Requirements pursuant to s 87 Native Title Act
29 The joint submissions seek that a determination of native title should be made pursuant to s 87 of the Native Title Act. Section 87 of the Native Title Act 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 Native Title Act 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)).
30 Regarding these requirements, pursuant to s 87(1) of the Native Title Act, the notification period for the PKKP 1 application ended on 14 August 2002 and for the PKKP 2 application on 12 December 2006.
31 The Minute reflecting the agreement reached for the proposed determination has been filed in the Court, is in writing and is signed on behalf of all the parties to the applications (s 87(1)(b) of the Native Title Act). The agreement for a proposed determination is in relation to the land and waters claimed in the PKKP 1 and PKKP 2 applications (s 87(1)(a)).
32 The orders sought in the Minute are consistent with the terms of the agreement pursuant to s 87(1)(c) of the Native Title Act for the following reasons:
(a) the form of the proposed determination complies with s 94A and s 225 of the Native Title Act;
(b) the PKKP applications are validly made, having been authorised by the claim group members according to an agreed and adopted decision-making process that authorised the applicants to make the native title determination applications (as required by s 251B of the Native Title Act);
(c) the PKKP People have authorised the form of the proposed determination according to an agreed and adopted decision making process;
(d) the PKKP applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act).
33 The focus of the Court in considering whether the orders sought are appropriate is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 (at [11]).
34 As to the principles governing the exercise of the Court's discretion pursuant to s 87 of the Native Title Act, Bennett J noted in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (at [22])
[t]he discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act.
This includes the resolution of native title disputes by mediation and agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (at [8]) and Black CJ in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 (both cited by Bennett J in Brown (at [22]).
35 As the terms of s 87(2) of the Native Title Act suggest, this does not necessarily 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 concluded view as to whether the legal requirements for proving native title have been met. Indeed, it may be appropriate to make orders under s 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 Hughes per Bennett J (at [9]) and Ward v State of Western Australia [2006] FCA 1848 per North J (at [8]) in respect of s 87 (and, similarly, Brown per Bennett J (at [23]-[24]) in respect of s 87A).
36 The requirements of s 87(2) may, and will likely, be met where the Court is satisfied that a government respondent (here the State), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. 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 party is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 per Emmett J (at [29]-[30]) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 per North J (at [37]).
37 In relation to this proceeding, the PKKP applicants and the State have been legally represented throughout the negotiation process. All other respondent parties have also had the benefit of legal representation.
38 Further, the State has played an active role in the negotiation of the proposed consent determination (Watson v State of Western Australia (No 3) [2013] FCA 127 (at [54] and [60]), an important factor referred to by Emmett J in Munn (at [29]). In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process, has satisfied itself that the determination is justified in all the circumstances.
39 The connection material assessed by the State together with the preservation evidence of three of the PKKP claimants demonstrates that the PKKP applications have a credible basis and that the PKKP People have maintained some physical presence in the PKKP Determination Area since the acquisition of British sovereignty. In addition, it appears that evidence of their continuing physical or spiritual involvement in the PKKP Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the PKKP Determination Area.
40 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of 'other interests' within the PKKP Determination Area, and those interests are included in the proposed determination, as outlined in Schedule Four to the Minute.
41 Finally, there are no other proceedings before the Court relating to native title determination applications that cover any part of the PKKP Determination Area which would otherwise require orders to be made under s 67(1) of the Native Title Act.
42 The Court is satisfied that pursuant to s 87 of the Native Title Act, it is appropriate to make the orders sought by the parties in the Minute. The Court is satisfied that the agreement reached by the parties as reflected in the Minute has been freely entered into on an informed basis.