It is appropriate to make the determination
19 The Preamble to the Act states in part:
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.
20 Section 87A of the Act (together with s 87 which relates to the whole of a claim area) is to be understood as forming a part of the special procedure to which the Preamble refers. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, the focus of s 87 of the Act (relevantly equivalent to s 87A) is on the making of an agreement by the parties, the provision reflecting the importance placed by the Act on mediation or conciliation as a primary means of resolving native title disputes. As his Honour observed, the Act is designed to encourage parties to resolve proceedings without the need for adversarial litigation. The power is to be exercised flexibly, having regard to that purpose (at [36]). North J continued (at [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.
21 See also Ward v State of Western Australia [2006] FCA 1848, North J (at [6] - [9]); Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992, Jagot J (at [13]); Nelson v Northern Territory (2010) 190 FCR 344, Reeves J (at [14]).
22 The Court's role is to satisfy itself that the State is acting in good faith and has taken steps to ensure that there is a credible and rational basis for the making of a determination by consent: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109, Emmett J (at [29] - [30]). As Reeves J said in Nelson:
12 It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community's interests, including the stringency of the process it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement. In Lovett North J commented:
… 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.
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.
13 I respectfully agree with North J in these observations. In my view, it would be perverse to replace a trial before the Court with a trial conducted by a State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act.
23 The Court has before it a Joint Submission prepared by the applicant and the State in its capacity as the first respondent dated 23 November 2022. The Joint Submission identifies the bases for the terms of the orders agreed by the parties to resolve, by consent, the three Wirangu Part A native title determination applications.
24 Prior to the listing of Wirangu No 2 Part A and Wirangu No 3 Part A for trial, the applicant provided the State and active respondents with witness statements and detailed anthropological reports prepared by Dr Philip Clarke and Ms Lyn Coad. On 28 May 2019, in preparation for trial, the applicant filed an anthropological report of Dr Philip Clarke and Mr Jeffrey Stead and an affidavit of Ms Coad. The State commissioned its own assessment of the applicant's reports and filed a responsive expert anthropologist's report by Dr Kingsley Palmer, and a historical report by Mr Tom Gara.
25 In August 2019, Registrars of the Court convened a conference with the parties' experts and the resulting report recorded substantial agreement between the experts on key propositions discussed. On the basis of all of that material and the outcome of the conference of experts, the State and active respondents formed the view that a consent determination was justifiable and have provided their agreement to the proposed determination.
26 I am satisfied that the State has properly assessed the claim and, in all of the circumstances described in these reasons, I am satisfied that it is appropriate to make an order in the terms sought.
27 Since sovereignty, the impacts of colonisation have resulted in the extinguishment of native title in parts of the area forming the subject of the present applications. That loss is reflected in the determination itself. The Joint Submission indicates that the Wirangu People and the State have resolved issues in relation to compensation for that loss without the need for adversarial litigation. That resolution has been recorded in an agreement between them. The proposed determination referred to in these reasons will come into effect once that agreement is registered.
28 In those areas in which native title has not been extinguished, the determination is a reflection of the endurance of the Wirangu People and the traditional laws and customs that define them as a society. The effect of the determination is to recognise the continuation of that society and the rights and interests in land and waters that owe their existence to it. That normative system forms an important part of the history of this country as well as its present day social fabric. The Joint Submission highlights that the Wirangu claimants, their families and forebears have occupied and found work within the claim areas continuously since colonists arrived.
29 The Wirangu Aboriginal Corporation (ICN 9333) has been identified in the proposed determination as the prescribed body corporate to be appointed for the purposes of s 57(2) of the Act and to perform the functions set out in s 57(3) of the Act. I am satisfied that the proposed order in relation to the prescribed body corporate is appropriate.
30 The determination does not create any new rights or interests for the Wirangu People. Rather, it reflects the recognition under the common law of Australia that their rights and interests exist to the present day, as they did under traditional law long before the assertion of sovereignty.
31 The determination is now made in a form consistent with that sought by the parties.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.