Griffiths J
This proceeding concerned an application for a consent determination of native title over land and waters immediately south of the Gulf of Carpentaria. The agreement, filed on 28 August 2020, split the determination area in half. It was submitted in the agreement that native title existed in the northern part of the determination area but not in the southern part. Both the claimant group and the State filed written submissions in support of this positive and negative consent determination.
Positive Determination
The Court relied upon more than 30 affidavits filed by members of the claim group and oral evidence from several witnesses at an on-Country evidence process held in July 2017. Four anthropological reports were provided to the State and the other respondents formed the view that they could agree to the recognition of native title over part of that claim area. Section 87 of the Native Title Act 1993 (Cth) (NTA) then contains three preconditions for the Court to exercise their power to grant a determination by consent. These are:
The lapse of the specified notification period under s 66 of the NTA;
That the parties have reached an agreement on the terms of the orders sought; and
That the parties have filed a signed copy of their agreement with the Court.
In addition to this, the Court must be satisfied that the orders sought are within the power of the Court, and that the orders are appropriate. In this case, the Court considered these requirements to be met.
Negative Determination
The State also submitted that native title did not exist in relation to some parts of the claim area. The State relied on two affidavits filed on 4 September 2020. All the parties came to an agreement and the Court was satisfied that:
There were no persons or group of persons who hold native title rights and interests in the southern area; and
There are no persons, or group of persons, who hold native title rights and interests in the balance areas to be covered by the negative determination.
Additionally, the Court considered all the requirements prescribed by the NTA for the making of a consent determination to have been met.
Conclusion
The Court accepted all of the parties’ submissions and as above concluded that both a positive and negative determination of native title could be made by consent. His Honour noted that the terms of the determination reflected a negotiated outcome that was freely entered into by all parties on a free and informed basis. As such, the Court considered that the orders sought were both within their power and appropriate to be made, resulting in a positive determination of native title in the northern part of the determination area and a negative determination of native title in the southern area.