Section 87(1A): order is appropriate
38 Finally, the Court considers that it is appropriate to make the determination sought by the parties as required by s 87(1A).
39 Subsection 87(1A) was introduced into the NTA by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the NTA in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in subsection 87(1). Given the substantially similar wording between subsection 87(1A) and the old s 87(1) in respect of this requirement (the only difference being the addition of s 87(1A)(b) which refers to subsection (5) which was introduced at the same time as s 87(1A)), the exercise of the Court's discretion pursuant to subsection 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1).
40 As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [8] (Hughes):
…the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement.
41 Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 (Ward) at [6]-[9] observed that the NTA is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that:
The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.
42 The parties submitted that it is implicit within the terms of s 87(2) of the NTA, which allows the Court to make orders consistent with terms proposed by the parties on the papers and without a hearing, that the Court is not necessarily required to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. Rather, it was submitted that the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. It was submitted by reference to Hughes at [9] and Ward at [8] that in some cases, it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement.
43 Further, it was submitted that the requirements of s 87(2) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State of Western Australia), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J (Munn) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J.
44 In relation to this proceeding, the Wajarri Yamatji #4 and #5 applicants and the State have been legally represented throughout the negotiation process. All respondent parties have also had the benefit of legal representation.
45 Further, the State has played an active role in the negotiation of the proposed consent determination, which it was submitted is an important factor as referred to by Emmett J in Munn at [29].
46 In these proceedings, it was submitted that the State, acting on behalf of the community generally and having regard to the requirements of the NTA, has satisfied itself that the determination is justified in all the circumstances. In the State's view, the connection materials are sufficient to demonstrate that, in respect of the Part C Determination Area, the Wajarri Yamatji #4 and #5 Applications have a "credible or cogent basis" (see Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [21]). The State is satisfied that the materials presented are sufficient to establish the maintenance of connection according to traditional laws and customs in the Part C Determination Area.
47 The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the Part C Determination Area, and those interests are included in the Part C Determination (see Sch Five).
48 Accordingly, the Wajarri Yamatji applicants and the State submitted that the Part C Determination sets out a description of the nature and extent of the native title rights and interests and the "other interests" in relation to the Part C Determination Area which complies with s 225 of the NTA.
49 The Court accepts the parties' submissions set out in [42]-[48] above. For those reasons, the Court is satisfied that an order under s 87 of the NTA is both within power and appropriately made.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.