FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD 483 of 2018 has made a native title determination application (Palyku #2 Application).

B.    The Applicant in the Palyku #2 Application and the State of Western Australia (the parties) have reached an agreement as to the terms of the determination which is to be made in relation to part of the land and waters covered by the Palyku #2 Application (the Determination Area). The external boundaries of the Determination Area are described in Schedule One to the Determination.

C.    The parties have agreed that, in respect of the balance of the land and waters the subject of the Palyku #2 Application, no determination is to be made at present. This area comprises that portion of the Palyku #2 Application which is overlapped by native title determination application WAD 20 of 2019 (Nyamal #1 Application).

D.    Pursuant to ss 87A(1)(d), 87A(2) and 87A(4) of the Native Title Act 1993 (Cth) the parties have filed with the Court this Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to part of the Palyku #2 Application.

E.    The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A and s 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area.

F.    The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination.

G.    Pursuant to s 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

H.    The Applicants in the Palyku #2 Application have nominated the Palyku-Jartayi Aboriginal Corporation RNTBC (ICN 9217) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87A and s 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    In relation to the Determination Area, there be a determination of native title in WAD 483 of 2018 in the terms provided for in Attachment A.

2.    The Palyku-Jartayi Aboriginal Corporation RNTBC (ICN 9217) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth)

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: s 225 of the Native Title Act

(1)    Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.

(2)    Native title does not exist in those parts of the Determination Area that are identified in Schedule Three which are shown as generally shaded pink on the map at Schedule Two.

Native title holders: s 225(a) of the Native Title Act

(3)    The native title in the Determination Area is held by Palyku People. The Palyku People are the people referred to in Schedule Five.

The nature and extent of native title rights and interests and exclusiveness of native title: s 225(b) and s 225(e) of the Native Title Act

(4)    Subject to paragraphs 2, 5, 6, 7 and 10, the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non-exclusive rights on the Palyku People, including the right to conduct activities necessary to give effect to them:

(a)    the right to enter and remain on the land, camp, erect temporary shelters and travel over and visit any part of the land and waters of the Determination Area;

(b)    the right to hunt, fish, gather, take and use the traditional resources of the land;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities and the transmission of cultural knowledge on the Determination Area, including:

(i)    visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and

(ii)    conducting ceremony and ritual, including burial and burial rites; and

(e)    the right to be accompanied on to the Determination Area by those people who, though not Palyku People and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are:

(i)    the non-Palyku spouses, parents or children of the Palyku People; or

(ii)    people entering in connection with, and subject to, traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.

Qualifications on the native title rights and interests

(5)    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the laws of the State and the Commonwealth of Australia, including the common law; and

(b)    the traditional laws and customs of the Palyku People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.

(6)    Notwithstanding anything in this Determination, there are no native title rights and interests in the Determination Area in relation to:

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

(b)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(c)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(d)    water captured by the holders of the Other Interests pursuant to those Other Interests.

(7)    The native title rights and interests set out in paragraph 4 do not confer:

(a)    possession, occupation, use and enjoyment on the Palyku People to the exclusion of all others; or

(b)    a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

The nature and extent of any other interests: s 225(c) of the Native Title Act

(8)    The nature and extent of the Other Interests are described in Schedule Four.

Relationship between native title rights and Other Interests: s 225(d) of the Native Title Act

(9)    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests described in Schedule Four is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Liberty to Apply

(10)    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in clause 2 of Schedule Three of this Determination.

Definitions and Interpretation

(11)    In this Determination, unless the contrary intention appears:

‘Determination Area’ means the land and waters described in Schedule One and depicted on the map at Schedule Two;

‘land’ has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of ‘waters’;

‘Native Title Act’ means the Native Title Act 1993 (Cth);

‘native title holders’ means the Palyku People as described in Schedule Five and referred to in paragraph 3;

‘Other Interests’ means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in paragraph 8;

‘resources’ means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed));

‘use’ includes by way of share and exchange but does not include use by way of trade; and

‘waters’ has the same meaning as in the Native Title Act.

(12)    In the event of any inconsistency between the written description of an area in Schedule One, Three or Four and the area as depicted on the map at Schedule Two the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the map at Schedule Two, comprises all those land and waters commencing at Latitude 21.848444 South, Longitude 120.052088 East being a point on the present boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) and extending southwesterly along the boundary of that native title determination to Latitude 21.928837 South being a point on the present boundary of Native Title Determination WAD23/2019 & WAD483/2018 Palyku and Palyku #2 (Area 2) (WCD2021/003); Then generally northwesterly along the northern boundaries of that native title determination to the intersection with an eastern boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) at Latitude 21.771738 South; Then northwesterly along the boundary of that native title determination to Latitude 21.745504 South, Longitude 119.503750 East; Then southeasterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

For the avoidance of doubt the determination excludes any land and waters already subject to:

    Native Title Determination Application WAD23/2019 Palyku Part A (WCD2019/002) as Determined in the Federal Court on the 12/03/2019.

    Native Title Determination Application WAD23/2019 & WAD483/2018 Palyku and Palyku #2 (WCD2021/003) as Determined in the Federal Court on the 10/03/2021.

    Native Title Determination Application WAD20/2019 Nyamal #1 (WC1999/008) as accepted for registration on the 28/09/2007.

Datum:    Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Graphic Services (Landgate) 30 July 2021

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE TWO

MAP OF THE DETMERINATION AREA

SCHEDULE THREE

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Paragraph 2

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 3 of this Schedule), are generally shown as shaded in pink on the map at Schedule Two.

(1)    Roads

Dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), including the following:

(2)    Public Works

Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act) and to which s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native Title Act applies.

SCHEDULE FOUR

OTHER INTERESTS

Paragraph 8

The nature and extent of the Other Interests in relation to the Determination Area are as follows.

Land tenure interests registered with the Western Australian Land Information Authority are current as at 1 May 2021. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 5 August 2021. All other interests are current as at the date of the determination.

(1)    Reserves

(a)    The following reserves:

(b)    The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;

(c)    The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

(d)    The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.

(2)    Pastoral Leases

(a)    The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

(b)    Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in subclause (a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses.

(3)    Mining Tenements

(a)    Exploration Licences

(4)    Access to Mining Tenements

(a)    Without limiting the operation of any other clause in Schedule Four, but subject to clause 4(b) below, any rights of the holders from time to time of a mining tenement including those listed in clause 3 of this Schedule Four, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this Determination) as are necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)    Nothing in clause 4(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 4(a).

(c)    Nothing in Schedule Four will limit the rights of the holders from time to time of mining tenements, including those referred to in clause 3 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement.

(5)    Other

The following rights and interests in the Determination Area:

(a)    Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation;

(b)    Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, force and operation of the Rights in Water and Irrigation Act 1914 (WA);

(c)    Rights and interests of members of the public arising under common law, including but not limited to:

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;

(d)    The right to access the Determination Area by:

(i)    an employee, agent or instrumentality of the State;

(ii)    an employee, agent or instrumentality of the Commonwealth; or

(iii)    an employee, agent or instrumentality of any local government authority,

as required in the performance of his or her statutory or common law duty, including for the purpose of pest management control and fire hazard management on areas of unallocated Crown land and unmanaged Crown reserves;

(e)    So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the (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, the following places in the Determination Area:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    coastal waters;

(iv)    beaches;

(v)    stock routes; and

(vi)    areas that were public places at the end of 31 December 1993;

(f)    Any other:

(i)    legal or equitable estate or interest in the land or waters of the Determination Area; or

(ii)    right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(A)    the land or waters of the Determination Area; or

(B)    an estate or interest in the land or waters of the Determination Area; or

(iii)    restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.

SCHEDULE FIVE

NATIVE TITLE HOLDERS

Paragraph 3

The Palyku People are those Aboriginal persons who:

(a)    are the cognatic descendants of, or are culturally reared up (adopted) by such cognatic descendants of, one or more of the following apical ancestors:

(i)    Pitawanu;

(ii)    Pupu;

(iii)    Winnie;

(iv)    Wilyarpirna;

(v)    Puyungayi;

(vi)    Yurramara;

(vii)    Munjarnpirna and Jukukayi;

(viii)    Jujuna;

(ix)    Fannie, Annie Patawani and Chinaman Janjanamarlu;

(x)    Pijipangu;

(xi)    Kijiempa;

(xii)    Maggie Kuntuwarrpangu;

(xiii)    Peter Long Wayalpa;

(xiv)    Julimanga;

(xv)    Wantungu;

(xvi)    Kalurru;

(xvii)    Alec Weatherall;

(xviii)    Major and Judy;

(xix)    Mary Barrdi; or

(xx)    Sophie Bunbry; and

(b)    identify themselves, and are recognised by a substantial number of the descendants of the above apical ancestors as, a Palyku person; and

(c)    have rights and interests in, and a connection with, the land and waters of the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Palyku People.

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    This proceeding is an application for a determination of native title made pursuant to s 61 of the Native Title Act 1993 (Cth) with file number WAD 483 of 2018 (the Palyku #2 Application).

2    The Applicant in the Palyku #2 Application and the State of Western Australia (the parties) have reached an agreement as to the terms of a determination (the Determination) which is to be made in relation to part of the land and waters covered by the Palyku #2 Application (the Determination Area). The Determination, including its Schedules, is set out as Attachment A to the orders accompanying these reasons. The external boundaries of the Determination Area are described in Schedule One to the Determination.

3    The parties have agreed that, in respect of the balance of the land and waters the subject of the Palyku #2 Application, no determination is to be made at present. That area comprises that portion of the Palyku #2 Application which is overlapped by native title determination application WAD 20 of 2019 (the Nyamal #1 Application).

DOCUMENTS FILED

4    The State Solicitor for Western Australia, on behalf of the State, has filed a Minute of Proposed Determination of Native Title which has been signed by each of those parties required by s 87A(3) of the Native Title Act.

5    Cross Country Native Title Services Pty Ltd on behalf of the Palyku #2 Applicant has filed:

(a)    a notice of nomination, and the written consent of the Palyku-Jartayi Aboriginal Corporation RNTBC (ICN 9217) to be the prescribed body corporate (PBC) pursuant to s 56(2)(a)(i) of the Native Title Act; and

(b)    an affidavit addressing the authorisation of the Minute and the nomination of the Palyku-Jartayi Aboriginal Corporation RNTBC as the PBC (the Palyku Affidavit).

PROCEDURAL HISTORY OF THE APPLICATION

6    On 29 October 2018, the Palyku #2 Application was filed pursuant to s 61 of the Native Title Act.

7    The Palyku #2 Application was given National Native Title Tribunal File No. WC 2018/022 and was considered by the Native Title Registrar pursuant to s 190A of the Native Title Act. The Registrar was not satisfied that the Palyku #2 Application addressed the criteria of the registration test. In particular, the Palyku #2 Application did not meet s 190C(3) of the Native Title Act (that is, the requirement for no person in the native title claim group to be a member of any claim group of any overlapping native title claim that was already on the Register of Native Title Claims). The Registrar was otherwise satisfied that the Palyku #2 Application met all of the other criteria of the registration test.

8    The Palyku #2 Application was subsequently notified by the Registrar pursuant to s 66 of the Native Title Act. The period after the notification day referred to in s 66 of the Native Title Act ended on 13 May 2019.

9    The Palyku #2 Application is adjacent to native title determination application WAD 23 of 2019 (the Palyku #1 Application). On 12 March 2019, the majority of the land and waters of the Palyku #1 Application was the subject of a determination of native title made under s 87A of the Native Title Act (the Palyku #1 (Part A) Determination): see O’Connor v Western Australia [2019] FCA 330. The Palyku #2 Application is made on behalf of the same persons as the determined native title holders in the Palyku #1 (Part A) Determination (the Palyku People).

10    When filed, the majority of the Palyku #2 Application overlapped the Nyamal #1 Application and native title determination application WAD 482 of 2018 (the Nyamal Additional Areas Application). However, the Palyku #2 Application also included certain un-overlapped portions.

11    On 10 March 2021, those un-overlapped areas were the subject of a further determination of native title made under s 87A of the Native Title Act (the Palyku #2 (Part A) Determination): see O’Connor v Western Australia (No 2) [2021] FCA 195. Native title was determined to be held by the Palyku People (i.e. the same persons as the determined native title holders in the Palyku #1 (Part A) Determination).

12    On 28 April 2021, the Court made orders dismissing the Nyamal Additional Areas Application. As a result, a further portion of the Palyku #2 Application was no longer subject to an overlapping native title determination application. It is this area (i.e. the area of the former Nyamal Additional Areas Application) which is the subject of this proposed determination.

PARTIES

13    The parties to the Palyku #2 Application, are:

(a)    the Palyku #2 Applicant;

(b)    the State;

(c)    the Commonwealth of Australia;

(d)    FMG Pilbara Pty Ltd; and

(e)    Nullagine Gold Pty Ltd.

ASSESSMENT OF CONNECTION

14    The Palyku #1 Applicant provided the State with the following written material (connection material), on a without prejudice basis, in support of the Palyku People’s connection to, and occupation of, the Palyku #1 Application area:

(a)    the following anthropological reports by Dr Jitendra Kumarage:

(i)    Palyku (WAD 6287-98) Native Title Determination Application Connection Report dated 31 March 2014;

(ii)    Palyku Supplementary Report dated August 2015;

(iii)    Palyku Further Supplementary Report dated October 2016; and

(b)    various materials in support of the application of s 47A of the Native Title Act to certain areas within the Palyku (Part A) Determination area, including:

(i)    A summary of evidence regarding the ongoing occupation of Reserve 22627, Reserve 31428 and Unallocated Crown Lands 23, 24 and 25 by the Palyku claimants by Zsuzsanna Gonda (April 2018);

(ii)    Witness statement of Terry Jaffrey dated 29 March 2018;

(iii)    Witness statement of Margaret Derschow dated 4 April 2018; and

(iv)    Witness statement of Sally Morgan dated 6 April 2018.

15    This connection material, which formed the basis of the Palyku (Part A) Determination, also formed the basis of the assessment of connection undertaken in relation to the area of this proposed determination. In addition, when considering the Palyku People’s connection to, and occupation of, the proposed determination area the State also had regard to a letter from the legal representative of the Palyku #2 Applicant dated 4 May 2020 and a further witness statement of Margaret Derschow dated 5 August 2020.

THE NATIVE TITLE HOLDERS, DETERMINATION AREA AND CONNECTION TO COUNTRY

Proposed Determination Area

16    The external boundaries of the proposed Determination Area are described in Schedule One of the Determination and shown on the maps in Schedule Two of the Determination. The Determination Area comprises that portion of the Palyku #2 Application which is not overlapped by any other native title determination application. This area is located to the north of the Palyku #1 (Part A) Determination and to the south of the Nyamal #1 Application.

The Palyku People

17    The proposed native title holders (the Palyku People) are described in Schedule Five of the Minute. This description is identical to the description of the native title holders contained in the Schedule Six of the Palyku #1 (Part A) Determination and Schedule Six of the Palyku #2 (Part A) Determination. It is also relevantly identical to the description of those persons on whose behalf the Palyku #2 Application was made.

18    The following summary of the Palyku People’s traditional laws and customs and their connection to their traditional country was cited by Reeves J in O’Connor (at [36]) (accompanying the Palyku #1 (Part A) Determination):

28.    ... Palyku is a unique socio-territorial language identity that has consistently been associated with the claim area since the late 19th century, commencing with the reports of pioneer pastoralists such as John G Withnell and other amateur observers such as Clement (1903) and Foster-Thompson (1907-14) and ethnographers and anthropologists such as Bates (1907-1940), Radcliffe-Brown (1911-1931) and Tindale (1940).

…

30.    The Palyku system of traditional laws and customs connect the Palyku People to their country and the traditional spiritual beliefs of the Palyku People are firmly embedded within the physical landscape. The Palyku People believe that their laws and customs originate in a time beyond living memory known as Manygunpa. The term Manygunpa refers to a time when ancestral beings (Dreamings) such as rainbow snakes (Yurtulpa / Milurra) and the Two Men (Wati Kujarra / Wati Kutharra / Patu Kutharra Bugadjimbiri / Pakatjimbiiri) created the land and its features, gave language and country to the Palyku and neighbouring groups.

31.    The Palyku’s contemporary land tenure system is traditionally based, albeit with some modifications due to the effects of settlement. It appears to be derived from an earlier estate-based system which was typical of groups in the Pilbara at the time of sovereignty, with the estates having expanded or merged over time and now referred to as family blocks or runs.

32.    Palyku social organisation is based on a classificatory form of kinship, the division of society into four named categories (sections, referred to by claimants as ‘skin’ or ‘skin colours’) and marriage rules which prescribe an individual’s ideal partner in terms of both the section system and actual kin relationship. The Palyku laws and customs relevant to social organisation are, in most respects, the same as those observed by their neighbours, particularly the Nyiyaparli and Nyamal, and are generally consistent with those recorded in the earliest ethnographic records.

33.    The Palyku People have a detailed knowledge of the natural environment and its resources, as well as sites within the Palyku Part A Determination Area. They are mindful of their responsibility to ensure that such knowledge is passed down to younger generations. Contemporary hunting, fishing and gathering practices are continuations of traditional practices that date back to sovereignty. The Palyku People also participate in regional initiation ceremonies.

19    The Palyku #2 Applicant and the State submit that this description of the Palyku People and their traditional laws and customs applies equally to the proposed Determination Area. In particular, it is agreed that under the traditional laws and customs of the Palyku People, the Palyku People have, since prior to sovereignty and today, rights and interests in, and a connection to, the Determination Area.

AUTHORISATION

20    Section 61(1) of the Native Title Act permits the making of a native title determination application by those persons who are authorised ‘by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed ...’.

21    Further, the Native Title Act vests in the persons jointly comprising the applicant the carriage of a native title determination application. Section 62A of the Native Title Act relevantly provides that in the case of a claimant application, ‘the applicant may deal with all matters arising under this Act in relation to the application.’ This includes consenting to a determination of native title pursuant to s 87A of the Native Title Act.

22    As discussed in the Palyku Affidavit, the Palyku #2 native title claim group met at Port Hedland on 12 August 2021. At that meeting they considered and authorised the components of a consent determination which are reflected in the Minute, thus authorising the Palyku #2 Applicant to consent to the Court making a determination in, or consistent with, the terms of the Minute. On the basis of the evidence set out in the Palyku Affidavit, the Palyku #2 Applicant says that it is authorised to consent to the Court making a determination in, or consistent with, the terms of the Minute.

23    Further, at the meeting of the Palyku #2 native title claim group on 12 August 2021, the Palyku native title claim group also authorised the nomination of the Palyku-Jartayi Aboriginal Corporation RNTBC, the PBC for the Palyku #1 (Part A) Determination and the Palyku #2 (Part A) Determination, to be the PBC for this Determination.

SATISFACTION OF SECTTION 87A OF THE NATIVE TITLE ACT

24    Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the Native Title Act has ended (s 87A(1)(b));

(b)    there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));

(c)    the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2));

(d)    a registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3));

(e)    the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8));

(f)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and

(g)    it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).

Expiry of s 66 notice period (s 87A(1)(b))

25    This condition is satisfied. The notification period referred to in s 66(8) and s 66(10)(c) of the Native Title Act has ended with respect to the Palyku #2 Application: see [8] above.

Agreement for a proposed determination in relation to part of the area covered by the Palyku #2 Application (s 87A(1)(b))

26    This condition is satisfied with respect to the Palyku #2 Application. The proposed Determination is in respect of only part of the land and waters the subject of that application: see [2], [3] and [16] above.

The terms of an agreement between required parties are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2))

27    This condition is satisfied.

28    There is an agreement in writing, which has been filed in Court, for a proposed determination of native title, the terms of which are reflected in the Minute: see [4] above.

29    That agreement has been signed by the Palyku #2 Applicant (as required by s 87A(1)(c)(i)). Further, all respondent parties who are required by ss 87A(1)(c)(ii)–87A(c)(ix) to be parties to the proposed determination have signed the agreement. In particular:

(a)    there are no registered native title claimants who are parties to the Palyku #2 Application (s 87A(1)(c)(ii));

(b)    the representative Aboriginal and Torres Strait Islander body for the region (Yamatji Marpla Aboriginal Corporation) is not party to the Palyku #2 Application (s 87A(1)(c)(iv));

(c)    there are no indigenous respondents to Palyku #2 Application (s 87A(1)(c)(vi));

(d)    the Commonwealth Minister is not a party to the Palyku #2 Application (s 87A(1)(c)(vii));

(e)    the State is a party to the Palyku #2 Application and has signed the Minute, but the State Minister individually is not a party (s 87A(1)(c)(viii));

(f)    no local government body is a party to the Palyku #2 Application (s 87A(1)(ix)); and

(g)    the Commonwealth, FMG Pilbara and Nullagine Gold are parties to the Palyku #2 Application but have not signed the Minute. However, those parties have indicated to the Court that they do not hold any interests in the Determination Area. Accordingly, the Commonwealth, FMG Pilbara and Nullagine Gold are not required to be parties to the agreement (s 87A(1)(c)(v)).

Notice to the other parties (s 87A(3)) and objections (s 87A(8))

30    It is understood that a registrar of this Court intends to give notice of the proposed determination under s 87A(3) of the Native Title Act to those respondent parties to the Palyku #2 Application who have not signed the agreement. The legal representatives for those parties are, in any event, already aware of the agreement and have not currently indicated any objection to the Minute.

31    There are, at present, no objections for the Court to take into account under s 87A(8) of the Native Title Act.

Orders consistent with the terms of the agreement are within the Court’s power (s 87A(4)(a))

32    The Palyku #2 Applicant and the State submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the Minute is within the power of the Court.

33    First, the Palyku #2 Application is valid, having satisfied the criteria in s 87A of the Native Title Act.

34    Second, the Determination is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act).

35    Third, there are now no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act.

36    Fourth, the form of the proposed determination complies with s 94A and s 225 of the Native Title Act.

The orders are appropriate (s 87A(4)(b))

37    Finally, the Court must consider whether it is appropriate to make the determination sought by the parties as required by s 87A(4)(b). The Palyku #2 Applicant and the State submit that this condition is satisfied.

38    The exercise of the Court’s discretion pursuant to s 87A(4)(b) of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under s 87: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (at [22]).

39    As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v The State of Western Australia [2007] FCA 365 (at [8]):

… the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement.

40    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 (at [6]-[9]) observed that the Native Title Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour further stated (at [8]) that:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.

41    Accordingly, in order to make a consent determination of native title under s 87A of the Native Title Act, the Court is not necessarily required to receive evidence, make findings or embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87A where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely, and on an informed basis come to an agreement: see Brown (at [23]), Hughes (at [9]) and Ward (at [8]).

42    Further, the requirements of  87A(4)(b) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109 per Emmett J (at [29]-[30]) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 per North J (at [37]); see also Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494 per Madgwick J (at [38]):

State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

43    In relation to this proceeding, the Palyku #2 Applicant and the State have been legally represented throughout the negotiation process. Those respondent parties to the Palyku #2 Application who have not signed the agreement have also had the benefit of legal representation. The Court has also monitored the progress of the proceedings, and negotiations in relation to the proceedings, through case management.

44    Further, the State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn (at [29]). In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, has satisfied itself that the determination is justified in all the circumstances.

45    The connection materials provided by the Palyku #1 and Palyku #2 Applicants is, in the State’s view, sufficient to demonstrate that, in respect of the Determination Area, the Palyku #2 Application has a ‘credible or cogent basis’: see Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 per Jagot J (at [21]).

46    In particular, the material demonstrates that the Palyku People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. Further, the Palyku People have maintained a physical presence in the Determination Area since the acquisition of British sovereignty and evidence of their continuing physical and spiritual involvement in the Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Accordingly, the State was satisfied that the connection material presented was sufficient to establish that the Palyku People hold rights and interests in the Determination Area.

47    The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of ‘other interests’ within the Determination Area, and those interests are included in the proposed Determination at Schedule Four.

48    Accordingly, the Palyku #2 Applicant and the State submit that the Minute sets out a description of the nature and extent of the native title rights and interests and the ‘other interests’ in relation to the Determination Area which complies with s 225 of the Native Title Act.

49    On these bases, the Palyku #2 Applicant and the State have informed the Court that they consider that the proposed determination is appropriate and submit that the Court can thereby be satisfied that an order under s 87A of the Native Title Act is both within power and appropriate to be made.

CONCLUSION

50    For these reasons, I consider that it is appropriate to make a determination of native title over the Determination Area in the form of Attachment A to the orders. That Determination recognises, under Australian law, the native title that has been held by the Palyku People in the subject land since long before the establishment of British sovereignty.

Associate:

Dated:    6 September 2021