Jackson J
This matter recognised non-exclusive native title held by the Palyku people over approximately 825 square kilometres of land and waters in Western Australia. This determination was reached by consent between the Palyku people and the State under s 87A of the Native Title Act 1993 (Cth) (NTA). The Palyku‑Jartayi Aboriginal Corporation RNTBC was nominated to hold the native title on trust.
Background
In 1998 the Palyku people filed native title claims over their traditional lands in the eastern Pilbara region of Western Australia. In 2019, a consent determination was made in relation to most of this land (O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330). This determination added three separate areas of land to this. Some remaining land and waters under the Palyku claim remained to be resolved. These are the subject of overlapping applications with the Nyamal people (see Nyamal Palyku Proceeding (No 2)[2020] FCA 788).
The parties have filed for a consent determination under s 87A(2) of the NTA, supported by joint submissions.
Determination
Under the relevant traditional laws and customs of the Palyku people, non-exclusive native title rights and interests were recognised over the area, with the exception of some parcels of land bearing competing interests. The native title determination recognised rights to hunt, fish, gather and take the traditional resources of the land, to take and use water, and to engage in cultural activities in the area. The native title holders are those descended from twenty named apical ancestors. Jackson J deemed this description appropriate as ‘it does not provide for a closed group which will cease to exist after its last member passes away’ and was consistent with the descriptions in the other Palyku claims [31]. The order to uphold the proposed determination, agreed to by consent, was considered appropriate as Jackson J was satisfied: it was on concluded on a free and informed basis with legal representation and judicial oversight; the State had properly acted as the representative of the wider community; and evidence established the Palyku people have a firm connection with the area.