Background
The applicant in this proceeding made a native title determination application (Untiri Pulka Application) under s 61 of the Native Title Act 1993 (Cth) (NTA). The applicant, the State, and the other respondents to this proceeding reached an agreement as to the terms of the determination. These terms involved the making of consent orders under ss 87 and 94A of the NTA that native title exists in relation to the determination area. The parties agreed that where the Untiri Pulka Application overlaps with native title application WAD348/2017, the Untiri Pulka Application would be discontinued with no determination made in relation to that area. The parties acknowledged that making a determination in the sought after terms would make the members of the claim group native title holders for the determination area. Under s 87(2) of the NTA the parties requested that the Court determine the Untiri Pulka Application without a hearing.
The Agreement
The State agreed to the Minute of Consent Determination on the basis that the Connection Materials evidence the connection of the claim group to the area. The witness statements provided sufficient evidence of occupation to support the application of s 47B of the NTA to that area. As a result, the partial extinguishment of native title rights and interests could be disregarded and exclusive native title rights and interests could be recognised. The connection materials were, in the view of the State, sufficient to demonstrate that the Untiri Pulka Application had a credible basis and that the Untiri Pulka Claimants and their predecessors had maintained a presence in and connection to the determination area.
Reasons for Judgment
Section 87 of the NTA provides that the court may make a determination of native title by consent without holding a hearing if:
The period specified in the notice given under s 66 of NTA has ended;
Agreement is reached between the parties on the terms of an order of the Court in relation to the proceedings and the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court;
The Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court; and
It appears appropriate to the Court to make the orders sought.
The first two conditions were satisfied as a matter of fact. The third condition was considered satisfied because the application had been validly made and was authorised according to traditional decision-making process as required by s 251B of the NTA. Additionally s 13, 68 and 67 of the NTA were also satisfied. The fourth condition was satisfied on the grounds that the Court believed the agreement was made on a free and informed basis, and that the State was acting rationally and in good faith.
Decision
The Court accepted the parties’ submissions, and was satisfied that orders under s 87 of the NTA in the prescribed terms were both appropriate and within the Courts power to make.