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[2001] FCA 1229
procedural. Orders made granting leave to amend the application to cover only the Part A land, removing non-interested parties from the existing proceeding, requiring filing of amended application and any s...
In this 2001 Federal Court decision, Justice Emmett addressed practical problems that arise when native title claimants reach agreement with some but not all parties on only part of their claim. He ruled that the Native Title Act requires every single party to the whole case to sign off before a consent determination can be made on any part. Because that was impractical here, the better solution was for the Gunggari People to amend their claim to remove the disputed Part B land and run a fresh claim for that area. The judgment also sets out a non-exhaustive list of matters the Court will consider before approving any consent deal: whether the State has properly examined the evidence as representative of the public interest, whether the rights claimed are legally recognisable, whether the orders are clear, and the Act's preference for mediated agreements. The Court stressed it would not usually make formal findings on connection or extinguishment but would check that the agreeing parties, especially the State, had acted rationally. Directions were given to progress the amended Part A claim toward a consent hearing.
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2 cited instruments linked from this judgment.
The Gunggari People's native title application, filed in 1998, covered parcels of land near the township of Roma in south-western Queensland. By October 2000 a court-ordered mediation had produced an agreed procedural course: the claim area would be notionally divided into "the Part A land" (where native title was expected to be recognised by consent) and "the Part B land" (where issues remained contested). Orders made on 27 March 2001 and 6 June 2001 reflected that division and set a timetable for the filing of a s 87 agreement and proposed determination limited to Part A.
When the timetable expired without universal agreement, the presence of the Part B land created a procedural obstacle. Several parties (the Bidjara People, mining tenement holders and pastoralists) had been joined under s 84 because their interests could be affected by a determination over the whole application. Those parties had no interest in the Part A land yet remained formal parties to the single proceeding. The applicants therefore filed a notice of motion returnable on 23 August 2001 seeking, in the alternative, either an order allowing parties to withdraw for the limited purpose of the Part A determination or leave to amend the application under s 64 so that it covered only the Part A land. A fresh proceeding in respect of the Part B land was commenced on the same day.
Emmett J heard argument on whether s 87(1) could be satisfied without the agreement of every party to the existing proceeding and, if not, what machinery should be used to give effect to the Part A agreement. His Honour also received submissions on the broader question of the factors the Court must weigh before deciding that a consent determination "appears to it to be appropriate" within the meaning of s 87. No final determination of native title was made; the reasons conclude by indicating that, if the applicants chose the amendment route, directions would be given for the further conduct of both the amended Part A proceeding and the new Part B proceeding.
Emmett J began from the text of s 87(1). The subsection conditions the Court's power on three jurisdictional facts: an agreement between "the parties" on the terms of an order, the filing of that agreement in writing signed by or on behalf of the parties, and the Court's satisfaction that the order is within power. The definite article "the" before "parties", read against the party-joinder rules in s 84, persuaded his Honour that every person who had become a party under s 84(3) or been joined under s 84(5) must be party to the agreement. Parliament could have used language limiting the requirement to parties interested in the relevant land or to "some" of the parties; it had not done so. This reading was reinforced by s 86G, which expressly contemplates unopposed applications where each other party notifies non-opposition. The same logic of universal party involvement therefore applied to opposed consent determinations under s 87.
Procedural fairness supplied a second, independent reason. A party joined to a proceeding that disposes of rights affecting that party must be heard before any order is made. Compromising part of a proceeding without the agreement of all current parties would offend that principle. His Honour acknowledged that the practical difficulty may not have been foreseen when s 87 was drafted, but the statutory language left no room for a "parties interested in the relevant part only" construction.
On the question of splitting the proceeding, Emmett J found no express power in the Federal Court of Australia Act 1976 (Cth), including s 23, or in the Federal Court Rules. Order 29 deals with separate questions and consolidation but not with the conceptual division of a single application into two independent proceedings. Section 67(2) of the Native Title Act permits separate proceedings only where overlapping native title claims exist; that provision did not apply. Although splitting might have been convenient, the same considerations that required universal agreement under s 87 told against creating two proceedings out of one. The cleaner solution lay in the applicants' alternative prayer: amendment under s 64 to excise the Part B land from the existing application. That course allowed the Part A consent determination to proceed on the basis of agreement among the only parties who retained an interest once the application was so limited. The fresh Part B proceeding would require fresh notification but would not waste the mediation work already undertaken.
The balance of the reasons addresses the s 87 discretion. Emmett J declined to set out an exhaustive list but identified several mandatory considerations that flow from the obligation to act judicially. First, the Court must further the statutory object of resolving native title disputes by mediation and agreement rather than contested hearing. Second, the Court must be satisfied that parties likely to be affected have had competent independent legal advice; in particular, the State, appearing in its capacity as parens patriae, must be shown to have given real consideration to the evidence and to have reached a rational, good-faith view. Third, the rights and interests to be declared must be recognisable under Australian law and any extinguishment issues (including the possible application of ss 47, 47A and 47B) must have been properly addressed. Fourth, the proposed orders must comply with all formal requirements of the Act (ss 55, 94A, 225) and be unambiguous. Finally, the Court may, in an appropriate case, look at the evidentiary material on which the parties have based their compromise, but only to confirm that the State and other parties are acting rationally; it should not make findings of fact or law that could implicitly bind other proceedings. These considerations explained why the Court would not simply rubber-stamp the Part A agreement but would, on the next occasion, test whether the s 87(1) preconditions and the discretionary factors were satisfied.
Before Munn, consent determinations under s 87 were becoming more common but the case law had not squarely addressed the interaction between the universal language of "the parties" in s 87(1) and the practical reality of large, multi-party native title proceedings that cover disparate parcels of land. Earlier consent determinations had proceeded on the apparent assumption that agreement among directly interested parties would suffice, or had involved proceedings in which all parties had in fact agreed. There was also uncertainty about the intensity of the Court's scrutiny: some judges had altered draft orders after limited inquiry, but no judgment had systematically identified the discretionary factors the Court must weigh before deciding that an order "appears to it to be appropriate".
After Munn the law was clarified in two respects. First, practitioners could no longer assume that a partial settlement could be formalised under s 87(3) without obtaining the agreement (or at least the non-opposition under s 86G) of every person who remained a party to the undivided proceeding. The decision therefore encouraged the use of s 64 amendments or the filing of separate applications from the outset when different parcels raised materially different issues. Second, the judgment supplied a structured, if non-exhaustive, checklist for the discretionary stage. Later consent-determination applications routinely address the matters listed at paragraphs [28]-[33]: the State's consideration of anthropological and historical evidence, the absence of impermissible extinguishment, compliance with s 225, and the clarity of the rights declared. The emphasis on the State's parens patriae role has become a standard feature of judicial reasons approving consent determinations.
Paragraph 9: "I consider that the reference to parties in s 87(1)(a) and (b) of the Native Title Act is a reference to all of the parties to the proceeding, not just the parties who have an interest in that part of the subject land that might be the subject of an agreement."
Plain English: The Act says the parties must agree. That means every person who is formally a party to the whole case, even if they only care about a different piece of land. You cannot cherry-pick who needs to sign the deal.
Paragraph 10: "Absent the written consent of all of those parties, the Court does not have power to make an order under s 87(1). That restriction would be consistent with the mechanism set up in s 86G."
Plain English: If even one party has not agreed in writing, the Court cannot use the consent-determination shortcut. This matches the rule for unopposed applications, where every other party must say they do not oppose.
Paragraph 12: "It is impracticable at least, and perhaps impossible, to achieve an agreement as is contemplated by s 87(1)(a) and (b) with all of the persons who are parties to the present proceeding. On the other hand, if it be the fact that the only persons who have an interest in the Part A land have reached an agreement for the resolution of any dispute in relation to the Part A land, it is desirable that the agreement be given effect by the Court."
Plain English: Getting everyone to sign may be unrealistic, yet where the people who actually own or use the relevant land have agreed, the Court should try to give legal effect to that agreement without wasting the mediation effort.
Paragraph 28: "The Court must have regard to the objects and purposes of the Act. One important object and purpose to be found in the Act is resolution of issues and disputes concerning native title by mediation and agreement, rather than by Court determination."
Plain English: The Native Title Act wants claims settled by negotiation. When the Court is asked to rubber-stamp a deal, it must ask whether doing so advances that statutory goal.
Paragraph 30: "The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally."
Plain English: The judge does not have to decide whether the claim is actually true. The judge only has to be satisfied that the State and other parties have looked at the evidence properly and are not acting recklessly or for an improper reason.
Munn is triggered whenever a native title application covers a heterogeneous claim area in which agreement has been reached with the State and directly interested parties on only some parcels, while other parties joined under s 84 have interests confined to the remaining parcels. Typical triggers include:
In such cases the parties must either obtain signed agreement from every remaining party, procure notifications of non-opposition under s 86G, or amend the application under s 64 (or file a fresh application) so that the consenting cohort matches the parties to the narrowed proceeding. The discretionary checklist at paragraphs [28]-[33] is engaged whenever the Court is asked to make orders under s 87(2) or (3), whether or not the proceeding has been divided. The requirement that the State demonstrate rational consideration of the evidence is especially relevant where the claim involves difficult connection or partial-extinguishment questions.
The judgment has been treated as authoritative on both the "all parties" requirement and the discretionary factors. Subsequent decisions have cited the textual analysis at paragraphs [9]-[11] when refusing to proceed under s 87 until every joined party has either signed the agreement or been removed by amendment or discontinuance. The procedural solution of amending under s 64 and commencing a fresh proceeding for the balance of the claim has become standard practice in Queensland and Western Australia where large claim areas are common.
The discretionary checklist has been adopted and expanded. Courts routinely recite the need to act judicially, to further the Act's mediation objects, to confirm the State's parens patriae role, and to examine evidence only to the extent necessary to satisfy the Court of good faith. The observation at paragraph [30] that the Court should not make findings of fact or law has been relied upon to distinguish consent determinations from litigated judgments, thereby avoiding issue estoppel or Anshun preclusion in later proceedings over different land. The reference at paragraph [33] to taking account of pending High Court appeals has encouraged parties to include "Ward clauses" or variation mechanisms in consent orders where the law is unsettled. Overall, Munn is regarded as having supplied the practical working method for converting mediated outcomes into court orders while protecting the integrity of the statutory regime.
Several questions flagged but not finally answered in Munn remain live. First, the precise content of the State's obligation as parens patriae is not exhaustively defined; different judges have taken differing views on how much material the State must place before the Court to demonstrate that it has "given appropriate consideration to the evidence". Second, the boundary between permissible "comfort" evidence and impermissible implicit findings is not bright-line. Although Emmett J said the Court should not make findings, some later consent determinations contain recitals or agreed facts that come close to doing so.
Third, the interaction between s 87(3) and s 86G in partially settled proceedings is not fully resolved. If a party notifies non-opposition under s 86G but only in respect of one part of the claim, does that suffice for the purposes of s 87(1)? Munn suggests the answer is no, but the point has not been tested in a contested interlocutory application. Fourth, the status of mediation work done in the original proceeding when a fresh proceeding is commenced under s 64 remains unclear; while Emmett J thought the work would not be lost, later cases have had to grapple with questions of issue estoppel and the admissibility of mediation communications.
Finally, the judgment leaves open whether there are circumstances in which the Court might refuse a consent determination even though all s 87(1) preconditions are met and the State supports the order. The "unfettered but judicial" discretion leaves room for future development, particularly where the rights claimed are novel or where the determination might cut across other statutory schemes. These open questions continue to generate interlocutory disputes in complex claims.
1 The Gunggari People have brought an application under the Native Title Act 1993 (Cth) ("the Act") for determination of their entitlement to parcels of land situated near the township of Roma in south-western Queensland. On 27 March 2001, I made orders that the further conduct of the proceedings be dealt with on the basis that the land which was the subject of the application be divided into two parts, one part being referred to as "the Part A land", and the other part being referred to as "the Part B land". 2 Those orders resulted from a court mediation conference that was held on 10 October 2000. The outcome of that conference was an agreed course of action to progress the application by treating the two parcels of land separately. On 6 June 2001, I made orders that the applicants file on or before 10 August 2001 any orders proposed under s 87(2) of the Act in relation to the Part A land, and that any agreement in terms of s 87(1)(a) in relation to the Part A land be filed on or before 10 August 2001. Those orders were made in the expectation that agreement would be reached concerning the making of declarations by consent in relation to the Part A land. 3 Complications have arisen in relation to that proposal by reason of the presence of the Part B land as part of the application. As a result of those complications, the applicants have filed a notice of motion, which is returnable before me today, seeking orders as follows: "1. That any party who wishes may, without prejudice to their right to be heard in relation to any other matter arising from the balance of the proceeding, file and serve a notice in accordance with Form 162 in relation to so much of the proceeding as concerns the determination area as defined in the proposed s 87 Order filed by the applicant, and upon doing so shall be treated as having withdrawn from the proceeding for the purposes of any order the Court considers appropriate or consistent with the terms of the proposed s 87 Order in relation to the determination area. Alternatively 2. That the application be amended pursuant to s 64 of the Native Title Act to reduce the area of land and waters covered by the application to include only the determination area, as defined in the proposed s 87 order filed by the applicant. ……………………" Consequential orders are also sought. The "determination area" referred to in the proposed s 87 Order is the Part A land. 4 However, a question arises as to whether or not, in order for orders to be made under s 87, it is necessary to have the agreement of all of the parties to the current proceeding. The Court only has power to proceed under s 87 if the three conditions set out in s 87(1) are met. Those conditions are: (a) an agreement is reached between the parties on the terms of the order; (b) the terms of the agreement in writing, signed by or on behalf of the parties, are filed; and (c) the Court is satisfied that the order would be within its power.
5 I consider that those conditions are jurisdictional pre-conditions to the exercise of the power given by s 87. Under s 87(1), where those conditions are satisfied, the Court may, if it appears to it to be appropriate to do so, act in accordance with either s 87(2) or s 87(3). Section 87(2) provides: "If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing …." Section 87(3) provides: "If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without … dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings … to which the agreement relates." 6 Any proposed declaration in relation to the Part A land would be a matter that falls within s 87(3). That is to say, it would be possible for the Court, if it were satisfied as to the matters in s 87(1), to make orders in accordance with a proposed agreement resolving the issues in dispute in relation to the Part A land, leaving any issues remaining in relation to the Part B land to be determined after a hearing in the ordinary course. 7 The parties to the present proceeding include the Gunggari People, pursuant to s 84(2), as applicants, and the State of Queensland. In addition, other parties have been joined comprising Telstra, the Bidjara People, various mining interests, and various pastoralists. The only parties that have an interest in any of the Part A land are the applicants, Telstra and the State of Queensland. The question that arises is whether, in order to give effect to a proposed agreement in accordance with s 87(3), it is necessary to have the agreement of all of the parties to the present proceeding.
8 Section 84 deals with who are parties to a proceeding. Section 84(5) provides:
"The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings."
In addition, under s 84(3), certain persons are deemed to be parties:
(3) Another person is a party to the proceedings if: (a) any of the following applies: (i) the person is covered by paragraph 66(3)(a); (ii) the person claims to hold native title in relation to land or waters in the area covered by the application; (iii) the person's interests may be affected by a determination in the proceedings; and (b) the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding."
9 I consider that the reference to parties in s 87(1)(a) and (b) of the Native Title Act is a reference to all of the parties to the proceeding, not just the parties who have an interest in that part of the subject land that might be the subject of an agreement. I do not consider that it is sufficient for s 87 purposes that agreement be reached between some but not all of the parties to the proceeding. If that were intended, the language in s 87 might have been different. In paragraph (a), the definite article "the" appears before "parties". That suggests that the agreement of all parties is required. It would have been possible for the Parliament to refer to agreement being reached between "some of the parties". Equally, it might have been possible to say that agreement had been reached "between those parties who have an interest in the part of the determination area that is the subject of the agreement". Neither of those forms has been adopted by the Parliament. 10 Section 86G of the Act, which deals with unopposed applications, is also relevant. That section contemplates the making of orders where each other party notifies the Federal Court in writing that he or she does not oppose an order in or consistent with the terms sought by the applicants. For whatever reason, the Parliament chose to use the definite article in s 87(1)(a) which, in my view, refers to all of the persons who are parties to the proceeding pursuant to s 84. Absent the written consent of all of those parties, the Court does not have power to make an order under s 87(1). That restriction would be consistent with the mechanism set up in s 86G. 11 There are other considerations supporting this interpretation. So long as a person is a party to a proceeding, that proceeding ought not to be compromised unless that party agrees to the compromise. Further, the principles of procedural fairness would require that a party to a proceeding be given a right of hearing before any order is made disposing of the proceeding. 12 It is possible that the difficulty that arises in this case was not foreseen by the Parliament when the terms of s 87 were enacted. Be that as it may, the requirement that agreement be reached between the parties, in my view, will only be satisfied when all of the persons who are parties to the proceeding within s 84 have signed the agreement as contemplated by s 87(1)(b). It is impracticable at least, and perhaps impossible, to achieve an agreement as is contemplated by s 87(1)(a) and (b) with all of the persons who are parties to the present proceeding. On the other hand, if it be the fact that the only persons who have an interest in the Part A land have reached an agreement for the resolution of any dispute in relation to the Part A land, it is desirable that the agreement be given effect by the Court. It is appropriate, therefore, to endeavour to provide a procedure that will enable the wishes of the parties to be achieved consistent with the protection of the interests of all parties. 13 One possible course that has been suggested by senior counsel for the applicants is to split the current proceeding into two separate proceedings, one relating to the Part A land and one relating to the Part B land, as defined by Order 1 of 27 March 2001. There is no provision in the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") or the Federal Court Rules for such a course. If such a course were open, it may be a convenient one to adopt. However, I have serious conceptual difficulties with the notion of splitting the proceeding.
14 It was suggested on behalf of the applicants that the power to split the proceeding resides in s 23 of the Federal Court Act. Section 23 provides:
"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds as the Court thinks appropriate."
Such a power certainly extends to the regulation of proceedings in the Court and may well be the source of much of the power to make provisions in the Rules for matters that affect the rights and obligations of parties to a proceeding. For example, Order 29 of the Federal Court Rules contemplates and facilitates the hearing and determination of separate questions and the consolidation of proceedings. As I have already said, no express reference is made in Order 29 to the splitting of a proceeding into two separate proceedings. 15 The question, it seems to me, involves not only a question of power under the Federal Court Act, but also under the Act itself. Section 67(2) of that Act specifically permits the Court to deal, in separate proceedings, with different parts of an area covered by a single application, but only, it seems to me, in the limited circumstances of s 67, namely, where there are overlapping native title applications. 16 The considerations that have led me to conclude that it is necessary to have all of the parties to a proceeding agree to a proposed order under s 87 lead to the conclusion that it is inappropriate to contemplate a splitting of a single proceeding into two proceedings. However at this stage, I refrain from expressing a final view on the question, because it does appear to me that there is an alternative procedure available that will achieve the desires of the parties, without prejudice to any party. That procedure is the alternative suggested by the applicants, namely, that they amend the current application pursuant to s 64 of the Native Title Act to reduce the area of the land and waters covered by the application to the Part A land only. 17 Against the possibility that I would be of such a view, the Gunggari People have commenced a fresh proceeding today in respect of the Part B land. There will be certain procedural requirements that must be satisfied in relation to that fresh proceeding. For example, it will be necessary for the notification process to be undertaken. A great deal of work has been done by the parties to date by way of mediation and negotiation, with a view to resolving, or at least narrowing, the issues that exist in relation to the Part B land. There appears to me to be no reason why that work would be lost. That effort can equally be directed to the fresh proceeding that has been commenced today. 18 The appropriate course for the applicants, it seems to me, is the alternative that they have suggested, namely, to amend the current application. To the extent that leave is needed, I would be disposed to give such leave. Leave seems to be unnecessary, since s 64 gives that power to the applicants. 19 There are procedural consequences that would flow from the adoption of the proposed course. One consequence is that it would be appropriate to order that many of the current parties to the existing proceeding be removed as parties from the present proceeding, pursuant to s 84(8). I would also order, pursuant to s 84(5) of that Act, that all of the present parties to the current proceeding be joined as parties to the new proceeding commenced this morning. It may be that some of the parties who are presently parties to the existing proceeding are no longer appropriate parties, having regard to changes in the Act. However, it is a matter for the applicants to move the Court for removal of those parties, if they are now so advised. 20 I propose, that if the applicants wish to proceed with this course, to fix a time in the near future for a detailed directions hearing for the further disposition of the new proceeding. I would also fix the existing proceeding for directions on that day, with a view to hearing submissions from the parties that it is appropriate to make orders under s 87 in relation to the Part A land. Notwithstanding the directions that I gave on the last occasion, for reasons that have now become apparent, there has not yet been an agreement reached pursuant to s 87. If, on the next occasion, I am satisfied as to the matters within s 87(1), and I am satisfied that a consent determination is appropriate, I would then fix a day on which it would be appropriate to make those orders; probably in that part of Queensland where the land itself is situated. Those formalities, however, can be dealt with on that occasion. 21 The final matter that has been agitated in the course of the motion concerns the nature of the Court's discretion in making an order under s 87. My attention has been drawn to other determinations that have been made by the Court by consent pursuant to s 87. In each of those cases, the Court has been satisfied that it appears appropriate to make the orders sought. In some cases, the Court has expressed satisfaction after making alterations to the orders sought. However, there is no authority that clearly identifies the particular factors that ought to be taken into account by the Court before being satisfied. Various factors have in fact been taken into account in other cases. The particular question that has been the subject of argument before me relates to the extent to which the Court should have regard to evidence or other materials that might normally be tendered, were a matter to proceed to a contested hearing. 22 The question is of significance in this way. While most of the parties to the present proceeding have no interest in the Part A land, they have a relevant interest in relation to the Part B land. Concern has been expressed that no determination should be made in relation to the Part A land based on the evidence thus far foreshadowed in relation to the Part A land, if that evidence were to be taken as being in any way relevant to the determination of the issues in relation to the Part B land. One of the parties to the proceeding, Mr Darryl Alan Abraham, has made submissions concerning that matter. The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes. 23 Mr Abraham contends that, although there is no need for the Court to undertake a detailed, substantive examination of the claim, the Court must nevertheless undertake an examination of the evidence. His concern is that the evidence that has presently been foreshadowed in relation to the Part A land would not satisfy the requirements concerning the existence of native title in relation to the Part B land. He is concerned that whatever is done in relation to the Part A land should not in any way preclude the parties who have an interest in the Part B land from contending that the present applicants do not have an entitlement in relation to the Part B land. 24 The specific question, then, is whether the Court, in considering an order under s 87, should consider evidentiary material such as evidence of ancestry, connection or partial extinguishment before making an order pursuant to s 87. The concern is that any findings that the Court may make, either explicitly or implicitly, in the course of making a consent determination will make it difficult for different findings and conclusions to be sought in other cases where the evidence might otherwise be thought to be the same, notwithstanding that there could be no issue estoppel if there is a fresh proceeding to deal with the Part B land. 25 The present applicants contend that the words "if it appears to be appropriate to do so" in s 87 relate to the Court's acting in accordance with s 87(2) or 87(3). They contend that the section requires that it appear appropriate to the Court that it make an order giving effect to the terms of the agreement in respect of the land without a hearing. That places emphasis on the order itself rather than any need for the Court to be satisfied as to the merits of the claim. That means that the Court is not necessarily compelled to act in accordance with the agreement of the parties. 26 The operative words of s 87 are that the Court "may act", thereby conferring a discretion on the Court. Once the conditions precedent to the exercise of the discretion have been satisfied, the discretion is unfettered, although it must be exercised judicially in accordance with ordinary principles. Therefore, it is not necessary, so it is contended, for the Court to satisfy itself by evidence as to the merits of the claim, although it is conceded that, in some cases, the Court may wish to see some of the evidence going to the merits. In a case where the State is a party and it indicates its satisfaction by consenting to the determination, the applicants contend that there would be no necessity for the Court to inquire into the merits of the claim. 27 It is not possible, and certainly would be inappropriate, for me to endeavour to set out exhaustively the considerations that should be taken into account in making a determination under s 87. However, it is appropriate that I indicate some of the factors that in my view appear to be relevant in the present case for any decision concerning a determination under s 87. 28 As I have already said, the Court must act judicially. That is to say, it cannot simply act capriciously. The Court must have regard to the objects and purposes of the Act. One important object and purpose to be found in the Act is resolution of issues and disputes concerning native title by mediation and agreement, rather than by Court determination. Detailed procedures are set out in the Act to achieve those objects. 29 Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. 30 However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally. 31 Another matter that the Court would have to take into account would be whether the native title rights and interests that are to be declared in the determination are recognisable by the law of Australia or the State in which the land is situated. The Court may need to be satisfied whether native title had been extinguished and, if so, whether the extinguishment should be disregarded pursuant to provisions such as ss 47, 47A or 47B. Again, the Court may be prepared to accept that those matters have been considered by appropriate respondents, and the Court may be entitled to rely on appropriate assurances in relation to those matters, rather than to receive evidence of them. 32 The Court would also need to be satisfied that all of the requirements of the Act are complied with, such as s 55, if applicable, or ss 94A and 225. As with any order made by the Court, the Court would need to be satisfied that the proposed orders are unambiguous and certain as to the rights declared. 33 There may in particular cases be other factors that the Court might take into account. One such factor was considered by Carr J recently in the case of Ngalpil v State of Western Australia [2001] FCA 1140 relating to the Djurabalan People. In the orders that his Honour made in that case, account was taken of the possible effect of orders that might be made by the High Court in State of State of Western Australia v Ward (P59, P62, P63 and P67 of 2000). The parties to the agreement before Carr J incorporated into their agreement clauses that provide a mechanism relating to minerals and petroleum, which may enable a variation to be made to the determination if the High Court overturns or sets aside the decision of the Full Court in State of Western Australia v Ward (2000) 99 FCR 316. I simply mention that case as the sort of other consideration that it would be appropriate for the Court to have regard to in determining whether it is appropriate to make an order under s 87. 34 As I have said, I have not intended to make an exhaustive list, but I have indicated my provisional views as to the matters that I would have to be satisfied about if I am to be asked to make an order pursuant to s 87. In the result, I will fix a date convenient to the parties in the near future for the purposes of giving directions in relation to the fresh proceeding, if that is the course that the applicants wish to adopt. Should the parties in the current proceeding press for a consent determination, they will need to satisfy me that the prerequisites of s 87(1) have been satisfied for the purpose of making orders under ss 87(2) or 87(3) in relation to that
proceeding. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Counsel for the Applicant: Mr J Kildea with Mr P Kilduff
Solicitor for the Respondent: Department of the Premier and Cabinet
Solicitor for Mining Interests Blake Dawson Waldron
Munn for and on behalf of the Gunggari People
State of Queensland
(2000) 99 FCR 316
Orders made granting leave to amend the application to cover only the Part A land, removing non-interested parties from the existing proceeding, requiring filing of amended application and any s 87 agreement by 7 September 2001, with further directions listed for 14 September 2001; Court notes that the consent determination will have no effect on assertions in other Gunggari native title applications.