O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330

Pilbara

Registered with the National Native Title Tribunal on the Native Title Register on 5 April 2020. 

Between: Tammy O'Connor, Peter Jaffrey, Cheryl Mackay and Kevin Stream on behalf of the Palyku People (Applicant) and the State of Western Australia, the Shire of Ashburton, BHP Billiton Minerals Pty Ltd and others named in the Schedule (Respondents)

Judge: Reeves J

Determination

Native title exists in parts of the determination area

It consists of non-exclusive native title rights and interests. Refer to Schedule Three for areas where native title does not exist. 

Native title holders

Native title is held by the Palyku People. 

Exclusive native title rights and interests over the determination area

The Palyku People are not granted any right to possession, occupation, use, and enjoyment of the area, to the exclusion of all others.

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Schedules One and Two and include:

• the right to enter and remain on the land, erect temporary shelters, camp and travel over any part of the land and waters of the determination area;
• the right to hunt, fish, gather and take from the natural resources of the land;
• the right to use and take the water of the area; and
• the right to transmit cultural knowledge on the determination area, and engage in cultural activities, such as visiting places of cultural significance and maintaining and caring for the integrity of those placesThe right to be accompanied onto the determination area by non-native title holders, including spouses and children, or people entering in connection with traditional law and custom, or cultural ceremonies. 

Other rights and interests in the determination area include:

• rights and interests in relation to 24 separate reserve areas within the determination area, such as the right for travellers and stock to use the reserve as a resting place and collect water, the right to collect timber from several reserves and the right to use reserves as stock route or for pastoral research,
• the rights of the holders of 8 pastoral leases which fall within the determination area to exercise management of the pasture and vegetation resources, livestock and soils within their lease areas,
• the rights and interests arising under the compulsory acquisition of Lots 350, 351 and 352 for a special railway licence pursuant to the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (WA), 
• the rights and interests of persons having the care, control and management of roads within Lot 316,
• the rights and interests of the holders of mining tenements within the determination area, also including prospecting licences and exploration licences,
• the rights conferred under the FMG - Palyku Indigenous Land Use Agreement (Tribunal no.: WI2017/004),
• the rights and interests of Telstra Corporation as an owner or operator of telecommunications facilities within the determination area,
• rights and interests held by reason of the operation of the laws of the State of Western Australia or the Commonwealth,
• the rights and interests of the public which arise under the common law, such as the rights to fish and to navigate,
• the right of government employees to enter the determination area to perform statutory duties such as weed management and fire hazard control on areas of unallocated Crown land and Crown reserves,
• any other equitable or legal interests in the land within the determination area, such as rights under options and redemptions. 

See Schedule Four for further information about the non-native title rights and interests. 

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title. 

However, pursuant to s 24OA of the Native Title Act 1993 (Cth), the following mining leases under the Mining Act 1978 (WA) are invalid to the extent they conflict with the native title rights and interests described above:

• Tenement ID: M4600237
• Tenement ID: M4600238

The Palyku-Jartayi Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Palyku People.

Full text of the determination is available via the URL link above.

Background

The procedural history of the Palyku Application is somewhat complex. In June 1998 Douglas and Lindsay Yuline lodged the claim WAD 6250 with the National Native Title Tribunal (NNTT), over a small area of the Woodstock reserve, which falls within the determination area. In September 1998 this was followed by the claim WAD 6287, over the entirety of the traditional lands and waters of the Palyku People, including the area of the Woodstock reserve claimed within WAD 6250 [5]. On 31 March 1999, the by order of the Federal Court, these two claims were combined as WAD 6287, the Palyku Application. The Registrar entered this claim on the Register of Native Title Claims on 2 August 1999 [8]. 

The combined Palyku Application was referred to mediation on 7 September 2000. Mediation continued from this date before the NNTT until 3 August 2012. Following a period of intensive case management by a registrar of the Federal Court, in 2018 the combined Palyku Application was divided into Palyku Part A and Palyku Part B. This proceeding concerns Palyku Part A. Palyku Part B was subsequently combined with the Nyamal Proceeding (WAD 392), due to an overlap in the claimed area [12]. The area claimed within this proceeding is entirely separate to the area claimed within the Nyamal Palyku Application. 

The combined Palyku application, also referred to as Palyku Part A, was given the electronic court file reference WAD 23 in 2019. As required by s 87A(3) of the Native Title Act 1993 (Cth), notice was given by the registrar to all parties that the consent determination minute had been filed with the court. As a precaution, given that the applicant within the Nyamal proceeding had previously also been joined as a respondent party to the combined Palyku application, notice was also given to that applicant. No objections to the consent determination minute were received by the Federal Court. 

Details of Judgment

Justice Reeves identifies that a key purpose of the Native Title Act 1993 (Cth) (NTA), is "to provide for the recognition and protection of native title" (s 3(a)). In line with that object, Reeves J holds that the Palyku People's application for a determination of native title over their traditional lands in the eastern Pilbara region should be granted. The power of the court to make a consent determination of native title is founded upon the fulfilment of the requirements of s 87A of the NTA. Reeves J holds that these seven conditions have been validly fulfilled and therefore a determination of native title can be made.

Section 94A of the NTA further requires the court to detail the matters set out in s 225 of the NTA. Reeves J holds that for the purpose of s 225(a) concerning "who the persons, or each group of persons, holding the common or group rights comprising the native title are", a Palyku person is:

• an Aboriginal person who is the cognac descendent of, or adopted by a cognate descendent of, one or more of the 20 apical ancestors or ancestral couples referred to in the schedule; and
• identifies themselves, and is recognised by a substantial number of of the descendent of the apical ancestors, as, a Palyku person; and  
• has rights and interests in, and a connection with, the land and waters of the Palyku Part A Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Palyku People. [28]

Justice Reeves makes the final observation that the court's determination of native title does not serve to create native title within the determination area, but instead marks the Australian legal system's recognition of the Palyku People's pre-existing native title in the land [43]. 

Native title exists in part of the determination area. 

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