aboriginal people to which s 47A applies; the native title rights and interests of the Bardi/Jawi people are the rights of possession and occupation of the land as against the whole world including the following rights: (a) the right to live on the land; (b) the right to access, move about on and use the land; (c) the right to hunt and gather on the land; (d) the right to engage in spiritual and cultural activities on the land; (e) the right to access, use and take any of the resources of the land (including ochre) for food, shelter, medicine, fishing and trapping fish and weapons for hunting and otherwise for ceremonial, cultural and artistic purposes; (f) the right to refuse, regulate and control the use and enjoyment by others of the land and its resources; (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. (2) In relation to the intertidal zone together with reefs within and adjacent to that zone and offshore reefs otherwise exposed and traditionally used by the Bardi/Jawi people together with the waters in their immediate vicinity the native title rights and interests are: (a) the right to access, move about in and on and use and enjoy the zone , the reefs and the associated waters; (b) the right to hunt and gather including for dugong and turtle; (c) the right to access, use and take any of the resources thereof (including the water of the intertidal zone) for food, trapping fish, religious, spiritual, cultural, ceremonial and communal purposes.' The reasons for judgment also foreshadowed that extinguishing interests and the interests to which native title rights and interests are subject would have to be provided for in the draft determination in accordance with the requirements of s 225 of the Act. 4 The orders made on 10 June 2005 included the following: '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.' 5 The applicants filed submissions on 25 August 2005 seeking a further determination in relation to Sunday Island and other islands of the Buccaneer Archipelago on behalf of the Jawi people. 6 On 19 September 2005 a body called the 'Jawi Aboriginal Corporation' (the Corporation) filed a Notice of Intention to become a party to the proceedings. On the same day a notice seeking joinder of some 24 named persons as parties in the alternative to the Corporation was also filed. The proposed joinder of the Jawi Aboriginal Corporation and, alternatively, a number of Jawi people 7 The application of the Corporation to be joined as a party to these proceedings was supported by an affidavit sworn by its chairperson, Andrea Selina Nevill. 8 The Corporation was incorporated on 4 August 1992 under the Aboriginal Councils and Associations Act 1976 (Cth). Its original name was Nilagoon Aboriginal Corporation. That name was changed to Jawi Aboriginal Corporation on 31 May 2004. Its objects are set out in par 6(a) of its rules: 'To provide direct relief from poverty, sickness, suffering, destitution, misfortune, distress and helplessness among the Traditional Owners of Sunday Island, the Jawi People.' Paragraph 6(b) of the rules sets out a number of ways in which the Corporation would advance its objects. They include: '(i) to ascertain the wishes and opinions of the Traditional Owners in relation to the management, use and control of their lands and to seek where practicable to give effect to those wishes and opinions (ii) to acquire and hold title to land (or any other form of land tenure) on behalf of the Traditional owners … (vii) to help and encourage its members to keep and renew their Traditional Culture (viii) to establish a community with all necessary infrastructure (ix) to carry on, undertake, take part or engage in any transaction or act matter or thing of any kind whatsoever (whether hereinafter specifically mentioned or referred to or not) without any restriction to the nature or description thereof, which may seem to the Association to further the objects of the Association.' 9 The membership of the Corporation is defined in rule 9(1) as follows: 'All Traditional Owners of Sunday Island shall be eligible to be members of the Association.' The term 'Traditional Owner' is defined in rule 2 as: '… an Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibilities for, the land or any part of it;' The term 'the land' is not defined. 10 Rule 9(4) provides: 'Whether a person is or is not a member for the time being of the Association is a question of fact to be determined according to the customs of the Traditional owners.' A list of members of the Corporation as at 6 June 2005 was exhibited to Ms Nevill's affidavit. There are 36 names on that list. Twenty of those persons are among the 24 persons seeking to be joined in these proceedings. Many of them appear to be members of the Stumpagee family. 11 According to Ms Nevill the Corporation is primarily concerned with Sunday Island. A significant focus of its activities is directed to assisting persons who hold native title rights to Sunday Island with respect to the holding of that title. That focus, it was said, accords the Corporation a special interest in the result of these proceedings which will determine who, if anybody, comprises its membership and whether they have a title to the lands comprising Sunday Island. The Corporation has acquired an aquaculture licence in respect of a 777 hectare site on the southern fringe of Sunday Island. Under this licence it has the right to re-seed the reef adjacent to Sunday Island with giant clams, abalone and trochus. In order to do so it needs to construct accommodation for staff on Sunday Island as well as basic infrastructure for plant and machinery relating to the project. It also has plans to construct a living area on the island, accommodation for tourists and to restore the airstrip. 12 The Corporation has purchased a 20 person charter boat for $233,000 to enable it to provide transport and supplies to Sunday Island and otherwise to pursue tourism-based enterprises. It has invested considerable time and money in obtaining building plans and materials, including diesel generators for the proposed community. 13 Ms Nevill said that the Corporation's activities and plans are strongly supported by its members. It has encountered considerable difficulties in obtaining approval for the construction of any buildings on Sunday Island because of a lease of the Island issued to the Bardi Community Incorporated, now known as Ardyaloon Incorporated (Ardyaloon). Mr Michael Burns who was chairperson of the Corporation in October 2003 had meetings with the Department of Indigenous Affairs and Mr Carter of Ardyaloon with a view to negotiating the Corporation's acquisition of tenure on Sunday Island. However, according to Ms Nevill, Mr Carter demonstrated a lack of interest in the Corporation's proposals. Ardyaloon has never corresponded in writing with the Corporation in respect of its requests for land tenure. 14 It appears from an exchange of emails exhibited to Ms Nevill's affidavit that the Island constitutes a Crown Reserve 25106 which is subject to the Aboriginal Affairs Planning Authority Act 1972 (WA). The land is subject to a management order issued to the Aboriginal Lands Trust (the Trust) with a power to lease. It was leased by the Trust in 1986 for a term of 99 years to Ardyaloon. 15 Following the reasons for judgment published on 10 June 2005 members of the Corporation held a meeting at Lombadina Airport on 21 June 2005. Various members of the Stumpagee and Thomas families were at the meeting as well as Mr Sheiner a solicitor from Christensen Vaughan, the solicitors acting on behalf of the Corporation. According to minutes exhibited to Ms Nevill's affidavit the meeting passed resolutions withdrawing instructions to the Kimberley Land Council (the KLC) with respect to Native Title Application WAD 49 of 1998. Those present instructed Mr Sheiner to act in respect of these proceedings and in respect of the formation of any native title body corporate. According to the resolutions said to have been passed, he was also instructed to apply for financial assistance from the KLC in respect of the legal and other costs and expenses associated with providing that representation. The persons present who claimed that they had authority to make decisions for native title on Sunday Island, resolved that they wished to withdraw authorisation from the named applicants in WAD 49 of 1998. They instructed Mr Sheiner that the Jawi people saw the determination of native title separate to the determination made in favour of the Bardi and Jawi people in respect of Jawi country, including Sunday Island. 16 A further resolution stated that the persons present at the meeting were Jawi people with authority under their traditional laws and customs to speak for and on behalf of those Jawi people who have rights and interests in Sunday Island. 17 On 25 August 2005 four affidavits were filed. They were sworn by Khaki Stumpagee, Charles Coomerang, Roslyn Stumpagee and Valarie Wiggan respectively. Khaki Stumpagee and Charles Coomerang both said that neither had withdrawn instructions from the KLC to act for them in relation to the Bardi and Jawi native title application. They wanted the KLC to continue acting for them as members of the Bardi and Jawi native title group. They did not want to be joined as separate parties. They did not withdraw authorisation from the current applicants. Roslyn Stumpagee and Valerie Wiggan, who said that they had been at the Lombadina meeting, deposed to like effect. Both said that they had read the minutes of the meeting at Lombadina airport for the first time on 19 August 2005. They alleged that the minutes were not a true and accurate record of what happened at the meeting. 18 The Court is empowered under s 84(2) of the Act to '… join any person as a party to the proceedings, if the Court is satisfied that the person's interest may be affected by a determination in the proceedings'. 19 The submissions filed on behalf of the Corporation and purportedly on behalf of the 24 named persons sought their joinder as respondents in the alternative. The Corporation submitted that there are issues yet to be determined in these proceedings, namely: 1. Whether it is open to the Court to make a separate determination of native title 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. 2. In the event that such a determination of native title is made, what is the relationship between those native title rights and interests said to exist and non-native title rights in respect of Sunday Island including the purported lease held by Ardyaloon. 3. Whether such a native title as is determined to exist in relation to Sunday Island is to be held by a prescribed body corporate and if so, the identity of that body corporate. These, it was said, are all matters in which the Corporation has a direct interest. Its ability to pursue its objectives would be detrimentally affected by a determination that no native title exists on Sunday Island. Its ability to pursue those objectives on the other hand would be substantially enhanced by a determination of native title in favour of the Jawi people. 20 It does not appear from the material before the Court how, if at all, the absence of a native title determination would impact adversely upon the Corporation's plans. It may be noted that the Corporation's members who are 'Traditional Owners' are not necessarily coextensive with the putative native title holders (if any) on Sunday Island. In my opinion the Corporation has not made out any case for joinder. Such case as it has advanced could and should have been advanced long ago. As a matter of discretion I consider that it is now far too late for the Corporation to be seeking to be joined in these proceedings. Its joinder would only further delay the final resolution to little apparent effect. 21 The 24 named persons who, it is said, now seek to be joined in the alternative to the Corporation were said in submissions purportedly lodged on their behalf, to comprise Khaki Stumpagee and Charles Coomerang, together with descendants of Khaki Stumpagee. It was submitted that this group, designated 'the Jawi Group' wished to put an alternative proposition to that put on behalf of the applicants in final submission at the second trial. The applicants' submission was that there was a Bardi/Jawi group said to constitute the society whose traditional laws and customs gave rise to native title rights and interests. 22 The case which it was said the Jawi group wished to put is that their group has a case for a determination of native title of the kind similar to that made by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110. It was submitted that the evidence before the Court would be sufficient to establish that they had group rights comprising native title rights and interests in relation to Sunday Island possessed under traditional laws acknowledged, and traditional customs observed by a larger traditional block which comprised the relevant society. 23 In opposition to the proposed joinder, the State pointed out that the applicants in the proceedings comprises a group of 12 named individuals who brought the application on behalf of the Bardi and Jawi people. One of those 12 named individuals is Khaki Stumpagee, clearly the same person as Kharki Stumpagee referred to in the list of 24 persons who it is now sought to join as separate parties. 24 The State submitted that the composition of the applicants can only be changed in accordance with the provisions of the Act or by amendment of the application. A named applicant cannot be separately represented in the action. The State referred to the observation of Stone J in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 in which her Honour said that any attempt to have an applicant separately represented would (at [8]): '… reveal a fundamental misunderstanding of the role of applicants in native title determination applications. Such applicants are representative of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable.' 25 The Western Australian Fishing Industry Council (WAFIC) submitted that the purpose of the proposed joinder is clearly directed to making submissions amounting to a recall of the decision given on 10 June 2005. It pointed out that the case of those persons identified as 'Jawi' in the application was closed by counsel for the applicants when final submissions were made. 26 The applicants submitted that the proposed joinder of the 24 persons does not have their support. It is not uncontentious that each of the 24 persons have withdrawn their instructions from the applicants' legal representatives. No separate interest is established by the material relied upon to support the joinder of the 24 named persons as a separate party or parties. 27 Neither the evidence relied upon to support the joinder of the 24 persons nor the submissions made purportedly on their behalf, in my opinion makes out any credible case for their joinder as respondents at this stage of the proceedings. I accept the submissions made on behalf of the State, WAFIC and the applicants in opposition to the proposed joinder. I note the affidavits sworn by four of the persons said to be among the 24 seeking joinder which indicate that they do not seek separate representation. In any event, as a matter of discretion, it is far too late in the day to reopen and restructure these proceedings with a view, as WAFIC has pointed out, to securing an outcome different from that which has already been reached in the reasons for judgment published on 10 June 2005. Whether a further determination should be made 28 In the reasons for judgment published on 10 June 2005 I stated, at [1045], referring to Bardi and Jawi peoples: 'The two groups occupied for the most part different territories, one mainland, the other archipelagic. They were recognised by early ethnographers as having distinct territories. Although the Bardi people went to Sunday Island in post sovereignty times there was no real indication, in my opinion, of any historical perception of Sunday Island as part of the country of a single society. It was historical circumstance and in particular the arrival of the mission that had an important part to play in those movements.' In the reasons I then observed that the evidence did not allow the inferences that one society of Bardi and Jawi people had occupied the claim area (including the islands) at sovereignty and were united by a single set of traditional laws and customs acknowledged and observed by that society today. Nor was 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. The reasons then went on to refer to the subsuming within Bardi society of Jawi people through processes of intermarriage. The Bardi society contained rules of membership which allowed it to become and broadly be described today as a Bardi and Jawi society. The reasons continued (at [1046]): '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.' Paragraph 1047 then stated: '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. As WAFIC pointed out in its closing submissions, the evidence indicates that a number of islands which were once part of Jawi territory no longer have any people with any traditional connection to them. These are the Twin Islands, Jalan, High Island, Allora and the Poolngin Islands. There was no evidence of any person having a traditional connection to the East or West Roe Islands. Jimmy Ejai's evidence was to the effect that there used to be Jawi people for these islands who had died. 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.' In the result I was prepared to make a determination in favour of the native title claim group as defined in the amended application. That group included Jawi people who were found to form part of the contemporary Bardi society. The consequence of this reasoning for the area of land and waters covered by the determination appeared at [1082]: 'For the reasons already advanced, none of the islands forming part of the traditional Jawi territory, ie to the east of Hadley Passage, will be the subject of the determination…' 29 As to the islands to the south-west of Hadley Passage I concluded, at [1104], after reviewing the evidence: 'In my opinion the evidence does not allow me to infer that the islands to the immediate north of the mainland were Bardi country at the time of sovereignty. Indeed the degree of inconsistency in this respect suggest that they may well have been Jawi in earlier days. I will not include any of the islands to the north of the Dampier Peninsula in the determination.' 30 The orders made on 10 June 2005 included liberty to apply. Pursuant to subsequent programming directions the applicants made submissions in support of a further determination in relation to islands in the claim area which, as I held, were not shown to be part of traditional Bardi territory nor to have become part of that territory by some process of succession. The submissions were made on the basis that the possibility of a further determination was left open by the observations in [1047] of the judgment. 31 As is apparent from the observations in [1047] I was unable to discern at the time that the reasons were published any basis upon which a determination over the islands could be made in favour of surviving Jawi people who made up part of the native title claim group. No argument having been advanced on the hypothesis of the findings actually made about the existence of a traditional Bardi society incorporating the Jawi people, I allowed that there might be some possibility exposed upon further argument which would permit consideration of a further determination. In the alternative, the matter might be addressed by agreement. 32 It is clear that there is no agreement between the parties which might allow a further determination to be made. 33 The applicants have relied upon argument in support of a further determination. They referred to the recent decisions of the Full Court in De Rose and Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135. They cited from De Rose the statement at [38] that: 'If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests.' The applicants also observed that in Alyawarr the Full Court upheld a communal or claim group level claim by a community which did not include all individuals affiliated with the four language groups with which the seven landholding groups and their countries had affiliation. 34 The applicants submitted that, applied to a notional separate claim over such part of traditional Jawi territory as was included in their application, there could be no difficulty in principle with a claim by, or recognition in favour of, a community of people that does not include all individuals who identify as Jawi. 35 The applicants argued that their case did not preclude a finding that a 'distinct Jawi society' exists now and existed at sovereignty even as (at least part of) a 'society' in the sense identified by the majority of the High Court in Yorta Yorta v Victoria (2002) 214 CLR 422 at [49]. Alone such a group could not be, whether as a whole or in its Jawi and Mayala sub-groupings, an entire native title claim group and native title holding community. This followed from there being others who also hold interests in the relevant extended traditional Jawi territory through non patrifilial links. The others were primarily identified as 'Bardi' who had intermarried with people who primarily identify as Jawi and the descendants of people who are the products of such marriages, together with people recognised as part of the community by adoption. 36 The applicants submitted that whether the entire native title claim group involves and, at sovereignty involved, two societies or one, may not matter in the context of this case as they identified it because the closeness of the normative systems indicated an inherent capacity for cross-recognition. From a jurisprudential perspective this would allow the native title claim group to comprise an overlap of two 'societies' or, in the alternative, for two native title claim groups to substantially overlap in respect of a claim area. On the principle illustrated by Alyawarr it would not matter if a native title claim group involved 'one and a half' societies or one so long as it collectively included those who possessed rights and interests in the collective parts of the claim area under laws and customs the origins of which could be traced to a normative system at sovereignty. 37 Having reviewed the applicants' submissions and the findings at trial, I do not consider that there is any basis upon which a further determination could be made in respect of the islands to the north of the Dampier Peninsula. The evidence supported a finding that there is one and only one extant traditional society. That is the Bardi society. Its traditional country was found not to include the islands to the north and north-east of the Peninsula. There was no basis for a finding of a Jawi society 'overlapping' the Bardi society and retaining the requisite connection to the claimed islands. 38 In my opinion I can make no further determination in respect of the islands in the claim area or any of them. The application for a further determination is therefore dismissed. The competing draft determinations 39 The applicants have proposed a draft determination to give effect to the reasons for judgment delivered on 10 June 2005. The State, the Commonwealth, WAFIC and Telstra have proposed some variations to that draft. The parties have filed written submissions in support of their respective drafts. 40 It is convenient to consider each point of difference in the draft. Marked up copies showing the differences with colour coded underlinings and deletions were filed by both the State and the Commonwealth. 41 My conclusions in respect of the draft and the various points of difference in relation to it follow. The Determination Area - paragraphs 1 and 2 and Schedule 1 42 Paragraph 11 of the draft determination defines the term 'Determination Area' as 'the land and waters described in Schedule 1 and excluding those areas described in Schedule 2'. It further states that in the event of an inconsistency between the written descriptions in Schedules 1 and 2 and the areas depicted in the maps in Schedule 8, the written descriptions shall prevail. 43 Paragraph 1 of the draft determination states that native title rights and interests exist in relation to those parts of the determination described in Schedules 3 and 4. Paragraph 2 says that native title does not exist in relation to those parts of the Determination Area described in Schedule 5. 44 There is no difference between the parties in the formulation of paragraphs 1 and 2. Nor is there any difference in the description of the Determination Area set out in Schedule 1. The Determination Area - Schedule 2 45 Schedule 2 sets out exclusions from the Determination Area. It contains a list of reserves, the Leveque radio site, areas comprised in Special Leases, various gazetted roads and somewhat awkwardly, 'minerals, petroleum and gas wholly owned by the Crown'. The awkwardness arises from the fact that these terms define classes of substances rather than areas. However the formulation is not in issue and can no doubt be taken as referring to deposits or bodies of those things wherever found in the Determination Area. 46 The point of difference arises in the opening words to the list of things not covered as set out in Schedule 2. The applicants propose: 'The following are not included in the Determination Area because they were not covered by the application:' The Commonwealth proposes: 'The following are not included in the Determination Area because native title has been extinguished:' 47 The State saw no point in stating the reason for these exclusions. The Commonwealth argued that the words it proposed reflect the finding in [5] of the reasons for judgment that the determination extends to the Peninsula less parts excluded because of extinguishment by the grant of other interests. The areas covered by particular grants were excluded from the application as a result of evidence led at trial. The applicants pointed to the absence of any equivalent qualification in the determination made by Sundberg J in Neowarra v Western Australia [2004] FCA 1092 and the consent determination made by Black CJ in Mervyn and Others on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831. 48 In my opinion Schedule 2 simply completes, by selective exclusion, the definition of the Determination Area commenced in Schedule 1. It is sufficient to open Schedule 2 with the words: 'The following are not included in the Determination Area …'. The Determination Area - Schedule 3 - the limits of the landward portion of the area 49 Schedule 3 defines the parts of the Determination Area in which native title rights and interests include a right of exclusive possession. The point of difference between the parties concerns the description of the landward side of the intertidal zone around the Peninsula. 50 The second paragraph of the applicants' draft Schedule 3 reads thus: 'Commencing at the point of intersection between the southern boundary and the high water mark on the western side of the Dampier Peninsula and proceeding generally northerly, generally north-easterly generally south-easterly and generally southerly around the Dampier Peninsula following the high water mark to the point of intersection between the high watermark and the southern boundary on the eastern side of the Dampier Peninsula, then generally westerly by the southern boundary to the point of commencement.' (emphasis added) 51 The Commonwealth proposed that in lieu of the words 'high water mark' the words 'highest astronomical tide' should be used. It contended that at law 'high water mark' means the line of the medium high tide between the highest tides of the month (spring) and the lowest (neaps) - see Yarmirr v Northern Territory (1998) 156 ALR 370 at 384 [29] (Olney J) and the authorities there footnoted. The Commonwealth submitted that tidal waters will from time to time extend landward of that line. The term 'highest astronomical tide' is defined in the Australian Hydrographic Services Tidal Glossary to mean: 'The highest level of water which can be predicted to occur under any combination of astronomical conditions.' The Commonwealth submitted that the use of the highest astronomical tide to define the landward extent of the intertidal zone accords with the applicants' adoption of the lowest astronomical tide for the purposes of defining the seaward extent of the intertidal zone. The term 'lowest astronomical tide' is used in the third paragraph of the applicants' draft of Schedule 3. 52 In a related submission the State contended that the following words should be added at the end of Schedule 3: 'Any tidal waters landward of the highest astronomical tide are excluded from those parts of the determination area described in this schedule.' 53 The applicants said they would not oppose the use of the term 'mean high water mark' to delimit the seaward extent of their exclusive rights. They submitted that it is that line that relevantly determines the extent of the public rights to fish and to navigate and so demarcates the seaward area in which a native title right conferring a right to control access cannot be recognised. The applicants pointed out the term 'mean high water mark' was used in two consent determinations to which the Commonwealth was a party in Nangkiriny v Western Australia [2002] FCA 660 and [2004] FCA 1156. 54 The term 'lowest astronomical tide' is used by the applicants in the definition of 'southern boundary' relevant to both Schedules 3 and 4. It is used temporally, rather than spatially, to define the time (or range of times) at which the 2 metre bathometric contour is to be measured. Its use therefore differs from the use to which the words 'high water mark' are applied in the second paragraph of the Schedule. 55 In my opinion it is preferable that the well understood 'mean high water mark' be used where the term 'high water mark' presently appears in the second paragraph in Schedule 3. I should add I see no point in adopting the State's cautionary addition to Schedule 3. The Determination Area - Schedule 4 - offshore areas 56 Schedule 4 defines the tidal and offshore areas where the native title does not extend to exclusive possession. This covers the area described in the reasons for judgment as: 'The intertidal zone together with reefs within and adjacent to that zone and offshore reefs otherwise exposed and traditionally used by the Bardi/Jawi people together with the waters in their immediate vicinity.' 57 In the reasons for judgment dealing with the offshore areas I said (at [1108-1110]): '1108. In my opinion, the evidence as to use of the open sea beyond the intertidal zone was limited to use. It did not establish definable rights under traditional law and custom in relation to that use. In any event given that the applicants eschew any right to commercial fishing and given that any rights of use of the open sea could only be non-exclusive, the claimed right is somewhat tenuous. I am satisfied that Bardi country extends to the intertidal zone and associated reefs. It extends to exposed reefs identified by witnesses from the shoreline in the course of their evidence. It necessarily covers the waters in and around those features. 1109. I accept that there was evidence of the use of the rafts by Bardi People but the evidence of access to the sea on the western side of the claim area was scant. The evidence could support, in my opinion, more extensive use of waters to the north of the mainland in the region of the islands and knowledge of tidal currents. However given my findings about the position of the islands, I am not satisfied that the evidence is sufficient to support even there a finding of Bardi native title rights and interests in the waters beyond the low water mark and exposed reefs. 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.' 58 The applicants' draft definition of the tidal and offshore waters set out in Schedule 4 would fix the seaward boundary at the two metre bathometric contour at lowest astronomical tide and the landward boundary at mean high water mark. 59 The Commonwealth proposed an alternative, which the State supported, in the following terms: 'The parts of the Determination Area where native title comprises the rights and interests set out in Order 5 are: Land Portion (a) the land of the mainland coast between the highest and lowest astronomical tides including any reefs within that area which are exposed at lowest astronomical tide ("the intertidal zone"); (b) those reefs (excluding the feature known as Lalariny) which are: (i) seaward of the intertidal zone but landward of the 2 metre bathometric contour at lowest astronomical tide; and (ii) exposed at lowest astronomical tide ("the offshore reefs"); and Sea Portion (c) the waters of the sea which are, at any time, landward of a depth of 2 metres ("the offshore waters"). The area comprising the intertidal zone, the offshore reefs and the furthest seaward extent of the offshore waters is generally shown on map [X] in Schedule 8.' 60 The Commonwealth submitted that, prima facie, the intertidal zone comprises the area between the mean high and low water marks respectively. However, in light of the factual basis of the finding of native title in the intertidal zone the Commonwealth does not object to the adoption of the line of lowest astronomical tide as the relevant seaward boundary for the purposes of a determination. 61 In determining how to define areas seaward of the intertidal zone thus defined the Commonwealth said that it would be appropriate to adopt the line of the two metre bathometric contour as depicted on the Australian Nautical Charts as the seaward extent of the area the subject of native title rights. It was submitted that a depth of two metres is a generous interpretation of what constitutes those shallows which were and are traditionally accessed. It is a convenient boundary because it has been mapped and because waters to that depth include all those offshore reefs and waters referred to in the reasons for judgment. 62 The Commonwealth pointed out that, given the tidal range of 6 to 8 metres as found at [813] of the reasons for judgment, the Determination Area would, if the applicants' position were accepted, include waters of the sea to a depth of 10 metres on the high tide and perhaps more on extreme tides. In the Commonwealth's submission, this is contrary to the finding that the evidence was insufficient to support the existence of a native title right to access waters of the sea by water craft. The Commonwealth further submitted that a depth of 10 metres arguably puts those waters in the category of open sea where no rights under traditional law and custom were established. It was on this basis that it argued that the applicants' fixed boundary proposal ought to be rejected. The area of the sea the subject of a determination that native title exists ought to be limited to the shallows whether the tide is in or out. The Commonwealth contended that there is no difficulty in principle with a fluid seaward boundary. It referred to the determination made by Olney J in Yarmirr. There it was said the application and, in the event, the determination extended to waters which covered the intertidal zone but not the land beneath those waters. The area the subject of native title thus ebbed and flowed with the tide. 63 The applicants argued that it did not follow from the reasons for judgment that water craft were not, or could not, be used in connection with the exercise of native title rights. The whole of the intertidal zone is uncovered from time to time and thus traversable without water craft and at those times the 'shallows' beyond the intertidal zone are also traversable without such craft. 64 The applicants pointed to the distinction between the 'land' portion and 'sea' portion in the Commonwealth's proposed Schedule 4. This does nothing other than to indicate an area between its preferred high water mark and a line seaward of the lowest astronomical tide drawn along the contour where the water would be 2 metres deep at the lowest astronomical tide. Apart from a preference for a different high water mark this does not differ from the area described in Schedule 4 of the applicants' draft. 65 It was submitted by the applicants that the notion of a fluid seaward boundary is contrary to the evidence, not supported by the findings made by the Court and without precedent or logic. No evidence suggested that traditional rights and interests only exist when they can be exercised. The applicants argued that to accept such a notion is to accept a notion akin to that of extinguishment by operation of inconsistency and the idea that native title does not exist over an area from time to time when it is not being exercised. It was submitted that it is well accepted that native title may continue to exist where it is not exercised for a considerable period of time and even where it cannot be so exercised. I could not follow the argument about operational inconsistency. 66 The passage from the judgment of Olney J, it was said, does not support the contention relied upon. Yarmirr was decided when the definition of 'waters' in the Act was different in the critical respect that it was then not clear whether the intertidal zone or parts of it comprised 'land' or 'waters'. Olney J was not considering any principle about a fluid seaward boundary. I accept that the decision in Yarmirr is of little assistance in deciding whether the Court can determine a fluid seaward boundary. 67 Section 225 of the Act specifies the content of a determination of native title. It requires a determination 'whether or not native title exists in relation to a particular area of land and waters'. The concept of a fluid seaward boundary is not necessarily incompatible with that requirement but does sit a little awkwardly with it. It does not necessarily involve the implication of some kind of intermittent extinguishment of native title rights and interests. The native title rights and interests defined in an area limited by a fluid seaward boundary as proposed by the Commonwealth could be qualified as defined by reference to the accessibility of the relevant reefs and shallows which will vary according to the tides. This, of course, would not preclude the use of boats to access those areas. But that use does not equate to a native title right or interest. On the other hand the fixed seaward boundary defines a more stable area in which non-exclusive native title rights exist. 68 Beyond the traditional intertidal zone defined by reference to mean high and low water marks, the native title rights and interests as found in the judgment, relate to such reefs as may be exposed at low tide. They also relate to 'waters in the immediate vicinity'. In my opinion the difficulty raised by the Commonwealth can be addressed by an appropriate qualification in the definition of the native title rights and interests for offshore waters beyond the traditional intertidal zone. This can be achieved by a proviso to the effect that non-exclusive native title rights and interests are exercisable, seaward of the mean low water mark, on any reef exposed at low tide only when that reef is exposed or covered by water to a depth not more than 2 metres. I will so determine by way of a proviso to be added to par 5 of the determination in the following terms: 'Provided that, in respect of areas within that defined in Schedule 4, which are seaward of the mean low water mark the preceding native title rights and interests are limited to reefs within that area when they are exposed or covered by not more than 2 metres of water.' 69 I will also vary Schedule 4 to substitute for the words 'high water mark' the words 'mean high water mark' for consistency with Schedule 3. The Determination Area - Schedule 5 - where native title does not exist 70 This Schedule is not contentious. It simply states: 'The parts of the Determination Area where native title does not exist are the lands and waters of the Determination area other than those described in Schedules 3 and 4.' The native title holders - paragraph 3 and Schedule 6 71 The applicants propose, in paragraph 3 of the draft determination that: 'The native title is held by the Bardi and Jawi people being the persons described in Schedule 6 (native title holders).' The State and the Commonwealth would delete the words 'and Jawi' as contrary to the findings made in the judgment. This is a rather unnecessary piece of semantics which tends to denigrate the Jawi heritage of the Jawi who form part of Bardi society. 72 In the reasons for judgment at [1049] I said: '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.' Having regard to that observation the generic designation 'Bardi and Jawi people' used in paragraph 3 can stand. In any event it is defined by reference to the persons described in Schedule 6. There can be no confusion about the identity of the native title holders because the term 'Bardi and Jawi people' is used. 73 The definition of 'native title holders' in Schedule 6 is not in contention. The nature and extent of the native title rights and interests - paragraph 4 74 The applicants propose, in the opening words of paragraph 4, 'the right of possession, occupation, use and enjoyment' in relation to the parts of the Determination Area where there has been no extinguishment. 75 In the reasons for judgment at [1072] I 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. 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.' I adhere to those views. The words 'use and enjoyment' will not be included in paragraph 4 of the determination. The applicants also contend for the inclusion in paragraph 4, in relation to the exclusive possession area, of: '(a) The right to live on the land and waters.' The right to live on the land was found, at [1073] of the judgment, to be a right supported by the evidence. The applicants' proposal extends beyond that right. There is no factual basis disclosed for the existence of a right to 'live on waters', whatever that means. In my opinion the right set out in paragraph 4(a) of the proposed draft determination should be limited to 'the right to live on the land'. The inclusion of 'and waters' in 4(b) to (e) is not contested. 76 In paragraph 4(e) of the applicants' draft determination, the following native title rights are expressed: 'the right to access, use and take any of the resources of the land and waters (including ochre) for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes;' 77 The State proposes the following alternative formulation: '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 formulation adopted by the State reflects that set out at [1073] of the reasons for judgment. The State submits that its formulation is intended to ensure that the terms of the determination conform as closely as possible to the terms of the reasons for judgment. 78 It is difficult to envisage uses of the resources of the claim area incorporated in the applicants' formulation which would not be incorporated in the formulation reflected in the reasons for judgment. The applicants' written submissions advance no particular justification for their variation. In my opinion paragraph 4(e) should stand as proposed by the State, which reflects the terms of the judgment. 79 In paragraph 4(f) the applicants' formulation is as follows: 'the right to refuse, regulate and control the use and enjoyment by others of the land and waters and its resources.' The Commonwealth proposes the deletion of 'and waters'. This is to import consistency with the accepted limitation in paragraph 7 of the draft determination in which the applicants acknowledge that there are no exclusive rights in relation to flowing, naturally impounded and subterranean water. The Commonwealth proposes a more elaborate statement of paragraph 7 to accord with other determinations which have been made. 80 In the reasons for judgment at [1073] the relevant rights were expressed thus: '. 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 my opinion the rights as formulated in the reasons for judgment are compatible with the negation of exclusive rights in relation to waters on the land which appears in the proposed paragraph 7. I therefore propose to make a determination in which the last two rights as formulated in [1073] will stand in lieu of the proposed paragraph 4(f). Offshore native title rights - paragraph 5 81 The applicants propose that paragraph 5 of the determination read as follows: 'Subject to paragraphs 6 and 7, the nature and extent of the native title rights and interests held in relation to each part of the Determination Area referred to in Schedule 4 [being certain intertidal areas and adjacent and offshore reefs together with the waters in their immediate vicinity] are: (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; (c) the right to access, use and take any of the resources thereof (including water and ochre) for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.' 82 The State would add to par (a) the words 'the reefs and associated waters'. WAFIC would add to par (c) the qualification 'non-commercial' before the words 'communal purposes'. 83 The State submits that its proposed formulation accords with what appears in the reasons for judgment at [10] (2) where it was said: 'In relation to the intertidal zone together with reefs within and adjacent to that zone and offshore reefs otherwise exposed and traditionally used by the Bardi/Jawi people together with the waters in their immediate vicinity the native title rights and interests are: (a) the right to access, move about in and on and use and enjoy the zone, the reefs and the associated waters; (b) the right to hunt and gather including for dugong and turtle; (c) the right to access, use and take any of the resources thereof (including the water of the intertidal zone) for food, trapping fish, religious, spiritual, cultural, ceremonial and communal purposes.' 84 In my opinion the rights as expressed in par 5 should accord with those set out in the judgment. The qualification 'non-commercial' in my opinion adds nothing and is a source of possible confusion. I will include in par 5 the proviso foreshadowed in the discussion of Schedule 4. Limitations on native title rights and interests - paragraph 6 85 Paragraph 6 of the applicants' draft determination reads: 'The native title rights and interests are exercisable in accordance with and subject to the: (a) traditional laws and customs of the native title holders; and (b) laws of the State and the Commonwealth including the common law.' 86 WAFIC proposes an elaboration of par 6 to read as follows: 'The native title rights and interests are exercisable: (a) in accordance with and subject to the: (i) traditional laws and customs of the native title holders; (ii) laws of the State and the Commonwealth including the common law; and (b) for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).' The Commonwealth agrees with the amendment proposed by WAFIC save that it says that it should read: 'for non-commercial purposes of a personal, domestic or communal kind (including social, cultural, religious, spiritual and ceremonial purposes).' 87 In support of its proposed alternative draft, WAFIC points to the reasons for judgment at [1122] which record that the applicants did not press for commercial rights to fish. It was equally true that they did not press for commercial rights in any respect. WAFIC submitted that the determination should reflect that fact and that par 6, according to its proposal, would reflect the manner in which the case was put. It was submitted that a determination of native title should be clear on its face without having to have had reference to the reasons for decision underlying it. 88 WAFIC referred to the determination made by Nicholson J in Daniel v Western Australia [2005] FCA 536 which provided, inter alia (at [4]): 'The native title rights and interests: … (b) are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).' 89 The applicants submitted that the purposive limitations proposed by WAFIC and the Commonwealth were sought without reference to the evidence or any previous submissions and without seeking justification in the reasons of the Court. They pointed out that WAFIC did not explain in its submissions what further limitation 'non-commercial' would add in the context of the qualifier 'for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes' that appear in par 5(c) of the applicants' draft. 90 In my opinion the applicants' submission is correct. Given that commercial fishing rights are subject to legislative control and that the native title rights and interests are to be exercisable in accordance with the laws of the State and the Commonwealth, it is difficult to see how the determination as proposed by the applicants would extend to commercial fishing rights. 91 The purposive limitations which it is sought to introduce in par 6(b) of the draft determination are adequately reflected, to the extent necessary, in the definition of the native title rights and interests themselves. I accept the applicants' draft proposal for par 6. Limitations on the exercise of native title rights with respect to waters - paragraph 7 92 The applicants' proposed draft of par 7 would read: 'There are no exclusive rights in relation to flowing, naturally impounded and subterranean water.' 93 The Commonwealth proposed, by way of alternative: 'Notwithstanding anything in this determination there are no exclusive native title rights or interests in: (a) waters which flow, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; (b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and (c) waters from and including an underground water source, including water that percolates from the ground.' In support of its contention, the Commonwealth said that it agreed with the substance of the paragraph as formulated by the applicants but for the sake of consistency with other determinations in Western Australia, submitted its alternative formulation. The other determinations mentioned were Nangkiriny; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208; Nangkiriny v State of Western Australia [2004] FCA 1156; and Mervyn . 94 The applicants said that the Commonwealth having failed to make any submissions at trial concerning the matters to which its proposed par 7 is directed, relied only on the criterion of 'consistency' with other determinations made by consent in other matters. The applicants opposed the Commonwealth's proposed par 7. They submitted that no respondent raised any issue or made any submissions at trial that would warrant findings in terms of par 7 as proposed by the respondents' draft. Had they done so, the issue would have been contested at the appropriate time. They submitted it is too late to raise it now. 95 In my opinion however, the Commonwealth's proposed draft expresses with greater precision what the applicants are seeking to cover in par 7. It does not seem to me that the Commonwealth's alternative unfairly extends what the applicants proposed. It gives it greater clarity. I will therefore make a determination incorporating par 7 in terms of the Commonwealth draft. Other rights and interests - paragraph 8 and Schedule 7 96 Paragraph 8 of the draft determination is not in contention. Schedule 7 sets out the nature and extent of other interests in the parts of the Determination Area described in Schedules 3 and 4. 97 There is a spelling error in the heading to par 3 of the said Schedule, which is corrected. 98 Paragraph 4 of Schedule 7 deals with pearl oyster farm leases. The applicants propose that it begin: 'The rights and interests of the holders of Pearl Oyster Farm Leases granted under the Pearling Act 1990 (WA), including …' They then set out the names of the relevant leases, their holders and the dates upon which they were granted. 99 WAFIC proposed the addition, after the word 'including', of the following words: '(to the extent that they are wholly or partly within either of the area described in Schedule 3 or the area described in Schedule 4):' The reasons advanced for this addition were that the definition of the area in which native title rights and interests exist includes part of the leases issued to BR and LM Brown and part of the leases issued to Blue Seas Pearling Company. It was not however clear whether they also comprised part of the lease to Dampier Pearling Company Pty Ltd because at the date of WAIFC's submissions it was not wholly clear: (a) whether that contour was to be placed with reference to the lowest astronomical tide or by reference to the low water mark; and (b) where the 2 metre bathometric contour was to be placed regardless of (a). WAFIC's proposed chapeau was designed to avoid an implication that the native title rights and interests necessarily extend to all or any part of (particularly) the Pender Bay lease. 100 WAFIC's fears seem a little inflated. However, I have no difficulty with the addition of the proposed text in parenthesis. WAFIC also proposes a change to the date of the lease granted to the Dampier Pearling Company Pty Ltd, which change is not contentious. The date of grant shown, namely 6 August 2004, reflects a transfer of a pearling lease from SG and DJ Arrow to the Dampier Pearling Company Pty Ltd on that date. 101 Paragraph 5 of Schedule 7 relates to Telstra's interests. Telstra has made some amendments to the applicants' draft in that respect which were accepted by the applicants and which appear to be appropriate. 102 Paragraph 6 deals with other rights and interests. The State sought the inclusion of 'rights or interests held by reason of the force and operation of … and the Aboriginal Communities Act 1979 (WA)'. In support of that inclusion it submitted that there are by-laws made under the Act which regulate Aboriginal communities within the Determination Area. The applicants complained that in the absence of any information from the State about the by-laws it was not possible to deal substantively with the proposed inclusion of a reference to the Aboriginal Communities Act. They submitted that the issue was not raised at trial, that no evidence was led and that no submissions were made by the State. If any rights or interests under such by-laws existed as at the date of the determination they would be covered by the introductory words of the subparagraph which refers to 'rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including …'. 103 The State filed a supplementary submission on this point. It referred to s 4 of the Aboriginal Communities Act which identifies communities to which the Act applies. They include the Lombadina, Djarindjin and One Arm Point communities. Section 7 of that Act vests by-law making powers in the Councils of Communities to which the Act applies. The State argued that, to the extent that the authority to make and enforce by-laws is another interest existing in relation to the Determination Area, it would be good practice for the Court to list this in Schedule 7 of its determination of one of the other rights and interests in relation to the Determination Area. 104 In my opinion, although, as the applicants point out, the generality of par 6(b) would cover rights and interests under the Aboriginal Communities Act without its express inclusion, it is convenient to include it given its particular application to the Determination Area. 105 In subpars (d) and (e) of par 6 of Schedule 7 the applicants proposed the following: '(d) the rights of members of the public under the following (i) the public right to fish in tidal waters; (ii) the public right to navigate over tidal waters; and (e) the rights under the international right of innocent passage;' 106 The Commonwealth proposed the following by way of alternative: '(d) the rights and interests of members of the public arising under the common law including the following (i) the public right to fish in tidal waters; (ii) the public right to navigate in tidal waters; and (e) the rights and interests of foreign nationals arising under international law including the right of innocent passage;' 107 The Commonwealth submitted that while certainty of rights and interests the subject of a determination is desirable, it is not possible to be definitive about the extent of 'other interests' which currently exist at common law or under international law. For this reason, it submitted, that the subpars (d) and (e) should be amended as proposed. 108 The applicants describe this as an uncertain and open-ended description which was unable to point to any such rights other than the particular rights identified. The Commonwealth did not suggest the existence of any other such rights at trial and had not previously made any submissions that would suggest any necessity for the word 'including'. Nor, according to the applicants' submission, was it made clear in the Commonwealth's submission why the international right of innocent passage was properly described as a right of 'foreign nationals'. 109 In my opinion the Commonwealth proposals do introduce areas of uncertainty into this aspect of the determination and should not be accepted. 110 The State proposes the addition of a subpar 6(g) to read: 'the right of any person to use (subject to the laws of the State, in particular the Aboriginal Affairs Planning Authority Act 1972 (WA) and Regulations) any road in the Determination Area over which, as at the date of the Determination, the public has a right of way according to the common law.' The State submitted that its reason for this inclusion was 'self evident'. The applicants did not agree. They submitted that this inclusion would have attracted rigorous opposition and could have been the subject of rebuttal evidence had it been raised as an issue at trial. Six roads are listed in Schedule 2 by agreement of the parties. No other road was the subject of a contention that it is a public road. No evidence was led suggesting the existence of other roads and no submission was made at trial that would suggest a need for the inclusion of the proposed subparagraph. 111 The applicants submitted that the significance of the inclusion of such a clause ought not to be underestimated. Its inclusion would impose on the native title holders the onus, costs and inconvenience of proving a negative in order to sustain any attempt to 'refuse, regulate and control the use and enjoyment by others of the land and waters' in exercise of their native title right to do so. In that practical way the proposed subparagraph might render the most valuable of the determined rights practically unenforceable. They oppose the inclusion of the proposed subparagraph. 112 I note that the term 'road' used in the State's proposed subpar 6(g) is not defined and would not appear to be limited to gazetted roads. I consider that there is force in the applicants' objection that this very broadly stated right, not debated at trial, erodes the right to regulate access to those parts of the Determination Area in which exclusive rights prevail. 113 This is not to be determined by some generic statement. It requires precise identification of the 'roads' in respect of which it is said there is a common law right of way. In my opinion it is not open to the State to introduce that qualification now. I therefore reject the State's proposed subpar 6(g). Schedule 8 - the maps 114 The maps referred to in Schedules 1, 2, 3, 4, 5 and 7 are to be incorporated in Schedule 8. These are maps which identify the Determination Area, the areas where the different kinds of native title rights and interests exist, areas where native title does not exist and areas covered by 'other interests'. These will have to be provided prior to the making of the final determination. Schedule 9 - areas to which s 47A and s 47B apply 115 The areas identified in Schedule 9 are not contentious. Conclusion 116 I will make a determination of native title in accordance with the preceding reasons. The determination will be made on country in accordance with the wishes of the applicants. I will allow the parties a short time in which to make any further submission relating to any technical or drafting issues which arise from the terms of the determination which I propose to make. That is not an invitation to canvass these reasons. It will be necessary to complete some location references left blank in the draft determination and to prepare the maps to be included in Schedule 8. Orders in relation to a prescribed body corporate must also be proposed to give effect to Order 3 of the orders made on 10 June 2005. A copy of the determination which I propose to make in accordance with these reasons is attached as Annexure A to them. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.