Stream v State of Western Australia (Palyku #2) [2021] FCA 1068

Pilbara Region, west of Nullagine

The determination area includes parts of the Hillside, Panorama, Corunna Downs, and  Bonney Downs pastoral lease areas and Reserve 10979, as well unclaimed Crown land. See Schedules 1 and 2, attached below, for a description and map of the area.

The determination area excludes the areas covered by the Palyku Part A, the Palyku and Palyku #2, and the Nyamal #1 native title determinations.

Registered on the National Native Title Register

Between: Kevin Stream, Tammy O'Connor, Peter Jaffrey, Cheryl Mackay and Walter Stream on behalf of the Palyku People (Applicant) and State of Western Australia,  Commonwealth of Australia, FMF Pilbara Pty Ltd and Nullagine Gold Pty Ltd (Respondents)

Judge: Mckerracher J.

Determination

Native title exists in parts of the determination area  

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

The native title does not exist in the road (shaded pink on the Schedule Two map, attached below), nor in any public works as defined by the NTA and the Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 (WA).

Native title holders

The native title is held by the Palyku People. 

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

These rights and interests exist over the area described in Attachment A of the court determination and include rights to:

• access, travel over, remain on, and use the areas; 
• erect shelters and other structures;
• take and use natural resources of the land and waters;
• take and use natural water;
• maintain and protect places, areas, and things of traditional significance;
• hunt and fish on the land and waters;
• conduct and participate in cultural activities including cultural practices relating to birth and death, burial rituals, ceremonies, meetings, and teachings relating to the spiritual and cultural significance of the land; and
• the right to be accompanied by those people who are not Palyku People and who cannot themselves exercise any native title rights and interests.

There are no native title rights and interests in:

• minerals as defined in the Mining Act 1904 (WA) and in the Mining Act 1978 (WA), with the exception of ochre which is not a mineral under the Mining Act 1904 (WA);
• petroleum as defined in the Petroleum Act 1936 (WA);
• geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• water captured by the holders of other interests.

These rights and interests are subject to and exercisable in accordance with the laws of the State, Commonwealth, and common law.

Other (non-native title) rights and interests in the determination area 

These other rights and interests exist over the area described in Schedule 4 and include those held under: 

• Reserve Nos.: 102825 and 10976 for water(Tayloe Pool) and common use respectively;
• the Hillside, Panorama, Corunna Downs, and  Bonney Downs pastoral leases; and
• fifteen existing exploration licences, access to them, and access to any other mining tenement that may be held from time to time (including general maintenance of roads and tracks without them being upgraded).

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

See Schedule 4 for further information about the non-native title rights and interests.

The Palyku-Jartai 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 Peoples.

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

Background

On 29 October 2018, the applicant filed a native title claim under s 61 of the Native Title Act 1993 (Cth) (NTA) [6].

The Palyku #2 determination area is adjacent to that of the Palyku #1 determination (O'Connor v Western Australia [2019] FCA 330), and when filed, the majority of the Palyku #2 area overlapped with the Nyamal #1 application (determined on 24 September 2019 in Allen on behalf of the Nyamal #1 v State of Western Australia [2019] FCA 1570) and the Nyamal Additional Areas Application [9]-[10].

On 10 March 2021, the un-overlapped areas were subject to a further determination under s 87A of the NTA, that is O'Connor v Western Australia (No 2) [2021] FCA 195 (Palyku #2 (Part A) [11].

Then, on 28 April 2021, the Court dismissed the Nyamal Additional Areas Application, causing a further portion of Palyku #2 to no longer be subject to an overlapping claim area. This area is the subject of this determination [12].

Details of Judgment

The native title claimants here are identical to the native title holders in Palyku #1 (Part A) and Palyku #2 (Part A) [17].

The parties agreed to the nature and extent of the native title rights and interests and submitted a Minute of proposed orders to the Court [48].

Justice Mckerracher concluded it was appropriate to make this determination of native title with the consent of the parties under s 87A, and accordingly made orders under s 94A [50].

Native title exists in parts of the determination area

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