Approach to the application of s 87A
11 One of the policies of the NTA is to encourage parties to reach agreements with respect to claims of native title, without the necessity for a formal court hearing. Sections 87 and 87A reflect that policy by permitting the Court to give effect to the parties' agreement without itself hearing and determining the merits of an application.
12 On the other hand, a determination of native title binds not only the parties to the proceedings in which it is made, but everyone else in the community. Because of this, the Court must be satisfied that the determination it is asked to make is supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3].
13 The approach of the Court in these circumstances has been described in a number of cases. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said:
35 In the present case the Court has heard some evidence, but not a comprehensive case sufficient to establish the facts which would support a determination. Section 87(1) obviously contemplates that the Court can make orders in such circumstances because it applies when there is no hearing or no full hearing of the case.
36 The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
37 In this context, 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: … 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: … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.
38 The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. …
(Citations omitted)
As can be seen, North J emphasised the role of the relevant State in investigating and assessing claims for native title, and the weight which the Court is entitled to give to the State's evaluation of that evidence and its consent to a determination.
14 In Nelson v Northern Territory of Australia [2010] FCA 1343 at [12]-[13]; (2010) 190 FCR 344 at 348, Reeves J referred to the significance of the State's role in agreements leading to proposed consent determinations, and referred to further passages in the reasons of North J in Lovett. Reeves J said:
It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community's interests, including the stringency of the processes 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. In Lovett North J commented:
… There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.
The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases.
I respectfully agree with North J in these observations. …
15 Madgwick J emphasised the responsibility of a State in assessing claims for native title in Smith v Western Australia [2000] FCA 1249 at [38]; (2000) 104 FCR 494 at 501-2:
… State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land. The State is faced with a good many such claims. A deal of proper caution is to be expected. …
16 Finally, it is appropriate to refer to the reasons of Keane CJ in King v State of South Australia [2011] FCA 1386 at [19]; (2011) 285 ALR 454 at 458:
More recently, the Court has been prepared to rely upon the processes of the relevant State or Territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each State and Territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. It acts in the public interest and as the public guardian in doing so. It has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Although the Court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the Court reaches the required satisfaction by reliance upon those processes. They are commonly explained in the joint submissions of the parties in support of the orders agreed. …
17 The approach set out in these passages has been applied in a number of cases in this Court and I consider that it can be applied in the present case. The State of South Australia has developed a rigorous process for assessing the evidence in native title claims against the requirements of the NTA. This process is outlined in the State's policy document entitled "Consent Determinations in South Australia: A Guide to Preparing Native Title Reports". The State assessed the respective claims of the Dieri and the Adnyamathanha in respect of the overlap area using the process set out in its policy document.