Federal Court of Australia

Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia (No 2) [2020] FCA 1860

ORDERS

THE COURT ORDERS THAT:

1.    The orders of the Court made on 30 November 2020 are varied by amending Schedule 1 to:

(a)    delete the words 'the southern boundary of Reserve 1834' and substitute the words 'a southwestern boundary of Reserve 51146';

(b)    delete the words 'Then easterly to the easternmost northeastern corner of the westernmost severance of Pastoral Lease N049743 (Mowanjum), being the easternmost northwestern corner of again Native Title Determination WAD6099/l998 Nyikina Mangala (WCD2014/003)' and substitute the words 'Then easterly along a line joining coordinate points Latitude 17.415268 South, Longitude 123.667955 East and Latitude 17.415267 South, Longitude 123.751288 East to a northwestern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003);',

so that the orders be now in the form annexed hereto and marked Attachment A.

2.    The service of the interlocutory application dated 17 December 2020 on any party other than the Applicant and the Commonwealth of Australia be dispensed with.

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

ATTACHMENT A

DETERMINATION

Note: defined terms are set out in paragraph 14 below.

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 Part A Determination Area in the manner set out in paragraphs 4 and 5 of this Determination.

2.    Native title does not exist in those parts of the Part A Determination Area that are identified in Schedule Five to this Determination.

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

3.    The native title in the Part A Determination Area is held by the Native Title Holders.

The nature and extent of native title rights and interests: s 225(b) and s 225(e) Native Title Act

Exclusive native title rights and interests

4.    Subject to paragraphs 7, 8, 9 and 12 the nature and extent of the native title rights and interests in relation to the Exclusive Area is the right to possession, occupation, use and enjoyment of that part as against the whole world.

Non-exclusive native title rights and interests

5.    Subject to paragraphs 6, 7, 8, 9 and 12 the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are the following:

(a)    the right to have access to, remain on and use that part. For the avoidance of doubt, some of the ways in which that right may be exercised in the Non-Exclusive Area include but are not limited to the following activities:

(i)    to access and move freely through and within that part;

(ii)    to live, being to enter and remain on, camp and erect temporary shelters and other structures for those purposes on that part;

(iii)    to engage in cultural activities, including the transmission of cultural heritage knowledge; and

(iv)    to hold meetings.

(b)    the right to access and take the resources on that part. For the avoidance of doubt, some of the ways in which that right may be exercised in the Non-Exclusive Area include but are not limited to the following activities:

(i)    to hunt, gather and fish;

(ii)    to take and use flora and fauna;

(iii)    to take other natural resources, including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone; and

(iv)    to take and use water.

(c)    the right to protect places, areas and objects of traditional significance on that part. For the avoidance of doubt, some of the ways in which that right may be exercised in the Non-Exclusive Area include but are not limited to the following activities:

(i)    to conduct and participate in ceremonies; and

(ii)    to visit, maintain and protect from physical harm, areas, places and sites of importance.

(d)    the right to be accompanied onto the Part A Determination Area by any persons who, though not Native Title Holders pursuant to paragraph 3, the Native Title Holders may invite pursuant to traditional law and custom, being:

(i)    spouses or partners of the Native Title Holders; and

(ii)    persons who may assist with the performance of ceremonies or cultural activities, including sharing of knowledge about country.

6.    The native title rights and interests referred to in paragraph 5 do not confer:

(a)    possession, occupation, use and enjoyment of those parts of the Part A Determination Area on the Native Title Holders to the exclusion of all others; nor

(b)    a right to control the access of others to the land or waters of those parts of the Part A Determination Area.

7.    Notwithstanding anything in this Determination, there are no native title rights and interests in the Part A Determination Area in or 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 lawfully captured or controlled by the holders of the Other Interests.

8.    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 Native Title Holders.

9.    For the avoidance of doubt, the native title rights and interests set out in paragraphs 4 and 5 do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination.

Areas where extinguishment is disregarded: s 47A or s 47B Native Title Act

10.    Section 47A and s 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Six to this Determination.

The nature and extent of any Other Interests: s 225(c) Native Title Act

11.    The nature and extent of the Other Interests in relation to the Part A Determination Area are those set out in Schedule Seven to this Determination.

Relationship between native title rights and Other Interests: s 225(d) Native Title Act

12.    The relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests referred to in paragraph 11 is that:

(a)    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,

(b)    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. 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, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.

Liberty to Apply

13.    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 Part A Determination Area referred to in clause 2 of Schedule Five of this Determination.

Definitions and Interpretation

14.    In this Determination, unless the contrary intention appears:

'Exclusive Area' means those lands and waters of the Part A Determination Area described in Schedule Three to this Determination (being areas where any extinguishment must be disregarded) which are not Non-Exclusive Areas or described in paragraph 2 as an area where native title does not exist. Exclusive Areas are generally shown as shaded green on the maps at Schedule Two;

'high water mark' means the mean high water mark at common law;

'land' and 'waters' respectively have the same meanings as in the Native Title Act;

'Native Title Act' means the Native Title Act 1993 (Cth);

'Native Title Holders' means the people described in Schedule Eight to this Determination;

'Non-Exclusive Area' means those lands and waters of the Part A Determination Area described in Schedule Four to this Determination (being areas where there can only be partial recognition of native title). Non-Exclusive Areas are generally shown as shaded yellow on the maps at Schedule Two;

'Other Interests' means the legal or equitable estates or interests and other rights in relation to the Part A Determination Area described in Schedule Seven to this Determination and referred to in paragraph 11;

'Part A Determination Area' means the land and waters described in Schedule One and depicted on the maps at Schedule Two to this Determination;

'State' means the State of Western Australia; and

'Titles Validation Act' means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).

15.    In the event of any inconsistency between the written description of an area in Schedules One, Three, Four, Five, Six or Seven and the area as depicted on the map at Schedule Two the written description prevails.

SCHEDULE ONE

PART A DETERMINATION AREA

The Part A 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 those lands and waters commencing at the northernmost northeastern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003), being a point on a southwestern boundary of Reserve 51146 and a point on the southern boundary of Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) and extending easterly along the southern boundary of that latter native title determination to its easternmost southeastern corner; then southerly and easterly passing the through the following coordinate points:

Then easterly along a line joining coordinate points Latitude 17.415268 South, Longitude 123.667955 East and Latitude 17.415267 South, Longitude 123.751288 East to a northwestern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003); then generally southerly, generally south westerly, generally northerly, generally southeasterly, again generally northerly, again generally south westerly, again generally northerly, generally easterly and again generally northerly along the boundaries of that native title determination back to the commencement point.

Note:        Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 1 August 2020

For the avoidance of doubt the Part A Determination Area excludes any land and waters subject to:

•    Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) as determined in the Federal Court on 2 May 2018.

•    Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003) as determined in the Federal Court on 29 May 2014.

•    Native Title Application WAD33/2019 Warrwa Combined (WCD2014/004) as registered on 26 November 2014.

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:     Graphic Services (Landgate) 14 September 2020

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 of 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 PART A DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE NATIVE TITLE AREAS (PARAGRAPH 4)

Areas where native title comprises the rights set out in paragraph 4

Native title comprises the rights and interests set out in paragraph 4 of the Determination in relation to the following land and waters (which are generally shown as shaded green on the maps at Schedule Two):

1.    Unallocated Crown Land:

(a)    Whole of UCL 001;

(b)    Whole of UCL 003;

(c)    Whole of UCL 004;

(d)    Whole of UCL 006;

(e)    Whole of UCL 007;

(f)    Whole of UCL 008;

(g)    Whole of UCL 009;

(h)    Whole of UCL 010;

(i)    Whole of UCL 011;

(j)    Whole of UCL 012;

(k)    Whole of UCL 013;

(l)    Whole of UCL 015;

(m)    Whole of UCL 016;

(n)    Whole of UCL 017;

(o)    Whole of UCL 018;

(p)    Whole of UCL 019;

(q)    Whole of UCL 020;

(r)    Whole of UCL 021;

(s)    Whole of UCL 022;

(t)    Whole of UCL 023;

(u)    Whole of UCL 024;

(v)    Whole of UCL 025;

(w)    Whole of UCL 026;

(x)    Whole of UCL 028;

(y)    That part of UCL 029 that is not subject to mining lease M0400220;

(z)    Whole of UCL 030; and

(aa)    Whole of UCL 031.

SCHEDULE FOUR

NON-EXCLUSIVE NATIVE TITLE AREAS (PARAGRAPH 5)

Areas where native title comprises the rights set out in paragraph 5

The following land and waters (generally shown as shaded yellow on the maps at Schedule Two):

1.    Pastoral leases

2.    Reserves

3.    Unallocated Crown Land

4.    Water areas

5.    Areas seaward of the high water mark

Any land or waters within the Part A Determination Area which are seaward of the high water mark (and which, for the avoidance of doubt, are not within the scope of paragraph 2 of the Determination as an area where native title does not exist).

SCHEDULE FIVE

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 Part A Determination Area which, with the exception of public works (as described in clause 2 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.

1.    Port of Derby

The Derby Port Area as vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA).

2.    Public Works

Any other public work as that expression is defined in the Native Title Act and the Titles Validation Act (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 Act or s 23C(2) of the Native Title Act applies.

SCHEDULE SIX

AREAS TO WHICH SECTIONS 47A & 47B NATIVE TITLE ACT APPLY (PARAGRAPH 10)

Section 47A

Save for any areas described in clause 2 of Schedule Five, s 47A of the Native Title Act applies in relation to the following area, with the effect that any extinguishment over that area is to be disregarded:

Section 47B

Save for any areas described in clause 2 of Schedule Five, s 47B of the Native Title Act applies in relation to the following areas, with the effect that any extinguishment over those areas is to be disregarded:

SCHEDULE SEVEN

OTHER INTERESTS (PARAGRAPH 11)

The nature and extent of the Other Interests in relation to the Part A Determination Area are as follows.

Land tenure interests registered with the Western Australian Land Information Authority are current as at 1 August 2020. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 30 September 2020. All other interests are current as at the date of the Determination.

1.    Pastoral leases

The following pastoral lease and the rights and interests of the holders from time to time of that pastoral lease:

2.    Reserves

The interests of persons who have the care, control and management of the following reserve and the interests of people entitled to access and use the reserve for the purpose for which it is reserved, subject to any statutory limitations upon those rights:

3.    Mining tenements

The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements:

(a)    Mining Lease

(b)    Miscellaneous Licence

(c)    Exploration Licence

4.    Petroleum interests

The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and/or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those petroleum interests:

5.    Additional rights and interests

The following rights and interests in the Part A Determination Area:

(a)    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.

(b)    Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

(c)    The rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Western Tuna and Billfish Fishery, the Western Skipjack Tuna Fishery and the Southern Bluefin Tuna Fishery.

(d)    Rights and interests of members of the public arising under the common law including:

(i)    the public right to fish; and

(ii)    the public right to navigate.

(e)    The international right of innocent passage though the territorial sea.

(f)    The right to access the Part A Determination Area by an employee, agent or instrumentality of:

(i)    the State;

(ii)    the Commonwealth; or

(iii)    any local government authority,

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

(g)    So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    stock routes;

(iv)    coastal waters;

(v)    beaches; and

(vi)    areas that were public places at the end of 31 December 1993.

(h)    Any other:

(i)    legal or equitable estate or interest in the land or waters; or

(ii)    any other 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.

SCHEDULE EIGHT

NATIVE TITLE HOLDERS (PARAGRAPH 3)

The Native Title Holders are those Aboriginal persons who are the biological or adopted descendants of the following apical ancestors:

(a)    Charlie Mangurl

(b)    Ninya Philomena

(c)    Ngurkwan, Yayika and Minyang

(d)    Polly Wurrayin and Charlie Djawali

(e)    Polly Jambo

(f)    Kitty Kujaja

(g)    Lucy Muninga and Edward Yedawarra and Wadadarl (mother of Fulgentius Fraser)

(h)    Maggie Nimbanirl

(i)    Dim

(j)    Bobby Ah Choo (Gadjigar)

(k)    Bundangurra and Mabel Ah Chee

(l)    Gurupirin

(m)    Nani

(n)    Balbarra (husband of Nani)

(o)    Jinangkal and Nyuntunga

(p)    Kanjuka and his siblings, Mona Yabali and Alec Munganji

(q)    Ngamariny

(r)    Kudij

(s)    Charlie Jalabanany

(t)    Rimarrangudu

(u)    Bulu

(v)    Butcher Joe Nangan

(w)    Jerry Wandamarra

REASONS FOR JUDGMENT

BANKS-SMITH J:

Context of the application

1    On 30 November 2020 the Court made a consent determination of native title in these proceedings, referred to as the BMM Part A Determination: Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia [2020] FCA 1700. For convenience, defined terms in these reasons bear the same meaning as in those published reasons. To distinguish it from the reasons, I will refer to the formal part of the orders as the Determination.

2    As noted in the reasons, the parties signed a minute consenting to orders effectively in terms of the Determination.

3    The Determination include schedules. Schedule 1 contains the technical description of the external boundary of the Part A Determination Area. Schedule 2 depicts the boundaries by way of maps.

4    Following the Determination, the National Native Title Tribunal (NNTT) raised two queries with the State about a conflict between aspects of the technical description in Schedule 1 and the maps in Schedule 2.

5    The State submits that it has carefully considered the matters raised by the NNTT and raised the errors with the parties to the proceedings. The parties accept that the depiction of the Part A Determination Area in the maps in Schedule 2 is accurate, but there are two errors in the technical description in Schedule 1.

6    It is important that the errors be corrected because [15] of the Determination provides that in the event of any inconsistencies between a written description of an area and an area depicted on a map, then the written description prevails. In this case, it is clear that the depiction by way of the maps is the accurate record of the Part A Determination Area.

7    The State requests that the Court utilise r 39.05(g) or r 39.05(h) of the Federal Court Rules 2011 (Cth), commonly referred to as the slip rule, to correct the errors. Those paragraphs provide:

The Court may vary or set aside a judgment or order after it has been entered if:

…

 (g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

Nature of the error

8    The two errors in the technical description are described in an affidavit of Rebekah Daley, a senior property location officer within the Graphic Services Section of the Western Australian Land Information Authority, which trades as Landgate. Landgate, amongst other things, maintains the State's official register of land ownership and survey information.

9    Ms Daley is qualified as a cartographer and was requested by the State to assist with respect to the BMM Part A Native Title Claim from around September 2020. As part of that assistance, Graphic Services prepared the technical description of the external boundary of the proposed BMM Part A Determination Area and a series of maps depicting the same.

10    According to Ms Daley, the descriptions were compiled by making reference to land tenure sourced from Landgate's Spatial Cadastral Database as at 1 August 2020, surrounding native title applications and determination boundaries and coordinate points. Consideration was also given to the external boundary description of the BMM native title claim area which was prepared by the NNTT on 22 September 2016 and which formed an attachment to the original BMM application.

11    The technical descriptions were ultimately included in Schedule 1 of the Determination.

12    Ms Daley deposes to the fact that after the Determination, she considered two matters raised by a senior geospatial specialist within the Geospatial Unit at the NNTT and came to the following conclusion.

13    As to the first error that was identified, there had been a change in tenure of a point which was formerly (and accurately) described as being on the southern boundary of Reserve 1834 but was now more properly described by reference to Reserve 51146.

14    The second issue was an inaccuracy in the description of a point on the boundary such that on careful consideration Ms Daley was of the view that an amendment was required.

15    The amendments to Schedule 1 which Ms Daley suggests in order to bring the technical description into alignment with the Part A Determination Area described in the Schedule 2 maps are as follows:

All those lands and waters commencing at the northernmost northeastern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003), being a point on a southwestern boundary of Reserve 51146 the southern boundary of Reserve 1834 and a point on the southern boundary of Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) and extending easterly along the southern boundary of that latter native title determination to its easternmost southeastern corner; then southerly and easterly passing the through the following coordinate points:

Then easterly along a line joining coordinate points Latitude 17.415268 South, Longitude 123.667955 East and Latitude 17.415267 South, Longitude 123.751288 East to a northwestern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003); Then easterly to the easternmost northeastern corner of the westernmost severance of Pastoral Lease N049743 (Mowanjum), being the easternmost northwestern corner of again Native Title Determination WAD6099/l998 Nyikina Mangala (WCD2014/003) then generally southerly, generally south westerly, generally northerly, generally southeasterly, again generally northerly, again generally south westerly, again generally northerly, generally easterly and again generally northerly along the boundaries of that native title determination back to the commencement point.

Power to amend

16    Having carefully considered Ms Daley's detailed evidence with respect to the manner in which the errors have arisen and how they might be rectified, I agree with the State and the applicant that the nature of the errors are such that they can be addressed through an exercise of the Court's power under r 39.05. They are relatively minor and of a technical nature.

17    In the native title context, the slip rule has been utilised to correct different types of errors in determinations. For example, it has been used to correct:

(a)    the mistaken omission of parcels of land from a determination: McLennan on behalf of the Jangga People v State of Queensland [2013] FCA 795 at [2] (Rares J); and Lovett on behalf of the Gunditjmara People v State of Victoria (No 4) [2011] FCA 931; (2011) 195 FCR 198 at [3]-[4] (North J);

(b)    the mistaken description of lots or areas within a determination: McLennan on behalf of the Jangga People at [3]; and VB (deceased) v State of Western Australia [2012] FCA 973 at [8] (Gilmour J);

(c)    the mistaken statement of existence of native title rights and interests over lots or areas within a determination (for example, in orders made by McKerracher J on 10 October 2017 in WAD 6097 of 1998 (Esperance Nyungar)); and

(d)    discrepancies between maps annexed to orders and the technical description of the land the subject of the maps in the orders: Neowarra v State of Western Australia [2012] FCA 974 at [4] (Gilmour J).

18    In Lovett on behalf of the Gunditjmara People, North J made orders using what was then O 35 r 7 of the (pre-July 2011) Federal Court Rules to vary a determination of native title to include certain areas of land that had been accidentally omitted. His Honour considered whether the orders were better made under s 13(1)(b) of the Native Title Act 1993 (Cth) and stated that:

[8]    It is open to the Court to make orders amending the … 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.

19    The 'fulsome notification' provisions of the Native Title Act to which North J referred in Lovett on behalf of the Gunditjmara People are contained in s 61, s 63 and s 66 of the Native Title Act. Broadly, these provisions provide that the Registrar of the Federal Court must give the Native Title Registrar a copy of an application filed under s 61 (that is, an application made under s 13(1)(b) to vary an approved determination of native title) and any accompanying documents. The Native Title Registrar must then give copies of the application and accompanying documents to any representative bodies for the area covered by the application, the Commonwealth Minister, any local government body for any of the area covered by the application, and any person whose interests may be affected whom the Registrar considers appropriate to receive a copy of the application and accompanying documents.

20    In Lovett on behalf of the Gunditjmara People, North J observed that the notification process for variation of a determination under s 13(1)(b) of the Native Title Act would be 'more onerous' than if the slip rule were relied upon. Given the nature of the amendments sought and the consent of both the applicant and the parties whose interests might be affected, North J held that no useful purpose would be served by requiring the full notification process under the Native Title Act to be followed.

21    In VB (deceased), Gilmour J referred to and followed the approach in Lovett on behalf of the Gunditjmara People (at [2]-[3]).

Consideration

22    In this case, having regard to the evidence of Ms Daley, I am of the view that it is appropriate to utilise the power in r 39.05(h) to vary the Determination by substituting a version of Schedule 1 amended as suggested by Ms Daley and as agreed to by the parties. The error arose not by way of a clerical mistake in the judgment but from an accidental slip when the technical description was prepared on behalf of the State. The errors in the technical description were not picked up in advance of the Determination. Had they been detected, the technical description would have been amended prior to the signing of the Minute.

23    I accept that the boundary of the BMM Part A Determination Area intended by the parties to be reflected in the technical description is the boundary depicted on the maps at Schedule 2 to the Determination. The technical description was not easily interpretable by those without specialised knowledge or mapping software such that the parties and the Court relied upon the maps as being an accurate reflection of the technical description at the time the Determination was made. Accordingly, neither the Court nor the parties were aware of the error at the time.

24    In those circumstances, I accept the State's submission that no useful purpose would be served by requiring the notification process to be repeated given the relatively minor nature of the proposed amendments to the consent determination as a whole. It is in the interests of justice that the errors be corrected by exercise of the power in r 39.05(h) and there will be orders accordingly.

Associate:

Dated:    23 December 2020