RELEVANT LEGISLATIVE PROVISIONS AND APPLICABLE PRINCIPLES
14 The orders sought must comply with s 94A of the NTA, which requires that details of the matters mentioned in s 225 of the NTA be set out.
15 Section 225 defines a determination of native title as:
A determination … whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
16 Section 223 of the NTA defines native title as:
(1) … the communal, group or individual rights and interests of Aboriginal peoples … in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples …; and
(b) the Aboriginal peoples …, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
17 I respectfully adopt the summary by Mansfield J in Far West Coast Native Title Claim v South Australia (No 7) [2013] FCA 1285 at [38], where his Honour summarised the relevant principles, by reference to previous decisions in this Court and the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58:
A threshold requirement is that the evidence show that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination Area. In defining that group or society, the following must also be addressed:
(1) that they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs;
(2) that the present day body of accepted laws and customs of the society, in essence, is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and
(3) that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.
18 As his Honour then noted at [39], the claimants must possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them. Those laws and customs must give them a connection to the land which is the subject of the claim.
19 In contrast to contested applications, the process which the Court is able to adopt in relation to a determination proposed by the consent of all affected parties does not require the Court to be satisfied, on the balance of probabilities in reliance on admissible evidence, of all matters comprehended by s 223, approached in the way described in the authorities and by Mansfield J in the Far West Coast Native Title Claim case.
20 Section 87 of the NTA authorises a different process. The Court must still be satisfied the orders proposed are appropriate, but the manner in which it reaches that state of satisfaction, and the material upon which it may rely, are different.
21 The preconditions for an order to be made in the current proceeding by consent under s 87 are:
The period specified in the notice given under s 66 of the Act has passed (s 87(1));
Agreement has been reached between the parties on the terms of an order of the Court in relation to the whole proceeding (s 87(1)(a)(i));
The terms of the agreement are in writing, signed by or on behalf of the parties and have been filed with the Court (s 87(1)(b)); and
The proposed order is within the Court's power (s 87(1)(c)).
22 Where those preconditions are met then, if the Court is satisfied it is appropriate to do so, the Court may make an order in the terms sought by the parties without holding a hearing (s 87(2)).
23 It has been observed by North J (see Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474 at [37]), in a passage which has been regularly endorsed by other justices of this Court, that in making orders pursuant to s 87, the Court
is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660; Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.
24 Thus, for a consent determination under s 87 there may be some additional matters to which the Court has regard in order to reach the conclusion under s 87(2) that it is appropriate to make the order sought. The power is discretionary, confined only by the scope, subject matter and purpose of the Act (Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62; [2005] FCA 1117 at [7] per Black CJ; and see generally Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [23] per French CJ).
25 The Court's reliance on the parties' own processes for negotiating and concluding an agreement, rather than reliance on its own thorough examination of all the evidence measured against the civil standard of proof and in the context of full submissions, means that the Court must be satisfied it is appropriate to rely on not only the outcome to which the parties have agreed, but the process by which that agreement has been reached.
26 The fairness of those processes - demonstrated through the presence of legal representation, involvement of the Court and appropriate consultation with affected parties - will be important. As other judges have pointed out (see, eg, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v South Australia [2011] FCA 1387 at [21], [31] per Keane CJ), in exercising power under s 87 the Court relies on the government respondent in particular to have subjected the claims in the application to scrutiny through a process which reflects the requirements in ss 225 and 223(1) of the NTA.
27 The need for the relevant state or territory to act in the interests of all members of the community it represents in turn requires the Court to be satisfied the relevant state or territory has assessed the cogency of the applicant's evidence for itself, and has considered whether its consent to a determination of native title is in the interests of the community it represents. This does not mean, however, that the state or territory needs to conduct a trial in substitution for a trial by the Court: see the observations by Reeves J in Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 at [12]-[13].
28 A determination of native title, whether pursuant to s 87 or not, is a determination which creates, to the extent of its terms, rights and interests enforceable against all people. There can only be one determination of native title over a given piece of land. The singularity and nature of the interests created means that, although the Court will not embark upon its own enquiry into the merits of the applicant's claim, it must be satisfied the agreement is not only made fairly and freely (as to this aspect see Nangkiriny v Western Australia (2002) 117 FCR 6; [2002] FCA 660 at [14] per North J), with appropriate consideration by the state or territory of the wider interests at stake, but also that there is in the material before it a rational and probative basis to find that the orders reflect the requirements of the NTA. This may mean the Court examines at least some of the underlying material supporting the application and which formed the principal basis for the state or territory's consideration of the claim and agreement to it: see, eg, the consideration by Allsop CJ in Starkey v South Australia [2014] FCA 924 at [28]-[72].