section 87 of the native title act
8 The power of the Court to give effect to the parties' agreement is founded on s 87 of the Act. In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 ("Nelson"), I set out the various conditions that the parties needed to meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[4]. The first three of those conditions, and the evidence that shows the parties to these proceedings have complied with them, are as follows:
The notice period under s 66 of the Act must have ended before the written agreement of the parties is filed with the Court: s 87(1). By order of Emmett J on 23 August 2001, the parties who had been respondents in QUD 6019 of 1998, became respondents to this application. In addition, this application was again notified by the National Native Title Tribunal. As the three month notification period relating to this application ended on 25 September 2002, this condition has been met.
The agreement of the parties must relate to the whole of the proceedings, part of the proceedings, or a matter arising out of the proceedings: s 87(1)(a). As the proposed orders in the s 87 Agreement relate to the whole of the proceedings, this condition, too, has been met.
Section 87(1)(b) of the Act requires that the agreement must be reduced to writing, signed by the parties, and filed with the Court. The s 87 Agreement demonstrates that each of these aspects has been met.
9 Section 87(1)(c) provides that the Court must be satisfied that an order in the terms of the s 87 Agreement (or consistent with those terms) would be within the power of the Court: This condition will be satisfied where: the terms of the proposed orders comply with s 94A of the Act; the rights and interests proposed to be recognised are capable of recognition by the common law of Australia; and there is no other determination of native title in existence over the area the subject of the proposed determination.
10 Section 94A requires the Court, in making a determination, to set out the details of the matters mentioned in s 225 of the Act. Section 225 outlines the content of a determination of native title as:
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 and 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.
(Emphasis in original.)
11 I have examined the proposed orders in the s 87 Agreement and I am satisfied that each of the matters referred to in s 225(a) to (e) of the Act (see [10]) is appropriately articulated therein.
12 The final condition the parties need to meet in order to have the Court make a consent determination of native title relates to the operation of s 87(1A). That section essentially requires the Court to decide whether it is appropriate make a determination in terms of the parties' agreement.
13 Emmett J, in the first Gunggari application, found that the words in s 87(1A) have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 at [26] and [28].
14 In Nelson (at [5]-[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining that question. Beyond setting out the concluding summary, it is not necessary for me to repeat that process here. The concluding summary was as follows (at [14] but excluding case references):
It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation..; whether the terms of the proposed order are unambiguous and clear…; and whether the agreement has been preceded by a mediation process…
15 The parties have reached their agreement after considering the extensive anthropological material prepared by Dr Natalie Kwok. The applicant relies on the following reports ("the Reports") that were filed on 11 May 2012:
(a) Dr Natalie Kwok (October 2009) Pre-Sovereignty Gunggari Society Summary of Evidence;
(b) Dr Natalie Kwok (July 2010) Gunggari Connection Report (Stage Two);
(c) Statement by Natalie Kwok on the Level of Gunggari Society; and
(d) Dr Natalie Kwok (2010) Gunggari Genealogies.
16 I have been assisted by this material and I have also considered the submissions filed by the applicant on 14 May 2012.
17 The applicant relies on this material to support the following non-exclusive native title rights (other than in relation to the use and enjoyment of Water) over the Determination Area, which is described in Schedule 2:
(a) access, be present on, move about on and travel over the Determination Area;
(b) camp on the Determination Area and, for the purpose, erect temporary shelters on the Determination Area;
(c) take (including by hunting and gathering) and use Traditional Natural Resources from the Determination Area for personal, domestic and non-commercial communal purposes;
(d) conduct religious and spiritual activities and ceremonies on the Determination Area;
(e) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas, by lawful means, from physical harm;
(f) teach on the Determination Area the physical and spiritual attributes of the Determination Area; and
(g) light fires on the Determination Area for domestic purposes including cooking, but not for the purposes of hunting or clearing vegetation.
Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to:
(a) hunt and fish in or on, and gather from, the Water for personal, domestic and non-commercial communal purposes; and
(b) take and use the Water for personal, domestic and non-commercial communal purposes.
18 I am satisfied that the steps taken by the applicant as described in the materials filed in support of the determination, together with the fact that all parties have had the advantage of competent legal representation, indicate that their agreement is free and informed. I am also satisfied that the terms of the s 87 Agreement are unambiguous and clear.