REASONS FOR JUDGMENT
1 This is an application by the Aboriginal traditional owners for a consent determination of native title rights and interests in respect of an area in the Pilbara region of Western Australia described by the parties as "Determination Area B" in the Eastern Guruma native title claimant application, being the land and waters covered by the application.
2 The Eastern Guruma application was lodged with the National Native Title Tribunal on 21 October 1997. As a result of the 1998 amendments to the Native Title Act 1993 (Cth) (the Act), the Eastern Guruma application became a proceeding in this Court. As originally lodged, the Eastern Guruma application covered approximately 8,700 square kilometres in the Pilbara region of Western Australia.
3 On 1 March 2007, following a process of mediation by the parties, assisted by the National Native Title Tribunal, I made orders by consent that native title exists over a portion of the area covered by the application, that is, "Determination Area A": see Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365, which also sets out the nature and extent of the native title rights and interests held by the native title holders in relation to that area.
4 The undetermined portion of the Eastern Guruma application, described by the parties as "the Part B Area", has remained in mediation before the National Native Title Tribunal. Pursuant to s 190(4)(c) of the Act (as at March 2007), following the determination of Hughes, the entry onto the Native Title Claims Register that related to the Eastern Guruma application was amended so that it only related to the matters in relation to which the application had not been finalised.
5 A separate negotiation process has taken place with respect to the resolution of the claim to native title in the Part B Area. The borders of the Part B Area correspond with the gazetted town site boundary of Tom Price. It is comprised of many large tracts of unallocated Crown land which have been the subject of prior extinguishing acts. The parties have reached an agreement as to the terms of the determination to be made in relation to the Part B Area (Determination Area B).
6 Since my decision in Hughes, developments in the law have continued in relation to the application of s 47B of the Act namely: Northern Territory v Alyawarr (2005) 145 FCR 442; Moses v Western Australia (2007) 160 FCR 148; Griffiths v Northern Territory (2007) 165 FCR 391; and State of Western Australia v Sebastian (2008) 173 FCR 1.
7 Section 47B of the Act provides, relevantly, that if, at the time a claimant application is made in relation to an area, the area is not covered by a 'reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity … under which the whole or part of the land or waters in the area is to be used for public purposes or for a practical purpose' (s 47B(1)(b)(ii) and 'one or more members of the native title claim group occupy the area' (s 47B(1)(c)), then any past extinguishment is to be disregarded (s 47B(2)).
8 The application of s 47B is of particular relevance to this application because, by reason of extinguishment of native title over the full extent of Tom Price by historical grants of special leases, the only areas of the Part B Area for which native title could be recognised are those to which s 47B applies, by reason of the occupation by members of the claim group, to disregard prior extinguishment.
9 The developments concerning s 47B have no doubt assisted the parties to come to the agreement they have reached with respect to Determination Area B. The parties ask the Court to make an order by consent in respect of Determination Area B on the terms which they have agreed and to do so without holding a further hearing. They have filed joint written submissions in support of the proposed orders.
10 The applicants have nominated the Wintawari Guruma Aboriginal Corporation (ICN 4730) (the Corporation) as the prescribed body corporate to hold the native title of the claimant group on trust following a determination in these proceedings pursuant to s 56(2)(a)(i) of the Act. That nomination is in writing and the Corporation has given its consent to the nomination (s 56(2)(a)(i) and (ii)). I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. I also note that the Corporation is the Registered Native Title Body Corporate for Determination Area A.
11 In Hughes, I stated that the settlement of native title claims by agreement is to be welcomed and encouraged as it means that the parties can decide for themselves how best to institute an arrangement that satisfies their respective rights and interests in a way that, as appropriate, recognises the rights and interests of the other parties. I congratulate the parties on again demonstrating the wisdom and practical good sense in coming to this agreement.
12 Section 87 of the Act specifically provides for the making of orders giving effect to an agreement reached between the parties where the agreement relates to a part of the proceedings, without holding a hearing or, if a hearing has started, without completing the hearing.
13 Subsection 87(1A) of the Act was inserted upon promulgation of the Native Title Amendment Act 2009 (Cth). As Gilmour J stated in Barunga v State of Western Australia [2011] FCA 518 at [24]:
Section 87(1A) was introduced into the Native Title Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the Native Title Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court's discretion pursuant to the s 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). 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, including the resolution of native title disputes by mediation and agreement: Hughes v Western Australia [2007] FCA 365 at [8].
14 The exercise of the powers to make a consent determination under s 87 of the Act has been considered in a number of previous decisions and the factors considered relevant to that exercise of power considered. There is no need to recite them here, but some bear specific mention within the recognised context that the Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation and that the power under s 87 should, accordingly, be exercised flexibly. The factors include:
o Satisfaction that the State has taken steps to satisfy itself that there is a credible basis for the application and has acted in good faith and rationally;
o Satisfaction that there exists a free and informed agreement of the parties;
o Whether there is independent legal representation;
o Whether the terms of the proposed order are unambiguous and clear; and
o Whether the agreement has been preceded by a mediation process.
15 In summary, the preconditions to the operation of section 87 of the Act may be expressed as follows:
The period specified in the notice given under s 66 of the Act has ended (s 87(1));
An agreement must have been reached between the parties on the terms of the order in relation to the proceedings, a part of the proceedings or a matter arising out of the proceedings (s 87(1)(a));
The terms of that agreement, in writing signed by or on behalf of the parties, must have been filed with the Court (s 87(1)(b));
The Court must be satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and
It appears appropriate to the Court to make the orders sought.
16 The first condition is satisfied. The period of 3 months after the notification day referred to in subss 66(8) and 66(10)(c) of the Act ended on 4 July 2000. The parties have reached agreement on the terms of the order. Their agreement is in writing and has been signed by or on behalf of the parties. It was filed with the Court on 27 August 2012. I am satisfied that the proposed orders are within the Court's powers. The Court has jurisdiction to make the orders sought (s 81 of the Act). The application is valid. The area the subject of the proposed determination is not the subject of other native title proceedings or of another approved determination of native title. The orders set out the matters in s 225 of the Act as required by s 94A. As the parties have agreed on the terms of the order, the Court may make an order in, or consistent with, the terms without a hearing (s 87(2) of the Act).
17 The next question is whether it appears to be appropriate to make the orders consented to by the parties. In Hughes, I observed at [8], that the discretion conferred on the Court 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, including the resolution of native title disputes by mediation and agreement, referring to: Lota Warria (on behalf of the Poruma and Masig People) v Queensland (2005) 223 ALR 62 at [7].
18 The appropriateness of the proposed determination does not require that the Court undertake an inquiry into the merits of the claim made in the application: Billy Patch v Western Australia [2008] FCA 944 at [13]. As I observed in Hughes, at [9], it may be appropriate to make orders under section 87 where the Court has received no evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement; see also: Ward v State of Western Australia [2006] FCA 1848, at [8].
19 I am satisfied from the evidence and written submissions that the parties have come to the agreement freely and on an informed basis. The parties are all legally represented.
20 The applicants and the State of Western Australia have filed a joint submission in support of the orders sought. It is common ground that that the requisite continuous physical, spiritual and cultural connection of the Eastern Guruma people with Determination Area B exists and that there is evidence to support that connection.
21 In his affidavit affirmed 20 August, Mr Catlin, on behalf of the State, deposes to the State of Western Australia's processes by which it has entered into the agreement with respect to the terms of the orders for Determination Area B. The State did not require the applicants to provide any further evidence of the Eastern Guruma People's connection to Part B Area, that evidence having already been provided to a sufficient degree during the previous negotiation process with respect to Determination Area A.
22 According to Mr Catlin, the only outstanding evidentiary issue for the purposes of the Part B Area negotiation, so far as the State was concerned, was the extent to which section 47B of the Act might apply so as to disregard prior extinguishment. To that end, the State undertook an assessment of the historical and current tenure for the Part B Area and identified a total of 47 areas where, subject to the provision of satisfactory occupation evidence, section 47B of the Act would apply.
23 Affidavit evidence of occupation of those areas by Eastern Guruma claimants was filed on 1 September 2011. In particular, Dr McDonald provided a report, which I have read, explaining why he concluded that the claimants occupied the relevant country at around the time the native title claim was lodged, citing information, inter alia, from witnesses who have filed affidavits in the proceedings: Wayne Stevens, Tania Stevens and Quentin Stevens. He also referred in some detail to the information that had been provided by Jukarri Stevens. Based on the occupation evidence and the advice received from the State Solicitor's Office, Mr Catlin says that the State was satisfied that, in relation to 27 of the 47 areas, the applicants could satisfy section 47B(1)(c) of the Act, which requires that when an application is made one or more members of the claimant group occupy the (claimed) area. Further, Mr Catlin says that the State undertook an assessment of the historical and current tenure for Part Area B. The parties agree that the State has conducted searches of land tenure, mining and petroleum registries to determine the extent of "other interests", and those interests are listed in the Fourth Schedule of the proposed Determination.
24 By agreement of the parties, no order is sought that s 47B applies to disregard prior extinguishment of native title in relation to the remaining 20 areas. Therefore, I make no order that prior extinguishment of native title is to be disregarded in relation to these areas.
25 The State of Western Australia, acting on behalf of the community generally, has played an active role in the negotiation of the proposed consent determination having satisfied itself that the determination is justified through a rigorous and detailed assessment process. I am satisfied that the State has acted rationally and in good faith.
26 In all the circumstances, I am satisfied as to the matters set out in [14] and 15] above and that the Court can and should make an order in the terms sought by the parties. I propose to make orders in accordance with the agreement. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Eastern Guruma people pursuant to s 56(2) of the Act.
27 The effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are recognised as the native title holders for Determination Area B.
28 It is satisfying to the Court, having been involved in overseeing the resolution of the Eastern Guruma application, to give effect to the agreement of the parties. All that remains is to re-emphasise, as I observed in Hughes, that the order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Eastern Guruma people and that the title is held by those people. The order does not grant native title; it recognises what has long been held.
I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.