Federal Court of Australia

Robe River Kuruma Aboriginal Corporation RNTBC v State of Western Australia [2021] FCA 20

ORDERS

THE COURT NOTES THAT:

A.    Proceeding WAD 91 of 2020 (“KM Part B Variation Application”) is made pursuant to sections 13(1)(b) and 61(1) of the Native Title Act 1993 (Cth). It seeks a variation to the approved determination of native title made by Rangiah J in proceedings WAD 6090 of 1998 and WAD 370 of 2016 on 26 April 2018 (the “KM Part B determination”): see Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548.

B.    The KM Part B determination was made in accordance with a Minute of Proposed Consent Determination of Native Title filed on 13 April 2018 (the “Minute”). The Minute included an agreement by the parties to WAD 6090 of 1998 and WAD 370 of 2016 that the registered native title body corporate may seek a variation of the KM Part B determination as it related to the application of section 47B of the Native Title Act in the event that the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8 (“BHP v KN”) was subsequently overturned by the High Court. By reason of that decision, section 47B(2) of the Native Title Act could not apply to certain areas (as listed in Recital I(a) and (b) of the Minute) that were covered by exploration or prospecting licences at the relevant time.

C.    The parties to the KM Part B determination also agreed that one or more members of the native title claim group “occupied” (within the meaning of paragraph 47B(1)(c) of the Native Title Act) the areas listed in Recital I(a) and (b) of the Minute at the relevant time and that, but for prior extinguishment and the effect of BHP v KN, the native title rights in those areas would be those exclusive native title rights listed in paragraph 4 of the KM Part B determination: see Recital G of the KM Part B determination.

D.    On 17 April 2019 the High Court of Australia delivered judgment in Tjungarrayi v Western Australia [2019] HCA 12, unanimously allowing two appeals from decisions of the Full Court of the Federal Court of Australia in BHP v KN and Attorney-General v Helicopter-Tjungarrayi [2018] FCAFC 35. In doing so the High Court held that the presence of exploration or prospecting licences or permits did not prevent the disregarding of extinguishment under section 47B(2) of the Native Title Act in respect of land or waters covered by such licences or permits.

E.    Accordingly, the KM Part B Variation Application seeks to vary the KM Part B determination by recognising the application of section 47B (and a right of exclusive possession) over those land and waters identified in Recital I(a) and (b) of the KM Part B determination.

F.    The KM Part B Variation Application also seeks to vary the KM Part B determination by recognising a right of exclusive possession over an area known as Marti Marti Yinta, which was omitted from the KM Part B determination as a result of an accidental slip or omission on the part of the parties to that determination.

G.    The applicant in the KM Part B Variation Application and the State of Western Australia (“the parties”) have reached an agreement as to the terms of the orders, and including a varied determination of native title, to be made in relation to the KM Part B Variation Application.

H.    The parties have filed with the Court this Minute of Proposed Orders and Varied Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the KM Part B Variation Application.

BEING SATISFIED that orders in the terms sought by the parties are within the power of the Court and, it appearing to the Court appropriate to do so pursuant to section 13(5) of the Native Title Act, and by the consent of the parties:

THE COURT ORDERS THAT:

1.    The determination of native title at Attachment “A” to the orders made by Justice Rangiah in Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548 on 26 April 2018 be varied as follows:

(a)    Delete the maps in Schedule Two and replace them with the maps contained in Schedule Two of the Varied Determination of Native Title provided for in Attachment A;

(b)    In paragraph 2 of Schedule Three, delete the words “portions of exploration licences E0801060, E0801293, E0801686 and E0802408, prospecting licences P0800666 and P0800669”;

(c)    In paragraph 3 of Schedule Three, delete the words “not subject to portion of exploration licence E0800592”;

(d)    In Schedule Three add paragraph 4 as follows:

4.     Portion of UCL 12 (Marti Marti Yinta), being all those land and waters within a 2 kilometre radius of the following coordinates (to the extent that they fall within the Determination Area and are not subject to portion of mineral lease AML 7000248):

(e)    In Schedule Five, delete the description relating to UCL 12 and replace it as follows:

That part of UCL 12 subject to the sites of Kangaroo Trap Pool, Payering’s Cave (Old Sarah’s cave) and Marti Marti Yinta to the extent described in Schedule Three;

(f)    In Schedule Five, delete from the description relating to UCL 51, the words “portions of exploration licences E0801060, E0801293, E0801686 and E0802408, prospecting licences P0800666 and P0800669”; and

(g)    In the chapeau to Schedule Six replace the words “the date of this determination” with the words “26 April 2018”.

2.    The determination of native title as varied by Order 1 above is in the form of the Varied Determination of Native Title provided for in Attachment A.

3.    There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: section 225 Native Title Act

1.    Subject to paragraph 2, native title exists in the 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 Determination Area that are identified in Schedule Four and which are generally shown as shaded pink on the maps at Schedule Two.

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

3.    The native title in the Determination Area is held by the Robe River Kuruma People.

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

Exclusive rights and interests

4.    Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to the Exclusive Area is:

(a)    except in relation to flowing and underground water, the right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others; and

(b)    in relation to flowing and underground water, the right to use and enjoy the flowing and underground water, including:

(i)    the right to hunt on, fish from, take and use the traditional resources of the flowing and underground water; and

(ii)    the right to take and use the flowing and underground water.

Non-exclusive rights and interests

5.    Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area is that they confer the following non-exclusive rights on the Robe River Kuruma People, including the right to conduct activities necessary to give effect to them:

(a)    the right to live, being to enter and remain, camp and erect temporary shelters and other structures for that purpose and to travel over and visit any part of the Non-Exclusive Area;

(b)    the right to hunt, fish, gather and use the traditional resources of the Non-Exclusive Area;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities and the transmission of cultural knowledge on the Non-Exclusive Area, including:

(i)    visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and

(ii)    conducting ceremony and ritual, including burial and burial rites; and

(e)    the right to be accompanied on to the Non-Exclusive Area by those people who, though not Robe River Kuruma People and who (for the avoidance of doubt) cannot themselves exercise any native title rights, are;

(i)    the non-Robe River Kuruma spouses, parents or children of the Robe River Kuruma People; or

(ii)    persons required by or entering in accordance with traditional law and custom for the performance of ceremonies or cultural activities or the exercise by the Robe River Kuruma People of other native title rights on the Non-Exclusive Area.

Qualifications on the native title rights and interests

6.    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 Robe River Kuruma People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

7.    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 lawfully captured by the holders of the Other Interests.

8.    The native title rights and interests set out in paragraphs 4(b) and 5 do not confer:

(a)    possession, occupation, use and enjoyment on the Robe River Kuruma People to the exclusion of all others; or

(b)    a right to control the access to, or use of, those parts of the Determination Area or its resources.

Areas to which section 47B of the Native Title Act applies

9.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the land and waters described in Schedule Five (which areas are generally shown as hatched purple on the maps at Schedule Two).

The nature and extent of any Other Interests

10.    The nature and extent of the Other Interests are described in Schedule Six.

Relationship between native title rights and other interests

11.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests 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, 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.

Definitions and Interpretation

12.    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;

“Exclusive Area” means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps at Schedule Two);

“flowing water” means the following water within the Determination Area:

(a)     water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and

(b)     any natural collection of water into, through, or out of which a river, creek, stream or brook flows;

“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);

“Non-Exclusive Area” means those lands and waters of the Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two);

“Robe River Kuruma People” means the people described in Schedule Seven 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 Six and referred to in paragraph 10;

“resources” means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, 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));

“Titles Validation Act” means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);

“use” does not include use by way of trade;

“underground water” means water from and including an underground water source, including water that percolates from the ground; and

“waters” has the same meaning as in the Native Title Act and includes flowing and underground water.

13.    In the event of any inconsistency between the written description of an area in Schedule One, Three, Four, Five or Six 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 those land and waters commencing at the intersection of a western boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) with Latitude 21.667808 South, being a point on the present boundary of Native Title Determination WAD6090/1998 Kuruma Marthudunera (Part A) (WCD2016/006) and extending southeasterly and generally southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6007/2001 Puutu Kunti Kurrama and Pinikura People (WCD2016/003); Then generally westerly along the boundaries of the native title determination to the intersection with a western boundary of Reserve 9701; Then generally northerly along the boundary of that reserve to Latitude 22.043916 South; Then generally northwesterly and generally northeasterly through the following coordinate positions.

Then northeasterly to a western boundary of Reserve 9701 at Latitude 21.905857 South; Then generally northerly along the boundary of that reserve to Latitude 21.865008 South; Then generally northwesterly through the following coordinate positions.

Then northwesterly to the centreline of Warramboo Creek at Latitude 21.772920 South; Then generally northerly along the centerline of that creek to the intersection with a southeastern boundary of Pipeline Licence PL 40 (Dampier to Bunbury Natural Gas Pipeline); Then generally northeasterly along the boundaries of that pipeline licence to the prolongation westerly of the northern boundary of the eastern severance of Lot 57 as shown on Deposited Plan 107521 and being the land described in certificate of title volume 2170 folio 694; Then easterly to the northwestern corner of that eastern severance of Lot 57 as shown on Deposited Plan 107521 and being the land described in certificate of title volume 2170 folio 694; Then easterly along the northern boundary of the eastern severance of that lot to its northeastern corner; Then easterly to an eastern boundary of the eastern severance of Lot 257 as shown on Deposited Plan 30489 (North West Coastal Highway Road Widening) at Longitude 115.963575 East; Then southeasterly to Latitude 21.603409 South, Longitude 116.136046 East; Then generally southeasterly through the following coordinate positions.

Then northeasterly to the intersection of the right bank of the Fortescue River with a line joining coordinate positions Latitude 21.616520 South, Longitude 116.171996 East and Latitude 21.338692 South, Longitude 116.741673 East; Then generally southeasterly and generally easterly along that river bank to the intersection with a western boundary of General Lease I123390; Then southerly along the boundary of that general lease to Latitude 21.474046 South also being a point on the present boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001); Then generally southeasterly, westerly and southerly along the boundaries of that native title determination back to the commencement point.

EXCLUSIONS

All that land comprising Lot 57 as shown on Deposited Plan 107521, being the land described in certificate of title volume 2170 folio 694 and that part of Closed Road that falls within that lot.

Pannawonica townsite being all that land comprising Lot 54 as shown on Deposited Plan 241547 being subject to General Lease N105619.

SCHEDULE TWO

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE AREA

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

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

1.     UCL 47, being Lot 169 on Deposited Plan 218385 (the Block);

2.     Portion of UCL 51 (Lot 244 on Deposited Plan 221144) (Jungarri), being that portion of UCL 51 not subject to portion of Historical Road 3, portion of Historical Road 4 and portion of mineral lease AML7000248;

3.     Portion of UCL 12, being all those land and waters within a 1 kilometre radius of the following sites:

4.     Portion of UCL 12 (Marti Marti Yinta), being all those land and waters within a 2 kilometre radius of the following coordinates (to the extent that they fall within the Determination Area and are not subject to portion of mineral lease AML 7000248):

SCHEDULE FOUR

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 are generally shown as shaded in pink on the maps at Schedule Two:

1.     Reserves

The following reserve:

2.     Leases

The following leases:

3.    Roads

The following 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 Act):

SCHEDULE FIVE

Areas to which Section 47B of the Native Title Act Applies (Paragraph 9)

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of a prior interest (to the extent that the areas were not covered by an interest described in sections 47B(1)(b)(i) or (ii) or subject to a resumption process as described in section 47B(1)(c) of the Native Title Act when the relevant native title determination application was made) is to be disregarded:

SCHEDULE SIX

Other Interests (Paragraph 10)

The nature and extent of the Other Interests in relation to the Determination Area as at 26 April 2018 are:

1.     Reserves

(a)     The following reserves:

(b)     The rights and interests of persons who, from time to time, 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

The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

3.     Leases

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

4.     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:

5.     Dampier to Bunbury Natural Gas Pipeline

The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land in the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land the subject of Taking Order H950876. For the avoidance of doubt, those interests include Easement 2 (E230845/3134B/199).

6.     Mining Tenements

(a)    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 mining tenements:

(i)    Mining Leases

(ii)    General Purpose Leases

(iii)     Miscellaneous Licences

(iv)    Exploration Licences

(vi)    Prospecting Licences

(b)    The agreement as amended and ratified by the Iron Ore (Cleveland Cliffs) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

7.     Petroleum interests

(a)     The following petroleum interest granted under the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of that interest:

(b)     The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests:

8.     Access to Mining and Petroleum Areas

(a)     Without limiting the operation of any other clause in Schedule Six, but subject to clause 8(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clauses 6 and 7 of this Schedule Six, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this determination) as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)     Nothing in clause 8(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 8(a).

(c)     Nothing in Schedule Six will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clauses 6 and 7 of this Schedule Six, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.

9.     Indigenous Land Use Agreements

The RTIO and Kuruma Marthudunera People Indigenous Land Use Agreement (Area Agreement) dated 21 August 2012, and registered on the Register of Indigenous Land Use Agreements on 11 February 2013 (Tribunal No. WI2012/006), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that Indigenous Land Use Agreement.

10.     Other

The following rights and interests in the 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 statutes and which validly affect native title;

(b)     Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA) and which validly affect native title;

(c)     Rights and interests of members of the public arising under 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;

(d)     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;

(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 where such access would be permitted to private land;

(e)     So far as confirmed pursuant to section 212(2) of the Native Title Act and section 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)     coastal waters;

(iv)     beaches;

(v)     stock routes; and

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

(f)     Any other:

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

(B)     an estate or interest in the land or waters of the Determination Area; or

(iii)     restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters,

which validly affects native title.

SCHEDULE SEVEN

Robe River Kuruma People (Paragraph 3)

The Robe River Kuruma People are those Aboriginal persons who:

(a)     are the cognatic descendants of one or more of the following apical ancestors:

(i)     Tumbler;

(ii)     Minnie;

(iii)     Rosie;

(iv)     Bobby Marawarru;

(v)     Ruby Woolhouse;

(vi)     Johnson Alec; or

(vii)     Algy Patterson; and

(b)     recognise themselves as, and are recognised by a substantial number of the descendants of the above apical ancestors as, a Robe River Kuruma 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 Robe River Kuruma People.

REASONS FOR JUDGMENT

RANGIAH J:

1    On 26 April 2018, in Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548 (Finlay v WA), I made a determination of native title in respect of an area of land and waters in the Pilbara region of Western Australia. That determination will be referred to as the KM Part B Determination.

2    The applicant has filed an application pursuant to ss 13(1)(b) and 61(1) of the Native Title Act 1993 (Cth) (the NTA) seeking variation of the terms of the KM Part B Determination.

3    That application is supported by the respondents to the KM Part B Determination. The parties have filed a Minute of Proposed Orders and Varied Determination of Native Title (Minute) which has been signed by each of the parties, and joint submissions. It is appropriate to acknowledge that the submissions are detailed, accurate and thorough.

Procedural History

4    Applications WAD 6090 of 1998 and WAD 6105 of 1998 were lodged with the National Native Title Tribunal on 13 May 1996 and 24 June 1996 respectively. On 16 April 1999, the two applications were combined and continued under application number WAD 6090 of 1998 (the KM Application).

5    On 27 April 2016, the Court ordered that the area the subject of the KM Application be divided into two parts, to be called “KM Part A” and “KM Part B”. Part A was to be determined separately from Part B.

6    On 15 August 2016, application WAD 370 of 2016 (the RRK Application) was filed in the Federal Court pursuant to s 61 of the NTA. The RRK Application covered all of, and only, the area of KM Part B. It was made on behalf of the same persons on whose behalf native title was being claimed in the KM Application, and was lodged in order to seek the benefit of s 47B of the NTA.

7    On 1 November 2016, the Court made a determination of native title pursuant to s 87A of the NTA in respect of KM Part A (KM Part A Determination): see Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260.

8    KM Part B and the RRK Application were set down for hearing in accordance with programming orders made by the Federal Court on 27 April 2016. Subsequently, those programming orders were vacated when the parties reached an agreement which recognised the existence of native title, held by the Robe River Kuruma People, in respect of some, but not all, of the KM Part B area.

9    On 26 April 2018, I made the KM Part B Determination: see Finlay v WA.

10    The KM Part B Determination was made in accordance with a Minute of Proposed Consent Determination of Native Title (Determination Minute) filed on 13 April 2018, which contemplated a variation application being brought by the registered native title body corporate. The Determination Minute was signed by all parties to the KM Part B and RRK Applications and records in its recitals that:

G.    The parties have agreed that one or more members of the native title claim groups occupied (within the meaning of paragraph 47B(1)(c) of the Native Title Act) the areas referred to in Recitals I(a) and (b) below as at the date each of the KM Application and the RRK Application was made, and that, but for prior extinguishment, the native title rights in those areas would be those in paragraph 4 of the determination, but that on the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN [2018] FCAFC 8, section 47B(2) cannot apply to those areas because the areas were at relevant times covered by exploration licences or prospecting licences.

H.     The parties have agreed that in the event the High Court, or another Full Federal Court from which there is no pending appeal or application for special leave to appeal to the High Court, decides subsequently to this determination that the presence of exploration or prospecting licences or permits does not prevent the disregarding of extinguishment under section 47B(2) of the Native Title Act in respect of land or waters covered by such licences or permits, then:

(a)    the registered native title body corporate may apply to the Federal Court for a variation of this determination of native title consistent with Recital I below; and

(b)     in the event of such a variation application being made within 12 months of delivery of the relevant decision of the High Court or Full Federal Court, or such further period as may be agreed by the parties to this proceeding, each of the parties to this proceeding which is a party to the variation application will consent to the variation application being argued on its merits.

I.     The variations to the determination referred to in recital H above are:

(a)     In paragraph 2 of Schedule Three, to delete the words “portions of exploration licences E0801060, E0801293, E0801686 and E0802408, prospecting licences P0800666 and P0800669”.

(b)     In paragraph 3 of Schedule Three, to delete the words “not subject to portion of exploration licence E0800592”.

(c)     In Schedule Five, to delete from the description relating to UCL 12, the words “not subject to portion of exploration licence E0800592”.

(d)     In Schedule Five, to delete from the description relating to UCL 51, the words “portions of exploration licences E0801060, E0801293, E0801686 and E0802408, prospecting licences P0800666 and P0800669”.

J.     Nothing in recitals H and I above prevents any party from opposing a variation to the determination on the basis of the merits of such application, except to the extent referred to in recital G.

11    In Finlay v WA, I noted the approach of the parties to the making of a variation application once the point of law was settled:

[67]     Of note, the Minute includes an agreement by the parties that the registered native title body corporate may seek a variation of the determination of native title as it relates to the application of s 47B of the Act, in the event the High Court, or another Full Federal Court from which there is no pending appeal or application for special leave to appeal to the High Court, decides subsequently to this determination that the presence of exploration or prospecting licences or permits does not prevent the disregarding of extinguishment under s 47B(2) of the Act in respect of land or waters covered by such licences or permits. The Minute includes an agreement by the parties that, but for prior extinguishment, native title rights in four areas would have been those set out in [4] of the determination. However, on the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8, s 47B(2) of the Act cannot apply to those areas – notwithstanding that the parties are agreed that one or more members of the native title claim groups ‘occupied’ those areas (within the meaning of paragraph 47B(1)(c) of the Act) – because the areas were, at the relevant times, covered by exploration licences or prospecting licences.

[68]     The agreement reached by the parties and recorded in the Minute provides that, in the event of such a variation application being made within 12 months of delivery of the relevant decision of the High Court or Full Federal Court, or such further period as may be agreed by the parties to this proceeding, each of the parties to this proceeding which is a party to the variation application will consent to the variation application being argued on its merits. The agreement reached stipulates the variations to the determination that may be sought by the registered native title body corporate in these circumstances. The agreement does not prevent any party from opposing a variation to the determination on the basis of the merits of such an application, except with respect to the agreement of the parties as to ‘occupation’ for the purposes of paragraph 47B(1)(c) of the Act.

[69]     Agreements of this nature have been reached and included in proposed consent determination minutes in other proceedings where there have been matters on appeal or reserved for judgment in other proceedings with the potential to directly impact the proceeding at hand: WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755; BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671. In one instance, a subsequent variation application was in fact made and the variation, sought by the prescribed body corporate, made by the Court with the parties’ consent: Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40.

[70]     In the context of these proceedings, I am satisfied that the agreement reached by the parties regarding the possibility of a variation application regarding s 47B of the Act should be reflected in the Determination.

12    On 17 April 2019, the High Court of Australia delivered judgment in Tjungarrayi v Western Australia; KN (Deceased) (Tjiwarl and Tjiwarl #2) v Western Australia (2019) 366 ALR 603; [2019] HCA 12 (Tjungarrayi), allowing appeals from the judgments in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) (2017) 258 FCR 521; (2018) 258 FCR 521 (Tjiwarl) and Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) (2018) 260 FCR 247 (Helicopter-Tjungarrayi).

13    In allowing the appeals and setting aside the orders made by the Full Courts in Tjiwarl and Helicopter-Tjungarrayi, the High Court held that exploration or prospecting licences or permits were not “leases” within the meaning of s 47B(1)(b)(i) of the NTA, with the result that the presence of exploration or prospecting licences or permits did not prevent the disregarding of extinguishment under s 47B(2) of the NTA in respect of land or waters covered by such licences or permits.

14    On 9 April 2020, the applicant filed the KM Part B Variation Application pursuant to ss 13(1)(b) and 61(1) of the NTA seeking a variation of the KM Part B Determination.

15    The Native Title Registrar gave notice under s 66 of the NTA of the KM Part B Variation Application. The notification period provided for in that section expired on 16 September 2020.

16    At the conclusion of the notification process, the following were respondent parties to the KM Part B Variation Application:

(a)    the State of Western Australia (the State);

(b)    Mitsui Iron Ore Development Pty Ltd;

(c)    Nippon Steel Australia Pty Limited;

(d)    Nippon Steel Raw Materials Australia Pty Ltd;

(e)    North Mining Limited;

(f)    Robe River Limited;

(g)    Robe River Mining Co Pty Ltd;

(h)    Hamersley Iron Pty Limited;

(i)    Yalleen Pastoral Co Pty Ltd; and

(j)    Telstra Corporation Ltd.

Telstra Corporation Ltd subsequently withdrew as a respondent on 6 October 2020.

17    The KM Part B Variation Application seeks, inter alia, to vary the KM Part B Determination by:

(a)    recognising the application of s 47B of the NTA and a right of exclusive possession over those land and waters identified in Recital I(a) and (b) of the KM Part B Determination; and

(b)    recognising the application of s 47B of the NTA and a right of exclusive possession over an area known as Marti Marti Yinta, which was omitted from the KM Part B Determination as a result of an accidental slip or omission on the part of the parties to that determination.

Variation of an approved determination of native title

18    Section 13(1)(b) of the NTA allows an application to be made to the Court under Pt 3 of the NTA to revoke or vary an approved determination of native title on the grounds set out in s 13(5). Section 13(1) of the NTA provides a statutory exception to the general position that a final order of the Court cannot be revoked or varied (except on appeal or in certain limited circumstances, such as fraud): see, for example, Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (2017) 365 ALR 624; [2017] FCA 803 (Warrie) at [375]–[376]; Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 273 FCR 350 at [571]–[573]; DJL v Central Authority (2001) 201 CLR 226 at [50].

19    Section 13(3) defines an “approved determination of native title” as:

(a)    a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

(b)     an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

20    Section 61(1) of the NTA provides that an application to vary or revoke an approved determination of native title may only be made by the relevant registered native title body corporate, the Commonwealth Minister, the State/Territory Minister within the jurisdictional limits of the State/Territory concerned, or the Native Title Registrar.

21    Section 13(5) of the NTA states that the grounds for variation or revocation of an approved determination of native title are that:

(a)     events have taken place since the determination was made that have caused the determination no longer to be correct; or

(b)     the interests of justice require the variation or revocation of the determination.

22    If an approved determination of native title is varied on either of these grounds, the effect, as set out in s 13(4) of the NTA, is that, in the case of a variation, the determination as varied becomes an approved determination of native title in place of the original, and, in the case of revocation, the determination is no longer an approved determination of native title.

23    The applicant and the State submit that the preconditions contained in ss 13 and 61 of the NTA are satisfied. In particular, the applicant and the State submit that the criteria in s 13(5) of the NTA are satisfied such that the orders and varied determination of native title sought in the Minute is within the power of the Court to make.

24    I will proceed to consider whether the preconditions contained in ss 13 and 61 of the NTA have been satisfied.

Existence of an approved determination of native title: s 13(3)

25    This condition is satisfied. The KM Part B Determination is, “an approved determination of native title” as defined by s 13(3) of the NTA (having regard to s 13(6)).

Variation application made under Pt 3 of the NTA by a person authorised by s 61(1)

26    This condition is satisfied. By virtue of the orders I made on 26 April 2018, the applicant is the “registered native title body corporate”, holding in trust the native title rights and interests of the Robe River Kuruma People pursuant to the KM Part B Determination. As such, the applicant has the authority to institute proceedings under s 61(1) of the NTA to vary the KM Part B Determination and to reach agreement as to the disposition of those proceedings.

Grounds for variation are satisfied: s 13(5)

27    Finally, to make orders varying an approved determination of native title, the Court must be satisfied that one of the grounds for a variation contained in s 13(5) has been met.

28    Subsections 13(5)(a) and (b) are alternatives, in that s 13(5)(b) empowers the Court to make an order revoking or varying the earlier determination on the grounds that the interests of justice require it, “even though nothing, within the meaning of s 13(5)(a), has occurred subsequently to cause it to be incorrect” (emphasis in original): Warrie at [374]. If the grounds in s 13(5)(b) have been met, it is unnecessary for a Court to consider whether the grounds for varying a determination set out in s 13(5)(a) are satisfied (and vice versa).

Section 13(5)(a)

29    As noted by McKerracher J in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 (Murray) at [2451]:

The grounds in s 13(5) contemplate that post-determination changes (for example, to the native title holders or the native title rights) may occur and that the original determination may have contained errors or omissions.

30    Section 13(5)(a) of the NTA may, therefore, apply to situations where a determination fails to recognise an existing interest (Western Australia v Ward (2000) 99 FCR 316 at [217]), where a particular area is subject to native title and rights and interests have subsequently been validly extinguished (Murray at [2451]), or where a determination proceeded upon a basis of a view about extinguishment that was not correct. For example, in Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40 (TMPAC v WA) the Court varied the original approved determination (WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755) to include areas of pastoral improvements as areas where native title exists following judgment of the High Court in Western Australia v Brown (2014) 253 CLR 507. In Wakamurru (Aboriginal Corporation) RNTBC v State of Western Australia (unreported, Charlesworth J, 24 April 2020), the Court varied the original approved determination in Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388 (Muir) to apply s 47B of the NTA in respect of areas of unallocated Crown land that were covered by exploration licences at the time the claimant application was made following judgment of the High Court in Tjungarrayi.

Section 13(5)(b)

31    As explained by Rares J in Warrie at [360]:

The ground for variation or revocation in s 13(5)(b) is both protean in nature and substantive. It is available as an alternative to, and its use is not conditional on, the occurrence of subsequent events. Of course, in assessing the interests of justice, the Court is exercising a judicial discretion and must therefore act judicially. But the subject matter, scope and purpose of the criterion of “the interests of justice” must be considered in light of the whole of the Act and the facts, matters and circumstances that the Court has before it in considering the proposed variation or revocation: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ.

32    As noted by Perry and Lloyd (eds) in Australian Native Title Law (2nd ed, Thomson Reuters, 2018), the words “the interests of justice” in s 13(5)(b) of the NTA:

…are words of the widest possible reference, and enliven a discretionary judgement. They can extend to looking at the circumstances of an individual affected by a decision. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered, but the interests of the respective parties (which may be in some respects common and in some respects conflicting) will arise for consideration. It has been said that the test for determining the interests of justice is the avoidance of injustice. Where the interests of justice lie in a particular case may be difficult to articulate but must nevertheless be an objective deduction reached judicially.

Criteria satisfied in the case

33    The applicant and the State submit that the criteria contained in s 13(5)(a) and s 13(5)(b) of the NTA have been satisfied with respect to the variations sought in the Minute.

34    As noted above, the KM Part B Determination did not recognise the application of s 47B of the NTA over certain areas that were covered by exploration or prospecting licences on the basis of the Full Court’s decision in Tjiwarl. However, the parties to the KM Part B Determination agreed that, but for prior extinguishment and the effect of Tjiwarl, the native title rights in those areas would be those exclusive native title rights listed in para [4] of the KM Part B Determination.

35    In light of the overturning of Tjiwarl by the High Court in Tjungarrayi, to the extent that the KM Part B Determination determines that s 47B of the NTA does not apply to, and exclusive native title does not exist in, areas that were subject to exploration or prospecting licences, it is no longer correct.

36    The parties submit that this is a sufficient ground for the variation of the KM Part B Determination pursuant to s 13(5)(a) of the NTA. Further, as discussed at [30] above, a similar variation was made by the Court in Wakamurru (Aboriginal Corporation) RNTBC v State of Western Australia following judgment in Tjungarrayi.

37    Further, the parties submit that it is in the interests of justice to give effect to the agreement reached by the parties to the KM Part B Determination (as reflected in the Minute).

38    In TMPAC v WA, Barker J found at [15] that:

…Additionally, it is in the interests of justice to vary the approved determination of native title, the reason being that at the time the determination was made the parties agreed that an outcome of Western Australia v Brown may be that a variation application would need to be made to address the issue of pastoral improvements. The possibility of the application was contemplated at the time the determination was made, as reflected in the Minute of Proposed Consent Determination of Native Title filed on 5 July 2013 in support of the determination, and also noted in WF (Deceased) on behalf of the Wiluna People, and this formed part of the agreement reached for the determination made 29 July 2013.

39    The applicant and the State submit that a similar situation arises in the KM Part B Variation Application and that it is, accordingly, in the interests of justice to vary the KM Part B Determination, having regard to the agreement reached between the parties as to the form and content of the KM Part B Determination and the contemplation by the parties of a possible future variation of that determination.

40    I am satisfied, pursuant to s 13(5)(b) of the NTA, that an event has taken place since the determination was made that has caused the determination no longer to be correct, namely, the delivery of the judgment of the High Court in Tjungarrayi. Further, it is in the interests of justice to vary the approved determination of native title, since, at the time the determination was made the parties agreed that a variation application may be sought by the registered native title body corporate in the event the High Court, or another Full Federal Court, decided subsequently that the presence of exploration or prospecting licences or permits did not prevent the disregarding of extinguishment under s 47B(2) of the NTA in respect of land or waters covered by such licences or permits. The possibility of the application was contemplated at the time the determination was made, and this formed part of the agreement reached for the determination made on 26 April 2018.

Marti Marti Yinta

41    In addition to the areas noted in Recital I of the KM Part B Determination, the KM Part B Variation Application also seeks the application of s 47B of the NTA and the recognition of a right of exclusive possession in respect of a significant site known as “Marti Marti Yinta”.

42    The Marti Marti Yinta site was recognised in the KM Part A Determination as an area where the Robe River Kuruma People held a right of exclusive possession and as an area to which s 47B of the NTA applied. The Marti Marti Yinta site was described in the KM Part A Determination as an area within a two kilometre radius of a point at Longitude East: 116.535511, Latitude South: 21.933067.

43    While most of the Marti Marti Yinta site falls within the KM Part A Determination area, part of the Marti Marti Yinta site also falls within the KM Part B Determination area (ie in the KM Part A Determination area the site makes an uncompleted circle, bisected by the Part A/Part B boundary). At the time of making the KM Part B Determination, the parties failed to appreciate this fact. As a result, that part of the Marti Marti Yinta site which falls within the KM Part B Determination area was not included as an area of exclusive possession (or an area to which s 47B of the NTA applied) in the KM Part B Determination.

44    In the submission of the parties, the failure to include that part of the Marti Marti Yinta site which falls within the KM Part B Determination area was a result of an accidental slip or omission on the part of the parties.

45    Such an error or admission could instead be corrected pursuant to the slip rule contained in r 39.05(h) of the Federal Court Rules 2011 (Cth), rather than by way of a variation application under s 13(1)(b) of the NTA.

46    In a native title context, the slip rule has been applied to correct the following types of error in determinations:

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

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

(c)    the mistaken existence of native title rights and interests over lots or areas within a determination: see orders made by McKerracher J on 10 October 2017 varying the orders made in Bullen on behalf of the Esperance Nyungar People v State of Western Australia [2014] FCA 197; and

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

47    As noted by North J in Lovett v Victoria (No 4) at [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.

48    As the KM Part B Variation Application was being made in any event as a result of Tjungarrayi, the procedure adopted by the applicant to correct the omission is as part of the KM Part B Variation Application, rather than bringing a separate slip rule interlocutory application under r 39.05(h) of the Federal Court Rules.

49    The parties submit that, in circumstances where:

(a)    the recognition of the Marti Marti Yinta site in the KM Part A Determination was based upon an agreement by the parties that, under their traditional laws and customs, the Robe River Kuruma People hold exclusive possession native title right and interests over the site;

(b)    the Robe River Kuruma People acknowledge and observe the same traditional laws and customs across all of the Marti Marti Yinta site (ie they acknowledge and observe the same traditional laws and customs in respect of that part of the Marti Marti Yinta site in the KM Part A Determination area as they do in respect of that part of the Marti Marti Yinta site in the KM Part B Determination area); and

(c)    there are no relevant tenure differences between that part of the Marti Marti Yinta site in the KM Part A Determination area and that part within the KM Part B Determination area (ie the site is located on unallocated Crown land in both determination areas);

it would be in the interests of justice to vary the KM Part B Determination pursuant to s 13 of the NTA to recognise Marti Marti Yinta as an area over which the Robe River Kuruma People hold exclusive possession native title (and as an area to which s 47B applies).

50    I am satisfied that it would be in the interests of justice to vary the KM Part B Determination pursuant to s 13 of the NTA to recognise Marti Marti Yinta as an area over which the Robe River Kuruma People hold exclusive possession native title (and as an area to which s 47B applies).

Section 87 of the NTA

51    In TMPAC v WA, Barker J concluded that where the Court is satisfied that the grounds for variation are met pursuant to s 13(5)(b) of the NTA, it is unnecessary to review the grounds for the making of that variation pursuant to ss 87 and/or 87A of the NTA. His Honour stated at [16] that:

As the Court is satisfied that the grounds for variation are met pursuant to s 13(5)(b) of the Native Title Act, it is unnecessary to review the grounds for the making of the determination on 29 July 2013 pursuant to s 87 and 87A of the Native Title Act, as the result of the variation will not remake the determination. Rather the result of the variation is that the varied determination will replace the determination as the approved determination of native title with the only change to the determination being the inclusion of areas of pastoral improvements as areas where native title exists. Nothing further will be varied in the determination nor the agreement reached between the parties for the determination on 29 July 2013.

52    Subsequently, the orders made varying the determinations of native title in Rex on behalf of the Akwerlpe-Waake, Iliyarne, Lyentyawel Ileparranem and Arrawatyen People v Northern Territory of Australia [2010] FCA 911; Kngwarraye on behalf of the members of the Arnerre, Wake-Akwerlpe, Errene and Ileyarne Landholding Groups v Northern Territory of Australia [2011] FCA 765; Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory of Australia [2011] FCA 766; Napangardi on behalf of the members of the Jiri/Kuyukurlangu, Kumpu, Kunajarrayi, Mikanji, Pikilyi, Pirrpirrpakarnu, Wantungurru, Wapatali/Mawunji, Warlukurlangu, Yamaparnta, Yarripiri and Yarungkanyi/Murrku Estate Groups v Northern Territory of Australia [2013] FCA 637; and Lynch on behalf of the members of the Alherramp/Rrweltyapet, Ilewerr, Mamp/Arrwek, Tywerl, Arrangkey, Anentyerr/Anenkerr and Ntyerlkem/Urapentye Estate Groups v Northern Territory of Australia [2013] FCA 636 do not make reference to s 87 of the NTA and state only that the Court made the relevant variation, “being satisfied that orders in the terms sought by the parties are within the power of the Court and pursuant to s 13(5) of the Act”.

53    In contrast, in Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416 (Yindjibarndi), Rares J, in addition to considering the grounds for variation pursuant to s 13 of the NTA, also reviewed the grounds for the making of that variation pursuant to ss 87 and/or 87A of the NTA. Similarly, the orders made varying the determination of native title in Muir refer to the Court making the relevant variation pursuant to both ss 13(5) and 87 of the NTA.

54    Section 87 of the NTA applies to “proceedings” where certain pre-conditions have been met. The “proceedings” to which s 87 refers take their meaning from ss 80 and 81 of the NTA, namely, “proceedings in relation to applications filed in the Federal Court that relate to native title”. This includes applications filed under s 61 of the NTA, and, relevantly, includes an application for variation of a determination.

55    On that basis, and given the differing judicial approaches that have been taken to the making of determinations of variation applications, the parties submit that, to the extent necessary, the requirements of s 87 of the NTA have been satisfied with respect to the variation sought in the Minute.

56    Section 87 of the NTA provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the NTA has ended (s 87(1));

(b)    there is an agreement for a proposed determination of native title in relation to the proceeding (s 87(1)(a));

(c)    the terms of the proposed determination, in writing signed by or on behalf of the parties, are filed with the Court (s 87(1)(b));

(d)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and

(e)    it appears appropriate to the Court to make the orders sought (s 87(1A)).

57    I will proceed to consider whether the requirements of s 87 of the NTA have been satisfied.

Section 66 notice period expired (s 87(1))

58    This condition is satisfied. The notification period referred to in ss 66(8) and 66(10)(c) of the NTA has ended with respect to the KM Part B Variation Application: see [15] above.

The terms of an agreement between required parties are filed with the Court (ss 87(1)(a) and (b))

59    This condition is satisfied. There is an agreement in writing, which has been filed in the Federal Court, for a proposed varied determination of native title, the terms of which are reflected in the Minute. The agreement has been signed by all parties to the KM Part B Variation Application (as required by s 87(1)(b)): see [3] above.

Orders consistent with the terms of the agreement are within the Court’s power (s 87(1)(c))

60    The applicant and the State submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the Minute is within the power of the Court.

61    First, the KM Part B Variation Application is valid and has been validly instituted by the applicant, being the registered native title body corporate for the area the subject of the KM Part B Determination: see [25]-[26] above.

62    Second, as discussed at [33]-[50] above, the criterion contained in ss 13(5)(a) and/or 13(5)(b) of the NTA have been satisfied with respect to the variations sought in the Minute.

63    Third, the varied determination of native title to be given effect by the Minute complies with ss 94A and 225 of the NTA.

64    Fourth, the requirements of s 87 of the NTA are otherwise satisfied.

Order is appropriate (section 87(1A))

65    Finally, the Court must consider it is appropriate to make the determination sought by the parties as required by s 87(1A). The applicant and the State submit that this condition is satisfied.

66    Section 87(1A) was introduced into the NTA by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the NTA in 2009, the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording of s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court’s discretion pursuant to s 87(1A) should be taken to import the same principles as those applying to the making of the determination of native title under the old s 87(1).

67    As observed by Bennett J in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (Hughes) at [8] (citing Black CJ in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62; [2005] FCA 1117 at [7]):

…the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement.

68    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 (Ward) at [6]–[9] observed that the NTA is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial.

69    While these observations were made in the context of native title determination applications, the parties submit that they are equally applicable to the resolution by consent of a variation application made under ss 13(1)(b) and 61(1) of the NTA. As noted by Rares J in Yindjibarndi:

24.    A relevant consideration in assessing the appropriateness of making a consent determination under s 87A is the overarching purpose of the civil practice and procedure provisions contained in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Relevantly, s 37N(1) imposes a duty on the parties to conduct the proceeding, including negotiations for settlement, such as the present, that has culminated in an agreement under s 87A of the Act, in a way that is consistent with that overarching purpose: Oil Basins Ltd v Watson [2014] FCAFC 154 at [145] per Siopis, McKerracher and Barker JJ…

25.    Negotiations that lead to consent orders, such as the ones I am making today, resolve significant parts of litigation and have a very important place in our court system. They enable the parties to achieve results that are acceptable to all of them but that may not have been available if the Court had to decide the dispute. And, of course, such agreements also enable the Court to deal more quickly with other people’s cases.

70    Accordingly, in order to make a determination under s 87 of the NTA, the Court is not necessarily required to receive evidence, make findings or embark on its own inquiry on the merits of the claim made in the application. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making or varying a determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating the consent orders if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes at [9]; and Ward at [8].

71    Further, the requirements of s 87(1A) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State), through competent legal representation, is satisfied as to the appropriateness of the orders sought: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 (Munn) at [29]–[30] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37]. See also Smith on behalf of Nharnuwangga, Wajarri and Ngarla People v State of Western Australia (2000) 104 FCR 494 where Madgwick J stated at [38]:

…State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

72    In this proceeding, the State has played an active role in the negotiation of the proposed variation, an important factor also referred to by Emmett J in Munn at [29]. In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the NTA, has satisfied itself that the variation is justified in all the circumstances. As stated by Rares J in Yindjibarndi:

27.    In proceedings of this kind the Court must consider the public interest as to whether the agreement under s 87A should be given the force of law. This is because a determination of native title does not affect only the parties in the proceeding. Rather, a determination of native title is a legally binding decision that applies to everyone in Australia and can only be changed by another court order. It has effects on the rights and interests of not only the holders of the native title rights and interests, but those of the State and the members of the community, including in respect of the use of public land and waters covered by a reserve or unallocated Crown land.

28.    Because of this, the State has a particular responsibility, as an institution of Government, to inform the Court of all relevant considerations for and against the making of the particular consent determination that may affect the public interest. The State has a duty to look after and act in the interests of the whole community.

(Citations omitted.)

73    Further, the applicant and all respondent parties to the KM Part B Variation Application have also had the benefit of legal representation.

74    The applicant and the State have informed the Court that they are satisfied that the proposed orders and varied determination is appropriate and submit that the Court can thereby be satisfied that an order under s 87 of the NTA is both within power and appropriate to be made.

75    I am therefore satisfied that it is appropriate to make the orders agreed by the parties.

Conclusion

76    I am satisfied, pursuant to s 13(5)(b) of the NTA, that it is in the interests of justice to vary the KM Part B Determination. This will ensure the KM Part B Determination is consistent with the High Court judgment in Tjungarrayi by recognising the application of s 47B of the NTA and a right of exclusive possession over those land and waters identified in Recital I(a) and (b) of the KM Part B Determination. It will also ensure that the KM Part B Determination recognises Marti Marti Yinta as an area over which the Robe River Kuruma People hold exclusive possession native title (and as an area to which s 47B applies).

77    Therefore, it is appropriate that I make a consent determination in terms consistent with those agreed by the parties.

Associate:    

Dated:    27 January 2021

SCHEDULE OF PARTIES