Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia - [2020] FCA 1860 - FCA 2020 case summary — Zoe

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Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia

[2020] FCA 1860

Federal Court of Australia|2020-12-23|Before: Smith J

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Source facts

Court

Federal Court of Australia

Decision date

2020-12-23

Before

Smith J

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

The orders of the Court made on 30 November 2020 are varied by amending Schedule 1 to: (a) delete the words 'the southern boundary of Reserve 1834' and substitute the words 'a southwestern boundary of Reserve 51146'; (b) delete the words 'Then easterly to the easternmost northeastern corner of the westernmost severance of Pastoral Lease N049743 (Mowanjum), being the easternmost northwestern corner of again Native Title Determination WAD6099/l998 Nyikina Mangala (WCD2014/003)' and substitute the words 'Then easterly along a line joining coordinate points Latitude 17.415268 South, Longitude 123.667955 East and Latitude 17.415267 South, Longitude 123.751288 East to a northwestern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003);', so that the orders be now in the form annexed hereto and marked Attachment A.
The service of the interlocutory application dated 17 December 2020 on any party other than the Applicant and the Commonwealth of Australia be dispensed with. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT A DETERMINATION Note: defined terms are set out in paragraph 14 below. THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title: s 225 Native Title Act
Subject to paragraph 2, native title exists in the Part A Determination Area in the manner set out in paragraphs 4 and 5 of this Determination.
Native title does not exist in those parts of the Part A Determination Area that are identified in Schedule Five to this Determination. Native title holders: s 225(a) Native Title Act
The native title in the Part A Determination Area is held by the Native Title Holders. The nature and extent of native title rights and interests: s 225(b) and s 225(e) Native Title Act Exclusive native title rights and interests
Subject to paragraphs 7, 8, 9 and 12 the nature and extent of the native title rights and interests in relation to the Exclusive Area is the right to possession, occupation, use and enjoyment of that part as against the whole world. Non-exclusive native title rights and interests

[2]

Then easterly along a line joining coordinate points Latitude 17.415268 South, Longitude 123.667955 East and Latitude 17.415267 South, Longitude 123.751288 East to a northwestern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003); then generally southerly, generally south westerly, generally northerly, generally southeasterly, again generally northerly, again generally south westerly, again generally northerly, generally easterly and again generally northerly along the boundaries of that native title determination back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 1 August 2020 For the avoidance of doubt the Part A Determination Area excludes any land and waters subject to: • Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) as determined in the Federal Court on 2 May 2018. • Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003) as determined in the Federal Court on 29 May 2014. • Native Title Application WAD33/2019 Warrwa Combined (WCD2014/004) as registered on 26 November 2014. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 14 September 2020 Use of Coordinates: Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. SCHEDULE TWO MAPS OF THE PART A DETERMINATION AREA SCHEDULE THREE EXCLUSIVE NATIVE TITLE AREAS (PARAGRAPH 4) Areas where native title comprises the rights set out in paragraph 4 Native title comprises the rights and interests set out in paragraph 4 of the Determination in relation to the following land and waters (which are generally shown as shaded green on the maps at Schedule Two):

Unallocated Crown Land: (a) Whole of UCL 001; (b) Whole of UCL 003; (c) Whole of UCL 004; (d) Whole of UCL 006; (e) Whole of UCL 007; (f) Whole of UCL 008; (g) Whole of UCL 009; (h) Whole of UCL 010; (i) Whole of UCL 011; (j) Whole of UCL 012; (k) Whole of UCL 013; (l) Whole of UCL 015; (m) Whole of UCL 016; (n) Whole of UCL 017; (o) Whole of UCL 018; (p) Whole of UCL 019; (q) Whole of UCL 020; (r) Whole of UCL 021; (s) Whole of UCL 022; (t) Whole of UCL 023; (u) Whole of UCL 024; (v) Whole of UCL 025; (w) Whole of UCL 026; (x) Whole of UCL 028; (y) That part of UCL 029 that is not subject to mining lease M0400220; (z) Whole of UCL 030; and (aa) Whole of UCL 031. SCHEDULE FOUR NON-EXCLUSIVE NATIVE TITLE AREAS (PARAGRAPH 5) Areas where native title comprises the rights set out in paragraph 5 The following land and waters (generally shown as shaded yellow on the maps at Schedule Two):
Pastoral leases Lease Number Station Name N049743 Mowanjum

[7]

Section 47B Save for any areas described in clause 2 of Schedule Five, s 47B of the Native Title Act applies in relation to the following areas, with the effect that any extinguishment over those areas is to be disregarded: MapInfo ID Description UCL 001 Whole of UCL 001, formerly subject to Oil Prospecting Area (OPA) 3H UCL 003 Whole of UCL 003, formerly subject to OPA 3H UCL 004 Whole of UCL 004, formerly subject to OPA 3H UCL 005 Whole of UCL 005, formerly subject to OPA 3H and the Derby Port Area vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA) UCL 006 Whole of UCL 006, formerly subject to OPA 3H UCL 007 Whole of UCL 007, formerly subject to OPA 3H UCL 008 Whole of UCL 008, formerly subject to OPA 3H UCL 009 Whole of UCL 009, formerly subject to OPA 3H UCL 010 Whole of UCL 010, formerly subject to OPA 3H UCL 011 Whole of UCL 011, formerly subject to OPA 3H UCL 012 Whole of UCL 012, formerly subject to OPA 3H UCL 013 Whole of UCL 013, formerly subject to OPA 3H UCL 014 Whole of UCL 014 formerly subject to OPA 3H and the Derby Port Area vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA) UCL 015 Whole of UCL 015, formerly subject to OPA 3H UCL 016 Whole of UCL 016, formerly subject to OPA 3H UCL 017 Whole of UCL 017, formerly subject to OPA 3H UCL 018 Whole of UCL 018, formerly subject to OPA 3H UCL 019 Whole of UCL 019, formerly subject to OPA 3H UCL 020 Whole of UCL 020, formerly subject to OPA 3H UCL 021 Whole of UCL 021, formerly subject to OPA 3H UCL 022 Whole of UCL 022, formerly subject to OPA 3H UCL 023 Whole of UCL 023, formerly subject to OPA 3H UCL 024 Whole of UCL 024, formerly subject to OPA 3H UCL 025 Whole of UCL 025, formerly subject to OPA 3H UCL 026 Whole of UCL 026, formerly subject to OPA 3H UCL 028 Whole of UCL 028, formerly subject to OPA 3H UCL 029 That part of UCL 029, formerly subject to OPA 3H and the Derby Port Area vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA), that is not overlapped by mining lease M0400220 UCL 030 Whole of UCL 030, formerly subject to OPA 3H UCL 031 Whole of UCL 031, formerly subject to OPA 3H UCL 032 Whole of UCL 032 formerly subject to OPA 3H and the Derby Port Area vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA) Water 01 That part of Water 01 formerly subject to OPA 3H and the Derby Port Area vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA), that is not overlapped by mining lease M0400220 (portion of the Fitzroy River)

[12]

Additional rights and interests The following rights and interests in the Part A Determination Area: (a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation. (b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA). (c) The rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Western Tuna and Billfish Fishery, the Western Skipjack Tuna Fishery and the Southern Bluefin Tuna Fishery. (d) Rights and interests of members of the public arising under the common law including: (i) the public right to fish; and (ii) the public right to navigate. (e) The international right of innocent passage though the territorial sea. (f) The right to access the Part A Determination Area by an employee, agent or instrumentality of: (i) the State; (ii) the Commonwealth; or (iii) any local government authority, as required in the performance of his or her statutory or common law duties where such access would be permitted to private land. (g) So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) stock routes; (iv) coastal waters; (v) beaches; and (vi) areas that were public places at the end of 31 December 1993. (h) Any other: (i) legal or equitable estate or interest in the land or waters; or (ii) any other right, including a right under an option and a right of redemption, charge, power or privilege over, or in connection with: (A) the land or waters; or (B) an estate or interest in the land or waters; or (iii) restriction on the use of the land or waters, whether or not annexed to other land or waters. SCHEDULE EIGHT NATIVE TITLE HOLDERS (PARAGRAPH 3) The Native Title Holders are those Aboriginal persons who are the biological or adopted descendants of the following apical ancestors: (a) Charlie Mangurl (b) Ninya Philomena (c) Ngurkwan, Yayika and Minyang (d) Polly Wurrayin and Charlie Djawali (e) Polly Jambo (f) Kitty Kujaja (g) Lucy Muninga and Edward Yedawarra and Wadadarl (mother of Fulgentius Fraser) (h) Maggie Nimbanirl (i) Dim (j) Bobby Ah Choo (Gadjigar) (k) Bundangurra and Mabel Ah Chee (l) Gurupirin (m) Nani (n) Balbarra (husband of Nani) (o) Jinangkal and Nyuntunga (p) Kanjuka and his siblings, Mona Yabali and Alec Munganji (q) Ngamariny (r) Kudij (s) Charlie Jalabanany (t) Rimarrangudu (u) Bulu (v) Butcher Joe Nangan (w) Jerry Wandamarra

[13]

Context of the application 1 On 30 November 2020 the Court made a consent determination of native title in these proceedings, referred to as the BMM Part A Determination: Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia [2020] FCA 1700. For convenience, defined terms in these reasons bear the same meaning as in those published reasons. To distinguish it from the reasons, I will refer to the formal part of the orders as the Determination. 2 As noted in the reasons, the parties signed a minute consenting to orders effectively in terms of the Determination. 3 The Determination include schedules. Schedule 1 contains the technical description of the external boundary of the Part A Determination Area. Schedule 2 depicts the boundaries by way of maps. 4 Following the Determination, the National Native Title Tribunal (NNTT) raised two queries with the State about a conflict between aspects of the technical description in Schedule 1 and the maps in Schedule 2. 5 The State submits that it has carefully considered the matters raised by the NNTT and raised the errors with the parties to the proceedings. The parties accept that the depiction of the Part A Determination Area in the maps in Schedule 2 is accurate, but there are two errors in the technical description in Schedule 1. 6 It is important that the errors be corrected because [15] of the Determination provides that in the event of any inconsistencies between a written description of an area and an area depicted on a map, then the written description prevails. In this case, it is clear that the depiction by way of the maps is the accurate record of the Part A Determination Area. 7 The State requests that the Court utilise r 39.05(g) or r 39.05(h) of the Federal Court Rules 2011 (Cth), commonly referred to as the slip rule, to correct the errors. Those paragraphs provide: The Court may vary or set aside a judgment or order after it has been entered if: … (g) there is a clerical mistake in a judgment or order; or (h) there is an error arising in a judgment or order from an accidental slip or omission.

[14]

Nature of the error 8 The two errors in the technical description are described in an affidavit of Rebekah Daley, a senior property location officer within the Graphic Services Section of the Western Australian Land Information Authority, which trades as Landgate. Landgate, amongst other things, maintains the State's official register of land ownership and survey information. 9 Ms Daley is qualified as a cartographer and was requested by the State to assist with respect to the BMM Part A Native Title Claim from around September 2020. As part of that assistance, Graphic Services prepared the technical description of the external boundary of the proposed BMM Part A Determination Area and a series of maps depicting the same. 10 According to Ms Daley, the descriptions were compiled by making reference to land tenure sourced from Landgate's Spatial Cadastral Database as at 1 August 2020, surrounding native title applications and determination boundaries and coordinate points. Consideration was also given to the external boundary description of the BMM native title claim area which was prepared by the NNTT on 22 September 2016 and which formed an attachment to the original BMM application. 11 The technical descriptions were ultimately included in Schedule 1 of the Determination. 12 Ms Daley deposes to the fact that after the Determination, she considered two matters raised by a senior geospatial specialist within the Geospatial Unit at the NNTT and came to the following conclusion. 13 As to the first error that was identified, there had been a change in tenure of a point which was formerly (and accurately) described as being on the southern boundary of Reserve 1834 but was now more properly described by reference to Reserve 51146. 14 The second issue was an inaccuracy in the description of a point on the boundary such that on careful consideration Ms Daley was of the view that an amendment was required. 15 The amendments to Schedule 1 which Ms Daley suggests in order to bring the technical description into alignment with the Part A Determination Area described in the Schedule 2 maps are as follows: All those lands and waters commencing at the northernmost northeastern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003), being a point on a southwestern boundary of Reserve 51146 the southern boundary of Reserve 1834 and a point on the southern boundary of Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) and extending easterly along the southern boundary of that latter native title determination to its easternmost southeastern corner; then southerly and easterly passing the through the following coordinate points: LATITUDE (SOUTH) LONGITUDE (EAST) 17.248601 123.584619 17.331935 123.584621 17.415269 123.584622 17.415268 123.667955

[16]

Power to amend 16 Having carefully considered Ms Daley's detailed evidence with respect to the manner in which the errors have arisen and how they might be rectified, I agree with the State and the applicant that the nature of the errors are such that they can be addressed through an exercise of the Court's power under r 39.05. They are relatively minor and of a technical nature. 17 In the native title context, the slip rule has been utilised to correct different types of errors in determinations. For example, it has been used to correct: (a) the mistaken omission of parcels of land from a determination: McLennan on behalf of the Jangga People v State of Queensland [2013] FCA 795 at [2] (Rares J); and Lovett on behalf of the Gunditjmara People v State of Victoria (No 4) [2011] FCA 931; (2011) 195 FCR 198 at [3]-[4] (North J); (b) the mistaken description of lots or areas within a determination: McLennan on behalf of the Jangga People at [3]; and VB (deceased) v State of Western Australia [2012] FCA 973 at [8] (Gilmour J); (c) the mistaken statement of existence of native title rights and interests over lots or areas within a determination (for example, in orders made by McKerracher J on 10 October 2017 in WAD 6097 of 1998 (Esperance Nyungar)); and (d) discrepancies between maps annexed to orders and the technical description of the land the subject of the maps in the orders: Neowarra v State of Western Australia [2012] FCA 974 at [4] (Gilmour J). 18 In Lovett on behalf of the Gunditjmara People, North J made orders using what was then O 35 r 7 of the (pre-July 2011) Federal Court Rules to vary a determination of native title to include certain areas of land that had been accidentally omitted. His Honour considered whether the orders were better made under s 13(1)(b) of the Native Title Act 1993 (Cth) and stated that: [8] It is open to the Court to make orders amending the … determination under either s 13 of the Act or O 35 r 7 of the Federal Court Rules. The choice between the two will depend upon the circumstances in which the application is made. The question which needs to be addressed by the Court is whether the legislature intended that the fulsome notification required by the Act be provided in circumstances such as the present, or whether the procedure under O 35 r 7(2)(f) and (3) would be regarded as appropriate in the circumstances. 19 The 'fulsome notification' provisions of the Native Title Act to which North J referred in Lovett on behalf of the Gunditjmara People are contained in s 61, s 63 and s 66 of the Native Title Act. Broadly, these provisions provide that the Registrar of the Federal Court must give the Native Title Registrar a copy of an application filed under s 61 (that is, an application made under s 13(1)(b) to vary an approved determination of native title) and any accompanying documents. The Native Title Registrar must then give copies of the application and accompanying documents to any representative bodies for the area covered by the application, the Commonwealth Minister, any local government body for any of the area covered by the application, and any person whose interests may be affected whom the Registrar considers appropriate to receive a copy of the application and accompanying documents. 20 In Lovett on behalf of the Gunditjmara People, North J observed that the notification process for variation of a determination under s 13(1)(b) of the Native Title Act would be 'more onerous' than if the slip rule were relied upon. Given the nature of the amendments sought and the consent of both the applicant and the parties whose interests might be affected, North J held that no useful purpose would be served by requiring the full notification process under the Native Title Act to be followed. 21 In VB (deceased), Gilmour J referred to and followed the approach in Lovett on behalf of the Gunditjmara People (at [2]-[3]).