Reconceptualising current issues in the law and practice of consent determinations under the Native Title Act 1993 (Cth)

Although consent determinations play a key role in native title law, little scholarly attention has been given to their operation. This article synthesises judicial commentary in this area to argue that claimed differences between judges as to the circumstances in which it will be ‘appropriate’ to give effect to a consent determination reached between the parties are more apparent than real. Nevertheless, and for the avoidance of confusion, this article propounds a new model for the ‘appropriateness’ test in sections 87 and 87A of the Native Title Act 1993 (Cth), based upon key values drawn from the Federal Court’s collective jurisprudence. Demonstrating the importance of this model, the article then considers the practical uncertainty arising from the use of ‘generic extinguishment clauses’ in response to the difficulties posed by tenure analysis. Cautioning that the use of such clauses may prove counterproductive, this article encourages negotiating parties to adopt current tenure analysis.