O'Connor on behalf of the Palyku People v State of Western Australia

• Jurisdiction: Australia Federal only
• Judge: REEVES J
• Judgment Date: 12 March 2019
• Neutral Citation: [2019] FCA 330
• Date: 12 March 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

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

File number:	WAD 23 of 2019
Judge:	REEVES J
Date of judgment:	12 March 2019
Catchwords:	NATIVE TITLE – application for determination of native title under s 87A of the Native Title Act 1993 (Cth) – whether the parties have satisfied the criteria set out in s 87A – whether it is appropriate for the Court to make an order in terms of the agreement reached by the parties
Legislation:	Native Title Act 1993 (Cth) Native Title Amendment Act 1998 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Billy Patch and others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545
Date of hearing:	12 March 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	43
Solicitor for the Applicant:	C Trees of Yamatji Marlpa Aboriginal Corporation
Solicitor for the First Respondent:	E Owen of State Solicitor’s Office
Solicitor for the Second Respondent:	A Read of Civic Legal
Solicitor for the Third Respondent:	C Jansen of Ashurst Australia
Solicitor for the Fourth Respondent:	M McKenna of Gilbert + Tobin
Solicitor for the Fifth and Tenth Respondents:	A Carr of Cornerstone Legal
Solicitor for the Eleventh Respondent:	M Meegan of Yamatji Marlpa Aboriginal Corporation

ORDERS

		WAD 23 of 2019
BETWEEN:	TAMMY O’CONNOR, PETER JAFFREY, CHERYL MACKAY AND KEVIN STREAM ON BEHALF OF THE PALYKU PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA First Respondent ; SHIRE OF ASHBURTON Second Respondent ; BHP BILLITON MINERALS PTY LTD (and others named in the Schedule) Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	12 MARCH 2019

THE COURT NOTES THAT:

A. The Applicant in proceeding WAD 23 of 2019 (the Palyku Application) has made a native title determination application that relates to the area of land and waters the subject of the attached Minute of Proposed Consent Determination of Native Title (the Determination).

B. The Applicant in the Palyku Application, the State of Western Australia and the other Respondents to the proceedings (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 Application known as “Palyku Part A” (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 of the Palyku Application, no determination be made at present.

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

E. The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87A and 94A of the Native Title Act 1993 (Cth) 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 1993 (Cth), the parties have requested that the Court determine the proceeding that relates to the Determination Area without holding a hearing.

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 ss 87A and 94A of the Native Title Act 1993 (Cth) 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 23 of 2019 in terms of the Determination as provided for in Attachment A.

2. The Determination is to take effect immediately upon the making of a determination under s 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be.

3. Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust or by an agent. They are invited to do so by:

(a) nominating in writing to the Federal Court a prescribed body corporate to be trustee or agent of the native title rights and interests; and

(b) including within the nomination the written consent of the body corporate.

4. If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 1 in trust or as agent (as the case may be), for the common law holders of the native title rights and interests.

5. In the event that there is no nomination within the time specified in order 3, or such later time as the Court may order, the matter is to be listed for further directions.

6. There be no order as to costs.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 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 the subject of the interests identified in Schedule Three which are shown as generally shaded pink on the maps at Schedule Two.

Native title holders (s 225(a) Native Title Act)

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

The nature and extent of native title rights and interests and exclusiveness of native title (ss 225(b) and 225(e) 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:

(i) 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;

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

(iii) the right to take and use water;

(iv) 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...