Banks-Smith J
This matter amended the technical description of the native title area determined in Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia [2020] FCA 1700 as it contained two relatively minor errors The applications, filed by Western Australia, to correct the errors and dispense with notice, were granted. Other parties included the applicant, on behalf of the claiming group; the Commonwealth of Australia; Telstra; Yeeda Pastoral Company; Kimberly Prawn Company; Jock Hugh McGregor and Del James Roe.
Background
In November 2020, the Boorroola Moorrool Moorrool claim group was determined, by consent, to hold non-exclusive native title over 1032 square kilometres of land and waters in the North-West Kimberley in Western Australia, mostly relating to the lower King Sound waters and islands.
Following the determination, the National Native Title Tribunal noted there was a conflict with the technical descriptions of the area and the map annexed to the the determination. Western Australia raised these errors to the other parties. All parties accepted that there were two errors in the technical description: (1) an inaccurate tenure of a point (Reserve 1834) was more accurately Reserve 51146; (2) a point on the boundary.
Western Australia requested that the court rely on the slip rule (r 39.05 of the Federal Court Rules 2011 (Cth)) to correct the errors. The State also submitted that there would be no useful purpose in enforcing the notification process, given the minor nature of the proposed amendments.
Decision
It was noted that where there is inconsistency between a written description and map, generally the description prevails. This was deemed to enhance the need to correct the error, as it was clear the map was the accurate record in this case. It was agreed the errors were an accidental slip when technical description was prepared on behalf of the State, and neither the Court nor parties were aware of the error previously.
Banks-Smith J agreed it was appropriate to use r 39.05. Two amendments were made to the November court orders: the first replaced the words ‘Reserve 1834’ with ‘Reserve 51146’, the second replaced one boundary description with longitude and latitude points. Her Honour also alleviated service requirements on parties other than the applicant and the Commonwealth, accepting the State submission that the error was relatively minor.