Karlka Nyiyaparli Aboriginal Corporation RNTBC v State of Western Australia

In the case of Karlka Nyiyaparli Aboriginal Corporation RNTBC v State of Western Australia, the Federal Court was asked to vary an approved native title determination in light of a subsequent High Court decision. The original determination had been made in 2018 by Barker J, who approved a native title determination in accordance with a Minute of Proposed Consent Orders filed on 19 September 2018. The parties had agreed that the registered native title body corporate could seek a variation of the Nyiyaparli determination in the event that a decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) was subsequently overturned by the High Court. The High Court delivered judgment in Tjungarrayi v Western Australia on 17 April 2019, allowing appeals and holding that the presence of exploration or prospecting licences or permits did not prevent the disregarding of extinguishment under s 47B(2) of the Native Title Act in respect of land or waters covered by such licences or permits. The Nyiyaparli Variation Application sought to vary the Nyiyaparli determination by recognising the application of s 47B over certain areas.

The court needed to decide whether it was appropriate to make the proposed orders, and if the statutory requirements for varying a native title determination were met. The parties had reached an agreement as to the terms of the orders, and the court considered that the orders were within its power and appropriate to make. The court also noted that the variation application did not seek to depart from the basis upon which the original determination was made. The court ordered that the determination of native title be varied as set out in the Minute of Proposed Orders and Varied Determination of Native Title filed by the parties. The court made no order as to costs.