It is appropriate to make the orders sought
13 Section 87 of the Act is to be exercised flexibly and with regard to the purpose for which it was enacted. As was said by North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (at [36]):
The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
14 His Honour continued (at [37]):
… when the Court is examining the appropriateness of an agreement, it 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. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.
15 In satisfying itself that there is a credible basis for a native title determination, a State or Territory party may rely upon significantly less material than would otherwise be necessary to justify a judicial determination of the issues: Lovett at [38]. The Court need not embark on its own inquiry of the merits of the claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox at [3]; Brown v Northern Territory of Australia [2015] FCA 1268 at [23].
16 As Reeves J said in Nelson v Northern Territory (2010) 190 FCR 344 at [14]:
It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation: Munn at [29], [39] and [40] and Lovett at [39]-[40]; whether the terms of the proposed order are unambiguous and clear: Munn at [32]; and whether the agreement has been preceded by a mediation process: Nangkiriny v Western Australia [2004] FCA 1156 at [6]; Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42].
See also Smith v Western Australia (2000) 104 FCR 494 at [38] (Madgwick J).
17 The parties to the written agreement are competently represented.
18 The applicant has provided the Northern Territory's representatives with the short form of an anthropologist report prepared by Petronella Vaarzon-Morel and Geoffrey Bagshaw. A summary of the report is before the Court. The Northern Territory's representatives referred the short form report to a consultant anthropologist for peer review. The anthropologists express the opinion that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination Area. Detailed consideration is given to the responsibilities of the claimant families in relation to the each of the estate areas with which they are associated. The report concludes that the claimants still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them and that those laws and customs give them a connection to the land. The anthropologists' report provides a proper basis for the respondent parties, particularly the Northern Territory of Australia, to consent to orders recognising the existence of native title in the Determination Area.
19 In addition, the Northern Territory of Australia has conducted appropriate searches in relation to land tenures, mining interests and other relevant interests to satisfy itself as to the extent of other interests within the Determination Area and the extent of any extinguishment of the claimants' native title interests. Copies of those searches have been provided to all parties.
20 By conciliating this claim, the parties have advanced the objectives the Act is intended to achieve. Those objectives are stated in the preamble to the Act relevantly as follows:
The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.
As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
…
The people of Australia intend:
(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
…
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
21 Understood against the preamble, it is clear that s 87 of the Act is intended to provide a special procedure for the just and proper ascertainment of native title rights and interests. It provides the mechanism by which orders for the determination of native title may be agreed by conciliation and so save the parties and the Australian community the expense and delay associated with a contested trial. The subject matter of the parties' agreement is as complex as it is important. The parties are to be congratulated for resolving the issues arising on this claim by a respectful and conciliatory process and for assisting the Court to satisfy itself that all of the conditions for the making of a consent determination are present.
22 As the preamble to the Act makes clear, it is important to recognise that, in these proceedings, native title is to be "ascertained". The orders that are to be made do not have the effect of conferring rights or interests on any person. Rather, the effect of the determination is to recognise that the families comprising the claim group presently have interests under the traditional laws acknowledged and the traditional customs observed by them. It is the observance of those laws and customs that has given them and their ancestors a continuing connection to the land that long predates the introduction to Australia of the common law. I am satisfied that the rights and interests forming the subject of the proposed determination are recognisable by the common law and that it is appropriate to make a determination to that effect, consistent with the draft prepared by the parties.