Case: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365
Outcome: cited
I congratulate the parties on the agreement they have reached and acknowledge the efforts of the National Native Title Tribunal in assisting the parties. As this Court stated in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [5] : '[s]ettlement of native title claims by agreement is to be welcomed and encouraged. It means that the parties can decide for themselves how best to institute an arrangement that satisfies their respective rights and interests in a way that, as appropriate, recognises the rights and interests of the other parties'. 6 The Ngarla applicants have nominated the Wanparta Aboriginal Corporation ('the Corporation') as the prescribed body corporate to hold the native title of the claimant group on trust following the determination of these proceedings pursuant to s 56(2) of the Native Title Act 1993 (Cth) ('the Act'). The nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. 7 The Court may make orders giving effect to an agreement reached between the parties where the agreement relates to the proceeding or part of the proceedings without holding a hearing ' if it appears to [the Court] to be appropriate to do so ' (ss 87(2) and (3) of the Act). The Court may also, if agreement is reached on a proposed determination of native title in relation to an area included in the area covered by an application, make an order in, or consistent with, the proposed determination without holding a hearing if the Court considers it would be appropriate to do so (s 87A(4)(b)). 11 As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ). 22 The exercise of the Court's discretion pursuant to s 87A imports the same principles as those applying to the making of a consent determination of native title under s 87. The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act ( Hughes at [8] citing Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7]). 23 Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Hughes at [9]).