Barker J
In this matter Barker J heard an application for variation of an approved determination of native title under s 13 of the Native Title Act 1993 (Cth). The application for variation relates to the consent determination made by McKerracher J in WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 in relation to the Wiluna, Tarlpa and Wiluna #3 claims to areas of the Central Desert.
The consent determination made in Wiluna contemplated that a variation of the determination could be sought pending the outcome of Western Australia v Brown [2014] HCA 8. The High Court in Brown held that the Full Federal Court had erred in deciding in De Rose v State of South Australia (No 2) [2005] FCAFC 110 that improvements made on land by pastoral lease holders had the effect of extinguishing native title rights and interests.
The applicant subsequently filed a Form 3 variation application pursuant to s 61(1) of the NTA seeking revision of the determination under s 13(1) of the NTA. The applicant contended that events have taken place since the determination causing the determination to no longer be correct under s 13(5) of the NTA. The applicant reasoned that native title had been held not to exist in the areas of the Wiluna determination that had been subject to improvements by pastoral leaseholders based on the overturned precedent from De Rose (No 2). The applicant reasoned that in the interests of justice, the determination should then be varied based on the terms of the original consent order.
The applicant filed the varied determination agreement with the Court signed by all parties and supported by a joint submission with the State of Western Australia. Barker J accepted the terms of variation and did not review the grounds for the determination. His Honour held that the varied determination only replaced the original determination so to include the areas of pastoral improvements upon which native title now exists, at [16].
This matter is the first known circumstance of a successful application for variation of an approved native title determination under the NTA. Failed applications for variation of an approved determination under the NTA include Wintawari Guruma Aboriginal Corporation RNTBC v State of Western Australia [2015] FCA 1053, and In Re Yoren [2004] FCA 916.