A simple explanation of making changes to a native title determination

At a glance:

  • Native title determinations are generally final. They can only be changed in limited and exceptional circumstances.

  • Two legal pathways exist:

    1. Federal Court Rules – allows changes for fraud, consent of the parties, or minor errors (known as the “slip rule”).

    2. Native Title Act – allows changes if circumstances have changed since the determination, or if the interests of justice require it.

  • Who can apply? Only certain parties, such as the registered native title body corporate, the relevant government Minister, or the National Native Title Tribunal.

  • When can changes happen?

    • To correct small mistakes (like incorrect land descriptions or mapping errors).

    • When the law changes in a way that makes the determination outdated.

    • When all parties agree that a change is necessary.

  • Courts are cautious. Because determinations are intended to be final, the Court will only allow changes in rare and exceptional cases.

Summary

A native title determination is generally treated as full and final, and can only be varied in exceptional circumstances. A determination is a final order of the Federal Court (the Court) and can only be varied or revoked either under:

  1. Rule 39.05 of the Federal Court Rules 2011 (Cth) (FCR); or,
  2. Section13(5) of the Native Title Act 1993 (Cth) (NTA).

Only certain persons or parties are able to make an application for a determination to be varied. The cases where a variation to a native title determination has been successful have generally been agreed by the parties to the determination (i.e. the native title group, the State and the third party interest holders). In practice, any variations to existing native title determinations that are likely be contentious are more likely to be opposed by a or some parties to the determination.

To change a determination, the Court would need to be satisfied that:

    1. an event has taken place since the determination was made that has caused the determination to now be wrong; or
    2. it is in the interests of justice to make the variation in the context of the NTA as a whole, given the facts, matters and circumstances that the Court has before it.

The process under the NTA to vary a native title determination is more onerous than the process under the FCR.

How can a native title determination be varied under the FCR?

The court can vary or set aside a court judgement or order, which would include a native title determination, under rule 39.05 of the FCR in certain circumstances.

Once circumstance is if the judgement was obtained by fraud. Given the processes that must be followed for a native title determination under the NTA, it is not likely a native title determination would be set aside for fraud.

Another circumstance is if the party in whose favour it was made consents. 

Another circumstance is to correct clerical mistakes or minor “slips” or “omissions”. This is known as the “slip rule”. This rule has been used to vary native title determinations in some circumstances.

Things the court will consider in deciding whether a determination can be varied under the slip rule include the nature of the amendments sought (i.e. whether the amendment has any substantial effect), and whether all parties have consented to the amendments.[1]

In the native title context, the slip rule has been used to correct the following types of error in determinations:

  1. the mistaken omission of parcels of land from a determination;[2]
  2. the mistaken description of lots or areas within a determination;[3]
  3. the mistaken existence of native title rights and interests over lots or areas within a determination;[4] and
  4. discrepancies between maps annexed to orders and the technical description of the land the subject of the maps in the orders.[5]

How can a native title determination be varied under the NTA?

An application may be made to the Court to revoke or vary an approved determination of native title on the following grounds:[6]

    1. that events have taken place since the determination was made that have caused the determination to no longer be correct;[7] or
    2. that the interests of justice require the variation or revocation of the determination.[8]

An application can only be made by the registered native title body corporate, the relevant government Minister or the National Native Title Tribunal. 

The Court has referred to its power to vary or revoke a previous approved determination of native title as an ‘exceptional power’, giving regard to the fundamental principle of justice that a judicial decision based on the evidence and arguments after a hearing of a proceeding should be final and binding.[9] That is, an approved determination of native title is generally treated as a final, once-and-for-all decision, and it is generally not in the interests of justice to revisit a native title determination where parties, other interest holders and the general public have come to rely on the Court’s decision and the consequences of that decision.

The Court has however noted that the NTA recognises that decisions about native title rights and interests involve questions that can affect large areas of land and water and many persons for an indefinite amount of time. Consequently, a power to vary or revoke a determination allows for new evidence or emergent circumstances which necessitate the variation or revocation.[10] For instance, the laws could change (either by legislative changes coming into place or the development of common law principles) affecting native title in a way that is contradictory or otherwise inconsistent with the existing determination.

Cases where the court has agreed to vary a determination relate to changes in the recognition of native title rights because of changes to the law, either by legislation or because of court decisions made after the determination was made. They do not relate to competing assertions of native title which are different to the recognition in the native title determination. 

When may a determination be found to be no longer correct?

Cases in which a determination has been varied due to changing circumstances appear limited to instances where a subsequent judgment changes the law on which an earlier determination was based, such as in relation to:

    1. the status of native title or the extinguishment of native title in a given area; or[11]
    2. the evidential basis and requirements to support a claim of certain native title rights and interests.[12]

Recently, a determination has been varied to adopt the findings of fact made by a subsequent related determination.[13]

These cases did not relate to variations on the basis that the original determination was affected by an error or omission. However, the Court has made observations that s 13(5) NTA also contemplates post-determination changes (for instance to native title holders or native title rights) and errors or omissions in the original determination.[14] The power may therefore apply to situations for instance where a determination fails to include an existing interest.[15] In these circumstances however, it is likely that the court would only make a variation where that was agreed to by all parties.

When is it in the interests of justice to vary a native title determination?

When considering whether the proposed variation is in the interests of justice, the court will need to exercise judicial discretion and act judicially. However, the Court has stated ‘the subject matter, scope and purpose of the criterion of the ‘interests of justice’ must be considered in light of the whole of the NTA and the facts, matters and circumstances that the Court has before it.’[16]

Cases to date demonstrate that it will be in the interests of justice to vary a determination where the variation is necessary to give effect to an agreement by the parties at the time of the determination, for example where matters are reserved for judgment in another proceeding.[17]

For more information about changes to native title determinations, contact us. 

This is a general explanation only and is not legal advice. You should seek legal advice from a native title lawyer if you are unsure how this explanation may apply to your circumstances. 

[1] Lovett (Gunditjmara People) v Victoria (No 4) [2011] FCA 931 at [9]..

[2] See for instance McLennan on behalf of the Jangga People v State of Queensland [2013] FCA 795 at [2].

[3] See for instance McLennan on behalf of the Jangga People v State of Queensland [2013] FCA 795 at [3].

[4] See for instance orders made by McKerracher J on 10 October 2017 varying Bullen on behalf of the Esperance Nyungar People v State of Western Australia [2014] FCA 197.

[5] See for instance Neowarra v State of Western Australia [2012] FCA 974 at [4].

[6] Native Title Act 1993 (Cth) (NTA), s 13(1)(b).

[7] NTA, s 13(5)(a).

[8] NTA, s 13(5)(b).

[9] Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416 at [32].

[10] Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416 at [33].

[11] See for instance Tarika Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia [2017] FCA 40, where the outcome of De Rose v South Australia (No 2) (2005) 145 FCR 290 on the extinguishment of native title by pastoral improvements was overturned by Western Australia v Brown [2014] HCA 8. See also Robe River Kuruma Aboiriginal Corporation RNTBC v State of Western Australia [2021] FCA 20, where the effect of BHP Billiton Nickle West Pty Ltd v KN [2018] FCAFC on the status of extinguishment of land covered by an exploration or prospecting permit was overturned. Note that these cases involved a previous agreement between the parties to reserve matters for future judgment, which may affect whether a change to the law gives grounds to a variation.

[12] See for instance Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia [2017] FCA 803 at [21]-[22] and [378]-[390], which dealt with the evidentiary basis to support a claim of exclusive native title.

[13] See also Top End Aboriginal Corporation RNTBC v Northern Territory of Australia [2022] FCA 74 in which a determination was varied to adopt the findings of fact in Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776 in relation to exercising native title rights for a commercial or business purpose.

[14] See Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [2451].

[15] Western Australia v Ward (2000) 99 FCR 316 at [217]; Robe River Kuruma Aboiriginal Corporation RNTBC v State of Western Australia [2021] FCA 20 at [30].

[16] Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia [2017] FCA 803 at [360].

[17] See for instance Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia [2017] FCA 40.