FEDERAL COURT OF AUSTRALIA

Henwood v Northern Territory of Australia [2017] FCAFC 182

ORDERS

THE COURT ORDERS THAT:

1.    Time be extended and the applicant has leave to appeal.

2.    The appeal be dismissed.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The applicants seek an extension of time and leave to appeal in respect of the decisions of a single Justice of the Court to dismiss nine native title applications under rr 1.40 and 5.23 of the Federal Court Rules 2011 (Cth) (FCRs). In dismissing the applications, the Court acted of its own motion. The applicants contend that the primary judge’s exercise of discretion in dismissing their applications for native title determination miscarried on nine grounds, which will be developed below. (These reasons initially refer to the applicants on the interlocutory application as the “applicants”, but then refer to them as the “appellants” in respect of their appeal.) All nine applicants joined in a single application for an extension of time and leave to appeal (ie NTD 23 of 2017).

2    The proposed appeal raises important issues concerning the interaction between the power of the Court to dismiss an application where there has been a failure to prosecute the proceedings with due diligence and the operation of relevant provisions of the Native Title Act 1993 (Cth) (the NT Act). In particular, those provisions relate to the right of the applicants to negotiate with respect to future acts under Subdiv P of Div 3 of Pt 2 of the NT Act. The Full Court was satisfied that these were appropriate cases to extend time and grant leave to appeal. Accordingly, it is sufficient to address the substantive merits of the appeals.

3    Before doing so, it should be noted that all of the respondents filed submitting appearances. None indicated a desire to take an active role in the proceedings. Accordingly, and regrettably, there was no contradictor. In addition, the Commonwealth Attorney-General indicated that he did not wish to intervene under s 84A(1) of the NT Act.

Summary of background facts and the primary judgment

4    Initially, there were 27 native title applications which the Court invited the parties to show cause why the proceedings should not be dismissed for want of prosecution. Ten of those proceedings were subsequently discontinued. The applicants in three other proceedings were allowed further time in which to consider their discontinuance. Of the 14 remaining matters, the primary judge determined that all but three should be dismissed. The applicants in two of those 11 dismissed matters have not sought to challenge their dismissal. Accordingly, the appeal relates to nine proceedings, all of which were commenced in the period 2000-2004.

5    For reasons explained by the primary judge in [32] of his reasons for judgment, which are reported as Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461, the applications, which were all brought by the Northern Land Council (NLC) on behalf of the appellants, were grouped. The nine applications fell into one of Groups 3, 7 11 and 12.

6    The primary judge described how the applications were known as “polygon” claims. This was because they were made following notifications under s 29 of the NT Act and the fact that the areas to which the applications related conformed to the irregular boundaries of mining tenures granted or proposed to be granted by the Northern Territory Government pursuant to that Territory’s mining and petroleum legislation. The boundaries have no correlation with the areas over which native title rights and interests may exist, nor do they correlate with the boundaries of pastoral leases granted under the Pastoral Land Act 1992 (NT).

7    The NLC commenced numerous native title applications involving polygon claims on behalf of multiple applicants, including the nine relevant applications. The NLC is a representative body for the purposes of Pt 11 of the NT Act and is the solicitor on the record in each matter. As will shortly emerge, part of the explanation for the failure to prosecute the matters was said to relate to the NLC’s limited resources and funding.

8    The primary judge referred to several earlier cases in which the power to dismiss for want of prosecution was exercised in a native title context. His Honour noted at [23] that several of the cases concerned “prolonged inactivity by applicants in pursuing their claims”.

9    The primary judge traced the procedural background to the applications. Relevantly, he noted that, prior to 2007 when the Court took over primary management of the matters, they were being managed by the National Native Title Tribunal, together with numerous other native title applications which had been filed in the Northern Territory Registry. His Honour summarised the history of the Court’s attempts to have the applications progress in an orderly and timely way. This included orders made by the Court on 26 March 2008 that numerous pastoral claims in the Northern Territory should be heard in ten separate groupings. In September 2009, a decision was made to adopt a “pastoral lease” approach, rather than native title being determined by reference to the area of each polygon claim. The Court was given a program by the NLC which contemplated that all claims would be finalised by 2014. The primary judge noted, however, that there were continual slippages and that, at a planning day held on 28 May 2014, a revised timetable was adopted with the intention of progressing various claims, including identifying applications which would be discontinued as opposed to applications which required active prosecution.

10    The primary judge noted that, since 2014, the Court had taken multiple steps to press the NLC to prosecute the outstanding claims more diligently. His Honour extracted at [38] of his reasons for judgment some observations made by various Judges of the Court at callovers which highlighted the failure to progress the claims. On 13 April 2016, the NLC was ordered to file and serve an affidavit in respect of each relevant group deposing to the facts, matters or circumstances which could support the matters remaining current and proposing a timetable for their finalisation. The primary judge referred to an affidavit sworn by the NLC’s principal legal officer, Mr Michael O’Donnell, who deposed that there had been no progress in the matters since the 13 April 2016 callover and that there was no NLC timeframe for their resolution (while noting he had been advised that the matters were scheduled to be finalised in “2018 or beyond”). Mr O’Donnell also deposed that the NLC had had insufficient staff and financial resources since April 2016 to take instructions from the applicants and he sought a further opportunity to do so.

11    The primary judge summarised other affidavits sworn by NLC staff, including two affidavits by a solicitor, Ms Alexandra Gibson, and an affidavit by another solicitor, Ms Charlotte Deans, in advance of the hearing scheduled for 10 March 2017 when the Court invited submissions as to why the relevant applications should not be dismissed for lack of prosecution with due diligence.

12    At [46], the primary judge noted that the principal basis upon which the NLC resisted the dismissal of the proceedings related to the rights to negotiate in respect of future acts, which were valuable rights, and would be lost if the proceedings were dismissed. The NLC contended that it would be inappropriate for the Court to dismiss proceedings in which there were current negotiations and some prospects of s 31 agreements being reached in the future. The primary judge summarised at some length, commencing at [47], the evidence adduced by the applicants concerning the future acts relating to each application. It is unnecessary to describe the detail of that evidence here. It is sufficient to set out [48]-[50] of his Honour’s reasons for judgment, which state his conclusions on the topic of 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.

13    The primary judge addressed other matters which were relied upon by the NLC in opposing dismissal. The first was the limited financial and human resources available to the NLC. His Honour stated at [51] that very little by way of evidence was provided by the NLC to support this matter. His Honour also referred to various cases in which other judges had indicated that funding difficulties were not a decisive consideration. His Honour concluded at [53] that it was inappropriate to attach any significant weight to the NLC’s claimed financial difficulties because they had long existed and the NLC had had more than an adequate opportunity to address the difficulties. Moreover, the primary judge noted that previous programs provided to the Court by the NLC for resolving the claims presumably took account of such funding difficulties.

14    The second matter related to the significance of the fact that the Northern Territory Government had not sought to have the applications dismissed for want of prosecution. This was not seen by the primary judge to be a significant consideration, in circumstances where the Court’s orders dated 27 October 2016 provided that any party 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” on the possible dismissal of the matters. The primary judge then stated at [55] that he regarded it as significant that neither the Northern Territory nor the Commonwealth Governments sought to submit that the public interest would adversely be affected if the matters were dismissed. His Honour emphasised the Court’s own responsibility in protecting the public interest by having litigation conducted with reasonable efficiency and expedition.

15    The primary judge’s reasons for concluding that the nine applications should be dismissed are reflected in the following paragraphs of his Honour’s reasons for judgment:

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].

The appeal

16    The appellants’ amended notice of appeal is in the following terms:

Grounds of appeal

1.    The Court’s exercise of discretion to dismiss the relevant native title claims miscarried in that:

(a)    the primary judge erred in finding, in relation to EPs 218, 219 and 220, that “while the moratorium is in place it does not seem that the applicants will suffer any prejudice”;

(b)    the primary judge erred in finding that there is no indication of any current activity in relation to EP 219;

(c)    the primary judge erred in finding, in relation to ML 29978, that it is “unclear if the applicants in this matter would suffer any prejudice if the application is dismissed”;

(d)    the primary judge erred in failing to take into account relevant considerations in relation to ML 29978, namely the uncontradicted evidence:

(i)    of the recency of the notification date (4 November 2015);

(ii)    that CR & E Pty Ltd had recently engaged Complete Tenement Management for the purpose of pursuing its application for ML 29978;

(iii)    of communications between an officer of the Northern Land Council and Complete Tenement Management in February 2017;

(e)    the primary judge erred in finding that the evidence established no more than “the possibility that, at some time, some future act may be proposed in relation to the claim area or an agreement may be negotiated”;

(f)    the primary judge erred in failing to consider the lack of progress in the dismissed claims in the context of the Northern Land Council’s overall human and financial resources and workload, and its record of disposing of claims;

(g)    the primary judge erred by failing to attach any significant weight to the resourcing issues facing the Northern Land Council;

(h)    the primary judge erred by taking into account an irrelevant consideration, namely that the dismissed claims were likely in any event to have been replaced by pastoral lease claims.

2.    The Court wrongly took into account as a matter in favour of the dismissal of the relevant native title claims an extraneous or irrelevant matter, namely the fact that neither the Northern Territory nor the Commonwealth (who are in a position to speak to the public interest) made submissions to the effect that the public interest will be adversely affected if the matters are dismissed.

17    It is convenient to summarise the appellants’ submissions on the appeals by reference to the individual issues raised in the amended notice of appeal, and to respond to each of those issues in turn.

Issue 1(a): EPs 218, 219 & 220 – finding of no prejudice upon dismissal

18    This ground focussed on the primary judge’s statement in [47] of his reasons for decision where, in relation to the Group 7 matters, his Honour stated:

However, while the moratorium is in place it does not seem that the applicants will suffer any prejudice.

19    The appellants challenged this finding on the basis that it was contrary to the evidence concerning ongoing negotiations between the NLC and the new owner of the applicant for EPs 218, 219 and 220, namely MacMines Australasia Pty Ltd (MacMines). Ms Gibson swore an affidavit dated 15 February 2017 in relation to the Group 7 claims. Ms Gibson gave evidence that NLC solicitors had met with representative of MacMines on four occasions between the date on which MacMines acquired Australian Oil and Gas Pty Ltd (following its receivership) and the date of the hearing before the primary judge. Two of these meetings (14 April and 17 August 2016) pre-dated the orders made by the Court on 27 October 2016 and the other two (26 October 2016 and 31 January 2017) post-dated the commencement on 14 September 2016 of the government moratorium on hydraulic fracturing of unconventional gas reservoirs (fracking). His Honour noted Ms Gibson’s uncontradicted evidence that MacMines indicated a willingness to continue the negotiation of agreements despite the moratorium. MacMines gave this indication after Ms Cole, another of the NLC’s solicitors, had expressly raised the issue of the moratorium.

20    The appellants submitted that, despite these matters, in relation to EP 218 (and EPs 219 and 220), the primary judge found that “while the moratorium is in place it does not seem that the applicants will suffer any prejudice”, i.e. if the relevant claims were dismissed. The appellants contended that this finding was in error.

21    They emphasised that the registration of claims provides the pathway to the right to negotiate provisions in Subdiv P. While the claims were registered claims, each of the appellants was a “registered native title claimant”. By s 30(1)(a) of the NT Act, each of the appellants was a “native title party” and, by s 30A(b), a “negotiation party”.

22    The appellants submitted that the right to negotiate is, and since the enactment of the NT Act has been, an important part of its architecture. It is described in the preamble to the NT Act as “a special right to negotiate”. It is a valuable right. It is also an element of the protection of native title which is one of the main objects of the NT Act and is not to be narrowly construed, so the appellants submitted.

23    Once a registered claim is dismissed, the Registrar is required, as soon as practicable, to remove the entry on the Register that relates to the claim (s 190(4)(d)). Those who were previously the “registered native title claimant” cease to enjoy that status. This is because that expression is defined in s 253 to mean “a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant”. Further, by s 30(2), a person ceases to be a “native title party” if the person ceases to be a “registered native title” claimant. The appellants emphasised that, because of the dismissals, they were no longer registered native title claimants, native title parties and negotiation parties. By reason of the dismissals, they no longer possessed the right to negotiate.

24    The appellants submitted that further negotiations foreshadowed by MacMines would have taken place under the framework provided by Subdiv P. Under that framework, the negotiation parties:

(a)    must negotiate in good faith (s 31(1)(b));

(b)    may request mediation by the arbitral body (s 31(3)); and

(c)    may apply to the arbitral body for a determination under s 38.

The appellants submitted that by reason of the dismissals, none of these matters were now open to them.

25    The appellants further submitted that the moratorium was on fracking, not on the grant of tenements, so the moratorium did not preclude s 31 agreements between the parties or the grant of the relevant tenements. At least in relation to EP 219, the proposed permit was “to explore for petroleum and to carry on such operations and execute such works as are necessary for that purpose”. Neither the moratorium nor the proposed permit precluded the holder from carrying out exploration by means other than fracking. Further, his Honour’s finding that the appellants would suffer no prejudice while the moratorium is in place did not address the question of prejudice, if the moratorium was no longer in place, so submitted the appellants.

Consideration of issue 1(a)

26    Mr Keely SC, who appeared for the appellants, properly acknowledged that the well-known principles in House v The King [1936] HCA 40; 55 CLR 499 (House) at 504-505 per Dixon, Evatt and McTiernan JJ applied to an appeal against the exercise of a judicial discretion, such as that conferred by r 5.23 of the FCRs. It is convenient to set out that passage:

… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …

27    Mr Keely SC also properly acknowledged that it was relevant to the appeal to note that the primary judge’s decisions related to matters of practice and procedure and that it is customary for an appellate court to exercise caution in reviewing such matters (citing Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated [1981] HCA 39; 148 CLR 170 at [6]-[11] per Gibbs CJ, Aickin, Wilson and Brennan JJ). Mr Keely SC added, however, that these appeals related to decisions which produced a significant adverse effect on the appellants’ substantive legal rights, namely their right to negotiate under relevant provisions of the NT Act.

28    We are not satisfied that the appellants have demonstrated any appealable error in the House sense in respect of the primary judge’s finding that, while the moratorium is in place, it does not seem that the appellants will suffer any prejudice. In our view, the primary judge’s reference in the statement to “prejudice” is not a reference to the appellants’ right to negotiate but rather refers more broadly to the lack of any practical prejudice to the appellants if they lost their right to negotiate. It is plain from the primary judge’s reasons for judgment that he was well aware of the prominence which the appellants placed on their right to negotiate in opposing the dismissal of their proceedings and that that right would be lost if the proceedings were dismissed. Indeed, his Honour described this matter as the “principal basis” upon which the NLC resisted the dismissal (see [46]). He summarised the NLC’s contention “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”.

29    It was in the light of these contentions that the primary judge then turned his attention to the evidence before the Court concerning future acts, partly with a view to assessing the strength of the appellants’ submission that there were “current future act negotiations” or, alternatively, “some prospect of negotiations occurring in the future”. His Honour then summarised the affidavits filed by the NLC in respect of these matters. It is in this context that the primary judge made express reference at [47] on page 14 of his reasons for judgment to NLC’s solicitors having met with MacMines’ representatives on four occasions and that the discussions concerned the negotiation of agreements pursuant to s 31 of the NT Act. His Honour then observed at [47] (page 14.9):

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 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.

30    In our view, when read as a whole, these passages indicate that his Honour’s finding that it did not “seem” that the appellants will suffer any prejudice, relates to his Honour’s earlier finding that it was “unclear”, having regard to the moratorium, whether MacMines will be able to proceed with any activity pursuant to the EP. His Honour’s reference to “activity” is plainly a reference to physical activities which, if it held a petroleum expiration permit, MacMines would be able to conduct. No doubt his Honour had in mind MacMines’ fracking activities. There was no evidence below that MacMines intended to engage in any other activity if it was granted the EP.

31    For the reasons given above, it is unarguable that the primary judge did not take into account the fact that dismissal of the applications would result in the appellants’ loss of the right to negotiate. His Honour evaluated the weight and significance of that right in the particular circumstances of the case and by specific reference to the finding that it was unclear whether MacMines would be able to engage in the relevant exploration activities having regard to the moratorium. In view of the evidence below, it was reasonably open to the primary judge to make that finding.

32    For completeness, it is noted that in the appellants’ outline of written submissions, some point seemed to be taken with the fact that, in [47] of his reasons for judgment, in describing EP 218, the primary judge referred to that petroleum exploration permit having been “issued” to Arafura Oil Pty Ltd (Arafura), a subsidiary of Australian Oil and Gas Pty Ltd, which was ultimately acquired by MacMines. The appellants submitted that Arafura was simply an applicant for EP 218 (as well as for EP 219 and 220). They did not suggest, however, that this constituted a material error of fact for the purposes of the appeal. Rather, it was submitted that the error might suggest that the primary judge had an inadequate appreciation of these Group 7 matters. We do not accept that narrower submission. In particular, the distinction between Arafura being an applicant for, as opposed to the holder of, a petroleum exploration permit could have had no bearing on the primary judge’s ultimate conclusion that, while the fracking moratorium was in place, it did not seem that the relevant appellant would suffer any prejudice.

33    For these reasons, issue 1(a) is rejected.

Issue 1(b): EP 219 - finding of no current activity

34    In the context of considering NTD9/2004 (Jindare), the primary judge found at [47] (page 17.12) that, by cross-reference to his findings in relation to NTD6006/2001 (Mary River West), there is “no indication of any current activity in relation to EP 219”. The appellants submitted that it is likely that his Honour considered that the position with respect to EPs 218 and 220 was the same. Having regard to the primary judge’s findings concerning NLC’s discussions with MacMines, this finding was said by the appellants to be in error: his Honour should have found that there was significant current activity in relation to EP 219 (and EPs 218 and 220).

Consideration of Issue 1(b)

35    It is evident that this issue is closely related to Issue 1(a). For similar reasons, it should be rejected. The primary judge’s reference to the absence of any indication of “current activity” in relation to EP 219 is plainly a reference to the practical effect of the fracking moratorium. To the extent that it was contended that this finding was in error having regard to the discussions and negotiations between NLC’s solicitors and MacMines’ representatives, the primary judge was plainly aware of those matters. As noted above, they are described by him in that part of [47] of his reasons for judgment which relate to EP 218.

36    Issue 1(b) is predicated on the erroneous belief that his Honour’s reference to “current activity” was a reference to something other than a reference to the practical consequences flowing from the moratorium in respect of MacMines’ activities. This is confirmed by the fact that the primary judge’s earlier discussion of this matter in relation to EP 218 makes express reference to it being “unclear” whether MacMines would be able to proceed with “any activity pursuant to the EP” having regard to the moratorium. The reference to “current activity” in relation to EP 219 is a reference back to the earlier finding concerning MacMines’ “activity” pursuant to EP 218 (noting that the appeal was conducted on the basis that there was no error in the primary judge approaching EP 218 as raising the same issues as EPs 219 and 220).

Issue 1(c): ML 29978 – finding that unclear if any prejudice upon dismissal

37    The primary judge stated at [47] (page 15.5): “The ML applicant, CR & E Pty Ltd had an intention to conduct an alluvial gold mining project in the area” (emphasis added). The appellants submitted that this finding was in error because the evidence was that the company’s representative advised on 30 November 2015 that CR & E Pty Ltd (CRE) “intended to conduct” the project. Moreover, the appellants pointed to the fact that Ms Gibson gave evidence that, on 6 February 2017 she was advised that “the company intends to pursue the application”. The appellants submitted that there was no evidence to the contrary.

38    As to the primary judge’s inference that Ms Gibson’s contact in February 2017 “was prompted by the prospect of dismissal of the application”, the appellants submitted that it was common for litigants and their lawyers to respond to pressure applied by courts. This does not devalue the fact that communications with CRE and CTM (Complete Tenement Management, a contractor hired by CRE) were initiated by Ms Gibson nor the information obtained in the course of those communications, so the appellants submitted.

39    The appellants contended that it should be inferred that the application for ML 29978 complied with the requirements of the Mineral Titles Act 2010 (NT) (MTA). These generally include providing evidence of an ore body or anomalous zone of likely economic value. A mineral lease is the appropriate title for the mining and processing of minerals, whereas a mineral exploration licence is the appropriate title for conducting exploration for minerals. The holder of a mineral exploration licence has the exclusive right to apply for a mineral lease. The Minister had given notice of his intention to grant ML 29978. This venture was thus said to be well advanced and there was no evidence to suggest that CRE would not pursue its application, so submitted the appellants.

40    Despite these matters, the primary judge found in relation to ML 29978:

… 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 if the applicants in this matter would suffer any prejudice if the application is dismissed.

The appellants submitted that these findings were in error. Although they acknowledged that it was not certain that CRE would pursue its application, the appellants submitted that certainty is not required. The appellants submitted that the primary judge should have found that CRE is likely to pursue its application and that the members of the Mount Ringwood native title claim group would suffer substantial prejudice (in particular, the loss of the right to negotiate) upon their claim being dismissed.

Consideration of issue 1(c)

41    For the following reasons, this ground should be rejected. First, the evidence adduced in opposition to the dismissal of NTD6029/2000 (Mount Ringwood), to which ML29978 related, included one of Ms Gibson’s affidavits dated 15 February 2017 (in which cross-references were also made to an earlier affidavit affirmed on 20 October 2016 by another NLC solicitor, Ms Deans). It is desirable to set out [11]-[14] of Ms Gibson’s affidavit:

11.    On 30 November 2015 former NLC lawyer, Ms Charlotte Deans telephoned Mr. Gary Clarke, a representative of CR&E Pty Ltd and also sent an email to Mr. Clarke to explain the role of the NLC and the need for information about the project. Mr. Clarke advised Ms Deans that CR&E Pty Ltd intended to conduct an alluvial gold mining project (see the Deans affidavit at (121)).

12.    On 6 February 20171 telephoned Mr Clarke to inquire whether CR&E Pty Ltd intends to progress their application for ML 29978. Mr Clarke advised that the company intends to pursue the application and that he had recently engaged Complete Tenement Management, a metal mining companies service company, for this purpose.

13.    On 7 February 2017 I telephoned a representative of Complete Tenement Management and explained the history of Ms Deans and my contact with Mr Clarke in respect of the application for ML29978, including the 25 November 2015 letter and 26 November 2015 email referred to in paragraphs 9 and 11 above. I later provided a copy of the 25 November 2015 letter to Complete Tenement Management by email and asked that they provide me a response on behalf of CR&E Pty Ltd. 14.

14.    As at the date of swearing this affidavit, I have not received any response to the 25 November 2015 letter from Complete Tenement Management. I will continue to contact Complete Tenement Management for the purposes of negotiating a s 31 agreement on behalf of the native title claimants for NTD 6029 of 2000 (Mt Ringwood).

42    It is to be noted that Ms Gibson said that she provided a copy of the 25 November 2015 letter to CTM and asked that they provide a response on behalf of CRE, but that, as at 15 February 2017 (i.e. three weeks before the hearing scheduled for 10 March 2017) she had not received any response from CTM. Ms Gibson stated that she would continue to contact CTM for the purposes of negotiating a s 31 agreement. Significantly, Ms Gibson did not provide an update of the position prior to the 10 March 2017 hearing. Accordingly, as the evidence stood at that point, it had to be assumed that CTM had still not provided a response on behalf of CRE as at 10 March 2017.

43    It is against that background that one then turns to the relevant passage in [47] of the primary judge’s reasons for judgment:

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.

44    The appellants have failed to establish any appealable error in respect of this passage. His Honour’s finding that it was not certain that CRE would pursue its application was reasonably open on the evidence, as also was the finding that, if the application was pursued, the timeframe in which it may do so was also not certain. Having regard to the contents of Ms Gibson’s affidavit and to the additional matters raised immediately below, his Honour’s findings were reasonably open. They also provided a reasonable basis for the primary judge’s ultimate conclusion that it was “unclear” whether the applicants in the Mount Ringwood matter would suffer any prejudice if the application were dismissed. In the light of the evidence before the primary judge, we reject the submission that these findings were unreasonable or unjust in the meaning referred to in House.

Issue 1(d): ML 29978 - failure to take into account relevant considerations

45    The appellants submitted that the primary judge did not refer to, and apparently did not take into account, the following uncontradicted and significant evidence about ML 29978 that was favourable to the appellants:

(a)    the relatively recent notification date in relation to this interest was 4 November 2015; (the latest notification date of any of the interests in issue);

(b)    Mr Clarke told Ms Gibson on 6 February 2017 that CRE had recently engaged CTM, a metal mining companies’ service company, for the purpose of pursuing its application for ML 29978; and

(c)    Ms Gibson telephoned CTM on 7 February 2017, explained the relevant history to its representative, and later provided it with a copy of the NLC’s letter dated 25 November 2015 and requested a response to it on behalf of CRE.

Consideration of issue 1(d)

46    This issue overlaps substantially with issue 1(c) and should be rejected for similar reasons. The primary judge summarised Ms Gibson’s evidence in [47] of his reasons for judgment. It was reasonably open to the primary judge to make the findings that he did regarding the uncertainty as to whether the proponent would pursue its mining lease application and the timeframe within which it might do so. It is true that the primary judge made no express reference to the notification date of 4 November 2015 in relation to this interest. Ms Gibson referred to the notification date in [9] of her affidavit dated 15 February 2017. Although the primary judge made no express reference to that date, his summary of Mr Gibson’s evidence commences from a period shortly thereafter, namely 25 November 2015, which is when CRE was invited by NLC to negotiate a s 31 agreement. There is no basis for concluding that the primary judge overlooked the notification date given its close proximity to the discussions between NLC and CRE or its agent which then followed. It is also true that the primary judge did not refer to the fact that CRE had retained CTM. His Honour, however, did refer to the same paragraph of Ms Gibson’s evidence in which this appeared for the purpose of describing NLC’s communications with CRE. In those circumstances, it cannot be said that his Honour overlooked the evidence. In any event, his Honour was not bound to refer to every item of evidence. For these reasons, issue 1(d) is rejected.

Issue 1(e): Finding that no more than future possibility of some future act

47    The appellants claimed that the primary judge erred in finding at [48] that the evidence established no more than “the possibility that, at some time, some future act may be proposed in relation to the claim area or an agreement may be negotiated”. They submitted that this discloses a misconception by the primary judge in that the evidence established that specific future acts had been proposed and were not a mere possibility.

48    Subdivision P applies to certain future acts: s 26. The term “future act” is defined in s  233(1). Section 25(2) provides: “Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act”. Section 29(2)(b) provides that the government party must give notice of certain acts to any registered native title claimant and to the relevant native title representative body (NTRB). Section 29(3) provides that there must also be public notification of the act.

49    The appellants emphasised that future act notices in respect of ML 29978 and EP 219 were in evidence. For ML 29978, the notice by the Minister was given under s 71 of the MTA and s 29 of the NT Act. For EP 219, the notice by the Minister was given under s 29 of the NT Act and the Petroleum Act 1984 (NT). Each notice referred to the relevant notification date as required by s 29(4) of the NT Act.

Consideration of issue 1(e)

50    We consider that issue 1(e) is also predicated on the appellants’ misreading and misconception of what the primary judge was referring to in [48]. The appellants’ case is based on the primary judge’s reference to “some future act” as being a reference to a “future act” as defined in s 233 of the NT Act. Fairly read, we do not consider that the reference should be so read.

51    It is notable that [48] appears at the beginning of a section of the reasons for judgment below headed “Conclusion concerning future acts”. His Honour’s focus, both here and earlier in his reasons for judgment, was on the practical effects on the parties if the native title applications for determination were dismissed. So much is made clear in the last sentence to [48], which for convenience is set out again in full:

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.

52    We consider that, fairly read, his Honour was referring to the likelihood of the proponents being able to conduct practical activities in respect of the relevant interests, and the ramifications for the appellants, rather than to the legal concept of “future act” as defined in s 233.

53    In our view, this reading is supported by the distinction which the primary judge drew between the nine applications which were dismissed for want of prosecution and the three applications which were considered for dismissal but, in the event, were not. Those three matters are NTD6062/2001 (Roper Valley North), NTD6006/2001 (Mary River West) and NTD6021/2001 (Ban Ban Springs). The primary facts relating to those claims were summarised by the primary judge in [47] of his reasons for judgment.

54    Having stated in [48] that the Court should be more concerned with cases where the evidence discloses that a dismissal would, or is likely to, have “some practical effect on the claimants”, the primary judge set out in [49] and [50] why these three particular applications were distinguishable from the other nine applications. The full terms of [49] and [50] are set out in [12] above. NLC submitted that there was no rational difference between the circumstances but this submission is untenable given the terms of his Honour’s reasons. There were differences of fact which his Honour identified and which he was entitled to rely upon to reach the different conclusions about the three applications not dismissed.

Issues 1(f) & (g): Failure to consider the lack of progress in context, resourcing issues

55    The primary judge placed strong emphasis on the lack of progress in the dismissed claims to date and the absence of a timeframe for their future resolution. The appellants claimed that his Honour erred in failing to consider, or adequately to consider, this lack of progress in the context of the NLC’s overall human and financial resources and workload, and its record of finally disposing of claims.

56    The appellants complained that, although the primary judge briefly referred to the fact that Mr O’Donnell, NLC’s principal legal officer, had given evidence about the NLC’s caseload in other matters to which it had been attending in 2015 and 2016, he did not set out any of that evidence. Mr O’Donnell’s evidence described the NLC’s substantial progression of native title claims in 2014, 2015 and 2016. In attempting to explain that slippage, the appellants relied on Mr O’Donnell’s evidence, which referred to “insufficient staff and financial resources available to obtain instructions in the time available since these orders were made” and to the NLC’s “limited resources … to meet the need at this time to progress and resolve all native title determination applications for which its solicitors have instructions”. It was contended that his Honour erred in failing to attach any significant weight to the NLC’s resourcing problems.

57    As the primary judge noted, the Court expected a progressive resolution of pastoral and other claims. In effect, a queue was established with the result that claims or groups of claims later in the queue would be addressed when the claims ahead of them had been substantively addressed or finalised. As at August 2008, the aim of the principal parties was to have all the claims resolved within five years. The primary judge also placed strong emphasis on the “continual slippages in the progress of matters”. The appellants acknowledged that there had been substantial slippages.

58    During the course of the hearing Mr Keely SC handed up a lengthy table prepared by the NLC, which purported to identify details of the finalisation of native title matters nationally, including those in the Northern Territory. The table had not been adduced in evidence below. There was no evidence to support all the information in the table and the Full Court refused to accept it.

59    The appellants also complained that, although not mentioned in his Honour’s reasons, the primary judge granted leave to a representative of the Commonwealth Government to hear by telephone what was said at the hearing on 10 March 2017, but that opportunity was not taken. The appellants argued that the fact that such leave was granted supported Mr O’Donnell’s evidence about the NLC’s resources and indicated that the financial difficulties were real and not of the NLC’s own making.

60    Finally, the appellants submitted that native title is a unique area of litigation and they described as “notorious” that most groups are unable to fund their own litigation. They submitted that this is one of the reasons why the NT Act established native title representative bodies or NTRBs with a range of functions, including facilitation and assistance functions (s 203BB). They described the fundamental problem as the inadequate resourcing of NTRBs.

Consideration of issues 1(f) and (g)

61    The appellants’ challenge to the primary judge’s consideration of the NLC’s resource problems as providing an adequate explanation for the lack of progress in the nine relevant matters is rejected.

62    First, the appellants quite properly did not contest the primary judge’s central finding that there had been substantial and continual slippages in the progress of many native title applications in the Northern Territory, including the applications which were the subject of consideration for dismissal on 10 March 2017. That history is set out in some detail in the primary judge’s reasons for judgment at [27]-[38]. The primary judge also emphasised in [38] how, since 2014, the Court had been pressing the parties, particularly the NCL, to prosecute more diligently the outstanding claims. His Honour set out in that paragraph, by way of illustration, comments made by both Mansfield J and himself at various callovers in which the Court expressed its concern about the lack of progress. Those comments included Mansfield J’s statement at a callover on 27 November 2015 that there “is a need for the NLC to get more resources into this because it is just not doing what it said it would do”. Accordingly, the NLC was on clear notice that the issue of its financial and staff resources was a relevant matter and needed to be addressed.

63    Secondly, the Court made an order on 13 April 2016 which required the NLC to file and serve an affidavit in respect of each Group of outstanding matters which deposed 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, as noted by the primary judge in his reasons for judgment at [39]. The primary judge noted at [40] that these orders led to the NLC filing separate affidavits from Mr O’Donnell in relation to each of the Groups 3, 7, 11 and 12 matters (as well as two other matters).

64    The primary judge noted that Mr O’Donnell deposed that the various matters had not progressed at all since the 13 April 2016 callover and that the NLC had no timeframe for their resolution. Notwithstanding that evidence, the primary judge also noted that Mr O’Donnell stated later in his affidavits that the matters were scheduled to be finalised in “2018 or beyond”. The primary judge observed at [40] that Mr O’Donnell deposed that the NLC had insufficient staff and financial resources since April 2016 to take instructions from the claim groups and that it sought a further opportunity to do so. The primary judge also acknowledged that Mr O’Donnell provided a summary of other matters to which the NLC had been attending in 2015 and 2016.

65    Thirdly, the primary judge specifically addressed the issues concerning the NLC’s limited financial and human resources in [51]ff. Significantly, his Honour said at [51] that the NLC provided very little by way of evidence to support its claim that progress had been impeded by the limited human and financial resources available to it (and to corresponding limitations on the resources of other parties). His Honour made reference to other authorities in support of the proposition that, while the Court takes into account “the exigencies of the funding arrangements”, funding difficulties have not been regarded as a decisive consideration (citing, for example, Bennell v State of Western Australia [2004] FCAFC 338 at [37] per Wilcox, French and Finn JJ).

66    His Honour concluded at [53] that it was inappropriate to attach any significant weight to the NLC’s financial difficulties in circumstances where the matters had been on foot for a long time and the native title applicants and the NLC “have had more than an adequate opportunity in which to address those difficulties”. His Honour also noted that the programs previously provided to the Court by the NLC and the applicants, and not fulfilled, presumably took account of any relevant funding difficulties.

67    We are not satisfied that the appellants have established any appealable error in respect of any of these findings or observations by the primary judge. The findings and observations were reasonably open on the material before the Court below. Indeed, his Honour’s observation that the NLC had “provided very little by way of evidence to support this claim” understated the position. In the course of oral address on the appeals, Mr Keely SC acknowledged that the evidence was “slim”. The NLC had every opportunity to put before the primary judge detailed evidence concerning the asserted staff and financial resources difficulties. But there was no evidence placed before the Court which detailed the NLC’s staff and financial resources, nor how it went about determining the priority or resources to be allocated to the many native title claims for which it was responsible. It is revealing to set out the two paragraphs from Mr O’Donnell’s several affidavits dated 31 August 2016 in which these issues were raised:

4.     It is submitted on behalf of the applicants that these applications should remain on foot. At this time there have been insufficient staff and financial resources available to obtain instructions in the time available since these orders were made. It is submitted that it would be inappropriate for orders adverse to the applicants being made until their representatives have sufficient time and resources to inform them of the Court’s orders and take instructions accordingly.

5.     The progress and resolution of these applications should be seen in the context of the achievement of the following outcomes and the limited resources available to the Northern Land Council as a Native Title Representative Body (NTRB) to meet the need at this time to progress and resolve all native title determination applications for which its solicitors have instructions.

68    As noted above, Mr O’Donnell’s affidavits then proceeded to describe progress made by the NLC in respect of other native title applications in the Northern Territory, not including the matters which were due for consideration for dismissal at the hearing on 10 March 2017.

69    In our respectful view, it was incumbent upon the NLC to provide detailed evidence in an admissible form to support its submission that the Court should give material weight to its claims regarding its finite staff and financial resources. Without such evidence it was impossible for the primary judge to evaluate the significance of the other matters in which progress had been made or their potential impact upon the lack of progress in the matters which were dismissed. Mr O’Donnell’s affidavits, which in truth did not rise above mere assertions of inadequate funding, did not provide the primary judge with a proper foundation to weigh the materiality of these issues. Accordingly, we agree with the primary judge’s findings and observations concerning the limited evidence provided by the NLC and the effect this had on the Court’s evaluative assessment.

Issue 1(h): Irrelevant consideration - likelihood that dismissed claims will be replaced

70    The primary judge said that “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” at [59].

71    The appellants submitted that this statement reflected the practice in the Court since 2009, which had the support of other parties and which his Honour described as “a sensible course”. This practice expressly contemplated that the polygon claims would be discontinued on the making of determinations. They submitted that there is nothing novel about the filing of polygon claims and their subsequent replacement by broader claims. The appellants submitted that the likelihood that the dismissed claims would have been replaced in due course by other claims was thus not a relevant consideration in favour of dismissal because retention of such claims until their replacement had the imprimatur of the Court.

Consideration of Issue 1(h)

72    For the appellants to succeed in establishing that it was an irrelevant consideration for the primary judge to have regard to the likelihood that the dismissed claims would be replaced by broader claims which aligned with the boundaries of relevant pastoral leases, they must demonstrate that the primary judge was prohibited from taking this matter into account. The appellants pointed to nothing in the NT Act which indicated that this matter was an irrelevant consideration, including in the exercise of the relevant judicial discretion under the FCRs.

73    The appellants’ submissions also failed to confront the fact that for a number of years the Court had expressly put the NLC on notice of the fact that its lack of progress in respect of these claims was unacceptable. The lack of progress never had the Court’s imprimatur. Despite it appearing sensible in 2009 to replace the polygon claims with broader claims on a progressive basis, the fact is that the various programs for resolution accepted by the Court were never achieved, and the NLC gave the primary judge no meaningful further program which contemplated resolution of the claims in the reasonably foreseeable future. Mr O’Donnell’s reference to the matters being finalised by 2018 “or beyond” was unhelpful, to say the least. Issue 1(h) is rejected.

Issue 2: Irrelevant consideration – failure of other parties to make submissions

74    The applicants contended that the primary judge acted inconsistently with the order made on 27 October 2016 to the effect that any respondent who wished to be heard at the hearing on 10 March 2017 needed to file and serve a notice to that effect by a specified date and that, 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”. The inconsistency was said to lie in the primary judge’s statement at [55] that:

… 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.

Consideration of issue 2

75    It is desirable to set out in full [54] and [55] of the primary judge’s reasons for judgment in order to put this issue in its full and proper context:

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.

76    These paragraphs highlight the boldness of the NCL’s challenge to this aspect of the primary judge’s reasons. They reveal that the primary judge was in fact responding to a submission that had been made by the NLC that it was significant that the Northern Territory Government had not appeared to support the applications being dismissed for want of prosecution.

77    It was in this context that the primary judge stated at [55] that he did not regard this as a significant consideration, and made reference to the orders made on 27 October 2016 and the presumption that a respondent who did not wish to be heard took a “neutral stance” on the possibility of dismissal. Having rejected the NLC’s submission concerning the significance of the Northern Territory’s non-participation, his Honour observed that it was significant that neither the Northern Territory nor the Commonwealth Government participated in order to submit that the public interest would be adversely affected by dismissal. His Honour was not saying that the non-participation of the two Governments weighed in favour of dismissal. His Honour’s observation was simply a reaffirmation of the neutrality which the Court said would be attached to a respondent’s non-participation.

78    For completeness, there appears to be a clear typographical error in the second sentence in [54] and the word “not” has been inadvertently omitted. This is confirmed by the transcript of the hearing below where, at page 57, Mr Keely SC submitted that:

… the Northern Territory can be taken to speak for the public generally in the Northern Territory, and it has chosen not to do that. It certainly doesn’t put its hand up and suggest that there’s any particular difficulty with these matters remaining on foot. It doesn’t suggest anything of that kind.

There can be no doubt that the primary judge correctly understood this submission.

79    There is a further reason why issue 2 must be rejected. That is because any error in relation to this matter, based upon these passages, is not a material error. The primary judge made plain in [56] that, in any event, neither Government was the sole spokesperson for the public interest and the Court had a responsibility, in the public interest, to see that litigation was conducted with reasonable efficiency and expedition. It is evident from the balance of the primary judge’s reasons that this weighed heavily in his Honour’s evaluative judgment to dismiss the nine proceedings.

80    For these reasons, issue 2 is rejected.

Conclusion

81    For these reasons, the nine appeals should be dismissed. In the absence of any contradictor there will be no order as to costs.

Associate:

Dated:    27 November 2017

SCHEDULE OF PARTIES