Condition (d) - it is appropriate to make the proposed order
42 As noted above, in exercising its power under s 87 of the NTA, the Court must be satisfied that it is appropriate to make an order in, or consistent with, the terms agreed between the parties. Factors that may be relevant to the exercise of the Court's discretion to make a determination of native title under ss 87 and 87A have been considered in many cases, including Munn at [28]-[33]; Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 at [20]-[23]; and James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 at [4]. In Freddie and Agius v State of South Australia (No 6) [2018] FCA 358 (Agius), Mortimer J (as her Honour then was) examined in detail the issue of appropriateness in the context of s 87(1A). At [63] of Agius, her Honour observed:
The Court's function where there is agreement as to a determination of native title, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that:
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
(Emphasis added)
43 Her Honour summarised the role of the Court as follows:
(a) The s 87(1A) role is quite different from the Court's role in contested hearings. The Court's focus is on the agreement between the parties: Lander v State of South Australia [2012] FCA 427 at [11]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (Agius at [62]).
(b) Satisfaction as to appropriateness must take into account the nature of the rights sought to be recognised in the determination, having operation against the whole world, including rights in rem. The orders should be clear in their terms and the process one which observes procedural fairness and is supported by the State's agreement that a "credible and rational basis" for the determination has been made out (Agius at [64]).
(c) The discretion as to appropriateness is wide but the Court must focus on the individual circumstances of each determination: Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (Agius at [65]).
(d) The Court must also consider ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and pursue the objectives of those provisions promoting the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible (for example Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 (Yaegl)) (Agius at [66]).
(e) There must be some probative material to allow the Court to satisfy itself that the requirements of s 225 of the Act are met. However, there is no requirement to file all of the material as the determination is based on the agreement entered into on a free and informed basis: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Agius at [68] to [69]).
(f) The Court is not required to conduct an enquiry on the merits, but must still be satisfied that the State made a reasonable and rational decision in entering the s 87 agreement: Brown v Northern Territory of Australia [2015] FCA 1268 at [23]; King (on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group) v State of South Australia [2011] FCA 1387 at [21] (Agius at [70] to [71]).
(g) The Court should be satisfied that the State came to the agreement after discharging its public responsibilities to the community it represents, including the claimants: Yaegl at [16] (Agius at [72]).
(h) The public interest in a settled outcome as opposed to an exhaustive contested process is considerable: Prior on behalf of the Juru (Cape Upstart People) v State of Queensland (No 2) [2011] FCA 819 at [26] (Agius at [74]).
(i) The flexibility of a settled outcome allows the State to take into account a wide range of matters including, for instance, the history of dispossession (Agius at [75]).
44 In the present case, I am satisfied that it is appropriate to make the consent determination for the following reasons.
45 First, the agreement reached between the parties is a culmination of a lengthy period of investigation and negotiation.
46 Second, all parties have been legally represented and there is no reason to doubt that the parties have made an informed decision to resolve the application by agreement.
47 Third, the State, in its role of protecting the interests of the community generally, has been an active participant in the investigation and negotiation of the proposed consent determination.
48 Fourth, the joint submissions of the parties have identified the lay and expert evidence that provides a proper basis for the State to reach the conclusion that the proposed consent determination has a rational and reasonable basis.