REQUIREMENTS OF Section 87 OF THE NTA
38 The joint submissions seek that a determination of native title should be made pursuant to s 87 of the NTA. Section 87 of the NTA provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where:
(a) the period specified in the notice given under s 66 of the NTA has ended and an agreement has been reached regarding the proceeding or part of the proceeding (s 87(1)(a));
(b) the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court (s 87(1)(b));
(c) 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)); and
(d) it appears appropriate to the Court to make the orders sought (s 87(1A) and s 87(2)).
39 Pursuant to s 87(1) of the NTA, the notification period referred to in s 66(8) and s 66(10)(c) of the NTA has ended.
40 The requirements of s 87(1)(a) and (b) of the NTA are established. There is an agreement in writing for a proposed determination of native title which has been filed with the Court. The agreement is reflected in the Minute which has been signed by (or on behalf of) all parties to the proceeding.
41 In accordance with s 87(1)(c) of the NTA, the orders sought in the Minute are consistent with the terms of the agreement and are within the power of the Court to make for the following reasons:
(a) the YM Application is validly made, having been authorised by the native title claim group according to a decision making process agreed to and adopted by the claim group members that authorised the applicant for the YM Application to bring the application;
(b) the YM Application is for a determination of native title in relation to areas of land and waters for which there is no approved determination of native title (s 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed determination (s 61A(1) and s 68 of the NTA);
(c) there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the NTA;
(d) the form of the determination proposed, as outlined in the Minute, complies with s 94A and s 225 of the NTA; and
(e) the requirements of s 87 of the NTA are otherwise satisfied.
42 Section 87(1A) of the NTA requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J).
43 Section 87(2) of the NTA does not require the Court 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 final view as to whether the legal requirements for proving native title have been met. It may be appropriate to make orders under s 87 of the NTA where the Court is 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 [8]. The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11].
44 In particular, s 87 of the NTA is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation and must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J). In the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding was contested: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J).
45 The requirements of s 87(2) of the NTA will often be met where the Court is satisfied that a relevant government respondent - such as the State - has, through competent legal representation, satisfied itself as to the cogency of the evidence upon which an applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, although the Court might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: Lovett at [37]; Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]; [2001] FCA 129 (Emmett J).
46 The joint submissions outline that the State has played an active role in the negotiation of the proposed consent determination contained in the Minute and it is apparent that the State has taken a real interest in the proceeding in the interests of the community generally. In so doing, the State has, acting on behalf of the community generally, had regard to the requirements of the NTA.
47 Through a rigorous and detailed assessment process, and after a considerable period of negotiations, the State has satisfied itself that the YM Determination is justified in all the circumstances. The information and connection material provided regarding the connection of the Mardudhunera People is, in the view of the State, sufficient to demonstrate that the YM Application has a credible basis. The State is satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.
48 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of "other interests" within the Determination Area, and the determination includes those other interests at Sch Four such that the determination complies with s 225 of the NTA.
49 In relation to this proceeding, the YM Applicant and the State have been legally represented throughout the negotiation process. All other respondent parties with an interest in the YM Determination have also had the benefit of legal representation.
50 In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into on an informed basis, and the active role in negotiations by the State, I am satisfied that it is appropriate and within the power of the Court under s 87 and s 94A of the NTA to make the determination.