O'Connor on behalf of the Palyku People v State of Western Australia (No 2) [2021] FCA 195

Pilbara Region

Registered with the National Native Title Tribunal on the Native Title Register.

Between:

WAD 23 of 2019: Tammy O'Connor, Peter Jaffrey, Cheryl Mackay and Kevin Stream on behalf of the Palyku People (Palyku #1) (Applicant) and State of Western Australia  and others named in Schedule (Respondents)

WAD 483 of 2018: Kevin Stream, Tammy O'Connor, Peter Jaffrey, Cheryle Mackay and Walter Stream on behalf of the Palyku People (Palyku #2) (Applicant) and State of Western Australia and others named in Schedule (Respondents)

Judge: Jackson J

Determination

Native title exists in parts of the determination area 

It consists of non-exclusive native title rights and interests.

Native title holders

The Palyku People, who: 

• are the cognatic descendants of, or culturally adopted by cognatic descendants of one or more of the apical ancestors listed in Paragraph 3 of Schedule Six; and 
• identify themselves and are recognised by a substantial number of the above descendants as a Palyku Person; and 
• have rights and interests in and a connection with the land and waters of the determination area, in accordance with the traditional laws and customs of the Palyku People. 

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

These rights exist over the area described in Schedule One and include the right to:

• enter, remain on, camp on, erect temporary shelters on and travel over or visit any part of the land and waters of the determination area; 
• hunt, fish, gather, take and the traditional resources of the land;
• take and use water; 
• engage in cultural activities and the transmission of cultural knowledge on the determination area, including visiting places of cultural or spiritual importance and maintaining and caring for and protecting those places by carrying out activities to preserve their physical and spiritual integrity and conducting ceremonies and rituals including burial and burial rites; 
• be accompanied on to the determination area by those people who though not Palyku People are spouses parents and children of the Palyku People or people entering in connection with and subject to traditional law and custom for the performance of ceremonies or cultural activities. 

Other rights and interests in the determination area include:

• six reserves, for the purposes of water (including the Cadjiput Spring Well), timber, preservation of Aboriginal cultural materials and historic buildings and grazing (Woodstock) and mining; 
• the following pastoral leases: Bonney Downs, Hillside and Panorama; 
• mining tenements: twenty-three exploration licenses under the Mining Act 1978 (WA), eighteen mining leases, three miscellaneous licenses and twenty-nine prospecting licenses; 
• the Woodstock protected area declared pursuant to s 19 of the Aboriginal Heritage Act 1972 (WA); 
• rights and interests including licenses and permits, granted by the Crown;
• rights and interests held by reason of the force and operations of the laws of the State or Commonwealth, including but not limited to the Rights in Water and Irrigation Act 1914 (WA); 
• rights and interests of members of the public arising under common law, including the right to fish, navigate, and to use and enjoy the roads in the determination area over which members of the public have right of access under the common law at the time of this determination 
• the right to access the determination area by an employee, agent or instrumentality of the state, commonwealth or local government authority; 
• pursuant to s 212(2) of the Native Title Act  and s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of waterways, their beds, banks and foreshores, coastal waters, beaches, stock routes and areas that were public places at the end of 1993 in the determination area; and 
• any other legal or equitable estate or interest in the land or waters of the determination area or right, charge, power or privilege over or in connection with the land and waters of the determination area or an estate or interest in the land or waters of the determination area or restriction of the use of the land or waters of the determination area, whether or not annexed to other land or waters. 

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

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 Palyku People made two applications for native title in 1998. One was over a small area of a reserve, while the other was over a broader area covering the land and waters of what became Palyku #1. In 1999, the court ordered that these two applications be combined into Palyku #1. 

This Palyku #2 determination relates to a proposed determination under s 87A of the Act for further parts of those lands and waters. This determination was sought in two proceedings in the Federal Court of Australia: WAD 23 of 2019 (O'Connor v State of Western Australia) (Palyku #1) and WAD 483 of 2018 (Stream v State of Western Australia) (Palyku #2). 

In 2018, the Palyku People made the Palyku #2 claim for an area adjacent to that of Palyku #1. With the exception of two sections of land, most of Palyku #2 overlaps with applications made by the Nyamal people. 

However, in 2018 the court made an order for separate questions in relation to Palyku #1, which effectively divided the application area into two parts.  Part B is now the subject of a separate proceeding, the Nyamal Palyku Proceeding.

In 2019, Part A was the subject of a consent determination under s 87A of the Act: O'Connor on behalf of the Palyku People v State of Western Australia, where the court determined that the persons described therein held native title in relation to Part A. Those persons are identical to those who now hold native title pursuant to this determination. After the 2019 determination, Palyku #1 no longer includes Part A, instead only concerning Part B, under s 64(1B) of the Act. 

In 2019, the court made a determination by consent of the parties relating to part of the land and waters covered by the applications Palyku #1 and #2. 

This Palyku #2 determination relates to a proposed determination by consent of the parties under s 87A of the Act for further parts of those lands and waters under Palyku #1. This determination was sought in two proceedings in the Federal Court of Australia, (O'Connor v State of Western Australia) (Palyku #1) (WAD 23 of 2019) and Stream v State of Western Australia (Palyku #2)  (WAD 483 of 2018).

This determination relates to three separate areas totalling approximately 825 square kilometres. 

Details of Judgment

The key issue addressed by Justice Jackson was a discrepancy between the claim group described in the application in Palyku #1 and the group designated as the Palyku People in this application, as required under s 225(a) [30]. The determination states that the group designated as the Palyku people within these reasons will hold native title, being defined by descent from a group of apical ancestors, while the schedule to the Palyku #1 application described the group as a closed group of 64 named people [30]. 

Justice Jackson noted that the court 'is not limited to making a determination in the terms of the application', and can rather make a determination 'in the terms it sees fit on the basis of the evidence before it' and, for a consent determination, other relevant materials [31]. Justice Jackson agreed that the group proposed in this application was appropriate, primarily because it does not describe a closed group of people that will eventually cease to exist [31]. He also considered that this group was consistent with the determination made in Part A and the Palyku #2 application, and that this description was evidenced to have been unanimously approved in a meeting of the Palyku claim group [31].  

Having addressed and resolved all seven of the requirements for a consent determination under Section 87A of the Native Title Act, Justice Jackson recognised that 'the consent determination shows native title as existing' over the determination area. 

Native title exists in parts of the determination area

Related Entries

Glossary