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

Federal Court of Australia|2019-03-12|Before: Reeves J

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:

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.
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.
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.
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.
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.
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)
Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this Determination.
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)
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)
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 spiritual integrity; and (ii) conducting ceremony and ritual, including burial and burial rites; and (v) 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
The native title rights and interests are subject to and exercisable in accordance with: (a) the laws of the State and the Commonwealth, 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.
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.
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. Areas to which ss 47, 47A or 47B of the Native Title Act apply
Section 47A of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule Five. The nature and extent of any other interests (s 225(c) Native Title Act)
The nature and extent of the Other Interests are described in Schedule Four. Relationship between native title rights and other interests (s 225(d) Native Title Act)
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 Part A of Schedule Four is that: (i) 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, (ii) 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.
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 Part B of Schedule Four is that 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 Other Interests continue to exist in their entirety, but are invalid to the extent of the inconsistency with the native title rights and interests during the currency of the Other Interests, pursuant to s 24OA of the Native Title Act. Liberty to Apply
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 4 of Schedule Three of this Determination. Definitions and Interpretation
In this Determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule One and depicted on the maps 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 Six 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 9; "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.
In the event of any inconsistency between the written description of an area in Schedule One, Three, Four or Five and the area as depicted on the maps at Schedule Two the written description prevails. SCHEDULE ONE DETERMINATION AREA The Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description: All that land and waters commencing at Latitude 22.025709 South and Longitude 120.965618 East being a point on the present boundary of Native Title Determination WAD6280/1998 Nyiyaparli People (WCD2018/008) and extending southwesterly and generally westerly along the boundaries of that native title determination to Latitude 22.332946 South and Longitude 119.241060 East; Then northwesterly to Latitude 22.288105 South and Longitude 119.082157 East being a point on the present boundary of Native Title Determination WAD6096/1998 Banjima People (WCD2014/001); Then generally northwesterly along the boundaries of that native title determination to Latitude 22.008794 South and Longitude 118.814893 East being a point on the present boundary of Native Title Determination WAD6169/1998, WAD232/2009 & WAD47/2014 Kariyarra (WCD2018/015); Then northeasterly, generally northwesterly, again northeasterly and generally easterly along the boundaries of that native title determination to Latitude 21.616500 South and Longitude 119.097699 East; Then generally southeasterly, generally southerly, generally northeasterly, again generally southeasterly and northeasterly through the following coordinate positions. LATITUDE (SOUTH) LONGITUDE (EAST) 21.671190 119.150572 21.695495 119.333929 21.716668 119.412153 21.745517 119.503740 21.794401 119.526651 21.872860 119.566932 21.998765 119.609815 22.026216 119.681397 22.013205 119.749587 21.848458 120.052078 21.916034 120.087861 21.917792 120.188853 21.983001 120.260753 22.013192 120.418465 22.037473 120.603742 22.084749 120.728927 22.071912 120.774451

Then northeasterly back to the commencement point. EXCLUSIONS All that land comprising Reserve 2804. All that land comprising former Special Lease 3116/2485 (CL744/1959). Note: Geographic Coordinates provided in Decimal Degrees. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 4 December 2018. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination WAD6169/1998, WAD232/2009 & WAD47/2014 Kariyarra (WCD2018/015) as determined in the Federal Court on 13 December 2018. Native Title Determination WAD6280/1998 Nyiyaparli People (WCD2018/008) as determined in the Federal Court on 26 September 2018. Native Title Determination WAD6096/1998 Banjima People (WCD2014/001) as determined in the Federal Court on 11 March 2014. Native Title Determination Application WAD20/2019 Nyamal (WC1999/008). Native Title Determination Application WAD289/2018 Nyamal Overlap Claim (WC2018/011). Native Title Determination Application WAD482/2018 Nyamal Additional Areas (Part 1) (WC2018/021). Native Title Determination Application WAD483/2018 Palyku #2 (WC2018/022). Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 19 December 2018 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 MAPS OF THE DETERMINATION 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 4 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

Reserves Reserve No. Current / Last Purpose 43152 Regenerator site

Leases Lease No. Current / Last Purpose GE I123402 (3116/6038) Laying out, development, construction, provision, operation of, and use as (i) a quarry for the production of railway ballast; (ii) stockpile area for the storage of the said railway ballast and other materials and equipment; and (iii) site for maintenance and construction workers' accommodation, workshops and ancillary facilities for the requirements of the lessees in the operation and maintenance of the railway constructed pursuant to the Iron Ore (Mount Newman) Agreement Act 1964 (WA) GE I154279 (3116/3687) Construction, development, maintenance, use and operation of a railway and ancillary installations and facilities including a service road between the mine townsite and port pursuant, and subject to, the proposals of the lessees under the agreement approved by the Iron Ore (Mount Newman) Agreement Act 1964 (WA) GE N105667 (3116/4028) Construction, development, maintenance, use and operation pursuant to the Iron Ore (Mount Newman) Agreement Act 1964 (WA) of radio communications and ancillary installations and facilities thereto between the mine and the port 3116/02717 Grazing 3116/03693 (part)1 Construction, development, maintenance, use and operation, pursuant to the Iron Ore (Mount Newman) Agreement Act 1964 (WA), of radio communications and ancillary installations and facilities thereto between the mine and the port

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: MapInfo ID Description Shown in ROAD 02 Road No. 9178 Government Gazette dated 24/03/1933 and Public Plan 503165 cancelled on 16/07/1965 ROAD 07 Road No. 9168 Government Gazette dated 03/03/1933 and Public Plan 503165 cancelled on 16/07/1965 ROAD 09 Road No. 9167 Government Gazette dated 03/03/1933 and Public Plan 503165 cancelled on 16/07/1965 ROAD 10 Road No. 7345 Government Gazettes dated 29/05/1925 and 05/06/1925 and shown on Map SF 50-8 Marble Bar 1:250 000 ROAD 11 Road No. 10501 Government Gazette dated 25/10/1957 and Public Plan 503165 cancelled on 16/07/1965 ROAD 14 Road No. 00762 Government Gazette dated 02/12/1898 and cancelled Public Plan 503163 ROAD 15 Road No. 00389 Government Gazettes dated 31/08/1893, 07/06/1895, 01/04/1977 and 14/09/1979 and shown on Public Plan 503154 cancelled on 12/06/1952 and Public Plan 503165 cancelled on 16/07/1965 ROAD 17 Road No. 3857 Government Gazettes dated 01/04/1977 and 14/09/1979 and Deposited Plan 213166

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 9) 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 4 December 2018. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 31 January 2019. All other interests are current as at the date of the Determination. Part A - Other Interests which validly affect the native title rights and interests (paragraph 10)
Reserves (a) The following reserves: Reserve No. Current Purpose 01926 Resting place for travellers and stock 01927 Resting place for travellers and stock 03328 Resting place for travellers and stock 04176 Water 09700 De Grey to Peak Hill stock route 12061 Water 12775 Water 12778 Water 12779 Water 12780 Water 12782 Water 13631 Timber 13632 Timber 13633 Timber 13634 Timber 13635 Timber 13686 Timber 13687 Timber 15159 Warrawagine to Battle Hill stock route 21802 Pastoral research station 22627 Preservation of Aboriginal cultural materials and historic buildings and grazing (Woodstock) 23046 Pastoral research station and preservation of Aboriginal cultural material 24122 Mining 31428 Use and benefit of Aborigines (Yandeyarra)

(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: Pastoral Lease Station Name N049420 Mt Divide N049553 Balfour Downs N049796 Mulga Downs N050058 Noreena Downs N050370 Mulga Downs N050430 Bonney Downs N050452 Hillside N050453 Panorama

(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. Compulsory Acquisitions The land and waters the subject of the following Taking Orders and the rights and interests arising under those Taking Orders: Instrument No. Description Proposed disposition/grant YA K000020 registered on 27/11/2006 Lots 350, 351 and 352 on Deposited Plan 54045 Special railway licence pursuant to the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (WA)

Roads The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time: MapInfo ID Description Shown in ROAD 27 Lot 316 on DP 219316 Deposited Plan 219316 dated 09/08/2004

Mining Tenements (a) The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements: (i) Mining Leases Tenement ID Tenement ID Tenement ID M 4501082 M 4501126 M 4600356 M 4501083 M 4501127 M 4600357 M 4501084 M 4501128 M 4600432 M 4501085 M 4501138 M 4600449 M 4501102 M 4501139 M 4600450 M 4501103 M 4501140 M 4600451 M 4501104 M 4501141 M 4600452 M 4501105 M 4501142 M 4600515 M 4501106 M 4501177 M 4600522 M 4501107 M 4600122 M 4600523 M 4501124 M 4600186 M 4501125 M 4600267

(ii) Exploration Licences Tenement ID Tenement ID Tenement ID Tenement ID E 4501073 E 4504711 E 4600706 E 4601114 E 4502497 E 4504725 E 4600711 E 4601115 E 4502498 E 4504747 E 4600771 E 4601119 E 4502499 E 4504776 E 4600794 E 4601120 E 4502651 E 4504848 E 4600797 E 4601122 E 4502652 E 4504903 E 4600846 E 4601125 E 4502717 E 4504953 E 4600847 E 4601128 E 4503698 E 4600517 E 4600859 E 4601146 E 4504265 E 4600522 E 4600861 E 4601152 E 4504266 E 4600523 E 4600928 E 4601155 E 4504389 E 4600530 E 4600965 E 4601156 E 4504593 E 4600535 E 4600986 E 4601166 E 4504596 E 4600571 E 4601000 E 4601167 E 4504597 E 4600590 E 4601069 E 4601189 E 4504601 E 4600651 E 4601071 E 4601210 E 4504658 E 4600652 E 4601079 E 4601215 E 4504664 E 4600655 E 4601084 E 4601216 E 4504702 E 4600666 E 4601103 E 4504710 E 4600691 E 4601106

(iii) General Purpose Leases Tenement ID G 4500275 G 4500285 G 4600009

(iv) Miscellaneous Licences Tenement ID Tenement ID Tenement ID Tenement ID L 4500147 L 4500347 L 4600051 L 4600084 L 4500152 L 4500349 L 4600052 L 4600093 L 4500167 L 4600033 L 4600062 L 4600095 L 4500334 L 4600036 L 4600067 L 4600099 L 4500335 L 4600045 L 4600074 L 4600114 L 4500336 L 4600046 L 4600082 L 4600118 L 4500346 L 4600047 L 4600083 L 4600119

(v) Prospecting Licences Tenement ID Tenement ID Tenement ID Tenement ID P 4502862 P 4503036 P 4601810 P 4601928 P 4502864 P 4601577 P 4601836 P 4601929 P 4502868 P 4601643 P 4601837 P 4601930 P 4502869 P 4601743 P 4601865 P 4502870 P 4601808 P 4601893 P 4502871 P 4601809 P 4601927

(b) The agreement as amended and ratified by the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to, that agreement, including the following mining tenements: Tenement ID Tenement Type AL 7000001 Miscellaneous Licence

(c) The agreement as amended and ratified by the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to, that agreement, including the following mining tenements: Tenement ID Tenement Type AL 7000004 Miscellaneous Licence

Access to Mining Areas (a) Without limiting the operation of any other clause in Schedule Four, but subject to clause 6(b) below, any rights of the holders from time to time of a mining tenement, including those referred to in clause 5 of Schedule Four, to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement for the purposes of exercising the rights granted by that tenement. (b) Nothing in clause 6(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 6(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 5 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.
Indigenous Land Use Agreements The FMG - Palyku Land Access ILUA (Area Agreement), registered on the Register of Indigenous Land Use Agreements on 3 November 2017 (Tribunal No. WI2017/004), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that ILUA.
Woodstock and Abydos Protected Area The rights and interests comprised in, conferred under or in accordance with, or pursuant to the Woodstock and Abydos protected area declared pursuant to s 19 of the Aboriginal Heritage Act 1972 (WA) by Order in Council published in the Government Gazette on 25 May 1979 (as amended by notice published in the Government Gazette on 18 July 2006).
Other The following rights and interests: (a) The rights and interests of Telstra Corporation Limited (ACN 051 775 556): (i) as the owner or operator of telecommunications facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (A) to inspect land; (B) to install, occupy and operate telecommunications facilities; and (C) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (iii) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and (iv) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area; (b) 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; (c) 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, the force and operation of the Rights in Water and Irrigation Act 1914 (WA); (d) rights and interests of members of the public arising under the 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; (e) 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; and (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 and weed control and fire hazard management on areas of unallocated Crown land and unmanaged Crown reserves; (f) so far as confirmed 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, 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; (g) any other: (i) legal or equitable estate or interest in the land or waters; 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; or (B) an estate or interest in the land or waters; or (iii) restriction on the use of the land or waters, whether or not annexed to other land or waters. Part B - Other Interests which are invalid to the extent they affect the native title rights and interests (paragraph 11) The following current mining leases under the Mining Act 1978 (WA) are invalid to the extent of the inconsistency with the native title rights and interests during the currency of the Other Interests, pursuant to s 24OA of the Native Title Act: Tenement ID M 4600237 M 4600238

SCHEDULE FIVE AREAS TO WHICH SECTION 47A OF THE NATIVE TITLE ACT APPLIES (Paragraph 8) Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of the following interests (and by the creation of any other prior interests in relation to the area of the following interests) is to be disregarded: Interest Current Purpose Reserve 22627 Preservation of Aboriginal cultural materials and historic buildings and grazing (Woodstock) Reserve 31428 Use and benefit of Aborigines (Yandeyarra) UCL 23 Formerly part of Reserve 22627 (Preservation of Aboriginal cultural materials and historic buildings and grazing) UCL 24 Formerly part of Reserve 22627 (Preservation of Aboriginal cultural materials and historic buildings and grazing) UCL 25 Formerly part of Reserve 22627 (Preservation of Aboriginal cultural materials and historic buildings and grazing)

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

INTRODUCTION 1 One of the main objects of the Native Title Act 1993 (Cth) (the NTA) is "to provide for the recognition and protection of native title" (s 3(a)). Consistent with that object, the Palyku People have, in this proceeding, sought a determination of native title over their traditional lands in the eastern Pilbara region of Western Australia. In particular, they have sought to have, what is commonly referred to as, a consent determination of native title made under s 87A of the NTA on the terms of an agreement they have reached with various parties, including the State of Western Australia. 2 For the reasons that follow, I propose to make the determination of native title that the Palyku People have sought.

PROCEDURAL HISTORY 3 The procedural history to this proceeding is lengthy and complex. The following is a brief summary. The present proceeding (WAD 23 of 2019) comprises a part of two proceedings (WAD 6250 of 1998 and WAD 6287 of 1998), both of which were made under the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the 1998 Act). 4 Douglas and Lindsay Yuline lodged the claim relating to WAD 6250 of 1998 with the National Native Title Tribunal (the NNTT) on 15 June 1998. It was a polygon claim over a small area of the Woodstock reserve (Reserve 22627). It was lodged in response to a future act notice. 5 The claim relating to WAD 6287 of 1998 was lodged with the NNTT on 29 September 1998. It was a claim for the whole of the traditional lands and waters of the Palyku People. It included the area claimed in proceeding WAD 6250 of 1998 mentioned above. 6 As a result of the amendments to the NTA made by the 1998 Act, both of these claims were deemed to have been filed in the Federal Court of Australia. Furthermore, any notifications that had been given by the Native Title Registrar (the Registrar) pursuant to s 66, in its form prior to the amendments made by the 1998 Act, were taken to apply to the proceedings and the parties to them (see the table at Schedule 5, Part 3, Item 6 of the 1998 Act). 7 By an order of this Court made on 31 March 1999, proceedings WAD 6250 of 1998 and WAD 6287 of 1998 were combined and thereafter the two proceedings continued as proceeding WAD 6287 of 1998 (the combined Palyku Application). Moving forward approximately 20 years, the latter proceeding was given a new electronic court file proceeding number WAD 23 of 2019 on 14 January 2019. 8 Returning to 1999, on 21 April, the combined Palyku Application was referred to the Registrar for consideration under s 190A of the NTA (commonly known as the registration test). Upon being satisfied that it passed that test, the Registrar entered the combined Palyku Application on the Register of Native Title Claims on 2 August 1999. 9 The Registrar then notified the combined Palyku Application under s 66 of the NTA. The notification period under s 66 ended on 16 August 2000. 10 On 7 September 2000, the combined Palyku Application was referred to mediation by the NNTT. The proceeding continued in mediation before the NNTT until 3 August 2012. On that date, Barker J ordered that the mediation cease and that the proceeding be referred to intensive case management before a Registrar of this Court. 11 On 2 May 2018, an order was made under s 66B of the NTA that Tammy O'Connor, Peter Jaffrey, Cheryl Mackay and Kevin Stream together comprise the applicant who has been duly authorised to pursue the combined Palyku Application on behalf of the Palyku People (the Palyku Applicant). 12 By an order made under r 30.01 of the Federal Court Rules 2011 (Cth), on 31 August 2018 the area the subject of the combined Palyku Application was divided into two parts: Palyku Part A and Palyku Part B. This judgment relates to Palyku Part A. Palyku Part B is currently being progressed as part of the Nyamal Palyku Proceeding (WAD 392 of 2018). That proceeding includes an area which overlaps with the Nyamal #1 application (WAD 20 of 2019) (the Nyamal Overlap proceeding). Neither Palyku Part B, nor the Nyamal Overlap proceeding falls to be considered in this judgment. 13 In February 2019, the parties in Palyku Part A informed the Court that they had reached an agreement on the terms of a proposed determination of native title under s 87A of the NTA. To give effect to that agreement, a minute of the terms of that proposed determination (the consent determination minute), and joint submissions of the Palyku Applicant and the State, were filed with the Court. The parties have now requested the Court make a determination of native title in accordance with the terms of that consent determination minute. 14 As required by s 87A(3) of the NTA, on 20 February 2019, Judicial Registrar McGregor, acting on behalf of the Chief Executive Officer of the Court, gave notice to the other parties to proceeding WAD 23 of 2019 that the consent determination minute had been filed with the Court. On the same date, notice was given to the representatives of the Nyamal #1 Applicant in the Nyamal Overlap proceeding to the effect that, unless any objections to the Court making a determination in the terms of the consent determination minute were received by 1 March 2019, the Court may infer the Nyamal #1 Applicant did not have any objections to that course. No such objections were received. This step was taken as a precaution because the Nyamal #1 Applicant had previously been joined as a respondent party to the combined Palyku Application on the basis of its interest in the claim area covered by that application.

THE DETERMINATION AREA 15 The area the subject of the consent determination minute comprises 9,308.46 square kilometres of land and waters, situated some 200 kilometres southeast of Port Hedland in the eastern Pilbara region of Western Australia (the Determination Area). The majority of that area is covered by pastoral leases, mining tenements, roads and reserves. The latter include parts of the Woodstock and Yandeyarra reserves.

THE SEVEN CONDITIONS IN SECTION 87A HAVE BEEN MET 16 The power of the Court to give effect to the agreement reflected in the consent determination minute is founded on s 87A of the NTA. That section sets out the conditions which must be met before the Court may make an agreed determination of native title, where that agreement relates to a part of the claim area covered by an application (s 87A(1)(b)). In this matter, s 87A sets seven such conditions, some of which contain multiple requirements. 17 The first condition is that the notice period under s 66 of the NTA must have ended (s 87A(1)(b)). As is already mentioned above (at [9]), the NNTT's notification of the combined Palyku Application was completed in the year 2000. That condition has therefore been met. 18 The second condition has already been alluded to above. It is that the agreement of the parties must relate to an area which is included in the area covered by the application (s 87A(1)(b)). As has also already been mentioned above, in this instance, the Determination Area relates to Part A of the combined Palyku Application claim area (see at [12] above). Accordingly, this condition has also been met. 19 The third condition is that all of the parties described in s 87A(1)(c), who were parties to the proceeding at the time the agreement was made, must be parties to the agreement. In this matter, those parties are: (a) the Palyku Applicant (s 87A(1)(c)(i)); (b) the Yamatji Marlpa Aboriginal Corporation, as the representative Aboriginal/Torres Strait Islander body for the proposed determination area (s 87A(1)(c)(iv)); (c) each person who holds an interest in relation to land or waters in the Determination Area (s 87A(1)(c)(v)). Those persons are set out in the immediately succeeding paragraph below; (d) the State of Western Australia, noting that the State Minister individually is not a party (s 87A(1)(c)(viii)); and (e) the Shire of Ashburton, as a Local Government body for the Determination Area (s 87A(1)(c)(ix)). 20 The persons referred to in (c) above are as follows: (a) the following mining interests: (i) BHP Billiton Minerals Pty Ltd; and (ii) Auvex Resources Pty Ltd; (b) the following pastoralists: (i) Balfour Downs Pastoral Co Pty Ltd; (ii) Keydrive Pty Ltd; (iii) Anne Catherine Paull; (iv) Startline Nominees Pty Ltd; (v) Vanguard Enterprises Pty Ltd; and (vi) Hillside Station (WA) Pty Ltd. 21 Having examined the consent determination minute, I am satisfied that each of the above parties is a party to the agreement. I am therefore satisfied that the third condition in s 87A has been met. 22 There are, however, three matters concerning this condition that should be recorded. First, while the Attorney-General for the Commonwealth of Australia intervened in the combined Palyku Application, he ceased to be an intervener and, therefore, a party by order made on 12 February 2019 (see s 87A(1)(c)(vii)). Secondly, while the Nyamal #1 Applicant is a party to the combined Palyku Application, it is not a registered native title claimant in relation to any part of the Determination Area (s 87A(1)(c)(ii)); and it does not claim to hold native title in relation to the land or waters in that area (s 87A(1)(c)(vi)). This conclusion is reinforced by its failure to lodge any objection to the Court making a determination in terms of the consent determination minute (see at [14] above). Accordingly, there is no requirement for the Nyamal #1 Applicant to be a party to the agreement. Finally, on 18 February 2019, Hancock Prospecting Pty Ltd and G H Rinehart ceased being a party to the combined Palyku Application. 23 The fourth condition is that "the terms of the proposed determination are in writing and signed by or on behalf of each of [the] parties" (s 87A(1)(d)). This condition has been met because, as is already mentioned above, the consent determination minute is in writing and it is apparent from the copy of that minute filed with the Court that each of the parties described above (at [19] and [20]) has signed that minute themselves, or someone has signed it on their behalf. 24 The fifth condition concerns the provisions of ss 87A(3) and (8). The former requires notice of the filing of a copy of the consent determination minute to be given to "the other parties to the proceeding". That requirement is linked to the latter provision, which provides that "the Court must take into account any objections made by the other parties to the proceedings". As is recorded in the procedural history of the combined Palyku Application above (at [14]), the notice required by the former provision has been given. Further, given that the Nyamal #1 Applicant is the only party to this proceeding who is not a party to, and has not signed, the consent determination minute and it has not responded to either the general or specific notice that was given to it as described above (at [14]), I infer that it has no objections to the Court making a determination in the terms of the consent determination minute. I am therefore satisfied that condition five has been met. 25 The sixth condition is that the Court must be satisfied that an order in the terms of the consent determination minute, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). For present purposes, and subject to the observations I have made about ss 56 and 57 below (at [37]-[38]), it will be within the power of the Court to make a determination in the terms of the consent determination minute if that minute complies with s 94A of the NTA, if the rights and interests described in it are recognisable by the common law of Australia and if there is no other determination in existence over the Determination Area. 26 Addressing these matters in reverse order, first, I am satisfied on the evidence before me that there is no other determination of native title in existence over any part of the Determination Area. Secondly, having examined the native title rights and interests of the Palyku People described in the consent determination minute, I am satisfied that they are recognisable by the common law of Australia. As for s 94A of the NTA, it requires the Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. That section provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 27 Section 225(a) above requires consideration of an issue raised in the joint submissions which concerns the way in which the Palyku native title holders have been described in the consent determination minute. 28 Schedule A to the original Form 1 of the combined Palyku Application described a claim group consisting of a closed group of 64 people. However, according to the joint submissions filed by the Palyku Applicant and the State, during the course of negotiations for the agreement reflected in the consent determination minute, it was agreed that this description of the Palyku claim group "was problematic, principally because of the absence of any reference to the descendants of those named individuals. That description wrongly implies, firstly, that the claim was made by the [Palyku] Applicant on behalf of individuals holding individual rights and, secondly, that native title will cease to exist on the death of the last surviving individual". As a consequence, it was decided to adopt the following description which, it is contended, accurately reflects the position described in the connection and other ethnographic materials and which captures all of the members of the Palyku native title claim group: A Palyku person is someone who: (a) is an Aboriginal person who is the cognatic descendant of, or adopted by a cognatic descendant of, one or more of the 20 apical ancestors or ancestral couples referred to in the Schedule; and (b) identifies themselves, and is recognised by a substantial number of the descendants of the apical ancestors as, a Palyku person; and (c) 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. 29 The 20 apical ancestors or ancestral couples referred to in the Schedule are as follows: (a) Pitawanu; (b) Pupu; (c) Winnie; (d) Wilyarpirna; (e) Puyungayi; (f) Yurramara; (g) Munjarnpirna and Jukukayi; (h) Jujuna; (i) Fannie, Annie Patawani and Chinaman Janjanamarlu; (j) Pijipangu; (k) Kijiempa; (l) Maggie Kuntuwarrpangu; (m) Peter Long Wayalpa; (n) Julimanga; (o) Wantungu; (p) Kalurru; (q) Alec Weatherall; (r) Major and Judy; (s) Mary Barrdi; or (t) Sophie Bunbry. 30 According to the affidavit of Mr Cameron Trees filed in support of this application, this description of the Palyku native title claim group was approved at a meeting of the Palyku People held on 17 September 2018. At the same meeting, the Palyku Applicant was authorised to consent to the Court making a determination in favour of those persons. As a consequence, that description of the Palyku native title holders is included in the consent determination minute (Paragraph 3 and Schedule Six). 31 While this description does not precisely correspond to the description of the native title claim group set out in the original combined Palyku Application, the Palyku Applicant and the State contended in the joint submissions that the Court may make a determination in that form provided that it is supported by the evidence before it, relying on Billy Patch and others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] and Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33]. I agree and, having regard to the matters set out above, I am satisfied it is appropriate to use this description of the Palyku native title holders in this determination. 32 As for ss 225(b) to (e) above, having perused Attachment A to the consent determination minute, particularly Paragraphs 4 to 11, I am satisfied that this determination sets out the matters mentioned in those subsections in compliance with s 94A. 33 Having regard to all these matters, I am therefore satisfied that this sixth condition has been met. 34 The seventh and final condition concerns the operation of s 87A(4)(b) of the NTA. That section requires the Court to be satisfied that it is appropriate to make a determination in terms of the consent determination minute. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]-[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of "appropriateness" under s 87. For the reasons canvassed in Bigambul Part A (Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447) (at [14]), the same factors apply equally to s 87A. It is not necessary for me to repeat all those observations here. It will suffice to set out the concluding summary as follows (Nelson at [14]): It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation ...; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process … 35 In considering whether this condition has been met, I have been assisted by the joint submissions filed by the Palyku Applicant and the State. Having regard to those submissions, I am satisfied that there exists a free and informed agreement between the parties. In reaching this conclusion, I have had particular regard to the fact that all parties have had the advantage of competent legal representation and that this proceeding has been supervised under intensive case management by a Registrar of the Court. Finally, I am satisfied that the terms of the consent determination minute are unambiguous and clear. I am therefore satisfied that this seventh condition has been met. 36 Notwithstanding this conclusion, and despite the lack of any necessity to do so (see Nelson at [12]-[13]), it is appropriate to set out the following excerpt from the joint submissions which summarises the Palyku traditional laws and customs and their connection to their traditional country comprising the Determination Area. This summary goes some way to explaining why the parties came to the agreement that this determination of the Palyku People's native title should be made: 28. Under Palyku traditional laws and customs, the Palyku Part A Determination Area is, and has been since prior to sovereignty, the traditional country of the Palyku People. 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.

THE PRESCRIBED BODY CORPORATE 37 Before concluding, it is necessary to deal with the provisions of ss 56 and 57 of the NTA. The parties have sought orders that have the effect of delaying the operational commencement of this determination until a prescribed body corporate is nominated by a representative of the native title holders and determined by the Court (Orders 2 to 5 inclusive). Furthermore, that nomination is to indicate whether the native title rights and interests are to be held in trust by that body, or as an agent, under s 56(1) or s 57(2), respectively. In the event that no such nomination is made within the 12 months following this determination, or such later time as may be ordered, the matter is to be listed for further directions. 38 I am unaware of the reason why it has not been possible for a prescribed body corporate to be nominated and for its role to be defined at the same time as the filing of the consent determination minute. While a concurrent determination of a prescribed body corporate and of native title is the preferable course, s 55 of the NTA does allow for the former determination to occur separately from the latter provided that the former is made as soon as practicable after the latter. In this case, the orders provide that the determination of native title will not come into effect until the determination of a prescribed body corporate has been made. There is therefore a considerable incentive to attend to the nomination of a prescribed body corporate as soon as possible. Moreover, if that does not occur, the matter is to be listed for further directions. In these circumstances, I am satisfied that it is appropriate to make orders in this form.

CONCLUSIONS 39 For these reasons, I consider the seven conditions contained in s 87A of the NTA have been met and it is therefore appropriate to make a determination of native title in accordance with the terms of the consent determination minute. 40 One of the objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement that have led to this determination of native title clearly serve to advance that object. 41 The parties are to be congratulated for the years of effort and persistence that have been required to pursue the negotiations to their finality. 42 The legal representatives of all the parties are also to be congratulated for the support and assistance they have provided to their clients, over those years, to achieve this outcome. 43 In conclusion, it is worth making this observation: this determination of native title does not create native title in the Determination Area. Instead, it marks the recognition, by the Australian legal system, of the Palyku People's long held, and pre-existing, native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the Palyku People, since long before this determination today. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

SCHEDULE OF PARTIES WAD 23 of 2019 Respondents Fourth Respondent: AUVEX RESOURCES PTY LTD Fifth Respondent: BALFOUR DOWNS PASTORAL CO PTY LTD Sixth Respondent: KEYDRIVE PTY LTD Seventh Respondent: ANNE CATHERINE PAULL Eighth Respondent: STARTLINE NOMINEES PTY LTD Ninth Respondent: VANGUARD ENTERPRISES PTY LTD Tenth Respondent: HILLSIDE STATION (WA) PTY LTD Eleventh Respondent: YAMATJI MARLPA ABORIGINAL CORPORATION

To the extent extinguishment has not been disregarded pursuant to s 47A of the Native Title Act: see clause 8 and Schedule Five.

Native Title Amendment Act 1998(Cth)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (18)

Cases Cited (5)

Cited By (10)