Federal Court varies approved native title determination for the first time
The Federal Court of Australia in Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia & Ors  FCA 40 on 1 February 2017 varied an approved determination of native title for the first time.
The original consent determination
A determination of native title was made by consent on 29 July 2013 in favour of the Wiluna, Tarlpa and Wiluna #3 native title holders.
The recitals contained in the consent signed by all parties and filed in support of the determination included an agreement by the parties that, in the event that the High Court on appeal overturned, set aside or found to be incorrect the Federal Court’s decision in De Rose v South Australia (No 2) (2005) 145 FCR 290 with respect to pastoral improvements, a variation application could be made (although the agreement stated that it did not prevent any party from opposing a variation on the merits of any variation application).
The variation application
Following the High Court’s judgment on appeal in Western Australia v Brown  HCA 8 on 12 March 2014, which considered the issue of pastoral improvements, a variation application was filed on 11 March 2016 by Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (the trustee registered native title body corporate for the native title holders).
The variation application was made pursuant to s 13(1)(b) Native Title Act 1993 (Cth) (NTA) which provides for an application to be made to the Federal Court by specified parties, including an RNTBC, to vary an approved determination of native title on the grounds set out in s 13(5) (see below). It sought to include areas of pastoral improvements (which had been determined as areas where native title does not exist) as areas where native title exists.
All parties to the variation application consented to the variation sought, and joint submissions were filed by the Applicant and the State of Western Australia in support of the variation application.
The grounds for the variation
Section 13(5) NTA provides two grounds for variation or revocation of an approved determination of native title:
- that events have taken place since the determination was made that have caused the determination no longer to be correct; or
- that the interests of justice require the variation or revocation of the determination.
The parties submitted, and the court found, that both grounds were satisfied. The determination was no longer correct, as areas of pastoral improvements were listed in the determination as areas where native title does not exist, which was contrary to the High Court’s decision in Western Australia v Brown. It was also in the interests of justice that effect be given to the agreement between the parties which was the basis of the determination made on 29 July 2013.
Justice Barker made orders varying the determination as sought.
Points of interest
While the grounds for variation contained in s 13(5) NTA appear to potentially be very broad, the agreement of the parties at the time of the making of the consent determination that a variation might be required was significant. In the absence of such prior contemplation, or in circumstances where the variation being sought is opposed by one or more parties, it may well be more difficult to convince the court that a variation should be made.
It is worth noting that:
- the court found that it was not necessary to review the grounds for the making of the determination because the result of the variation was not to “remake” the determination; rather, the varied determination would replace the determination as the approved determination of native title, with the only change being the inclusion of areas of pastoral improvements as areas where native title exists;
- no issue appears to have been taken by any party or the court with respect to the filing of the variation application well after the 12 month period referred to in the original agreement (with the application made almost 2 years after the relevant High Court decision); and
- it is not clear from the decision whether the twelve respondent parties to the variation application were also parties to the original determination application, but again this does not seem to have been in issue.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 16 February 2017
Author: Marita Stinton