FEDERAL COURT OF AUSTRALIA

Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461

ORDERS

THE COURT ORDERS THAT:

1.    The matters are adjourned to the callover on 20 October 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    This application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    This decision concerns the question of whether 14 applications for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) should be dismissed because they are not being prosecuted with reasonable diligence. It was to concern 27 such applications but 10 have since been discontinued and the applicants in three matters have been allowed time in which to consider their discontinuance.

2    All but three of the 14 applications were commenced in 2000, 2001 and 2002. Of the remaining three, one was commenced even earlier, in 1999, and the other two in 2004.

3    Save for two applications which concern towns, each application is known by a name which, in most cases, is the name of a pastoral lease over at least some of the area to which the application relates.

4    In circumstances to be explained below, the applications for native title over pastoral lease areas commenced by the Northern Land Council (the NLC) in the Northern Territory Registry of the Court have been grouped. The groups to which this judgment relates are Groups 3, 7, 11 and 12.

5    To date, the applicants have done very little to prosecute their claims and it has seemed for some time that there is no apparent prospect of them doing so. In these circumstances, the Court has considered whether it should act on its own motion pursuant to rr 1.40 and 5.23 of the Federal Court Rules 2011 (Cth) to dismiss the applications by reason of the failure of the applicants to prosecute their claims with reasonable diligence.

6    I consider that all but three of the 14 applications should be dismissed. The three not to be dismissed are NTD6062/2001 (Roper Valley North), NTD6006/2001 (Mary River West) and NTD6021/2001 (Ban Ban Springs). My reasons follow.

The applications

7    With the exception of the two applications which concern town areas, the applications are known as “polygon’ claims. That is because the claims were made following notifications under s 29 of the NT Act and the areas to which they relate conform to the irregular boundaries of mining tenures granted or proposed to be granted by the Government of the Northern Territory of Australia pursuant to the Mining Act 1980 (NT) or the Petroleum Act 1984 (NT). These boundaries have no correlation with the areas over which indigenous societies have, or may have, native title rights and interests. Nor do they have any correlation with the boundaries of pastoral leases granted by the Government of the Northern Territory, pursuant to the Pastoral Land Act (NT).

8    The NLC commenced each application on behalf of the respective applicants and remains the solicitor on the record in each matter. In addition to commencing the subject applications, the NLC also commenced numerous other polygon claims in the same years. The other applications are not the subject to this decision. That is because determinations of native title have been made on the existing or new applications in respect of the areas which were the subject of some 43 polygon claims, because it is likely that there will be determinations on new applications in relation to the areas of others in the relatively near future, or because of other factors which it is not necessary to specify presently.

9    The circumstances in which the polygon claims were originally filed does not appear in the affidavit material, although, as I have indicated, they did follow the proposed grant or grant of mining tenures over the areas to which they relate.

10    As already noted, originally the Court listed 27 applications for consideration of dismissal. However, at the hearing the Court granted leave to the applicants in 10 proceedings to discontinue them. The full list of the applications listed for consideration of dismissal, including those which have since been discontinued, is contained in the following table.

11    There is one additional member of Group 3 which is not the subject of this judgment. That is NTD6019/2001 (Chattahoochie).

12    In respect of two matters in Group 11, the NLC has sought, but has been unable to obtain, instructions to discontinue the claims. They are NTD6015/2000 Mary River West Portion 4410 and NTD6018/2000 Mary River. There is no current future act activity affecting the areas which are the subject of those claims. Counsel for the applicants said that he did not wish to contend that dismissal of those matters was inappropriate.

13    The three matters in respect of which the NLC sought further time in which to obtain instructions for discontinuance are NTD6018/2011 (Bonrook), which is in Group 11, and the town claims, NTD6014/1999 (Middle Arm) and NTD6025/2000 (Town of Weddell). The Court acceded to the NLC’s request and the circumstances of those applications do not form part of this judgment.

14    The NLC resisted the dismissal of the remaining 12 claims.

The listing of the dismissal hearing

15    The Court conducts a callover every six months of all the native title proceedings filed by the NLC in the Northern Territory Registry. At several of the callovers, the Court has expressed its concern about the lack of prosecution of the claims and has warned the parties of its possible intervention.

16    Eventually, on 27 October 2016, the Court ordered:

(1)    The applications in Group 3 other than NTD6019/2001 Chattahoochie, and the whole of the applications in Groups 7, 11 and 12 claims are adjourned to 10.30 am on Friday 10 March 2017 for hearing of submissions as to why they should not be dismissed in the exercise of the Court’s powers pursuant to rr 1.40 and 5.22 of the Federal Court Rules 2011 (Cth), that is, in effect, dismissed for want of prosecution.

…

(3)    Any Respondent party who wishes to be heard at that hearing is by 4 pm on 15 February 2017 to file and serve a notice to that effect and, in the absence of such a notice, the Court will assume that the party takes a neutral stance on the question of whether the application should be dismissed for want of prosecution.

17    Neither the Northern Territory nor the Commonwealth made any submissions. I will address later the significance of that circumstance. Consolidated Pastoral Company Pty Ltd (CPC) was the only respondent to make submissions. Those submissions concerned two members of Group 12, namely, NTD6009/2002 (Dry River) and NTD6011/2002 (Willeroo-Delamere). I will refer later to the submissions made by CPC.

18    Mr Tom Petherick filed affidavits in relation to the three Group 7 claims. It is evident that Mr Petherick is dissatisfied with aspects of the NLC’s conduct concerning those claims. However, the subject matter of his affidavits did not bear upon the issue presently before the Court. Some of the affidavits were also filed without leave, after the Court had reserved its decision. I have not had regard to those affidavits.

The Court’s powers

19    Rule 5.22 provides for the circumstances in which a party will be “in default”. This includes the circumstance in which a party fails “to prosecute or defend the proceedings with due diligence”.

20    Rule 5.23 provides that, when it is an applicant who is in default, a respondent party may apply to the Court for an order (relevantly) that the proceeding be stayed or dismissed in whole or in part and immediately or upon the satisfaction of specified conditions.

21    By r 1.40, the Court may exercise a power mentioned in the Rules “on its own initiative”. The power to dismiss in r 5.23 is one of those powers.

22    The discretion conferred by Rules such as r 5.23 is broad and unconfined: Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520, (1990) 27 FCR 388 at 396; Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [14]. In Lenijamar, Wilcox and Gummow JJ said, in respect of a predecessor of r 5.23, at 395-6:

[T]he power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

…

[T]wo situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. … .

23    There are several instances of the power to dismiss for want of prosecution being exercised in the native title context. These include Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8; Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073; MT (dec’d) v Western Australia [2015] FCA 697; and Galway v Victoria [2015] FCA 497. Several of these cases concerned prolonged inactivity by applicants in pursuing their claims. Thus, in MT (dec’d) v Western Australia, Barker J said at [91]:

This then is not a case where there is some passing default that can be remedied, easily or otherwise. This is not a case where there is some technical failure to comply with orders made. This is not a case where a party comes forward and, by reference to satisfactory explanation, seeks an indulgence to remedy its default. Rather, this is a case where nothing of substance has been done by the applicant in advancing the case since the Bagshaw Report was made available to it and its constituent members more than 10 years ago, and nothing is likely to be done in that regard.

24    In Galway v Victoria, North J said at [6]:

The decision to strike out the matter does not reflect upon the existence or otherwise of any native title rights which the group or the individual groups may have. Rather, this is a procedural decision which is based on the fact that the application has been on foot without significant progress for such a long time. The order to strike out the application is made because without progress it would be wrong to keep the parties returning to the Court for no good reason. … .

25    Finally, in Atkinson v Minister for Lands, Jagot J said at [25]:

The diligence of the applicants in pursuing their funding application is also not to the point. These proceedings are not about funding. These proceedings concern the applicants’ substantive claims for native title over the subject land. The applicants, having been permitted to exhaust every opportunity to obtain funding to support the making of their claims, either are or are not in a position to prosecute those claims in these proceedings. If, as the history of the proceedings suggest, the applicants are not able to do so, then it is contrary to the interest or justice to permit the proceedings to consume yet more time and resources with no real end in sight.

26    The matters giving rise to the Court’s consideration of whether to exercise the power to dismiss, on its own initiative, the present applications are set out in the next section of these reasons.

The procedural course

27    From their respective commencements until 2007, each application was, in accordance with the arrangements then applicable, primarily managed by the National Native Title Tribunal (the NNTT). On 13 March 2007, Mansfield J made orders pursuant to s 86C of the NT Act for mediation in relevant matters to cease. This Court took over the primary management of the applications, as well as the other native title applications filed in the Northern Territory Registry. There were a large number of these applications.

28    Shortly thereafter, and following a series of directions hearings and meetings, the Court allocated the various applications into groups. Fifty five applications were the subject of advice by the Native Title Registrar under s 66C of the NT Act. The Court considered whether it was required to dismiss any of the applications having regard to the terms of s 94C(2) and (3) of the NT Act, but decided that orders to that effect were not necessary: Button Jones (on behalf of the Gudim People) v Northern Territory of Australia [2007] FCA 1802. Mansfield J outlined in Button Jones the strategy the Court had adopted with respect to the progressing of the claims:

[15]        A strategy to address and manage the many applications for the determination of native title under s 61 of the Act was adopted by the Court following directions hearings and user group meetings. The parties to those many applications, which include the 55 applications the subject of the two reports from the Registrar, participated in that process from time to time, including the various applicants, the representative bodies, the Northern Land Council and the Central Land Council, the Northern Territory, the Commonwealth and the various respondents.

[16]        That strategy involved grouping the various applications into categories to the intention that a “lead matter” in each category be progressed to resolution in as timely a manner as practicable, so that issues common to the applications in that category would be heard and determined if they could not be resolved by mediation and by agreement. It was then expected that the other applications within that category would, subject to issues peculiar to it, be able to be resolved by agreement between the parties, assisted to the extent desirable by ongoing Court supervision through directions given as appropriate and by mediation also as appropriate. The “lead” matters in the categories in which each of the 55 applications now under consideration fall have now resolved or are about to resolve, or there are other circumstances indicating the prospect of this timely resolution. It is therefore expected that there will be a progressive resolution of those claims, or many of them, with the passage of time and without the need for further hearings. …

(Emphasis added)

29    Later, at [24], Mansfield J said:

At present, I do not consider the power in s 94C(1) is available to be exercised in relation to any of them because the condition for its potential exercise specified in s 94C(1)(e) is not satisfied. It is clear from the matters referred to above that there are no directions in relation to the 44 Pastoral matters referred to in the Registrar’s reports which those applicants have failed to comply with. It is also clear that the Court does not presently consider that the applicants in those matters have failed within a reasonable time to take steps to have those claims resolved. The strategy for consideration and resolution of the s 61 claims in the Northern Territory means that now the Court will expect that the decision in King [2007] FCA 944 will provide a foundation or springboard to the progressive resolution of many of the Pastoral matters, including the 44 referred to by the Registrar, in the proximate future. The Court will review the parties’ progress in that regard in due course.

(Emphasis added)

30    As can be seen, the Court’s expectation was that there would be a progressive resolution of the applications. It was thought that the identification of groups and lead claims would facilitate that. In King v Northern Territory of Australia [2007] FCA 944 to which Mansfield J referred, the Court had, in relation to six “lead” matters (or parts thereof), determined a number of issues which were capable of general application, and the hope was that this would facilitate the resolution of the other claims.

31    In February 2008, pursuant to orders made by Mansfield and Reeves JJ on 27 February 2008 and subject to some exceptions which are currently immaterial, the Registrar circulated to the applicants for native title in pastoral claims, a memorandum containing proposed groupings of those claims in which there was “a common or substantially common native title claim group for the balance of the pastoral claims”.

32    The Court has sought to progress the grouped applications in an orderly and timely way. On 26 March 2008, Reeves J ordered that the pastoral claims be heard in 10 groupings. Reeves J also fixed 23 April 2008 as the time by which the Northern Territory should indicate any special defences to the newly grouped claims (or the time it required to identify those defences) and by which the NLC should specify with precision the native title rights and interests which the applicants would assert in relation to each claim. On 6 May 2009, Reeves J made orders that the parties in seven groups were to provide a proposed priority listing with a view to programming at least two pastoral groups for determination each year. Over the years, the number and composition of the groups has changed in the light of new information and new understandings.

33    In August 2008, the aim of the principal parties was to have all claims resolved within five years.

34    At a hearing on 16 September 2009, the decision was made to adopt a “pastoral lease” approach, rather than native title being determined by reference to the area of each polygon claim. A number of considerations indicated that this was a sensible course, and it had the support of the parties including the Northern Territory Cattlemen’s Association (the NTCA). This approach contemplated new claims being filed for areas corresponding with the pastoral leases and, on the making of determinations, the existing polygon claims being discontinued. At the same time, the Court was given a program which contemplated all claims being finalised by 2014.

35    Since that time, there have been continual slippages in the progress of the matters for resolution, as the following programs for the resolution of the claims illustrate:

36    Still further slippages have occurred. At the planning day conducted on 28 May 2014, a revised timetable was adopted as follows:

By mid-July 2014, five more Group 9 claims to be filed with anthropology reports to be provided shortly thereafter.

By end 2014, first half Group 1 consent determinations to be effected.

By mid-2015, meetings to be held for first half of Group 2.

In July-November 2015, meetings to be held for second half of Group 2.

By end September 2015, CDs to be agreed in balance of Group 1, Group 9 and first half of Group 2 claims.

In 2016, CDs to be held in balance of Group 2 and Group 10 claims.

In 2015 and 2016, consider processes for addressing Group 3 and then Groups 1, 2, 9 and 10 claims.

37    At that same planning day, the NLC agreed to identify those claims in which the applicants would not suffer any prejudice if the claims were discontinued and then to discontinue them. It recognised that this would have the advantage of the Court retaining only those applications requiring active prosecution. However, that process, if it was carried out, did not result in the discontinuance of any claims.

38    Since 2014, the Court has been pressing the parties, and in particular the NLC on behalf of the applicants, to prosecute more diligently the outstanding claims. By way of illustration, I set out some of the comments made by the Court at the more recent callovers.

39    At the callover on 13 April 2016, the Court referred Groups 3, 7, 11 and 12, Town of Weddell and Middle Arm to case management by a Registrar with a view to addressing the need for the matters to remain current. In addition, the Court ordered the NLC to file and serve an affidavit in respect of each group and the two towns deposing to the facts, matters or circumstances which could support the matters remaining current and setting out a timetable for their disposition within a reasonable timeframe.

40    In compliance with those orders of 13 April 2016, the NLC filed separate affidavits from Mr O’Donnell, its principal legal officer, in relation to each of Groups 3, 7, 11 and 12 and the Town of Weddell and Middle Arm. All the polygon claim affidavits were made on 31 August 2016 and took a similar form. The affidavits in relation to the two towns were filed on 1 September 2016. In each affidavit, Mr O’Donnell deposed that the applications had not progressed at all since the callover on 13 April 2016 and that the NLC had no timeframe for their resolution. However, later in the affidavits, Mr O’Donnell deposed that he had been advised that the matters were scheduled to be finalised “2018 or beyond”. He went on to depose that the NLC had had insufficient staff and financial resources since April 2016 to take instructions from the claim groups and sought a further opportunity to do so. He anticipated that the NLC would be able to take the instructions “before the end of this financial year”. Finally, Mr O’Donnell provided a summary of other matters in the case load of the NLC to which it had been attending in 2015 and 2016.

41    In addition, in an affidavit made on 20 October 2016, Ms Gibson, a solicitor employed by the NLC, deposed to arrangements made with the anthropologist Ms English in relation to Group 3 pursuant to which Ms English would, by July 2017, carry out initial desktop research and field work in respect of seven pastoral leases and would, subject to the allocation of sufficient funds to the NLC’s native title budget for the 2017/2018, 2018/2019 and 2019/2020 financial years, provide to the NLC by 31 December 2017 a final draft short form report in respect of those seven pastoral leases. Subject to the same contingency, Ms English would by 31 May 2019, carry out initial desktop research and field work in relation to another four pastoral leases within Group 3 and would, by 31 December 2019, provide the NLC with final draft short form reports concerning those leases. On that basis, it was apparent that it would not be until at least 2020 that the Northern Territory Government and the other respondents could consider the draft short form reports for the whole of the Group 3 pastoral leases. Ms Gibson’s affidavit did not disclose when the NLC contemplates filing any new applications in respect of the claim areas.

42    The NLC also filed affidavits from another solicitor, Ms Deans, concerning some future act activity affecting some of the applications. I will refer shortly to some of that material.

43    In summary, the NLC contemplated only some steps in relation to some of the applications comprising Group 3 and did not provide any timetable at all for progressing Groups 7, 11 and 12, the Town of Weddell and Middle Arm.

44    In those circumstances, the Court made the orders set out earlier in these reasons to the effect that the Court would, on 10 March 2017, hear submissions as to why the applications in Groups 3, 7, 11 and 12, Town of Weddell and Middle Arm should not be dismissed for want of prosecution with due diligence.

45    The NLC relied on a number of further affidavits at the hearing on 10 March 2017, to which I will refer shortly. I observe, however, that in none of those affidavits did the deponents depose to any work carried out by the NLC in the nature of prosecution of the Group 3, 7, 11 and 12, Town of Weddell and Middle Arm claims and, with the exception of Ms Gibson’s affidavit of 20 October 2016, depose to any arrangements for their future prosecution. In those circumstances I infer that no preparation work has been carried and that, with the exception of the arrangements with respect to the Group 3 applications to which Ms Gibson deposed, the NLC has no arrangements in place by which to do so.

Future acts

46    The principal basis upon which the NLC, on behalf of the applicants, resisted the dismissal of the proceedings pursuant to r 5.23 was that, while current, the applications provided the claimants with standing to negotiate with respect to future acts, pursuant to Subdiv P of Div 3 of Pt 2 of the NT Act. The NLC emphasised that part of the policy of the NT Act is to vest in registered claimants the right to negotiate in respect of future acts and that these are valuable rights. It also submitted that the Court should take account of the fact that the course of negotiation of agreements pursuant to s 31 can be protracted. In these circumstances, the NLC contended that it would be inappropriate for the Court to dismiss matters in which there are current future act negotiations or in which there is some prospect of negotiations occurring in the future.

47    These submissions make it appropriate to have regard to the evidence before the Court concerning future acts. I summarise below the evidence concerning the future acts relating to each application.

Group 3

NTD6062/2001 (Roper Valley North)

EP 162

    The Court has not been given any information regarding Exploration Permit 162 (EP 162) other than that it was granted on 21 August 2012 and is presently held by Santos – QNT Pty Ltd and Tamboran (Beetaloo) Pty Ltd.

ML 27422

    Mineral Lease 27422 (ML 27422) was granted to Australian Ilmenite Resources Pty Ltd (AIR) on 22 December 2011. Another mineral lease (ML 29042) was granted on 22 September 2013. They form part of an ilmenite mine and processing facility.

    In about June 2012, AIR constructed a pipeline (Pipeline No 1) and an access road from the ilmenite mining project on MLs 27422 and 29042 to the Roper Highway and Roper River. These traverse the area which is the subject of the claim in the Roper Valley North application. The NLC asserts that the construction of Pipeline No 1 and the access road was unlawful as it was carried out without the consent of the native title claimants – see s 84 of the Mineral Titles Act 2010 (NT).

    On 8 and 9 September 2016, AIR gave notice of its intention to apply to the Minister for Mines and Energy in the Northern Territory, pursuant to s 84(2) of the Mineral Titles Act, for an access authority in respect of Pipeline No 1 and a second pipeline (Pipeline No 2) over areas which are the subject of the claims in NTD6019/2001 (Chattahoochie) and Roper Valley North. Ms Gibson deposed in October 2016 that the NLC was “currently negotiating” an indigenous land use agreement (ILUA) with AIR in relation to the access authority. In her affidavit of 15 February 2017, Ms Gibson deposed to further meetings with representatives of AIR, which has now indicated that it wishes to negotiate an ILUA with respect to Pipeline No 1 and to obtain an access authority with respect to Pipeline No 2.

Group 7

NTD6004/2002 (Welltree)

NTD6060/2001 (Lower Reynolds River)

NTD6029/2002 (LaBelle Downs)

EP 218

    A petroleum exploration permit (EP 218) was issued to Arafura Oil Pty Ltd (Arafura), a subsidy of Australian Oil and Gas Pty Ltd (AOG). EP 218 extended over the areas which are the subject of these three claims. The notification date pursuant to s 29 of the NT Act was 22 February 2012. Receivers were appointed to AOG on 28 July 2014 and its assets, including Arafura, were sold to MacMines Austasia Pty Ltd (MacMines) on 3 March 2016. The NLC did not provide evidence of any attempts to negotiate a s 31 agreement in the period between 22 February 2012 and 28 July 2014.

    NLC solicitors have met with representatives of MacMines about EP 218 (and other EPs held by MacMines) on 14 April 2016, 17 August and 26 October 2016, and on 31 January 2017. The discussions concerned the negotiation of agreements pursuant to s 31 of the NT Act. However, it is unclear whether MacMines will be able to proceed with any activity pursuant to the EP given the moratorium imposed on 14 September 2016 by the Government of the Northern Territory on hydraulic fracturing of unconventional gas reservoirs until the outcomes of a comprehensive independent scientific enquiry into the social and environmental impacts of hydraulic fracturing have been considered. Ms Gibson has deposed that MacMines has indicated a willingness to continue negotiation of agreements despite the moratorium. However, while the moratorium is in place it does not seem that the applicants will suffer any prejudice.

Group 11

NTD6018/2000 (Mary River)

    In an affidavit made on 20 October 2016, Ms Deans, a NLC solicitor, deposed that the area to which this application relates was the subject of four future act notices, ML 24269, ML 27230, ML 29562 and ML 29535. However, in her affidavit made on 15 February 2017, Ms Gibson deposed that there are no future act notices affecting the area of this application and, as already noted, at the hearing on 10 March 2017, counsel for the applicants said that he did not wish to contend that dismissal of this application would be inappropriate.

NTD6029/2000 (Mount Ringwood)

ML 29978

    The area the subject of NTD6029/2000 is affected by one future act notice, being an application for ML 29978. The ML applicant, CR & E Pty Ltd had an intention to conduct an alluvial gold mining project in the area. CR & E Pty Ltd did not respond to communications from the NLC in November 2015 and it seems that, for a period of about 14 months, nothing was done to pursue an ILUA. Ms Gibson telephoned CR & E Pty Ltd in February 2017 and was informed that it does intend to pursue its application. I infer that Ms Gibson’s contact in February 2017 was prompted by the prospect of dismissal of the application in NTD6029/2000. On the evidence before the Court, it is not certain that CR & E Pty Ltd will pursue its application and, if it does, the timeframe in which it may do so. It is accordingly, unclear whether the applicants in this matter would suffer any prejudice if the application is dismissed.

NTD6006/2001 (Mary River West)

    In an affidavit made on 20 October 2016, Ms Deans deposed that there were 13 current future act notices affecting the area which is the subject of NTD6006/2001. However, Ms Gibson deposed on 15 February 2017 that there are four.

EP 219

    The position with respect to EP 219 is the same as that for EP 218 to which I referred in connection with the Group 7 matters.

ML 29540

    McKinlay River Mining Pty Ltd (MRM) applied for ML 29540 on 6 November 2013. However, a representative of MRM has informed the NLC that it does not intend to carry out mining on ML 29540 but has sought the grant because the tenement is part of a group of tenements upon which an alluvial mining operation was developed in the 1990s and contains infrastructure which makes its inclusion necessary to attract investment. That information was provided to the NLC on 25 March 2016 but nothing was done after that date to pursue the negotiation of a s 31 agreement. The NLC did write again to MRM on 13 February 2017. I infer that that action was prompted by the imminent hearing in this Court on 10 March 2017.

ML 30125

    The application for ML 30125 in favour of David Langley and Sean Davis was notified on 16 June 2014. Since then, the action taken appears to be of a desultory kind. By letter dated 11 February 2016, the NLC invited Mr Langley and Mr Davis to negotiate a s 31 agreement. The response to that letter came on 4 October 2016 with a request by an agent of Mr Langley and Mr Davis for a cost estimate for a site survey of ML 30125 to identify any sites or places of significance which the native title claimants propose be excluded from any s 31 agreement. The NLC did not provide that cost estimate until 14 February 2017. It is not certain that Mr Langley and Mr Davis will proceed with the application and, if so, the timeframe in which they will do so. However, having regard to the circumstances of the next ML to be considered (ML 29944), it is not necessary to consider that question further.

ML 29944

    Territory Iron Pty Ltd has a number of mineral and exploration tenements immediately surrounding ML 29944 which formed a mining project known as the Frances Creek Mine. That mine was placed into “care and maintenance” in 2014. Territory Iron has, by letter dated 12 January 2017, confirmed that it does not propose any mining activity over the area of ML 29944 but does wish to use the area for environmental management purposes, including water management and sediment control. It has confirmed its willingness to negotiate a s 31 agreement with the native title claimants and meetings have been arranged for that purpose.

    Having regard to the circumstances relating to ML 29944, I am satisfied that the native title claimants would suffer some prejudice if the application is dismissed.

NTD6021/2001 (Ban Ban Springs)

    In her affidavit made on 20 October 2016, Ms Deans deposed that there were 12 future act notices affecting the area which is the subject of NTD6009/2002. However, in her affidavit of 15 February 2017, Ms Gibson deposed that there are only two.

ML 30013

    ML 30013 was applied for by Mr Arthur Eggleston and was notified on 4 July 2013. Ms Gibson has deposed that representatives of the NLC and of the Department of Mines and Energy in the Northern Territory have had discussions between each other and with Mr Eggleston regarding the appropriateness of the tenure sought by Mr Eggleston.

    On 6 February 2017, the Northern Territory Government gave notice of an application by Mr Eggleston for the grant of ML 30013 to include tourist fossicking. The notification period was to close on 9 April 2017. The NLC wishes to negotiate an ILUA in respect of ML 30013. Despite the long period which has elapsed since the original notification, it is evident that the NLC has not had the opportunity to do so in relation to the notification of 6 February 2017.

ML 29987

    The application for ML 29987 by Outback Metals Pty Ltd was notified on 2 November 2016. The NLC did not write to Outback Metals in relation to a proposed s 31 agreement until 7 February 2017, but I accept that it has had insufficient opportunity to negotiate such an agreement.

NTD9/2004 (Jindare)

    The only current future act notice affecting the area which is the subject of NTD9/2004 is EP 219, to which I referred in relation to Mary River West (NTD6006/2001). There is no indication of any current activity in relation to EP 219.

NTD20/2004 (Edith River)

    The only current future act notice affecting the area which is the subject of NTD20/2004 is EP 219. I have already referred to the details of EP 219.

NTD6015/2000 (Mary River West Portion 4410)

    The only future act affecting this claim was a notice of proposed acquisition of land by the Northern Territory dated 27 July 2000. However, on 25 October 2016, the solicitor for the Northern Territory informed the NLC that the Minister would give notice of abandonment of the proposed acquisition. Ms Gibson has deposed that on receipt of the notice, the NLC intends to seek instructions from the applicant to discontinue NTD6015/2000. This is one of the two matters in which the NLC has sought but not yet obtained instructions to discontinue. Counsel did not wish to make any submission against dismissal of the application.

Group 12

NTD6049/2001 (West Mathison)

NTD6009/2002 (Dry River)

NTD6011/2002 Willeroo-Delamere

    Although the Group 12 applications have been the subject of previous future act claims, there is, in relation to each of the three applications comprising Group 12, only one current future act. That is EP 220 for which Arafura is the applicant. The application was notified on 22 February 2012. The circumstances of EP 220 are the same as those for EP 218 which I described above in relation to Group 7.

Conclusion concerning future acts

48    In my opinion, it is inappropriate for applications which are not being prosecuted with reasonable diligence to remain on foot because of the possibility that, at some time, some future act may be proposed in relation to the claim area or an agreement may be negotiated. The Court should be more concerned with situations in which the evidence discloses that the dismissal would, or is likely to, have some practical effect on the claimants.

49    On that basis, I am satisfied that a dismissal now of NTD6062/2001 (Roper Valley North) is likely to cause some prejudice to the current negotiations for an ILUA in respect of that claim area. A further consideration is that the negotiations with AIR concerning Roper Valley North relate also to NTD6019/2001 (Chattahoochie) which is not presently the subject of consideration of dismissal for want of prosecution with due diligence.

50    Likewise, I am satisfied that the present dismissal of NTD6006/2001 (Mary River West) and NTD6021/2001 (Ban Ban Springs) may cause some practical detriments. On the evidence, I am not satisfied that the present dismissal of the remaining matters would cause sufficient practical prejudice so as to cause the Court to refrain from dismissing the applications for want of prosecution with proper diligence if that course is otherwise warranted.

Other matters

51    In addition to the effect on future acts, the NLC relied on other matters. First, it referred to the limited financial and human resources available to it with which to prosecute the claims. The NLC submitted that the history of native title claims in the Northern Territory suggests that native title is likely to be established in most, if not all, of the applications presently under consideration if it be necessary for them to go to trial on the issue of connection. It attributed the fact that the consent determinations have not been negotiated in respect of the subject applications to the limited human and financial resources available to it and to corresponding limitations on the resources of other parties to the claim. It has to be said that the NLC provided very little by way of evidence to support this claim. Instead, the submissions were made in a conclusionary way. However, the Court has some general knowledge of the way in which representative bodies are funded.

52    Generally, while the Court has in a practical way taken account of the exigencies of the funding arrangements for the pursuit of claims for the determination of native title, it has not regarded funding difficulties as a decisive consideration. Thus, in Bennell v State of Western Australia [2004] FCAFC 338 at [37], the Full Court (Wilcox, French and Finn JJ) said at [37]:

It is important to make the general point that the programming of native title matters in the Court’s docket cannot be determined by the decisions of funding agencies or the views of representative bodies, the State or any other parties about appropriate priorities. These are all matters to be taken into account in setting realistic timeframes. But if it should happen that want of funding means that some applicants will be unrepresented at trial that is not a bar to proceeding with a trial although it will raise obvious difficulties in the management of trial process.

And in Kokatha Native Title Claim v State of South South Australia [2006] FCA 838, Finn J said at [10]:

Thirdly, the funding issue is one common to all of the present claimant groups. At earlier directions hearings in this matter I have indicated my view that a lack of funding cannot be relied upon to freeze proceedings otherwise appropriate for and requiring resolution. I have equally expressed my regret at the misfortune faced by applicants because of the funding arrangements being as they are. Whatever the justifications for the policies of the Executive Government in relation to funding native title claims, those policies cannot paralyse the processes of the Court once its jurisdiction has been invoked. In saying this I am not unmindful that claimant groups may well find themselves in a position of utmost difficulty in preparing for trial and that this may well jeopardise their prospects of proceeding in any event. …

See also Atkinson v Minister for Lands at [25] (set out earlier in these reasons), Levinge v Queensland [2012] FCA 1321; (2012) 208 FCR 98 at [18]-[19] and Agius v State of South Australia (No 4) [2017] FCA 361 at [78]-[80].

53    In the present case, I consider it inappropriate to attach any significant weight to the financial difficulties to which the NLC has referred. These matters have been on foot for so long that the applicants and the NLC have had more than an adequate opportunity in which to address those difficulties. Further, the NLC and the applicants have previously provided programs to the Court for the resolution of the claims which, it can reasonably be inferred, took account of any funding difficulties then being faced.

54    Next, the NLC submitted that it was significant that the Northern Territory Government had not appeared before the Court to contend that the applications should be dismissed for want of prosecution. This meant, counsel submitted, that the Court could proceed on the basis that it took the view that the public interest was being adversely affected by these matters remaining current.

55    I do not regard this as a significant consideration. As indicated earlier, the orders made on 27 October 2016 provided that those parties who did not file a notice of intention to appear at the hearing on 10 March 2017 would be presumed to take a neutral stance in relation to the dismissal of these matters. Further, I regard it as significant that neither the Northern Territory nor the Commonwealth Governments (who are in a position to speak to the public interest) has wished to submit that the public interest will be adversely affected if these matters are dismissed.

56    In any event, neither the Northern Territory Government nor the Commonwealth Government are the sole spokespersons for the public interest. The Court has a responsibility, in the interests of the public, to see that litigation in the Court is conducted with reasonable efficiency and expedition and with the least delay and expense as is practical. This responsibility reflects the interests of the litigants in the particular litigation before the Court, the interests of the litigants before the Court more generally, and the interests of the public in the efficient and effective administration of justice. In recognition of these interests, the Court seeks to maximise the utilisation of the significant resources which the public has placed in it, to avoid the prejudice to other litigants which may be caused by consequential delays to the hearing and determination of their cases, and to protect litigants in the particular case against cost and delay. See AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [92]-[93], [98]. The “overarching purpose” of this Court’s civil practice and procedure provisions, as stated in s 37M of the Federal Court of Australia Act 1976 (Cth), reflects these considerations.

57    As indicated earlier, CPC appeared before the Court and opposed the dismissal of two of the applications in Group 12, namely, NTD6009/2002 (Dry River) and NTD6011/2002 (Willeroo-Delamere). It has owned and operated Manbulloo Station which encompasses the areas of these two claims, since 1994. Manbulloo Station, a 379,131 ha property, is used for cattle breeding and as a holding depot for feeding cattle before export. CPC’s Chief Development Officer, Ms Cannon, deposed that CPC “feels neither judicial prejudice nor financial disadvantage in keeping these matters active”. Mr Stephens for CPC elaborated the reasons why CPC considers that it does not suffer financial disadvantage if the two applications remain current even though not being prosecuted. In addition, he made the point that it can be helpful for CPC to have registered claimants and a representative body of those claimants when addressing issues which arise from time to time in the operation of Manbulloo Station.

58    I found Mr Stephens’ submission helpful and have taken into account the matters to which he referred. They are not of course conclusive as the Court’s consideration is not confined to the effects of the applications on one respondent.

Conclusion

59    I have reached the conclusion that, other than in the case of NTD6062/2001 (Roper Valley North) in Group 3 and NTD6006/2001 (Mary River West) and NTD6021/2001 (Ban Ban Springs) in Group 11, the applications should be dismissed. They have been on foot for a very long time without any action being taken to prosecute them or to prosecute replacement applications based on the pastoral leases over the areas to which they relate. In fact, it is improbable that the applications will ever be prosecuted because of the likelihood that they will be replaced with applications which correspond to the boundaries of the pastoral leases to which they relate. The applicants have not adhered to programs previously given to the Court for their progressive resolution in a timely way. It seems that, despite the applicants having indicated to the Court the times within which they expected to resolve their claims, they have made no attempt to meet the timeframes they themselves nominated. Even now, and in light of the Court’s warnings that it may take action of the present kind, the applicants (with the limited exception of some in Group 3) have taken no steps to prosecute the claims or to indicate to the Court that they will do so within a reasonable period. The lack of progress is not attributable to the remoteness of the communities, to difficulties in communications or in obtaining instructions or to other exigencies arising from the applicants’ locations. The matters to which CPC referred do not persuade me that a different conclusion is appropriate in relation to NTD6009/2002 and NTD6011/2002.

60    The dismissal of the claims on the basis that they have not been prosecuted with reasonable diligence is not a decision on the merits of the claim and will not give rise to an estoppel in any subsequent proceedings brought by the applicants which are properly prosecuted: Western Australia v Fazeldean (on behalf of Thalanyji People) (No 2) [2013] FCAFC 58; (2013) 211 FCR 150 at [27]-[28], Atkinson v The Minister at [26] and Foster v Northern Territory of Australia [2015] FCA 38 at [17].

61    The dismissal of proceedings for want of prosecution with reasonable diligence is a significant step. That is especially so in relation to the proceedings for the determination of native title. I recognise that native title litigation is not the same as ordinary private inter partes litigation, as it involves claims for the vindication of rights of a communal nature based on physical and spiritual connections over land and waters which may have existed for time immemorial: Western Australia v Fazeldean at [34].

62    Acting with the caution that is appropriate in these circumstances, I am nevertheless satisfied that the Court should now order that the following applications be dismissed because of the applicants’ failure to prosecute them with reasonable diligence.

63    I will hear from the parties further in relation to NTD6018/2001 (Bonrook), NTD6014/1999 (Middle Arm) and NTD6025/2000 (Town of Weddell).

64    I am not making orders for the dismissal of NTD6062/2001 (Roper Valley North), NTD6006/2001 (Mary River West) and NTD6021/2001 (Ban Ban Springs). Those matters are adjourned to the callover on 20 October 2017. The Court will continue to closely monitor the progress of these applications.

Associate:

Dated:    5 May 2017

SCHEDULE OF PARTIES