The orders are appropriate (s 87A(4)(b))
37 Finally, the Court must consider whether it is appropriate to make the determination sought by the parties as required by s 87A(4)(b). The Palyku #2 Applicant and the State submit that this condition is satisfied.
38 The exercise of the Court's discretion pursuant to s 87A(4)(b) of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under s 87: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (at [22]).
39 As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v The State of Western Australia [2007] FCA 365 (at [8]):
… the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement.
40 Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 (at [6]-[9]) 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 further 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. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.
41 Accordingly, in order to make a consent determination of native title under s 87A of the Native Title Act, the Court is not necessarily required to receive evidence, make findings or 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. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87A where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely, and on an informed basis come to an agreement: see Brown (at [23]), Hughes (at [9]) and Ward (at [8]).
42 Further, the requirements of 87A(4)(b) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State), 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 government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109 per Emmett J (at [29]-[30]) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 per North J (at [37]); see also Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494 per Madgwick J (at [38]):
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.
43 In relation to this proceeding, the Palyku #2 Applicant and the State have been legally represented throughout the negotiation process. Those respondent parties to the Palyku #2 Application who have not signed the agreement have also had the benefit of legal representation. The Court has also monitored the progress of the proceedings, and negotiations in relation to the proceedings, through case management.
44 Further, the State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn (at [29]). 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.
45 The connection materials provided by the Palyku #1 and Palyku #2 Applicants is, in the State's view, sufficient to demonstrate that, in respect of the Determination Area, the Palyku #2 Application has a 'credible or cogent basis': see Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 per Jagot J (at [21]).
46 In particular, the material demonstrates that the Palyku People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. Further, the Palyku People have maintained a physical presence in the Determination Area since the acquisition of British sovereignty and evidence of their continuing physical and spiritual involvement in the Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Accordingly, the State was satisfied that the connection material presented was sufficient to establish that the Palyku People hold rights and interests in the Determination Area.
47 The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the Determination Area, and those interests are included in the proposed Determination at Schedule Four.
48 Accordingly, the Palyku #2 Applicant and the State submit that the Minute sets out a description of the nature and extent of the native title rights and interests and the 'other interests' in relation to the Determination Area which complies with s 225 of the Native Title Act.
49 On these bases, the Palyku #2 Applicant and the State have informed the Court that they consider that the proposed determination is appropriate and submit that the Court can thereby be satisfied that an order under s 87A of the Native Title Act is both within power and appropriate to be made.