whether the proposed consent determination should be made
8 The Court's power to make orders in terms of the proposed determination is contained in s 87 of the Act. A consent determination may be approved pursuant to s 87, without holding a hearing, if the Court is satisfied that the proposed terms are within power, and if it appears appropriate to do so.
9 Because the proposed order involves making a determination of native title, the order must also comply with s 94A of the Act. It requires the proposed determination to set out details of those matters which are mentioned in s 225.
10 Section 225 of the Act reads:
'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 or 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.'
11 'Native title rights and interests' are defined in s 223(1) of the Act as:
'…the communal, group or individual rights and interests of Aboriginal peoples…in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples…; and
(b) the Aboriginal peoples…by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.'
12 The applicants' evidence as to the criteria set out in s 223 is contained in an anthropological report of Dr Scott Cane, initially drafted in November 2005 and revised in February 2006. The report in draft form was the subject of a conference of anthropological experts convened by the Court. The final report, filed on 24 February 2006, addressed certain aspects of the claim in respect of which concerns were raised at that conference by the experts respectively retained by the State and certain pastoral respondents.
13 Dr Cane's report contains detailed genealogical information regarding the 19 families comprising the claim group, from the mid 19th century. It describes the traditional patterns of migration within the Western Desert Bloc, and the more recent history of contact between the pastoralists and the Aboriginal people:
'The nomadic range of Aboriginal people probably reduced as cattle stations became more established during the middle of last century, but that establishment probably served to unite and strengthen principles of law and custom through closer residential relationships. History suggests a relationship of reciprocal benefit developed between pastoralists and claimants and their ancestors. That relationship continues today, with claimants readily acknowledging their friendships with pastoralists and recognising their mutual rights in country…
Aboriginal people thus seem to have adapted their customary behaviour to accommodate and benefit from the changed social and residential environment of the pastoral era without loss of cultural integrity.'
14 None of the claimants currently live on the claim area itself, residing primarily in neighbouring Oodnadatta and Indulkana.
15 Dr Cane described the members of the claim group as a society which continues to observe the fundamentals of traditional life, as adapted to meet changing circumstances and challenges. He described various customs which are still alive among the claimant group, including language; age and gender divides regarding decision-making; social power and access to religious knowledge; beliefs about the presence and creations of tjukurpa beings; conduct of ceremonies; regulation of relationships by kinship structure; observance of protocols governing access to land; hunting and gathering; and living in traditional shelters.
16 The recognition of traditional rights in country by the claim group is summarised by Dr Cane in the following terms:
'Claimants express different rights in country and rights in different parts of country according to differing customary mechanism of association: through birth, descent, long-term association, and knowledge of Tjukurrpa…People express rights with different degrees of authority in differing social and geographic contexts. The strength of that authority is measured in socio-political terms - through age and gender, family connection, ritual and communal status…'
17 I have had the benefit, in considering the orders sought by the parties, of a written submission of the State on behalf of the principal parties, addressing (inter alia) the requirements of ss 223 and 225 of the Act and the appropriateness of making the orders pursuant to s 87. It is a most helpful submission. It has enabled me to only briefly state the reasons for my conclusions.
18 I agree with the principal parties that Dr Cane's report supports the recognition of native title rights and interests possessed by the claimants, as defined by s 223 and explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria(2002) 214 CLR 422.
19 I accept that the parties likely to be affected by the proposed determination have had sufficient access to independent legal representation; and that the State, in providing its consent, has given appropriate consideration to the evidence and the interests of the community generally: see Munn v Queensland (2001) 115 FCR 109 at [29].
20 I have also considered the terms of the proposed determination. In my view, it satisfies the requirements of s 225 of the Act. However, it is necessary to make some observations about the description of the 'other interests' in the determination area, in the proposed determination.
21 Aside from the Marla Township area, the proposed determination further provides that native title does not exist in parts of the claim area comprising freehold grants, the Oodnadatta Satellite Ground Station, certain land dedicated for 'Digital Radio Concentrator purposes' and public roads. Clause 11 of the proposed determination provides that native title does not exist in minerals or petroleum.
22 The principal parties agree that the exercise of rights associated with the pastoral leases covering the determination area has effected partial extinguishment of native title. They agree that the claimants do not have rights of exclusive possession over the determination area, and that the rights of the pastoralists prevail to the extent of any inconsistency: Western Australia v Ward (2002) 213 CLR 1. Clause 9 of the proposed determination provides for extinguishment of native title where improvements to the land have been erected pursuant to the relevant pastoral leases.
23 The parties were unable to agree as to whether future pastoral improvements erected after the date of the consent determination will extinguish native title in those areas: see De Rose v South Australia (No 2) (2005) 145 FCR 290 at [149]-[158]. They have sought to resolve the issue by providing, in proposed clause 10, that 'the possibility of future extinguishment, according to law, of native title' by the construction of further pastoral improvements is not precluded by the determination.
24 I have also considered the terms of Order 10 of the proposed consent determination. It leaves open for the future the possibility of further acts of the kind referred to in Order 9, in limited circumstances. It is realistic of the parties to have recognised the possibility of such future conduct, whatever its legal effect. It is therefore proper that the parties should also have addressed the legal effect or the legal consequences of such conduct, if it eventuates. It is far better that they should do, than leave the issue unresolved. Order 10 as proposed then indicates what the parties accept will be the legal consequences of such conduct if it occurs. As that order reflects the common understanding of past conduct (as described in Order 9), as applied to that possible future conduct, I think it provides sufficient certainty to the parties. There is therefore no reason why that proposed order should inhibit the making of the consent determination.
25 Finally, I indicate my view that, despite there being an unresolved part of the claim area, namely the Marla Township, the Court is not precluded from making the proposed consent determination. Section 87(1)(a)(ii) and (3) expressly contemplates resolution by agreement of any part of a proceeding, and that the remaining part of the proceeding may be dealt with separately and later. That is also consistent with the power of the Court to direct under s 67 that overlapping claims may be ordered to be dealt with together, and consequently if such an order is made that part of a claim area which is not overlapping and which has not been dealt with by an order under s 67 to be dealt with separately.
26 I have also taken into account my awareness of the process by which the agreement of the parties has been reached. It has been a thorough process, assisted by legal representation and by expert anthropological advice. The Court played a not insignificant role, in its case management of the proceedings, by adopting its commonly used procedure in many matters involving expert evidence. It secured the respective anthropologists assisting the parties to confer, to identify the starting points for their views, to explore the extent to which they were in agreement, and to confer about the matters in respect of which they were in disagreement. Senior counsel for the State, at a directions hearing, acknowledged that that process had facilitated the steps towards the parties' ultimate agreement. I have not overlooked also the extensive private negotiations which have obviously taken place between the parties, together with the processes in which the National Native Title Tribunal played a significant role. There is every reason to accept the proposed consent determination as a fully informed and appropriate one.