SECTION 87A, AGREEMENT TO A PROPOSED DETERMINATION AND ORDERS GIVING EFFECT TO SUCH AGREEMENT
32 There are three aspects to the process contemplated by s 87A. One is agreement amongst the parties. The second is the filing of a signed proposed determination. The third is the making of orders by the Court. There may be a question as to whether the section requires that any relevant "agreement" have contractual effect, or whether a non-contractual arrangement or understanding is sufficient. In the context of litigation, an agreement to compromise almost invariably constitutes a legally binding agreement, involving an exchange of promises supported by consideration. The consideration is generally each party's promise to concede or forego some of the matters in dispute, thereby conceding or foregoing part of the relief sought. In the present case, the agreement is contained in a document headed "Agreement Under S 87A of the Native Title Act 1993 (Cth)". It provides as follows:
Each party appearing below consents to orders being made in the following terms:
1a. The draft Order annexed hereto and marked "A".
1b. The National Native Title Tribunal is to notify the Court and the parties of the registration of the Mamu People Land Exchange Indigenous Land Use Agreement within 7 days of registration of same.
1c. In the event that the Applicant has not withdrawn the application within 21 days of the notice provided for in 1b, the matter is to be re-listed for directions.
33 Whether or not s 87A requires a legally enforceable agreement, it is fairly clear that the agreement in this case was contractual in nature. Thus, in my view, all of the parties continue to be bound by it unless it has been rescinded, declared void or otherwise terminated in accordance with law. Although the State asserts the right to depart from the terms of the agreement by withdrawing its consent to the proposed determination, it points to no legal basis for so doing. It claims that it has now seen evidence which causes it to have doubts about the appropriateness of the proposed determination, but it does not suggest fraud or other actionable misrepresentation. It does not rely upon any other basis for escaping the terms of the agreement, save for the implicit assertion that, as the State, its views are of considerable importance in litigation of this kind. I shall return to that question.
34 Quite apart from any contractual rights and obligations as between the parties, the proposed determination is a document contemplated by the Native Title Act as a possible incident of Native Title litigation in this Court. The effect of filing such a document is that the Court may exercise its discretion to make the proposed determination without hearing evidence or submissions from the parties. Quite apart from any contractual obligations, the filing of a proposed determination is obviously a matter of considerable significance in the conduct of Native Title litigation. The State points to no authoritative basis for the proposition that it can withdraw its consent after filing. It simply asserts that it must be able to do so in the event that it has second thoughts about the appropriateness of its consent, brought about by information of which it subsequently becomes aware.
35 In support of its asserted entitlement to withdraw from the agreement and to withdraw its consent to the proposed determination, the State relies upon statements made by members of this Court in the course of other consent determinations. Not infrequently, Judges have indicated that they were willing to make consent determinations, at least partially because the parties, particularly government parties, had agreed to it. I have generally understood such observations to mean that the Judge in question has assumed that government has performed its duty to its relevant constituency to act in the best interests of that constituency, and that he or she may therefore accept the proposed determination as being appropriate. The various States are generally more closely involved in Native Title cases than are other levels of government. There are three reasons for this. First, the relevant State is generally the source of all non-indigenous title to alienated land and, itself, the holder of substantial areas of land. Secondly, the State generally holds relevant records concerning European settlement and observations made by early settlers concerning indigenous people. Thirdly, it generally holds records concerning alienation of land and other actions which may have extinguished Native Title.
36 The Court, in making a consent determination, may find comfort in the assumption that the State has faithfully discharged its public duty, but it is nonetheless the Court, and only the Court which must be satisfied as to the appropriateness of such an order. The State participates in Native Title litigation as a party. Save to the extent that the Native Title Act provides otherwise, the State has no privileged position before the Court. It is bound by the Court's ultimate decision. It is also bound by the Court's orders made in the course of case management and otherwise in the proceedings. Further, the State has duties to both indigenous and non-indigenous citizens. It may not always be easy to take into account and protect the rights and expectations of both groups, or all members of either group. In the end, it is the Court, and not the State, which is responsible for doing justice to all.
37 The State does not act as a gate-keeper in the process prescribed by s 87A or otherwise in connection with any determination as to the existence of Native Title. The State must be a party to any proposed determination, but there is no requirement that it be satisfied as to any particular matter. The State may choose to consent even if it is not satisfied as to matters strictly essential to a proposed determination. Pragmatic considerations frequently govern decisions made in the conduct of litigation. Sometimes, a party may see benefit in not insisting upon strict compliance with the law or a stringent approach to the facts. The parties (including the State) must make their own decisions as to such matters, but they must do so in any time-frame imposed by the Court.
38 It is not unusual for parties to find themselves in positions similar to that in which the State finds itself in this case. Where a party wishes to withdraw a formal admission, it must generally seek the Court's leave to do so. Where a party wishes to vary or resile from a consent order, it must obtain leave. These situations are very similar to the present case. The decision of the High Court in Harvey v Phillips (1956) 95 CLR 235 provides another example of a similar situation. That case involved a claim for damages for personal injuries against a medical practitioner. At the trial counsel for the plaintiff eventually obtained instructions to settle, although the plaintiff had apparently been very unwilling. The terms of consent were signed, and the Judge adjourned the Court. Thereafter, the plaintiff asserted that she had not given her consent to the settlement and applied to the Full Court of the Supreme Court of New South Wales to set aside the judgment. Judgment had not, at that time, been signed or entered. The Full Court dismissed the motion. The High Court acted upon the finding of the Supreme Court that the plaintiff was bound by the settlement pursuant to the instructions which she had eventually given to her counsel, who had acted with her authority. At 242-243 the Court (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ) said:
The learned Judge authorized the entry of judgment in accordance with the terms of the settlement drawn up. Judgment has not in fact been signed or entered, so we were informed. Had judgment been signed it may be doubted whether it was open to the plaintiff to attack it by making an application to the Full Court in the action to set aside the judgment and compromise. No objection was made on this score. But the difficulty which confronts the plaintiff is that her counsel when he signed the terms of settlement acted in accordance with the authority which she gave in the manner described by Mr Beard. If the question whether the compromise should be set aside was a matter depending upon the discretion of the court, the course of events which led her, after she left the judge's chambers, at length to give way and express a consent might be very material. But in the circumstances of this case it does not appear to us that the Court possesses a discretion to set aside the compromise or to intercept the formal entry of judgment. It is not a case of misapprehension or mistake made by counsel and consenting to an order or settlement … . It is not a case where the assistance of the Court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In such a case the assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract. It is not a case where a compromise has been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client's instructions or an excess of some limitation that has been expressly placed on his authority. In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the court to refuse to give effect to or act upon the compromise and perhaps to set it aside … .
39 The present case is an example of one of the exceptions identified by the High Court. The parties' compromise cannot be enforced without the assistance of the Court in that the Court must decide to exercise its discretion to make the proposed determination. Harvey v Phillips establishes that in such a case the Court may refuse to give effect to the compromise on grounds "not necessarily sufficient to invalidate a simple contract". Clearly, the matter is within the Court's discretion.
40 In signing the proposed determination and allowing it to be filed, the State effectively admitted the applicant's claim to the extent to which it was reflected in that determination. No doubt the State exercised great care in so doing. It must have considered whether there was sufficient evidence to justify the decision, whether further investigation should be undertaken and whether, on the available evidence, it was appropriate that it consent. Such matters are regularly assessed by parties to litigation in considering whether to settle a case or proceed to trial. Once agreement is reached, there can generally be no turning back.
41 Courts frequently fix time-frames within which parties to proceedings must make decisions about their conduct of the case. Such decisions are generally binding, unless the court otherwise orders. That process is an essential element of case management. On some occasions the need to make a decision within a time frame imposed by a court will result in the decision being made on incomplete information. In some cases full information may never be available. However all cases must proceed to ultimate resolution within acceptable time-frames. In consenting to the proposed determination the State committed itself contractually to the other parties, particularly to the applicant. By permitting it to be filed, it committed itself to the Court. These commitments were unconditional, at least once the proposed determination had been filed. Section 87A does not contemplate departure from any relevant agreement or consent to a proposed determination. Once the proposed determination has been signed, any party may file it, setting in train the process pursuant to which the determination will be made. Were the State able to walk away from such an agreement then presumably, any other party might also do so. If such conduct were permissible then the process contemplated by s 87A would be easily derailed.
42 There is another aspect which I should mention. As I have said, on 1 March this year I denied an application by Messrs Murray and Ah Kee to be joined as respondents. Their purpose was to oppose the making of a determination in favour of the Mamu People, to the extent that it might be inconsistent with rights and interests allegedly held by the Wanyurr Majay People. I rejected that application on well-settled principles. In seeking to defer the consent determination, the State seeks to achieve the same result as would probably have flowed from the joinder of Messrs Murray and Ah Kee as respondents: disruption of an agreement, freely made by the parties who have been engaged in these proceedings for many years, thus depriving the Mamu People and other parties of the expected benefit of such engagement. Messrs Murray and Ah Kee, and/or the Wanyurr Majay People could have taken appropriate action to assert their claims at any time after the filing of the Mamu application. There is no suggestion that they were unaware of it. It is inconceivable that the Wanyurr Majay People, or their leaders, would not have been aware that their southern neighbours, the Mamu People, had filed an application. If they did not enquire as to its boundaries, it was their own fault.
43 Even now, the Wanyurr Majay People could, by lodging a properly prepared and authorized application, compel consideration of their claim. See s 67 of the Native Title Act. It has not been suggested that such an application is being prepared, has been authorized or is imminent. The Wanyurr Majay People have the experience inevitably acquired in connection with one consent determination. They know what is involved and what is at risk.
44 Counsel for the Mamu People submit that the conditions precedent to my making the proposed determination pursuant to s 87A have been satisfied, subject only to my forming a view as to whether it is appropriate to make that determination. They submit that the State cannot, in any effective way, withdraw its consent to the proposed determination, although they concede that the State may seek to explain why it now considers it inappropriate that the proposed determination be made.
45 I should point out that the proposed determination as originally filed has been amended in some respects, so that the orders now sought may not be precisely as originally agreed. The parties have not addressed the question of whether the presently proposed orders are "in, or consistent with" the terms of the originally proposed determination. However the State generally takes no point with respect to such amendments. No doubt it has agreed to them. The State's concern is based upon its consideration of the new reports and its reconsideration of material which it had previously considered. The reports are "new" only in the sense that to some extent, they refer to relatively recent interviews with persons who might have relevant knowledge and opinions as to relevant inferences which might be drawn from that and other available material. The removal of Bella as an apical ancestor or, more accurately, the circumstances which have caused such removal is also relevant to the State's concern. I shall deal with that matter separately.
46 I do not understand the State to have made an application for leave to withdraw its agreement to the proposed consent determination. It has rather asserted a right to do so and otherwise submitted that I should not exercise the discretion conferred on me by s 87A(4). In any event, the considerations which would arise in considering any such application for leave would be similar to those arising in considering whether, in all the circumstances, it is appropriate to make an order in terms of the proposed consent determination. I turn to that question. Perhaps unfortunately, this matter cannot be resolved without detailed reference to at least some of the voluminous anthropological material. I shall, as far as possible, limit my consideration to that material which concerns the question of Bella's affiliation, Polly's affiliation and the competing claims to the disputed area.
47 In the evidence, there are many variations in the spelling of place names and other words, no doubt reflecting various attempts to represent in writing, words which otherwise only exist orally. With the exception of the Dyirbul-Djirrbal distinction to which I have previously referred, I shall not attempt to standardize spelling. Rather, I shall adopt the spelling used in any document to which I am currently referring.