Consideration
21 The applicant and the State have given substantive consideration, with the benefit of advice from experienced senior counsel, solicitors and expert anthropologists, before taking the decision to seek the negative determination sought. That was done very soon before the trial was to commence and it was a decision that both the applicant and the native title claim group endorsed with the benefit of the advice of the applicants' senior counsel and Ms Qalotaki. Thus, in May 2017, when the applicant and the claim group decided not to pursue a contested determination of native title they did so in the knowledge that, first, only a small portion of the claim area, consisting of disparate parcels, could be found to be land and waters in relation to which native title rights and interests could still exist, and, secondly, there was a significant difference in the experts' evidence as to whether the applicant could prove that the claim group had any native title rights or interests at all.
22 The agreement for a negative determination appears to be appropriate on the material before me. I have had regard to the matters set out above and in particular to the significant differences between the expert anthropologists, the relatively small portions of scattered land and waters (albeit, in total over 115,000 hectares) in respect of which native title could be found to exist, the complexity, personal stress on many lay witnesses, the expense of a contested trial and the opinions of the applicant's senior counsel as to the applicant's prospects of success on the available evidence. I have also had regard to the fact that the State has agreed to the making of the negative determination.
23 As both the applicant's and the State's written submissions noted, the parties' s 87 agreement is not underpinned by, or associated with, an indigenous land use agreement in favour of the claim group. Had there been such an outcome, it may have provided the claim group with a potential benefit, apart from the finality it will obtain by the resolution of this proceeding. However desirable the provision of such an indigenous land use agreement may seem in theory, the end result of the negotiations between the parties, who have had competent legal and other expert advice, is the s 87 agreement as it is. I am satisfied, that, having regard to the substantive disparity of the experts' views in the joint report, there is nothing in the circumstances to suggest that it was necessary for there to be an indigenous land use agreement to underpin the parties' agreement or that the terms of the s 87 agreement are other than an appropriate resolution.
24 There can be little doubt that the claim group will regard the negative determination as, to say the least, a real disappointment. One of the consequences of the interactions between Australia's indigenous peoples and the early European settlers, together with their governments (Colonial, Federal and State), was the significant interruption of both the indigenous people's presence on their traditional land and waters and their relationships within their original social structures. As each of those separations lengthened, the capacity of some indigenous societies to acknowledge, retain and observe their traditional laws and customs was sometimes weakened and, on occasion (as appears to have happened here), disrupted to the point where it has disappeared.
25 The sad reality appears to be that there is no longer any claim group that can prove that it has native title rights and interests in the originally very large claim area, or even the smaller scattered portions of over 115,000 hectares that could have been made the subject of a positive determination that native title rights and interests still existed. As I have explained above, not only is this the fourth application where a claim group identifying as Mandandanji has sought a determination of native title in relation to the claim area by reference to at least two consistent common apical ancestors, but there have been three partially overlapping and another nine adjacent claims or determinations during the last 20 years.
26 In that context, I am satisfied that it is unlikely that any other claim group exists that could make a case for a positive determination in respect of the limited portions in the claim area that have not experienced acts of extinguishment of native title. Accordingly, I am satisfied that there is no approved determination of native title or other extant application for such a determination in relation to all or any part of the claim area.
27 Moreover, I am satisfied that the negative determination that the parties have agreed is appropriate. That is because it will provide substantial certainty as to the land title status to all persons, including the State, with legal or equitable interests in the land and waters in the claim area. That certainty, as is the case in respect of all consent and final determinations of native title is, of course, subject to the possibility of a future application for a variation or revocation of that determination made under s 13(1)(b), if events subsequently occur that cause the determination no longer to be correct or the interests of justice require its variation or revocation (s 13(5)).
28 As a result of the orders that the parties have agreed ought to be made, all persons with interests in the land and waters in the claim area will now be substantially free of the risk of any further application for a determination of native title in relation to the claim area under the Native Title Act. There is a real public benefit in finality of litigation and in the Court giving the public and the parties certainty in respect of rights to, and interests in, real property.