THE REQUIREMENTS OF SECTION 87
27 Pursuant to s 87(1) of the Act the Court may make a determination of native title by consent without holding a hearing where:
(a) the period specified in the notice given under s 66 of the Act has ended (s 87(1));
(b) there is an agreement between the parties for a proposed determination of native title in relation to the proceeding (s 87(1)(a) and (aa));
(c) the terms of the agreement, in writing signed by or on behalf of all of the parties, is filed with the Court (s 87(1)(b)); and
(d) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)).
28 It is well accepted that the Court can rely on the joint submissions of the parties in relation to these matters: see Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 at [16], where Mortimer J explained:
The basis for the Court's orders under s 87 is the agreement of the parties, and the Court does not need to make its own inquiries as to the merits of the claim for native title: see Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J), quoting North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]. Recognition of this approach as permissible confers significant flexibility on parties to agreements for a consent determination. They may elect to agree on matters - not only of fact, but also of law - which, in a contested hearing, would favour one party or another because of the state of the law or the evidence. However, in a negotiated outcome, the very nature of negotiation involves compromise, and parties may elect to compromise on facts and on their legal rights and interests, as long as the factual and legal preconditions exist for the Court to consider that a determination satisfies the requirements of the Native Title Act, so that the determination is within power and is appropriate to make.
29 Having regard to the relevant material the Court is satisfied that:
(a) the notice periods specified in ss 66(8) and (10)(c) ended (on 20 July 2021); and
(b) there is an agreement between the parties for the proposed determination of native title in relation to the proceeding, the terms are in writing and have been signed on behalf of all of the parties, the agreement has been filed with the Court, and the Commonwealth Minister has not sought to intervene and therefore is not a necessary party to the agreement (s 87(1)(a), (aa) and (b)).
30 Whether an order under s 87 of the Act in the terms proposed is within the power of the Court (s 87(1)(c)) will depend upon whether:
(a) it is consistent with s 94A of the Act;
(b) the rights and interests included in the proposed determination are recognisable by the common law of Australia; and
(c) there is no other native title determination in existence over the area the subject of the proposed determination.
see Nelson v Northern Territory of Australia [2010] FCA 1343; 190 FCR 344 at [4] (Reeves J).
31 Section 94A of the Act requires that an order in which the Court makes a determination of native title must set out details of the matters mentioned in s 225 of the Act. Section 225 provides:
A determination of native title is 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.
32 For the purposes of s 87(1)(c) of the Act the Court is satisfied that orders in the terms proposed are within the power of the Court, because:
(a) the Upurli Upurli Nguratja Application is validly made by the applicants, having been authorised by the Upurli Upurli Nguratja claimants according to a decision-making process that, under the traditional laws and customs of the claim group, authorised the applicants to make the native title determination Application, as required by s 251B of the Act (see also ss 61 and 62A of the Act);
(b) the Upurli Upurli Nguratja claimants have considered and confirmed the authorisation of the applicants to act in that capacity and enter into the Minute;
(c) the Upurli Upurli Nguratja Application seeks a determination of native title for an area of land and waters in relation to which there is no approved determination of native title: s 13(1)(a) of the Act, and there remains no approved determination in relation to the proposed determination area: s 68 of the Act;
(d) the form of the proposed determination outlined in the Minute complies with ss 94A and 225 of the Act; and
(e) the requirements of s 87 of the Act are otherwise satisfied.
33 The Court is satisfied that the native title rights and interests included in the proposed Minute are capable of being recognised by the common law of Australia.
34 As to whether the proposed orders are appropriate to make, ss 87(1A) and (2) of the Act provide:
Power of Court
(1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:
(a) whichever of subsection (2) or (3) is relevant in the particular case; and
(b) if subsection (5) applies in the particular case - that subsection.
Agreement as to order
(2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.
35 Subsection 87(2) of the Act is the relevant subsection in this Application, and s 87(5) does not apply.
36 The applicants and the State jointly submit that the proposed orders are appropriate for the Court to make. Section 87 confers a broad discretion on the Court which is to be exercised judicially in accordance with legal principle and the objects and purposes of the Act: Ryan at [23]. These objects include the resolution of native title disputes by agreement. Section 87 is designed to encourage parties to take responsibility for resolving proceedings by negotiation without the need for determination in a contested hearing: Ryan at [23]; Brown v State of Western Australia [2007] FCA 1025 at [22] and the cases there cited; Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v State of Western Australia [2018] FCA 1591 at [26] (Barker J). The power in s 87 must be understood in this context: Ryan at [23] citing Munn v Queensland [2001] FCA 1229; 115 FCR 109 at [26] and [28] (Emmett J); Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37] (North J).
37 In Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v State of Western Australia [2019] FCA 508, Murphy J summarised the question for the Court at [19]-[22]:
[19] In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court's function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act's emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed.
[20] The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, 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 of a consent determination will be determined on a case by case basis. 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: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8].
[21] Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State's agreement that there is a credible and rational basis for the determination proposed: Freddie at [18].
[22] The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.
38 Whether there is free and informed consent of all the parties and the State to the agreement is the primary consideration in determining whether the orders are appropriate to make. The applicants and the State jointly submit that the consent determination mechanism under s 87 does not require the Court to receive evidence and make findings, embark on its own inquiry on the Application's merits, or form a concluded view as to whether the legal requirements for proving native title have been met. Rather, it is said, the Court may make orders pursuant to s 87 when satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [6]-[9]; and Tex at [25].
39 In Ward, North J observed at [8]:
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.
40 The requirements of ss 87(1A) and (2) of the Act will be met where the Court is satisfied that the State, with the benefit of competent legal representation, is satisfied as to the cogency of the evidence on which the Application relies. The Court is not examining the appropriateness of an agreement and 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 is whether it was freely entered into on an informed basis: Lovett at [37]. The consent determination mechanism is not intended to operate by way of substitution of a trial and the State is not required to obtain proof from the applicants to the civil standard of proof, on the balance of probabilities, that the native title rights claimed exist. What is necessary is that the State has sufficient information so that it is in a position to inform the Court that, from the State's perspective, it is appropriate for the Court to make the determination in orders to give effect to the terms of an agreement as provided for in s 87 of the Act: Munn at [29]-[30]; Lovett at [37]; Mulligan on behalf of the Warlangurru Claim Group v State of Western Australia [2022] FCA 845 at [34] (Banks-Smith J).
41 In Munn, Emmett J observed at [29]-[30]:
Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.
However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally.
42 Here, the Court is satisfied for the purposes of s 87 that the agreement the parties have reached reflects a free and informed agreement between all the parties. The applicants and the State have each played an active role and been legally represented throughout the negotiations leading to the resolution of the matter. The State, on behalf of the Western Australian community more generally, has had regard to the requirements of the Act and through what is submitted to have been a rigorous and detailed assessment process has been satisfied that the proposed determination is justified in all the circumstances. The State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of any "other interests" within the proposed determination area, and those interest are included in Schedule 4 of the Minute. The Minute describes the nature and extent of non-native title rights and interests within the proposed determination area, which complies with s 225 of the Act (as to which see Mulligan, at [36]-[38]).
43 The non-State respondent parties to the Application have also participated in negotiations and provided their consent to the Minute.
44 In all the circumstances, and based on the material before the Court and the State's active role in the negotiations, the Court is satisfied that the agreement has been entered into freely and on an informed basis and that an order under s 87 of the Act is appropriate: see Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 at [53] (Banks-Smith J).