THE CONDITIONS IN SECTION 87 OF THE NTA
10 Section 87 of the NTA empowers the Court to make an order consistent with the terms of a written agreement between the parties to a native title proceeding without holding a hearing in that proceeding. Before the Court can exercise that power, the procedural conditions specified in s 87(1) must be satisfied. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out five procedural criteria that the parties needed to meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[7]. It is convenient to briefly outline each of those criteria and to consider whether they have been met in this matter.
11 The first criterion is that the notice period under s 66 of the NTA must have ended: s 87(1). The Victory Downs, Mount Cavenagh, Mulga Park and Umbeara application was notified by the Native Title Registrar on 9 September 2015. The period specified in that notice expired on 8 December 2015. I am therefore satisfied that this first criterion has been met.
12 The second criterion is that the agreement that has been reached must relate to the whole of the proceeding, or to a part of the proceeding, or to a matter arising out of the proceeding: s 87(1)(a). The executed consent orders filed with the Court show that the agreement relates to the whole of this proceeding. This second criterion has therefore been met.
13 The third criterion is that the agreement that has been reached must be reduced to writing, signed by, or on behalf of, the parties and filed with the Court: s 87(1)(b). As I have already mentioned above, executed consent orders have been filed with the Court. This criterion has also been satisfied.
14 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the executed consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I observed (at [4]):
An order will be within the power of the Court if it is consistent with s 94A of the [NTA], the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination.
15 Section 94A of the NTA requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 defines a "determination of native title" as follows:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land and waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease -- whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
16 I have examined the consent orders executed by the parties and I am satisfied that each of the matters referred to in s 225(a) to (e) above is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia.
17 Based on the records of the National Native Title Register kept under Pt 8 of the NTA, I am satisfied that there is no determination of native title in existence over the claim area.
18 I am therefore satisfied that a determination of native title in the terms sought by the parties would be within the power of the Court as required by s 87(1)(c).
19 Finally, before the Court makes a native title determination consistent with the terms of the parties' agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the NTA. In Nelson, I noted (at [7]) that these words:
... have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the [NTA], one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109 at [26] and [28].
20 After canvassing the authorities relevant to this question in Nelson, I identified (at [14]) the following principles:
(a) the central issue is whether there exists a free and informed agreement between the parties;
(b) in determining whether such an agreement exists, the following factors will be significant:
(i) the process followed by the State respondent party, particularly how it goes about assessing the underlying evidence as to the existence of native title;
(ii) whether the parties have independent and competent legal representation: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (Munn) at [29], [39] and [40] and Lovett v Victoria [2007] FCA 474 (Lovett) at [39]-[40];
(iii) whether the terms of the proposed consent orders are unambiguous and clear: Munn at [32]; and
(iv) whether the agreement has been preceded by a mediation process: Nangkiriny v Western Australia [2004] FCA 1156 at [6]; Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42].
21 In their joint submissions, the Applicant and the Northern Territory submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because:
(a) the parties were legally represented throughout;
(b) the Northern Territory, as the First Respondent, had obtained searches of land tenure and mining and other relevant interests to determine the extent of "other interests" within the proposed determination area and provided copies of those searches to all parties;
(c) the parties have agreed the nature and extent of interests in relation to the determination area and those interests are those described in paragraphs 6 to 11 of the proposed consent orders (s 225(c));
(d) there are no other proceedings before the Court relating to native title determination applications that cover any part of the claim area which would otherwise require orders to be made under s 67(1) of the NTA (ss 87(1) and (2));
(e) the Northern Territory of Australia, as the 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 NTA and having conducted a thorough assessment process, is satisfied that the proposed determination is justified in all the circumstances.
22 Having regard to these joint submissions and my review of the materials filed with the Court, including, in particular, the short form anthropological report of Dr Kwok, I am satisfied that it is appropriate to make the proposed consent orders.
23 As to the principle set out in [20(b)(iii)] above, I have examined the consent orders executed by the parties and I consider that they are unambiguous and clear in their terms.