REASONS FOR JUDGMENT
1 This application was filed on 13 August 2010 by the applicant seeking recognition of native title rights and interests over the land and waters within the bounds of the Hayfield Pastoral Lease (Perpetual Pastoral Lease 1135) in the Northern Territory ("Application").
2 The application is brought on behalf of the members of land holding groups associated with three estate groups: the Kinbininggu group; the Warranangku group; and the Marlinja group. It is one of eleven applications heard together because of their geographical proximity.
3 The second respondent is the holder of the pastoral lease over which the claim is made.
4 On 20 June 2012, the applicants filed a Minute of Proposed Consent Determination pursuant to s 87 of the Native Title Act (1993) (Cth) ('Native Title Act'). That Minute is supported by the parties' Joint Submissions and a Statement of Agreed Facts also filed on that day. Given that one of the objectives of the Native Title Act is resolution of claims by agreement, it is appropriate that this application and those related to it have arisen out of negotiations between the parties and have resulted in the parties agreeing to the terms of a determination of native title.
5 Section 87 of the Native Title Act relevantly provides as follows:
Application
(1) This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
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Agreement as to order
(2) 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 or, if a hearing has started, without completing the hearing.
Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders).
Agreement as to part of proceedings
(3) 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, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates.
…
(5) Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title.
6 The criteria identified in s 87 were summarised by Reeves J in Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory of Australia [2011] FCA 766 at [4]:
The provisions of s 87 of the Act allow the Court to make a determination of native title by consent over an area of land and waters covered by a native title determination application without holding a hearing where certain conditions are met. These conditions are:
1. the period specified in the notice given under s 66 of the Act has expired (s 87(1));
2. the parties have reached agreement on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));
3. the terms of that agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b));
4. the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and
5. it appears to the Court to be appropriate to make the order sought (ss 87(1) and 87(2).
7 What the Court is required to focus upon therefore is the process of the making of the agreement between the parties and whether the orders sought are appropriate. North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]:
The [Native Title Act] is designed to encourage parties to take responsibility for resolving proceeding 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.
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: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. 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: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.
8 It is not necessary for the Court to embark upon its own inquiry as to the merits of the claims made in the application for it to be satisfied that the orders sought are supportable according to law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J; Wavehill on behalf of the Ngapurrpinkakuyarra Group v Northern Territory of Australia [2007] FCA 588 at [3] per Mansfield J.
9 That does not mean that the Court will not look at the evidence before it to satisfy itself that the parties, particularly the Northern Territory on behalf of the community, is acting in good faith and rationally: Munn on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 at [30] per Emmett J; Roberts on behalf of the Najig and the Guyanggan Nganwirdbird Groups v Northern Territory of Australia [2012] FCA 223 at [6] per Finn J.
10 In the end result the Court must be satisfied for the purpose of exercising its jurisdiction under the Native Title Act that an order in the terms proposed by all the parties to the proceedings would be within the power of the Court: s 87(1)(c).
11 The conditions of s 87 of the Native Title Act have been satisfied in this case. In particular:
1. the period specified in the notice under s 66 ended on 2 February 2011;
2. the parties have reached agreement as to the terms of a determination;
3. the Minute of Proposed Consent Determination records those agreed terms;
4. an order consistent with the terms of the Minute would be within the power of the Court because:
(a) the application is valid and made in accordance with s 61 of the Act;
(b) the application is for a determination of native title over an area for which there is no approved determination of native title (s 13(1)(a)); and
(c) the terms of the Minute comply with sections 94A and 225 of the Act.
5. It is appropriate that the Court make the orders sought because:
(i) all the parties are legally represented;
(ii) the Northern Territory as First Respondent obtained searches of land and mining tenure and other relevant interests to determine the extent of "other interests" within the proposed Determination Area and made those available to all parties;
(iii) the Second Respondent provided all parties with a list of pastoral improvement on Perpetual Pastoral Lease 1135 which affect native title;
(iv) the parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are described in the orders to be made today;
(v) 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 Application which would otherwise require orders to be made under s 67(1) of the Act;
(vi) the Northern Territory as First Respondent has played an active role in the negotiation of the consent determination. In doing so, the Northern Territory, acting on behalf of the community generally, having had regard to the requirements of the Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances; and
(vii) based on this and the terms of the proposed order, it is apparent that there is a free and informed agreement between the parties.
12 In relation to the assessment process, I note that:
1. On 1 September 2009 the Applicant filed a "Report of Native Title Interests - Hayfield, Vermelha, Maryfield, Kalala and Forrest Hill Pastoral Leases and the Town of Daly Waters" and "Genealogies - Hayfield, Vermelha, Maryfield, Kalala and Forrest Hill Pastoral Leases and the Town of Daly Waters" ("Connection Material"). The Connection Material was prepared by Robert Graham, an anthropologist engaged on behalf of the Applicant to address the Northern Territory's Minimum Connection Material Requirements for Consent Determinations dated 6 May 2009.
2. The Connection Material was considered by the First and Second Respondents. The First Respondent sought advice about the Connection Material from anthropologist Basil Sansom. The First Respondent raised various contentions about the Connection Material with the Applicant.
3. The Applicant and the First Respondent subsequently met and/or exchanged correspondence in relation to the First Respondent's contentions on the Connection Material on a number of occasions. In consequence of this, the Application was filed and the former applications were withdrawn.
4. Ultimately, the Applicant and the First Respondent reached agreement that the native title claim group named in Schedule A of the Application and in the Connection Material are the persons who hold the claimed native title rights and interests in the Determination Area. The Second Respondent does not dispute the claim of the Applicant as to which persons hold the claimed native title rights and interests in the Determination Area.
13 In relation to issues of extinguishment of native title, I note that:
1. On 26 September 2008 the First Respondent filed a "Tenure Report" which contained an analysis of the extinguishment of native title in the determination area based upon the grant of tenure.
2. On 10 October 2008 the First Respondent filed a "Public Works Report" which contained an analysis of the extinguishment of native title in the Determination Area based upon the establishment of public works.
3. On 1 May 2009 the Second Respondent filed an "Extinguishing Tenure Report regarding Pastoral Improvements on Hayfield Station".
4. On 1 May 2009 Telstra Corporation Limited filed a "Report on Extinguishing Tenure and Public Works in respect of: Vermelha PPL 1174, Maryfield PPL 1189, Forrest Hill PPL 1190, Kalala PPL 1064, Hayfield PPL 1135, Tanumbirini PPL 1060, Ucharonidge PPL 1072, Mungabroom PPL 1018, Broadmere PPL 1046".
5. On 6 August 2009 the Applicant filed the following documents:
(a) "Notice Concerning Pastoral Improvements";
(b) "Notice Concerning Telstra Improvements"; and
(c) "Applicants' Tenure and Public Works Report including Contentions".
6. The Applicant, the First and Second Respondents and Telstra Corporation Limited ("Parties") subsequently met and/or exchanged correspondence in relation to the Parties' various contentions on extinguishment on a number of occasions.
7. Ultimately, the Parties reached agreement as to those parts of the Determination Area in which native title does and does not exist.
14 Finally, I note that for the purposes of s 56 of the Act, the native title is not to be held on trust and that the consent orders provide appropriately for a prescribed body corporate to be nominated for the purposes of sections 57(2) and (3) of the Native Title Act.