Case: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
Outcome: cited
Between those two situations is the present type of case, namely, those cases in which the Court has heard some evidence, whether by way of preservation or early evidence, and is able to draw on that evidence in assessing the appropriateness of making the orders. An example of such a case is Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 ( Lovett ). 18 Whilst the particular circumstances of each application require individual consideration, some principles are generally applicable. In Lovett it was said at [36] [37]: 36. The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 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. 21 The extent to which it is necessary for a State respondent to investigate the claim for the purpose of persuading the Court to act under s 87 was further explained in Lovett at [37] [38]: 37. ... Insofar as this latter consideration [whether the agreement was entered into on an informed basis] 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. 38. 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.