Case: Brown (On behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025
Outcome: cited
The application for a consent determination is made primarily under s 87A of the Act. The parties, however, submit that it could equally be made under s 87. They say that the agreement they have reached relates both to "an area ... included in the area covered by the application" (s 87A(1)(b)) and "part of the proceedings" (s 87(1)(a)(ii); s 87(3)). In this connection reference is made to Brown (On behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [14] . The parties note that following the repeal of s 87(1)(d) the Court no longer has first to consider whether an order should be made under s 87A rather than under s 87. They submit, however, that where it is possible for an order to be made under both sections it is preferable to use s 87A. This is because the balance of the application is deemed to have been amended to remove the area covered by the proposed determination (s 64(1B)) and is exempt from the reapplication of the registration test (s 190A(1A)). The application would remain registered following the amendment and the Registrar would be obliged to amend the Register of Native Title Claims even though the registration test has not been applied (s 190(3)(a)). In this connection the Court was referred to the Explanatory Memorandum to the Native Title Amendment Act 2007 (Cth) at [2.62]: If an order can be made under section 87A, the order should be made under that provision rather than section 87. This is because an order under section 87A will give rise to other measures which will assist in promoting expeditious resolution of claims, including automatic amendment of the claim and exemption from the registration test being reapplied to the amended claim. 8 I accept that it is preferable for the order proposed in these circumstances to be made under s 87A rather than under s 87. 9 In their joint submission the State and the applicants have identified a number of formal requirements in s 87A, each of which they say has been satisfied. The requirements and the basis upon which it is said they have been satisfied are as follows: 1. The period specified in the notice given under s 66 of the Act has ended (s 87A(1)(b)). The notification day referred to in ss 66(8) and 66(10)(c) of the Act ended on 4 July 2000. 2. There is an agreement for a proposed determination of native title in relation to an area included in that covered by the application (s 87A(1)(b)). The terms of the agreement are reflected in the consent minute. 3. All necessary persons comprising the applicant, the State and other parties to the proceeding whose interest is relevant to the determination area are parties to the agreement. The applicant and the State are the only parties to the proceeding. Both are parties to the agreement. 4. The terms of the proposed determination are in writing and signed by, or on behalf of, each of the parties (s 87A(1)(d)). The minute of the proposed determination is in writing and is signed on behalf of the State and the applicants. 5. The Registrar of the Federal Court has given notice to other parties to the proceeding that the proposed determination has been filed with the Court (s 87A(3)). The terms of the proposed determination have been filed with the Court. The only parties to the proceeding are also the parties to the determination. There is therefore no need for notification under s 87A(3).