FEDERAL COURT OF AUSTRALIA

Angale on behalf of the Irlpme Arrernte People v Northern Territory of Australia [2009] FCA 1488

SHIELA CONWAY ANGALE ON BEHALF OF THE IRLPME ARRERNTE PEOPLE v NORTHERN TERRITORY OF AUSTRALIA

NTD 4 of 2006

MANSFIELD J

18 DECEMBER 2009

ADELAIDE

THE COURT ORDERS THAT:

1.         Pursuant to s 94C of the Native Title Act 1993 (Cth) the application is dismissed.

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

1                          On 28 April 2006, Shiela Conway Angale on behalf of the members of the Irlpme Arrernte native title claim group lodged an application for native title pursuant to the provisions of the Native Title Act 1993 (Cth) (the NT Act) over the land and waters within the boundaries of Exploration Licence Application 24691 (the claim area).  The claim area is an area situated within the boundaries of the Bond Springs Perpetual pastoral lease, being NT Portion 650 on survey plan S, and being approximately 274 square kilometres.

2                          The native title application was made in response to a future act notice in respect of that Exploration Licence Application for the purpose of exercising the right to negotiate in respect of that application. The claim area coincides exactly with the area of the Exploration Licence, with the exception of certain areas within those boundaries over which native title rights and interests have been extinguished.

3                          The application was registered under s 190A of the NT Act on 1 June 2006, and was notified by the Registrar in accordance with s 66(3)(a) of the NT Act on 20 October 2006.

4                          The applicants are represented by the Central Land Council (the CLC).

5                          The parties advised the Court formally on 12 February 2008 that an agreement was reached with the holder of the Exploration Licence, and that further agreements had been reached with other explorers in the claim area. The CLC indicated to the Court on that date that it was seeking instructions from the applicants as to the further progress of the native title application.  Since that communication, there has been no progress on the application. The CLC has informed the Court that the applicants are aware of the legislative protection available relating to any future act notifications in the claim area.  They presently do not wish to progress their claim, or to expand the boundaries of the claim area.  They have not, however, given instructions to the CLC to formally withdraw the claim, even though it has apparently served their purpose.

6                          On 5 August 2009, I made orders directing the applicants to file and serve by 20 November 2009 a document setting out a program for the further progress of the claim, to the intent that if no such document was filed and served, such a failure may indicate that the applicants do not intend to prosecute the claim further. I also granted leave to any other party by 20 November 2009 to file and serve a document setting out a program for the further progress of the claim, or for any other orders it seeks. I then adjourned the application to 7 December 2009 for further directions, including consideration of whether the application should be dismissed for want of prosecution.

7                          The applicants failed to file any document by 20 November 2009 setting out any program to progress the matter.

8                          No party has filed any document setting out a program to progress the matter, nor formally has any party applied to dismiss the application.

9                          On 7 December 2009, the CLC indicated that the applicants were still unwilling to give instructions to withdraw the claim.  Nor would they take any steps to progress it in any way.  They are apparently content for it to sit inert for an indefinite duration.

10                        It remains for the Court to determine whether it should, of its own motion, dismiss the application, having regard to s 94C(1) and (3) of the NT Act.

The legislative framework

11                        Section 94C of the NT Act defines the circumstances in which native title applications, apparently made in response to future act notices given in relation to land or waters wholly or partly within the area covered by the native title application, are subject to dismissal by the Court. This circumstance arises where the procedural rights of the native title claimants in relation to the future acts have been exhausted and no steps are taken to advance the resolution of the application itself. Section 94C(1) provides:

Order dismissing an application relating to a future act

(1)        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 (i) 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.

12                        Subsections 94C(1A), (1B) and (1C) set out the circumstances in which s 94C(1)(b) will be satisfied. Subsections 94C(1D), (1E), (1F) and (1G) set out the circumstances in which s 94C(1)(c) will be satisfied.  For present purposes, those subsections of s 94C do not need to be set out in full. The balance of s 94C provides:

(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.

13                        Section 94C(6) contains a number of definitions.  The only ones relevant for present purposes are:

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.

14                        Notification to the Court of applications affected by s 94C is a function conferred on the Native Title Registrar by s 66C of the NT Act, which provides:

(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)        paragraph 94C(1)(c) is satisfied for each future act notice referred to in that paragraph;

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 94(C)(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 notice has the same meaning as in section 94C.

Consideration

15                        It is clear from what has been acknowledged on behalf of the applicants, the timing of the application, and the coincidence of the claim area with the area of the Exploration Licence that s 94C(1)(b) is satisfied.  The future act notice in relation to the Exploration Licence has been resolved by agreement, and the Exploration Licence has been withdrawn, so that s 94C(1)(c) is also satisfied.  The Native Title Registrar has notified pursuant to s 66C. Directions were given to the applicants pursuant to s 94C(1)(e) on 5 August 2009.

16                        There has been a failure to comply with the Court’s directions under s 94C(1)(e)(i) of the NT Act, and there has been a failure to take steps within a reasonable time to have the claim resolved. The Court has given the applicants a reasonable opportunity to make submissions about how the matter should progress.  The CLC has not sought any further time to do so.  The applicants have failed to take any steps to progress the claim.  On what the Court has been told, they do not intend to do so.  Nor do they have any intention of seeking to widen the claim area by amending the application.  It is therefore clear that the applicants have failed, within a reasonable time, to take steps to have the application resolved.  Hence, the mandatory dismissal power under s 94C of the NT Act is available to the Court, on its own motion, and subject to s 94C(3) the Court should dismiss the application.

17                        I do not consider that there are compelling reasons not to dismiss the claim: cf Button Jones (on behalf of the Gudim People) v Northern Territory of Australia [2007] FCA 1802.  On the contrary, the application has served its purpose for the applicants and they presently have no intention of progressing it.  Their asserted native title rights and interests in the claim area will continue to be available to be asserted by them.  In due course, they may choose to pursue those asserted rights over the claim area or over a broader area more accurately reflecting lands over which they claim to have exercised native title rights and interests since settlement.  There is no barrier to them pursuing such a claim in the future.  There is no prejudice to them suggested on their behalf by the CLC if the application is now dismissed.  Nor is there any apparent prejudice to any other person or entity.  Neither counsel for the CLC nor for the Northern Territory has suggested any.

18                        In the circumstances, the application should be dismissed pursuant to s 94C of the NT Act.  I so order.

Associate:

Dated:         18 December 2009