SECTION 87 OF THE ACT
5 A central objective of the Act is to resolve native title claims by negotiation and agreement. Section 87 of the Act advances that objective. It sets out the criteria that must be satisfied before the Court can make a native title consent determination. When a native title determination is made by consent, the parties and the Australian community is spared the cost and delay associated with a contested hearing. Whilst it is unnecessary for the Court to decide the claim on its merits on a contested trial, the Court must nonetheless be satisfied that the requirements of s 87 of the Act are satisfied. As French J observed in Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]:
A determination of native title not only binds the parties to these proceedings, it is good against the whole world. So the Court must be satisfied that the orders sought are supportable and are in accordance with the law.
6 The first three criteria are procedural and can be shortly dealt with.
7 First, a notice has been issued pursuant to s 66 of the Act and the period specified in the notice has ended: s 87(1). The claim was accepted for registration pursuant to s 190A of the Act on 9 September 2015 and the notification period ended on 3 February 2016.
8 Second, an agreement has been reached which relates to the whole of the proceeding, or to a part of the proceeding, or to a matter arising out of the proceeding: s 87(1)(a). Third, the agreement reached between the parties has been reduced to writing, signed by or on behalf of the parties and filed with the Court: s 87(1)(b).
9 Section 87(1)(c) requires that the Court be satisfied that the terms of the executed consent orders would be within the power of the Court. An order will be within the power of the Court if it is consistent with s 94A of the Act, the rights and interest included in the proposed determination are recognisable by the common law of Australia and there is no other determination affecting the Determination Area: Nelson v Northern Territory (2010) 190 FCR 344 at [4].
10 Section 94A of the Act provides that the Court, when making a determination of native title, is to set out the details of the matters mentioned in s 225 of the Act. Section 225 defines the phrase "determination of native title" as follows:
225 Determination of native title
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.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non native title interests.
11 The consent orders executed by the parties contain an order to the effect that native title exists in relation to the Determination Area. The proposed determination specifies who the persons, or each group of persons holding the common or group rights comprising the native title are. The nature and extent of the native title rights and interests in relation to the Determination Area are specified, as are the nature and extent of any other interests in relation to the Determination Area. The parties have agreed that the native title rights and interests are not held to the exclusion of all others.
12 The application is valid and made in accordance with s 61 of the Act. It relates to an area in respect of which there exists no other approved determination of native title: s 13(1)(a) of the Act. There are no other proceedings before the Court relating to native title determination applications that cover any part of the Determination Area which would require orders to be made under s 67(1) of the Act.
13 Accordingly, I am satisfied that a determination of native title in the terms sought by the parties is within the power of the Court to make: s 87(1)(c) of the Act.
14 Before making a determination in terms consistent with the parties' agreement, the Court must be satisfied that it is appropriate to do so: s 87(1A) of the Act. The principles are summarised in Gepp-Kennedy on behalf of the Dieri People v State of South Australia [2017] FCA 1156 at [16] ⸺ [19] as follows:
16 The power in s 87 of the Act is to be exercised flexibly and with proper regard to the purposes for which it was enacted: Lovett at [36]. The section contemplates that the Court may make a determination of native title in the absence of a comprehensive evidentiary case sufficient to establish all of the facts supporting the determination. The focus is upon the making of the agreement, and especially upon the role of the State party … in scrutinising the claim 'just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land': Smith v State of Western Australia (2000) 104 FCR 494 at [38] (Madgwick J).
17 As North J explained in Lovett 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.
18 In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 at [12], Reeves J described the role of the State party as one that requires the striking of a balance between:
… its role in protecting the community's interests, including the stringency of the process it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement.
19 In satisfying itself that there is a credible basis for a native title determination, the State party is not required to conduct a comprehensive and inflexible inquiry in substitution for a trial. It may rely upon significantly less material that would be necessary to justify a judicial determination of the issues: Lovett at [38].
15 As Reeves J said in Nelson (at [14]), the central issue upon an application for a consent determination is whether there exists a free and informed agreement between the parties. Relevant to that enquiry is the steps the State party (in this case the Northern Territory of Australia) has taken to assess underlying evidence, together with the circumstance that the parties have independent and competent legal representation.
16 The Northern Territory of Australia as the first respondent has played an active role in the negotiation of this consent determination. I am satisfied that the Northern Territory, acting on behalf of the community generally, has had regard to the requirements of the Act and has conducted an appropriate assessment process. It has conveyed to the Court its own satisfaction that the determination is justified in all the circumstances.
17 Anthropologist Dr John Morton conducted field research for the purposes of this proceeding during October 2014, October 2015 and March 2016. The applicant in the proceedings provided Dr Morton's report to the Northern Territory of Australia. The report examines the known lineage of the claimants and confirmed their long-standing respective responsibilities in relation to the Imarnte estate, the Titjikala estate and the Idracowra estate within the Determination Area. The report addresses anthropological matters relevant to the requirements of s 225 of the Act. According to Dr Morton:
There is wide coverage of Maryvale's sites and dreamings in all the associated [ethnographic and anthropological] reports, as well as genealogical information and documentation of laws and customs connecting people to land.
18 It is not necessary to give a comprehensive summary of the report as it relates to each of the five family groups referred to in it. It is sufficient to say that the report provides a proper basis for the parties to the proceeding to provide their informed consent to the determination as recorded in their written agreement.
19 In addition, the parties have agreed to a list of commonly occurring Government constructed public works within the Determination Area that wholly extinguish native title (including over adjacent land or waters as defined in s 251D of the Act). The lists are included in Schedule C to the proposed orders.
20 I am satisfied that the parties are competently represented and that it is appropriate, within the meaning of s 87(1A) of the Act, to make a determination in terms consistent with their written agreement.