Reeves J recognised native title within the determination area, subject to the specific interests identified within the Determination.
This case concerns application WAD 23 of 2019 (Palyku Application), made over lands in the eastern Pilbara region of Western Australia. The parties to the proceeding are the Palkylu Applicant and the State of Western Australia, the Shire of Ashburton and BHP Billiton. The parties reached an agreement as to the terms of the Determination, known was Palyku Part A. The parties agreed that in respect of the remaining lands and waters of the Application, no determined be made.
Procedural History
The procedural history is ‘lengthy and complex’ (at [3]). WAD 23 of 2019 comprises a part of two prior proceedings that were made under the NTA prior to its 1998 amendment (WAD 6250 of 1998 and WAD 6287 of 1998). These proceedings were combined (Combined Application) on 31 March 1999, which was eventually referred to mediation by the NNTT on 7 September 2000. The proceeding continued in mediation until 3 August 2012, where Barker J ordered that the mediation cease and that the proceeding be referred to ‘intensive case management’ before a Registrar. By order of the Court, the area was divided into two parts: Part A, the subject of this current judgment, and Part B, currently being progressed as part of the Nyamal Palyku Proceeding (WAD 392 of 2018).
The Combined Application was given a new electronic file proceeding number on 14 January 2019, being WAD 23.
Present judgment
Reeves J was satisfied that the conditions of s 87A of the Native Title Act 1993 (Cth) have been met. His Honour noted three parties to the agreement at the time was made, who have since ceased to be parties. Firstly, the Attorney General for the Commonwealth of Australia intervened in the Combined Application but later ceased to be an intervener, and thus a party. Secondly, the Nyamal Applicant is a party to the Combined Application but not a registered native title claimant nor does it claim to hold native title in relation to land or waters in that area, and thus not a party. Thirdly, Hancock Prospecting Pty Ltd and G H Rinehart ceased being a party to the combined Palyku application.
Reeves J was satisfied on the evidence that there is no other determination of native title in existence over any part of the Determination area. His Honour was further satisfied that, having regard to the consent determination minute, the rights and interests of the Palyku people are recognised by the Australian common law.
Reeves J raised a further issue regarding the way in which Palyku native title holders were described in the consent determination minute, due to the absence of any reference to the descendants of those named individuals. This description was later amended at a meeting of the Palyku people on 17 September 2018, where the Palyku Applicant was authorised to consent to the Court making a determination in favour of those persons.
His Honour then turned to the question of ‘appropriateness’ under s 87A, citing his prior delineation of all the factors necessary for the Courts to consider in making a determination (Nelson v Northern Territory (2010) 190 FCR 344). His Honour was satisfied that in accordance with these factors, a free and informed agreement between the parties exists.
Rights and interests
The rights and interests recognised at the are non-exclusive rights to enter and remain on the land, camp, erect temporary shelters and travel over the area, to hunt, fish, gather, take and use the traditional resources of the land, take and use water, engage in cultural activities and the transmission of cultural knowledge including 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 conducting ceremony and ritual, including burial and burial rites, and the right to be accompanied on to the area.
Prescribed body corporate
A prescribed body corporate (PBC) per ss 56 and 57 of the NTA has not yet been nominated, and thus orders by the Court provide that the determination of native title will not come into effect until the determination of a PBC has been made.