12 The discretion conferred by s 87(1) of the Act must be exercised judicially, and in exercising it, the Court must have regard to the object and purposes of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62 at [7].
13 The words of the section make it clear that the question for the Court is whether it is appropriate to make an order in the terms of the agreement reached between the parties, with the central focus of the section being the existence of an agreement.
14 Satisfying the Court that it is appropriate for an order to be made should not be seen as the last hurdle to be overcome before the parties reach their ultimate goal of a consent determination of native title. Instead s 87 should be regarded as the opportunity for the Court to recognise the parties' success in reaching the ultimate goal of a negotiated agreement, and facilitating that agreement by making an appropriate determination in accordance with its terms.
15 As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [61]:
" … 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…."
16 In Munn v Queensland [2001] FCA 1229 Emmett J observed that the Court's deliberations on an application under s 87:
"… would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely."
17 The terms of the agreement between the parties are in writing, the agreement is signed by or on behalf of the parties and the agreement is filed with the Court. The parties have had the benefit of independent and competent legal representation in arriving at this agreement, the terms of the order are clear and the agreement has been produced as a result of a process of negotiation. In this matter the Northern Territory is the sole respondent party. It is clear on the evidence before me that it has taken a real and significant interest in the proceedings. Before the proposed consent orders were signed the Northern Territory had Emeritus Professor Sansom, who had also been the expert anthropologist for the Northern Territory in the Newcastle Waters matter, consider the anthropological material going to the existence of native title. Professor Sansom's queries in relation to the material initially provided in this matter were subsequently answered to his satisfaction by the applicants. Furthermore, the Northern Territory Cabinet considered the proposed consent orders and instructed the Solicitor for the Northern Territory to agree to the proposed consent determination of native title. I am therefore satisfied that the interests of the community generally have been properly considered by the Northern Territory.
18 There can be no doubt about the jurisdiction of the Court to make the orders sought (see s 81 of the Act) and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded. The proposed order set out details of each of the matters mentioned in s 225 thus satisfying the requirements of s 94A of the Act.
19 I am therefore satisfied that it is appropriate that the Court make the orders sought.
PRESCRIBED BODY CORPORATE
20 The parties have not nominated a corporation to be the prescribed body corporate, however provision has been made in the orders for an Aboriginal corporation to be nominated within 12 months.
CONCLUSION
21 Finally, I wish to make some remarks about the process by which the proposed consent determination has come about. Because of a long history with the Northern Territory land claims process and native title claims, the legal practitioners employed with both the Northern Land Council and the Central Land Council are generally very experienced and competent. The legal practitioners employed to deal with land claims and native title claims in the Northern Territory government are similarly experienced and competent. Moreover from my experience with the native title list in the Northern Territory, all of the legal practitioners involved appear to be willing to progress the matters in the list, as quickly and efficiently as possible.
22 There is, however, a large number of outstanding native title applications in the Northern Territory native title list. The Court and the parties are presented with a considerable challenge - to ensure that they are dealt with appropriately in accordance with the provisions of the Act, but in an efficient and timely manner. To that end, and with the support generally of the parties, the Court adopted a strategy of hearing selected cases to determine particular issues of principle, or perhaps more accurately, issues which relate to the decided case and to a number of others with similar geographical, cultural, social or legal characteristics. That process has now been completed. It was and continues to be my expectation that, as a result of those cases having been decided and the commitment of the parties in 2008 to finalise all matters in the Northern Territory native title list by 2013, most of the outstanding applications will be progressively resolved by a series of consent determinations. I therefore hope this is the first of many consent determinations that the Court will be making in the Northern Territory as a result of this strategy.
23 I congratulate the parties to the agreement, in so doing I congratulate the native title holders whose rights are now recognised over two areas of land and waters within the Northern Territory. I am encouraged by this determination and encourage the parties to continue with their active engagement in the resolution of native title cases by consent. I now make the order sought.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.