FEDERAL COURT OF AUSTRALIA

Button Jones (on behalf of the Gudim People) v Northern Territory of Australia [2007] FCA 1802

Native Title Act 1993 (Cth)

Native Title Amendment (Technical Amendments) Act 2007

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Webb v State of Western Australia[2007] FCA 1342

Risk v Northern Territory of Australia [2006] FCA 404

Risk v Northern Territory of Australia [2007] FCAFC 46

Risk v Northern Territory of Australia [2007] HCATrans 472

Griffiths v Northern Territory of Australia [2006] FCA 903

King v Northern Territory of Australia [2007] FCA 944

Patta Warumungu People v Northern Territory of Australia [2007] FCA 1386

BUTTON JONES (ON BEHALF OF THE GUDIM PEOPLE) v NORTHERN TERRITORY OF AUSTRALIA& OTHERS

NTD 6010 OF 2001

MANSFIELD J

22 NOVEMBER 2007

DARWIN

THE COURT NOTES:

The reports of the Native Title Registrar dated 29 June 2007 and 2 October 2007 providing advice under s 66C of the Native Title Act 1993 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR RULING

INTRODUCTION

1                     The Native Title Act 1993 (Cth) (the Act) has been amended this year by the Native Title Amendment Act 2007 (Cth) (Act No 61 of 2007) which relevantly came into force on 15 April 2007, and then by the Native Title Amendment (Technical Amendments) Act 2007 (Act No 125 of 2007) which relevantly came into force on 21 July 2007.

2                     This is one of 55 applications for the determination of native title under s 61 of the Act which have been the subject of advice by the Native Title Registrar (the Registrar) under s 66C of the Act.  To explain the significance of that advice, it is necessary to refer to s 66C and s 94C of the Act.  The full list of 55 applications (there is one duplication) is contained in the advices of the Registrar which are referred to below and which are filed.

THE LEGISLATION

3                     Act No 61 of 2007, inter alia, inserted s 66C which (as amended by Act No 125 of 2007) provides:

Registrar’s role in relation to certain applications relating to future acts

(1)               If:

(a)        an application is of the kind mentioned in paragraph 94C(1)(a); and

(b)        paragraph 94C(1)(b) is satisfied in relation to the application; and

(c)        paragaraph 94C(1)(c) is satisfied in relation to the applicant;

the Registrar may advise the Registrar of the Federal Court of those facts.

(2)               The Registrar may seek advice from the relevant governmental officials in the Commonwealth or in a State or Territory as to:

(a)        whether all or part of an area specified in a future act notice is included in the area covered by an application; and

(b)        whether paragraph 94C(1)(c) is satisfied for each future act identified in a future act notice;

and may advise the Registrar of the Federal Court accordingly.

(3)               In this section:

future act noticehas the same meaning as in section 94C.

Act No 125 of 2007 repealed a fourth condition for the enlivenment of the Native Title Registrar’s powers, namely that par 94C(1)(d) also be satisfied in relation to the relevant future Act.

4                     Section 94C was also enacted by Act No 61 of 2007.  It defines circumstances in which applications under s 61 for determination of native title apparently made in response to future act notices given in relation to land or waters wholly or partly within the claim area are to be dismissed by the Court.  Section 94C(1), as introduced and then amended by Act No 125 of 2007, provides:

Subject to subsections (2) and (3), the Federal Court must, on the application of a party or on its own motion, dismiss an application made by a person under section 61 if:

(a)        the application is for a determination of native title in relation to an area; and

(b)       it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and

(c)        the future act requirements are satisfied in relation to each future act identified in the future act notice; and

(e)        either:

(i)         the person fails to produce evidence in support of the application despite a direction by the Court to do so, or to take other steps to have the claim sought in the application resolved despite a direction by the Court to do so; or

(ii)        in a case to which subparagraph (1) does not apply, the Court considers that the person has failed, within a reasonable time, to take steps to have the claim sought in the application resolved.

Subsections 94C(1A), (1B) and (1C) describe or provide for circumstances in which s 94C(1)(b) will be satisfied.  Subsections 94C(1D), (1E), (1F) and (1G) describe or provide for circumstances in which the future act requirements as referred to in s 94C(1)(c) will be satisfied.

5                     Section 94C was also substantially amended by Act No 125 of 2007.  The original sub-paragraphs 94C(1)(b), (c) and (d) were repealed and subparagraphs 94C(1)(b) and (c) as set out above were substituted.  Subsections 94C(1A), (1B), (1C), (1D), (1E), (1F) and (1G) were inserted.  And further definitions were inserted into subs 94C(6).

6                     Section 66C thus provides a vehicle by which the Registrar may advise the Court of applications which come within the ambit of s 94C(1).

7                     The Registrar has given to the Court two reports under s 66C advising that certain applications under s 61 for the determination of native title made in the Northern Territory attract the potential application of, or fall within the shadow of, s 94C.  One report was given on 29 June 2007, that is before Act No 125 of 2007 relevantly came into force.  It therefore should have been issued only if the cumulative requirements of s 66C(1), as it was at that time, were met.  The second report was given on 2 October 2007.  It focuses on the future act requirements being satisfied as required by s 94C(1)(c) as expressed in one or other of the subparagraphs of s 94C(1D).

8                     The balance of s 94C is in the following terms (including the definitions added by Act No 125 of 2007):

(2)               The Court must not dismiss the application without first ensuring that the person is given a reasonable opportunity to present his or her case about why the application should not be dismissed.

(3)               The Court must not dismiss the application if there are compelling reasons not to do so.  However, the fact that:

(a)        a subsequent future act notice has been given that specifies all or part of an area that is included in the area covered by the application; and

(b)        paragraph (1)(d) is not satisfied in relation to each future act identified in the subsequent future act notice;

is not, of itself, a compelling reason.

(4)               To avoid doubt, the Court’s dismissal of an application under this section does not affect any rights, liabilities or obligations of a person under:

(a)        an agreement of the kind mentioned in paragraph 31(1)(b); or

(b)        a determination made under subsection 32(4) or section 36A, 38 or 42; or

(c)        an agreement made in accordance with, or a determination made under, any alternative provisions that are equivalent to the provisions mentioned in paragraphs (a) and (b).

(5)       To avoid doubt, this section does not affect the Court’s power to dismiss an application under the Federal Court of Australia Act 1976.

(6)              In this section:

alternative provisionsmeans provisions provided for by a law of a State or Territory in respect of which the Commonwealth Minister has made a determination under paragraph 43(1)(b).

future act notice means:

(a)        a notice of a future act given under section 29; and

(b)        a notice of a future act given under alternative provisions.

future act notice to which the current law applies means a future act notice to which the provisions in Subdivision P of Division 3 of Part 2 of this Act apply.

future act notice to which the pre-1998 law applies means a future act notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

pre-1998 law means the Native Title Act 1993, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

9                     No party has applied to dismiss any of the 55 applications.  It therefore remains to determine whether the Court of its own motion should do so, having regard in particular to subs 94C(1) and (3).

CONSIDERATION

10                  French J in Webb v State of Western Australia [2007] FCA 1342 at [10] said the advice from the Registrar under s 66C cannot determine for the Court that the conditions specified in s 94C(1) and as explained in the subsequent subsections of s 94C are established as a matter of fact.  Those facts are for the Court to determine.  However, as in that case, the relevant events as to the filing of each of the native title determinations, the issue of the future act notices and the outcomes upon the issue of those notices were not in dispute.  That is, the existence of the conditions in s 94C(1)(a), (b) and (c) are not really in issue.  The Registrar’s reports, of course, do not address the alternative conditions in s 94C(1)(e) of the Act.

11                  French J also explained the Court’s further role in the light of advice from the Registrar under s 66C in the following way at [11]-[12].

Where the Native Title Registrar provides an advice under s 66C and the Court finds the facts set out in his advice, consideration of mandatory dismissal does not follow automatically.  Section 94C(1)(e) contemplates that the Court may require an applicant to produce evidence in support of the application or to take steps to have the claim resolved.  Alternatively, the Court may consider whether the applicant has failed, within a reasonable time, to take steps to have the claim resolved.  Any such judgment will require an assessment of whether the applicant has engaged with the mediation process for which the NT Act provides or has prepared or complied with directions for steps to be taken with a view to the trial of the action.  The Court does not proceed to consider dismissal until there has been a failure to comply with its direction under s 94C(1)(e)(i) or there has been a failure to take steps within a reasonable time to have the claim resolved.

It will be seen that before it gets to the point of considering mandatory dismissal the Court has a degree of leeway under the section to move the applicants forward.  The mandatory dismissal power, in effect, provides a tool or sanction to be used by the Court to dispose of applications lodged to get procedural rights and not otherwise being pursued.

12                  I respectfully agree with and adopt his Honour’s observations.  The parties were content for me to determine what should be done in relation to each of the 55 applications on that basis.

13                  Before considering whether, in this and in each of the other 54 applications referred to, s 94C(1)(e) has been engaged, it is necessary to determine whether the report of the Registrar given on 29 June 2007 gives rise to any different issues because of the form of s 94C up to 21 July 2007.  I do not think it does.  That is simply because, in relevant respects, the provisions in s 66C(1) and in s 94C as in force up to 21 July 2007 still exist in practical terms with the same substantive effect.  The question of whether each of the 55 applications was made in response to a future act notice is to be answered upon the same considerations:  subs 94C(1)(b) is now explained by subss 94C(1A), (1B) and (1C) but in practical terms the relevant circumstances are the same.  Also, the terms of the former s 94C(1)(d)(i) are now repeated in s 94C(1D) as circumstances in which the future act requirements are satisfied.  The two reports from the Registrar rely upon the same sets of features in the earlier report as in the later report, albeit they are found in different subsections.  There are, of course, changes of substance made to s 66C and s 94C by Act No 125 of 2007, but those changes do not relate to the basis for the two reports of the Registrar referred to above.

14                  For the reasons which follow, I do not consider that this application, or any of the other 54 applications, require the Court at this point in time to dismiss them under s 94C(1) of the Act.  In my view, the power and obligation to do so, which is then subject to subss 94C(2) and (3) has not yet arisen.  That is because, at present, neither of the conditions in s 94C(1)(e) are satisfied.  Only when each of the conditions in s 94C(1) is satisfied will the Court be empowered and obliged to dismiss an application to which it applies, subject of course firstly to the opportunity being given to present a case why the application should not be dismissed as required by s 94C(2), and secondly to the Court considering if there are compelling reasons not to do so as provided by s 94C(3).

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.  It is desirable to address the several categories in which the claims the subject of the Registrar’s reports fit.

17                  The relevant categories of matters are set out below.  The number of the applications the subject of the two reports of the Registrar within each category are set out in parenthesis after each relevant category is identified.  They are:

·                    Darwin matters (2)

·                    Northern towns and related (1)

·                    Pastoral estate matters (44)

·                    Central matters (5)

·                    Parks and reserve matters (3)

18                  The Darwin matters were addressed through the lead matter in which judgment was delivered on 13 April 2006:  Risk v Northern Territory of Australia [2006] FCA 404.  An appeal to the Full Court was dismissed on 5 April 2007:  Risk v Northern Territory of Australia [2007] FCAFC 46.  An application for special leave to appeal to the High Court by the Larrakia applicants was refused on 31 August 2007:  Risk v Northern Territory of Australia [2007] HCATrans 472.  A separate application for special leave to appeal to the High Court by Mr Kevin Quall, a separate applicant to one of the proceedings consolidated for hearing and leading to the judgments referred to above is outstanding.  It is expected to be heard early in 2008.

19                  Given that state of affairs, clearly the condition for the exercise of the power to dismiss those two applications specified in s 94C(1)(c) is not satisfied.  So, the Court at present cannot exercise that power in relation to those two applications.  The applicants have not been directed to produce evidence in support of the application or directed to take other steps to have the claims resolved.  Nor, given the timing, do I consider that the applicants have failed, within a reasonable time, to take steps to have the claims resolved.

20                  The Northern towns and related matters were addressed through the lead matter (called the Timber Creek claim) in which judgment was given on 17 July 2006:  Griffiths v Northern Territory of Australia [2006] FCA 903.  An appeal from that decision has been heard but judgment has not yet been delivered.

21                  When that Full Court decision has been delivered, the parties to the Northern towns and related matters (including the one matter which is the subject of advice by the Registrar) may be directed to produce evidence in support of those applications or to take other steps to have the claims resolved.  There are no such directions at present, and it follows that there are none which the applicants have not complied with.  Nor, in my view, have those applicants (including those applicants in the one matter which is the subject of advice by the Registrar) failed within a reasonable time to take steps to have the claims resolved.  The circumstance may soon arise that some steps to progress one or more of those claims should reasonably be taken, but it has not yet arisen.

22                  The lead matter in the Pastoral estate matters was called the Newcastle Waters claim.  Judgment was delivered on 26 June 2007: King v Northern Territory of Australia [2007] FCA 944.  Final orders were made on 26 September 2007.  No appeal from that decision has been instituted.

23                  Obviously, in the light of that decision and the formal determination of the native title rights and interests which exist in that claim area, there is a good prospect of other applications for the determination of native title over areas covered by pastoral leases being resolved by consent.

24                  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.

25                  The Central matters and the Parks and reserves matters attract slightly different considerations.

26                  The Court has been informed by the parties that the Parks and reserves matters are the subject of agreement, conditional upon certain amendments being made to a schedule to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).  It has also been informed that the proposed amendments are likely to be made, and are simply awaiting a “spot” in the legislative program schedule.  Once those amendments are passed, the matters are likely to be discontinued.  The Court has accepted that position, and that the parties are acting reasonably in securing the adjournment of these matters from time to time until the legislative program can accommodate the proposed amendments.  Clearly, in those circumstances s 94C(1)(e) is not satisfied so there is no power to dismiss these applications under s 94C(1) available at present.

27                  The Central matters are variously in the process of negotiation.  On 3 September 2007, part of the township of Tennant Creek was the subject of a consent determination:  Patta Warumungu People v Northern Territory of Australia [2007] FCA 1386.  At the same time an Indigenous Land Use Agreement in respect of parts of that township was executed.  That contemplates further action following the proposed legislative amendment referred to in the preceding paragraph.  The parties have reported at directions hearings of the progress of their consideration of the other Central matters claims referred to by the Registrar in his reports.  The Court has not made directions for the progress of those matters which have not been complied with, and, as long as the parties adhere to the program which they have indicated, is satisfied, and is likely to remain satisfied with the progress of those claims.  Consequently, I do not presently consider that the conditions specified in s 94C(1)(e) for the exercise of the power in s 94C(1) in respect of the five matters identified has arisen.

28                  In those circumstances, I will at present simply note the two reports of the Registrar.

Associate:

Dated:         21 November 2007