FEDERAL COURT OF AUSTRALIA

Neowarra v State of Western Australia [2012] FCA 974

THE COURT ORDERS THAT:

1.    Annexure 1, Attachment 1 of the Orders of the Court of 27 August 2004 be replaced with the maps identified as Annexure JS2 of the affidavit of Jamie Strain affirmed on 17 May 2012.

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

THE COURT ORDERS THAT:

1.    Annexure 1, Attachment 1 of the Orders of the Court of 27 August 2004 be replaced with the maps identified as Annexure JS2 of the affidavit of Jamie Strain affirmed on 17 May 2012.

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

THE COURT ORDERS THAT:

1.    Annexure 1, Attachment 1 of the Orders of the Court of 27 August 2004 be replaced with the maps identified as Annexure JS2 of the affidavit of Jamie Strain affirmed on 17 May 2012.

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

REASONS FOR JUDGMENT

1    The applicant seeks to vary certain orders to rectify a clerical mistake. Pursuant to r 39.05(h) of the Federal Court Rules 2011 (Cth), the Court may vary or set aside a judgment or order after it has been entered if there is an error arising in a judgment or order from an accidental slip or omission (the slip rule).

The application of the slip rule to native title determinations

2    In Lovett v Victoria (No 4) (2011) 195 FCR 198, North J made orders using what was then O 35, r 7 of the Federal Court Rules 1979 (Cth), to vary a determination of native title. His Honour considered whether the orders were better made using s 13(1)(b) of the Native Title Act 1993 (Cth) (the Act) and found at [8]:

It is open to the Court to make orders amending the Part A determination under either s 13 of the Act or O 35, r 7 of the Federal Court Rules. The choice between the two will depend upon the circumstances in which the application is made. The question which needs to be addressed by the Court is whether the legislature intended that the fulsome notification required by the Act be provided in circumstances such as the present, or whether the procedure under O 35, r 7(2)(f) and (3) would be regarded as appropriate in the circumstances.

3    Accordingly, there are two questions which need to be determined:

(a)    whether the requested variation is to correct an error arising from an accidental slip or omission; and

(b)    whether the fulsome notification required by the Act is appropriate in the circumstances.

The nature of the error

4    The error is a discrepancy between the maps annexed at Sch 1 of the orders made by Sundberg J on 27 August 2004 (Original Orders) (Original Maps) and the technical description set out in Sch 1 Annexure 2 of the Original Orders (Technical Description) and the inclusion of “Area 74” in the table at para 13 and Sch 4 of the Original Orders.

5    A review of the Original Orders shows that the discrepancy is between the boundary line in the south western corner of the determination area as it is described in the Technical Description and as it is shown on the Original Maps. According to the affidavit of Jamie Strain, the Team Leader of the mapping section at the Native Title Spatial Services section of the Western Australian Land Information Authority (Landgate), the discrepancy affects an area of some 227 sq kms of land which is within the determination area according to the Technical Description, but outside of it according to the Original Maps (Excluded Area).

6    The excluded area also wholly encompasses “Area 74”, which is the Aboriginal Community of Imintji on Reserve R40571 (Area 74). Area 74 is included in the table at para 13 of the Original Orders and again in the table in Sch 4.

7    The inconsistency between the Original Maps and the Technical Description and Sch 4 is a clear error in the Original Orders.

Original intent of the parties

8    As I mentioned, Area 74 is included in the table at Sch 4 of the Original Orders. Pursuant to Order 4 of the Original Orders, “the nature and extent of native title rights and interests in relation to each part of the determination area referred to in Schedule 4 ... are an entitlement against the whole world to possession, occupation, use and enjoyment of the land and waters of that part”.

9    It is clear from the body of the Original Orders that Area 74 was intended to be within the determination area and, accordingly, of the two possible boundary lines, the Technical Description is the only one which is representative of the original intent of the parties.

Whether arising from accidental slip or omission

10    The Technical Description, being a list of coordinates, is not easily interpretable. I also note that on the Original Maps that were provided to the Court, and which are annexed to the Original Orders, Area 74 is marked in such a way, particularly in Map 1, so that it would be reasonable to assume that it is inside the boundary line, as drawn, if one did not already know it was not.

11    There is no evidence, and I consider it unlikely even so, that the parties would have knowingly provided incorrect maps had they been aware that the maps used showed an incorrect boundary line.

Whether the notification required by section 13 of the Act is appropriate

12    The majority of consent determinations, including the related determinations for Wanjina-Wunggurr Dambimangari in Barunga v State of Western Australia [2011] FCA 518 at [17] and Wanjina-Wunggurr Uunguu in Goonack v State of Western Australia [2011] FCA 516 at [18], include a clause which states:

In the event of any inconsistency between the written description of an area in Schedules 1 to 5 and the area as depicted on the map at Attachment One to Schedule One, the written description prevails.

However, as this matter was a litigated determination, no such provision was included.

13    As I mentioned, all other aspects of the original orders indicate that the boundary line should be the one specified in the technical description.

14    It seems to me that correcting the error by replacing the Original Maps with new maps which accurately reflect the technical description does not alter the effect of the Original Orders and I so order accordingly.

15    I do not consider that the onerous notification requirements set out in s 13 of the Act are necessary or appropriate in these circumstances.

Associate:

Dated:    7 September 2012