COLVIN J:
1 On 26 September 2018, the Court made a determination as to the existence of native title in respect of an area of almost 50,000 square kilometres in the eastern Pilbara region of Western Australia (Determination). The Nyiyaparli People were determined to be the holders of native title for the area. Karlka Nyiyaparli Aboriginal Corporation ICN 3649 (KNAC) was nominated as the registered native title body corporate to hold the determined native title in trust for the native title holders. At that time, an appeal was pending in the High Court in respect of the decision of the Full Court of this Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8; (2018) 258 FCR 521.
2 When the Determination was made, the parties to the relevant applications for native title agreed that in the event that the High Court was to decide thereafter that the presence of exploration or prospecting licences or permits as at the date that an application is made does not prevent extinguishment of native title from being disregarded under s 47B(2) of the Native Title Act 1993 (Cth) then the registered native title body corporate may apply for a variation of the Determination in certain respects and the parties would agree to that variation. This was a matter that was formally noted by the Court when the Determination was made by consent.
3 The High Court allowed the appeal (and an appeal in another matter): Tjungarrayi v Western Australia [2019] HCA 12. The High Court held that exploration or prospecting licences or permits were not 'leases' within the meaning of s 47B(1)(b)(i) of the Native Title Act with the result that they did not prevent the disregarding of extinguishment under s 47B(2).
4 KNAC now brings an application to vary the determination of native title. Notification of the application has been given by the Native Title Registrar. The parties who responded to that notice of application (save for one party who has been removed as a respondent by Court order) all consent to the application.
5 Section 13(1)(b) of the Native Title Act allows for an application to revoke or vary an approved determination of native title on certain grounds specified in s 13(5). They are:
(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b) that the interests of justice require the variation or revocation of the determination.
6 An application to revoke or vary may be made by the registered native title body corporate: s 61(1). KNAC is that body in respect of the Determination.
7 Variations to an approved determination of native title have been made in circumstances where, after the making of a determination of native title, there has been a change in law that would have led to a different outcome had such law been applied at the time of making the determination: see, for example, Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40; and Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416.
8 I am satisfied that the power to vary the determination has been enlivened and it is appropriate for that power to be exercised in this case, particularly in circumstances where the parties to the original determination contemplated that course at the time the determination was made by this Court.
9 Section 87(1) of the Native Title Act provides:
This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
10 The reference to 'proceedings' is to 'proceedings in relation to applications filed in the Federal Court that relate to native title': s 80.
11 In Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC where the Court considered a similar application, Barker J concluded that if the grounds for variation are met pursuant to s 13(5)(b) of the Native Title Act it is unnecessary to review the grounds for the making of a determination pursuant to s 87. His Honour explained the reason for that view in the following terms (at [16]):
… the result of the variation is that the varied determination will replace the determination as the approved determination of native title with the only change to the determination being the inclusion of areas of pastoral improvements as areas where native title exists. Nothing further will be varied in the determination nor the agreement reached between the parties for the determination on 29 July 2013.
12 However, in my view, an application to vary a determination must be a proceeding in relation to an application filed in the Federal Court that relates to native title. Therefore, with due respect to his Honour, the requirements of s 87 (or the equivalent provision in s 87A) must be met in respect of the present application. I note that this was the course followed by Rares J in Yindjibarndi Aboriginal Corporation RNTBC (and see also the approach of Rangiah J in Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548).
13 Nevertheless, the fact that the Court has already determined that native title exists when it made the Determination by consent and did so on the basis of an agreement which contemplated the possibility of future variation of the determination if the High Court appeal was successful are matters that are relevant in deciding whether it is appropriate for the proposed orders to be made on the present application. The Court has already determined that it is appropriate to declare native title and has thereby been satisfied as to the matters specified in s 87 as to the making of a determination of native title by consent. Necessarily implicit in that decision was an acceptance that but for the decision BHP Billiton Nickel West Pty Ltd (since overturned), it would have been appropriate to make a determination of native title in the terms now sought. The orders made at that time contemplated the present application. The present application does not seek to depart from the basis upon which the Determination was made or to point to some matter that was not in contemplation at that time.
14 Therefore, this is not an instance where the application seeks to justify the variation of a previous determination of native title in terms that were not demonstrated to the Court when making the previous determination. Were that not to be the case then, in my view, it would be necessary for the Court to be provided with material of a kind that would support the making of a determination by consent in the exercise of the power conferred by s 87. The fact that the determination is to be made by way of variation does not take it outside the terms of that requirement.
15 Section 87 is an important requirement. Recently, in Hobbs on behalf of the Ngurrara D2 Claim Group v State of Western Australia [2020] FCA 624 at [24]-[28], I summarised the authorities as to the nature of the matters that must be established on such an application. The communal nature of native title and its perpetual proprietary character mean that the Court must have an eye for the public interests and the future interests of those who may be affected by the terms of a determination of native title which, though made with the requisite consent, will have consequences for those who are not themselves before the Court on the application. However, in the circumstances of the present application, the Court can look to the earlier Determination as having addressed those matters and proceed on the basis that no party raises any issue as to the earlier consent or the appropriateness of the order. Rather, the Court is asked to take a step that was contemplated at that time.
16 The notice period has expired in respect of the variation application. The agreed terms are before the Court. The requirements of s 94A and s 225 of the Native Title Act are met by the terms of the proposed orders.
17 KNAC and the State of Western Australia have filed joint submissions through solicitors by which they confirm their joint view that the orders are appropriate.
18 In those circumstances, I am satisfied that the proposed orders should be made.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.