IS IT APPROPRIATE TO MAKE THE ORDERS
11 The power of the Court to make orders by consent is to be exercised in the context of the parties having come to a resolution of the proceedings other than by way of a contested trial. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474:
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: 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. 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. …
12 The parties' joint submissions refer to the rigorous process developed by the State for assessing the evidence in native title claims, as outlined in the State's policy document "Consent Determinations in South Australia: A Guide to Preparing Native Title Reports". The State has conducted an assessment of the evidence in accordance with its policy and is satisfied that the proposed determination ought to be made. In doing so, the State has struck a balance between protecting the community's interests and taking a flexible approach to reaching agreement in accordance with the aims of the Act: Nelson v Northern Territory (2010) 190 FCR 344 at [12] - [13] (Reeves J).
13 The evidence considered by the State includes two reports dated 2018 and 2019 prepared by expert anthropologists Dr Rod Lucas and Dr Deane Fergie as well as affidavit material provided by the applicant. The expert reports were evaluated by the State's expert, Dr Lee Sackett. In addition, the State's external counsel provided an opinion based on a review of the applicant's reports and affidavits as to whether there was a plausible basis for concluding that the claim group held native title rights and interests in the area.
14 The term "native title rights and interests" is defined in s 223(1) of the Act as follows:
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
15 As the joint submission states, a threshold requirement for a successful native title determination application is that there be a recognisable group or society that presently recognises and observes traditional laws and customs in relation to the determination area. As the High Court explained in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [49] - [56], [86] - [89] it must be shown that:
(1) the members of the claim group are, or are part of, a society united in and by their acknowledgement and observance of a body of accepted laws and customs;
(2) the present day body of accepted laws and customs is essentially that same body of laws and customs acknowledged and observed by the ancestors of members of the claim group, adapted to modern circumstances; and
(3) acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs.
See also Risk v Northern Territory of Australia [2006] FCA 404 at [802] - [811].
16 Authorities of this Court have recognised that native title rights and interests may be acquired in accordance with traditional laws and customs relating to succession. It is accepted that rights, interests and responsibilities in relation to land or waters may pass between groups within a traditional society, particularly upon the extinction of a subgroup or estate group with that society after the assertion of sovereignty in the area: see the discussions in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9 at [711] - [719] and Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [647] - [648] (Mortimer J).
17 The ethnographic evidence place the claim area in Kuyani country at the time of effective sovereignty. The State is satisfied that the evidence provides a credible basis for concluding that the Arabana and the Kuyani, as well as the neighbouring Dieri people, are members of the wider "Lakes Group" with a shared concept of Dreaming Beings and Story Lines and laws and customs relating to male initiation (wilyaru), patrilineage, and matri-totems. The joint submission of the applicant and the State is that the Arabana and Kuyani participated in each other's responsibilities in relation to country. The determination is sought on the basis that the Arabana people have succeeded to native title rights and interests in the Part 1 area from the Kuyani people.
18 The joint submissions refer to evidence of one of the claim group members describing their father being given Kuyani ceremonial objects by the last remaining Kuyani elder in the 1940's. That event is described as a traditional "handing over" of responsibility for and rights in country. The submissions go on to state (at [32]):
Given that evidence in the context of both the Arabana and the Kuyani being recognised as part of a group with similar laws and customs, inferences can be drawn from the apparent withdrawal of the Kuyani from the area and the assumption of their rights and responsibilities for the area, it is certainly plausible that the Arabana have legitimately succeeded the Kuyani to the rights and responsibilities of caring and being responsible for that Kuyani country.
19 The joint submission also refer to expert anthropological evidence concerning the continuing observance of traditional laws and customs of the Arabana people in relation to the determination area to the present day, including evidence of Mr Aaron Stuart of stories passed on to him by his grandfather about Rischbieth Outstation and the Willouran Range relating to wilyaru. The evidence shows that to the present day, members of the claim group visit the determination area for the purpose of hunting and chasing lizards, digging yalka, and to observe responsibilities for ochre pit and burial sites. It was on the basis of this evidence that the State was satisfied that the proposed determination should be made by consent. That was an appropriate position for the State to adopt, given the materials before it.
20 In the circumstances described, it is appropriate for the State to proceed on the basis that the Arabana people, as part of the wider "Lakes Group", constitute a society having connection to the determination area derived by succession from the Kuyani people, and continuing to the present day. The Court is satisfied that it is appropriate to make the determination in the terms sought by the parties on that agreed basis.