Orders consistent with the terms of the agreement are within the Court's power (s 87(1)(c))
38 The Applicant and the State submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the Determination is within the power of the Court because:
(a) the Ngarlawangga application is validly made, having been authorised by the claim group members according to a decision-making process agreed to and adopted by the claim group members that authorised the Applicant to make the native title determination application (as required by s 251B of the Native Title Act);
(b) the Ngarlawangga application is 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);
(c) there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act;
(d) the form of the proposed determination complies with s 94A and s 225 of the Native Title Act; and
(e) the requirements of s 87 of the Native Title Act are otherwise satisfied.
39 Finally, the Court must consider whether it is appropriate to the make the orders sought.
40 There have been many consent determinations made pursuant to s 87 and s 87A of the Native Title Act. Through the course of those determinations, the principles that govern the exercise of the Court's discretion conferred by s 87 and s 87A have been developed.
41 The State party respondent playing an active role in negotiating the proposed consent determination is an important factor influencing the exercise of the Court's discretion in this regard: Watson v State of Western Australia (No 3) [2014] FCA 127 at [54] and [60]; and Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]; [2001] FCA 1229.
42 In some cases, particularly in the earlier jurisprudence, the fact that the relevant State party respondent had engaged in a "rigorous and detailed" (May v State of Western Australia [2012] FCA 1333 at [14]), "careful" (Ah Chee v State of South Australia (2014) 319 ALR 59 at [22]; [2014] FCA 1048) or "thorough, scrupulous and professional" (Turner v State of South Australia [2011] FCA 1312 at [25]) process in satisfying itself that the requirements of s 223(1) of the Native Title Act had been met, was apparently considered relevant in determining whether the proposed consent determination was "appropriate". Similarly, Madgwick J stated as follows in Smith and Others v State of Western Australia and Others (2000) 104 FCR 494 at [38]; [2000] FCA 1249:
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 careful 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. I must say that I saw no evidence of anything other than proper caution on behalf of the State.
43 However, the preponderance of the jurisprudence generally recognises that the exercise of the discretion conferred by s 87 and s 87A of the Native Title Act does not require an assessment by the State party respondent that meets some "rigorous" standard, or the like.
44 As noted by Bennett J in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]:
The 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 [reference omitted].
45 In Ward v State of Western Australia [2006] FCA 1848 at [6]-[9], North J observed that the Native Title Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that:
The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial.
46 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 Brown at [23]-[24] (in respect of s 87A) and Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (in respect of s 87).
47 The requirements of s 87(2) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State in this case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: see Munn at [29]-[30] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37].
48 Although the State party respondent plays an important role in this process, its conclusions are not determinative, as explained by Dowsett J in Brooks on behalf of the Mamu People v State of Queensland (No 3) [2013] FCA 741 at [36]:
The Court, in making a consent determination, may find comfort in the assumption that the State has faithfully discharged its public duty, but it is nonetheless the Court, and only the Court which must be satisfied as to the appropriateness of such an order. The State participates in Native Title litigation as a party. Save to the extent that the Native Title Act provides otherwise, the State has no privileged position before the Court. It is bound by the Court's ultimate decision. It is also bound by the Court's orders made in the course of case management and otherwise in the proceedings. Further, the State has duties to both indigenous and non-indigenous citizens. It may not always be easy to take into account and protect the rights and expectations of both groups, or all members of either group. In the end, it is the Court, and not the State, which is responsible for doing justice to all.
49 Indeed, the Court has frequently observed that "it would be perverse to replace a trial before the Court with a trial conducted by the State party respondent" and that is not the standard prescribed by s 87 or s 87A: Lovett at [38], cited in Kuuku Ya'u People v State of Queensland [2009] FCA 679 at [12]; Nelson and Others v Northern Territory and Another (2010) 190 FCR 344 at [12] and [13]; [2010] FCA 1343; and Apetyarr v Northern Territory of Australia [2014] FCA 1088 at [27].
50 In relation to this proceeding, the Applicant and the State have been legally represented throughout the negotiation process.
51 Further, the State has played an active role in the negotiation of the Determination. In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, has satisfied itself that the Determination is justified in all the circumstances.
52 The connection material, as well as information obtained from the Ngarlawangga claimants themselves at the confidential settlement conference with the State in 2015, is, in the State's view, sufficient to demonstrate that, in respect of the Determination Area, the Ngarlawangga application has a credible basis. Taken together, the State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.
53 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of "other interests" within the Determination Area, and those interests are included in the Determination, as outlined in Sch Four. The parties are agreed as to its effect on native title.
54 In all of these circumstances, I am satisfied that it would be appropriate and within power to make orders under s 87 and s 94A of the Native Title Act. That includes an order that NAC is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act.
55 The effect is that the native title claim group, being the Ngarlawangga People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area.