Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia

The matter before the Federal Court was an application by Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC to vary an approved determination of native title, made by consent, in relation to certain areas of land and waters in Western Australia. The application sought to amend the original determination by including areas of pastoral improvements as areas where native title exists. The State of Western Australia did not oppose the application.

The legal issues before the Court were whether the requirements for making an application under section 13(1)(b) of the Native Title Act 1993 (Cth) were satisfied, and whether the grounds for variation set out in section 13(5) of the Act had been met. The Court was required to consider whether the determination sought to be varied was an approved determination of native title, and whether an event had taken place since the determination was made that had caused it to no longer be correct. The Court also had to determine whether it was in the interests of justice to vary the approved determination of native title.

The Court found that the requirements for making an application under section 13(1)(b) of the Act were satisfied, as Tarlka Matuwa Piarku was a registered native title body corporate and able to make the application. The determination sought to be varied was indeed an approved determination of native title, as a determination was made by the Court on 29 July 2013 in relation to an area for which there was no approved determination of native title. Additionally, the Court was satisfied that the grounds for variation were met pursuant to section 13(5)(b) of the Act, as an event had taken place since the determination was made that had caused it to no longer be correct. This event was the delivery of the High Court judgment in Western Australia v Brown, which had implications for the recognition of native title rights in relation to pastoral improvements. The Court also found that it was in the interests of justice to vary the approved determination of native title, as the parties had agreed at the time of the original determination that a variation application may be necessary in light of the potential outcome of Western Australia v Brown.

Accordingly, the Court made the orders sought by the parties to vary the approved determination of native title pursuant to section 13(5) of the Act. The varied determination replaced the original determination as the approved determination of native title, with the only change being the inclusion of areas of pastoral improvements as areas where native title exists. The Court emphasised that the variation did not remake the determination but rather replaced it, and that nothing further in the determination or the agreement reached between the parties would be varied.

The Court's decision and reasoning reflect a pragmatic approach to the application of native title law, taking into account the evolving legal landscape and the interests of the parties involved. By varying the approved determination to include areas of pastoral improvements as areas where native title exists, the Court recognised the need to adapt to new legal developments while also upholding the agreement reached between the parties. This decision highlights the importance of flexibility and cooperation in resolving native title disputes and achieving outcomes that are in the interests of justice.