Rangiah J
In this proceeding, Rangiah J granted the application made by the Robe River Kuruma Aboriginal Corporation RNTBC (RRKAC), under ss 13(1)(b) and 61(1) of the Native Title Act 1993 (Cth) (NTA), to amend the terms of their native title determination. The respondents were the State of Western Australia and various mineral resource companies, who supported the application.
Background
Pre-BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8 (BHP v KN)
The native title determination application was first filed in 1998 as two separate applications. The matter was combined in 1999 but divided again in 2016. Native title for one part was decided in Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548 (Finlay). The preconditions for native title were agreed to have been satisfied in certain areas, but were held to be extinguished in others by the effect of previous exploration licences and permits. When Finlay was determined, the Native Title Act 1993 (Cth) (NTA) could not apply to such areas, as set by precedent in BHP v KN.
However, the minute of proposed consent determination in Finlay stipulated that all parties agreed that, but for the effect of BHP v KN, exclusive native title rights would exist in those areas. The minute provided that if BHP v KN were overturned, a variation application could be made within an agreed period. Each of the parties to the variation application would need to consent but could oppose on the basis of the merits, except with respect to the agreement of the parties as to ‘occupation’ (under s 47B(1)(c) of the NTA).
Post-BHP v KN
In Tjungarrayi v Western Australia; KN (Deceased) (Tjiwarl and Tjiwarl #2) v Western Australia (2019) HCA 12) (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 NTA, overturning BHP v KN. Consequently, such licences or permits over claimed land and waters did not prevent parties from disregarding extinguishment under s 47B(2) of the NTA.
Submissions
On the basis of the minute and decision in Tjungarrayi, the RRKAC applied under ss 13(1)(b), 61(1) and s 47B of the NTA to vary the native title determined in Finlay. Specifically, the RRKAC sought recognition of exclusive possession over a significant site known as Marti Marti Yinta.
Both the applicants and the respondents submitted that it was in the interests of justice to vary the determination.
Decision
Rangiah J was satisfied the Tjungarrayi decision caused the determination to cease to be correct. His Honour also agreed that it was in the interests of justice to vary the native title determination, especially as this possibility was contemplated at the time of the determination. For legal consistency, and to recognises Marti Marti Yinta as an area over which the Robe River Kuruma People hold exclusive possession native title (given s 47B applies), judicial approval was given to amend the native title determination.