Colvin J
In this proceeding an application was made under s 13(1)(b) and s 61(1) of the Native Title Act 1993 (Cth) (NTA) seeking a variation to the approved determination of native title made in Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453 (the Nyiyaparli determination). The Nyiyaparli determination was a consent determination which included an agreement that the registered native title body corporate (RNTBC) could seek a variation of the Nyiyaparli determination as it related to the application of s 47B of the NTA in the event that the High Court overturned the decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8 (BHP v KN). In that case, the Full Court had decided that s 47B(2) of the NTA could not apply to certain areas of the determination area that were covered by exploration or prospecting licenses.
Overturning BHP v KN
In Tjungarrayi v Western Australia [2019] HCA 12 the High Court unanimously allowed two appeals from decisions of the Full Court, including BHP v KN. In doing so the High Court held that the presence of exploration or prospecting licenses over land and waters did not prevent the disregarding of extinguishment under s 47B(2) of the NTA. Accordingly, in this proceeding the application sought to vary the determination, recognising the application of s 47B over the relevant lands and waters. All of the parties reached an agreement as to the terms of the proposed order and filed these with the Court.
Decision
Being satisfied that the terms sought were within the power of the Court and that it was appropriate to do so, His Honour varied the decision made in the Nyiyaparli determination in accordance with s 13(5) of the NTA.