FEDERAL COURT OF AUSTRALIA

Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2011] FCA 472

THE COURT ORDERS THAT:

1.    On or before 5 August 2011, the Applicant is to file and serve an affidavit by the consultant anthropologist, Ms Rubinich, deposing to completion of the following work:

(a)    A review of existing materials in relation to the Yirendali People claim;

(b)    Assessment of the scope of application of such materials to the Yirendali claim area;

(c)    Provision of interim advice as to additional materials required to be prepared for the Yirendali claim for consideration by the State of Queensland pursuant to its connection assessment guidelines.

2.    On or before 4 November 2011, the Applicant is to file and serve:

(a)    An affidavit by the consultant anthropologist, Ms Rubinich, deposing to completion of a preliminary connection report;

(b)    An affidavit by the consultant historian, Mrs Donovan, deposing to completion of a historical report.

3.    The Registrar is to supervise the Applicant’s prosecution of this application, including the preparation of the final connection material by the Applicant and further, the prospect of the evidencing or partial evidencing of the claim via the medium of a joint expert report.

4.    On or before the last business day of each alternate month, on or from this month, the Applicant is to provide to the Registrar, and to each respondent who has appeared today, a Progress Report which includes the steps taken during that period to prepare the Applicant’s final connection material, with the first progress report to be filed in compliance with this order by no later than 30 December 2011.

5.    If the Registrar considers it necessary to re-list the proceeding to deal with any matter arising out of the process of preparing the Applicant’s final connection material, that re-listing will be done on short notice outside of the call-over date fixed for the proceeding.

6.    On or before 3 August 2012, the Applicant is to:

(a)    provide to the State of Queensland, and to any other respondents who so request, a final connection report together with all historical or other material on which the Applicant seeks to rely to satisfy the requirements of s 223 of the Native Title Act 1993 (Cth).

(b)    File and serve an affidavit deposing to compliance with subparagraph (a).

7.    If the Applicant does not comply with the Orders 1, 2 or 6 the matter will stand dismissed on the next day after that order was due to be complied with, subject to any further Court order.

8.    Each party has liberty to apply on three (3) days notice.

9.    The matter is adjourned for further directions at the next native title regional call-over on such date as the Court may fix for that call-over.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    At the last regional callover of native title matters, I required the Applicant to show cause today why these proceedings should not be dismissed. The basis for so doing, which will emerge in detail shortly, was a failure on the part of the Applicant to comply with prior Court orders and thereby prosecute the application with due diligence. The application was commenced as long ago as December 2006. At that time the Applicant was represented by the Central Queensland Land Council. Then, as now, the persons who comprised the Applicant were Mr James Hill, Ms Martina Jacobs and Mr Jeffrey Lammermoor.

2    As has been observed in the course of submissions today, the application was particularly well supported at the time of its filing by details of prior anthropological research which had been undertaken in respect of the claim for native title made by the Applicant on behalf of the Yirendali people to a particular identified part of the State. The supporting material in the application is to be found in Attachment F. That consists of findings of anthropological research prepared by Kim de Rijke, then the coordinating anthropologist of the Central Queensland Land Council.

3    One sees in that document reference to interviews conducted over the course of 2005 and early 2006 by Mr Hagen and Mr de Rijke and earlier interviews conducted by Mr Hagen in 2002 and 2003. In turn, in that document, one finds reference to earlier work in respect of the Yirendali people. For example, at para 23 one sees reference to an apical ancestor of one of the members of the Applicant, Mr Lammermoor, namely to his ancestor, Mr Bob Lammermoor born at Torrens Creek in either 1911 or 1913. One sees reference also at para 24 to another apical ancestor, Mr Luco, born at Marathon Station in the 1880s.

4    There is repeated reference throughout the summary of anthropological work to associations between the Yirendali people and the region in general. The ultimate conclusion by the author of Attachment F, at para 53, is that:

While I have not undertaken any detailed research into the identification and territorial interests of the apical ancestors, something Rod Hagen has undertaken over a number of years, it has been possible to identify a relatively cohesive group of people who identify as Yirendali and who have continued their various spiritual and physical associations with the land.

5    The application passed the registration test in August 2007. Since then, successive work plans have been filed. These work plans have provided for the undertaking of anthropological work. However, beyond the filing of reports advising of the completion of terms of reference for the production of the connection report and discussing engagement with consultant anthropologists, nothing of substance which takes the evidence in the claim beyond the work apparent in Attachment F has occurred.

6    On 12 March 2010 the North Queensland Land Council, which had come to act for the Applicant in succession to the Central Queensland Land Council, filed a work plan advising that an Applicant meeting had been held on 8 March 2010, in Townsville, at which one of the persons who comprise the Applicant had provided instructions to discontinue the application. At that time, the North Queensland Land Council stated it was seeking similar instructions from the remaining two persons. There is something of an inconsistency between that statement, made deliberately to the Court, apparently on instructions, and the affidavit evidence read this morning on behalf of the Applicant, from each of the persons who comprise the Applicant. They say that no instructions to discontinue were given.

7    A benign way of dealing with that inconsistency and, perhaps, one which is accurate is that there is evident an earlier lack of communication or perhaps understanding as between the persons who comprise the Applicant and those who had previously acted for them. The result of being informed in March 2010 of the then apparent disposition to discontinue, was that on 26 March 2010, I ordered that, in the event that orders in respect of discontinuance have not been made earlier, the Applicant is to file and serve no later than 27 August 2010, a notice of motion in respect of a discontinuance, that notice of motion be returned at 9.30am on 10 September 2010 in Townsville.

8    In July 2010 the North Queensland Land Council filed a notice of ceasing to act. No notice of motion was filed in compliance with the order made in March by 27 August 2010. On 10 September 2010 the State sought orders in terms that if the Applicant did not file and serve a notice of motion seeking leave to discontinue by a certain date the Applicant was to show cause why the proceedings should not be dismissed. There was no appearance by or on behalf of the Applicant at the directions hearing on 10 September. I therefore made an order which provided for the Applicant to show cause at the next regional callover, which was 25 March 2011, why the proceedings should not be dismissed. I made ancillary directions which materially provided for an affidavit to support the show cause motion to be filed and served on or before 7 March 2011 by the Applicant.

9    No such affidavit was filed by that date. However, on 24 March 2011 one of the persons who comprise the Applicant, Mr Hill, filed an affidavit in which, materially, he apologised for the failure to file an affidavit by 7 March. He deposed that he and the other persons comprising the Applicant had engaged Dillon Lawyers and that they would:

Use funds received from future act activity to fund their legal, historical and anthropological expenses and would also apply for public funding.

He deposed, as well, that the Applicant intended to retain an historian, Val Donovan, and an anthropologist, Ophelia Rubinich, to prepare relevant reports. There being insufficient time that day with the demands of the callover, fully to consider the show cause proceeding, I adjourned the proceeding to today.

10    There is no doubt that there have been, in this case, a series of events which engage the Court’s ability to make orders under O 35A of the Federal Court Rules (Cth), where an Applicant is in default. Those orders include an order for the dismissal of a proceeding. Whether to make an order for dismissal where a party is in default is, as in other cases unrelated to native title, a matter for the exercise of judicial discretion.

11    I have been taken to a number of cases in the submissions helpfully made by Ms Kidson on the State’s behalf, where, in the face of events of default in native title cases, orders for dismissal have been made. It is not necessary to refer to each of them. A feature of them, though, is that it is frequently the case that associated with the event of default is also an apparent want of any prospect on the material filed of the application ever enjoying success. That, of course, is not necessary in order for a case to be dismissed. It is sufficient if there is an event of default. Here, though, Attachment F gives cause for thinking that there may be something in this case.

12    There is an inherent tension in the Native Title Act 1993 (Cth) (Native Title Act). Native title can only be determined by an exercise of Commonwealth judicial power. For that power to be exercised an application must be instituted and then prosecuted with due diligence. Those who are given the ability to prosecute such a claim are termed “the Applicant.” The Applicant is drawn from a native title claim group. A condition precedent to the further prosecution of any native title claim is the successful passage of what is known as the registration test. Passage of that test, though, does give rise to an ability to negotiate indigenous land use agreements. Herein, in my opinion, lies the inherent tension in the Native Title Act.

13    Those affected by a native title claim quite understandably wish to achieve certainty in the use or the proposed use of land. That can be achieved by the negotiation of an indigenous land use agreement with those who have passed the registration test. Whilst that has an immediate convenience about it, it can lead to a want of focus on the part of both Applicant and respondents to what is ultimately a proceeding in this court for the exercise of judicial power. So there is a tension between the prosecution of a native title claim and the opportunities that are afforded once a registration test is passed for the making of indigenous land use agreements.

14    Parliament has conferred a considerable privilege on those who have not yet vindicated a claim for native title by allowing agreements to be made. The price of that privilege, in my opinion, is the prosecution of a native title claim in this Court. If it is not prosecuted with due diligence, it should be struck out for the privilege Parliament has conferred is being, or at least may be, abused.

15    That tension may well explain, apart from questions of funding, why it is that native title cases linger in the list of this Court or have at least in the past. In other cases in other jurisdictions of the court respondents who are faced with applicants who do not prosecute their claims with due diligence have an incentive to strike them out. In native title cases that incentive is sometimes not present because the immediate needs of a respondent are met by an indigenous land use agreement.

16    The State, in my respectful opinion, is to be commended for taking the course it has today of highlighting the need on the part of the Applicant to prosecute its native title claim with due diligence. There is a lamentable lack of diligence evident in the litany of unobserved steps in work plans. But for the prospect that there is something in this claim, having regard to Attachment F, I would regard it, in the face of repeated acts of non-compliance, as a case which called for dismissal. I am influenced not to do that by what seems to me to be, having regard to the affidavits by each of the persons who comprise the Applicant, of an understanding of the need to prosecute this case which hitherto has not been evident.

17    However much the members of the native title group feel they have an association with the land claimed, and I do not doubt the genuineness of that feeling, the only way in which that feeling can be translated into recognition under Australian law is by the prosecution of this claim successfully to finality and the securing of a determination by this Court of native title. That requires the claim to be evidenced.

18    This may well be a case, having regard to the contents of Attachment F, where that evidence can be secured in a co-operative fashion. It is though incumbent on the Applicant and also the Respondents for that matter to take the initiative in that regard. One of the orders proposed by the State, and it is one which is singularly apt having regard to the history of this case, is for the case to be managed intensively by the Registrar. Other orders proposed on behalf of the State are directed to the achievement by particular dates of what one might term milestones in the prosecution of any native title claim, in other words, the filing and service by a particular date of particular anthropological research and the filing and service by other nominated dates of progress reports and final connection material. The dates the State has chosen are dates which, according to the affidavit evidence and oral evidence this morning of Mr Hill, are achievable on the part of the Applicant.

19    Of course it may be that, in the future, unforeseen circumstances might yield an inability to achieve those milestones. If that be so, then that needs to be highlighted to the Court in advance by evidence in conjunction with an application for variation of the dates concerned. It should not be assumed that the dates which I propose to fix will be in any way varied in the absence of such an application. Equally, I should expect that Respondents who are given notice and evidence of particular difficulties will respond co-operatively by way of lodgement, where appropriate, of consent orders or proposals for consent orders varying the times fixed. Again, though, the Applicant should not assume that co-operation in the absence of evidence of real efforts being made to achieve the dates which at the moment are regarded as achievable.

20    There is a question as to whether there ought to be made, in conjunction with the particular steps fixed in the State's draft order, self-executing orders which provide for dismissal in the event of a failure to achieve a particular milestone event. There is no doubt that there is power to make such an order and, again, in the State's helpful submissions, I have been taken to examples where such orders have been made. Once again, whether to make such an order is a matter for discretion.

21    Such is the history in this case of non-compliance with earlier work plans I am persuaded that the best way of achieving a continued focus by the Applicant with the prosecution of this case is to make provision for self-executing default dismissal. Once again, such dismissal will only occur in the event that a particular milestone is not achieved. In the event that it looks likely, for good reason, that it may not be achievable, notwithstanding the best efforts of the Applicant, it is extremely important for the Applicant to draw that to the attention of the other parties and the Court by an application supported by evidence for the variation of particular milestone events.

22    In addition to the orders that the State proposes, there will also be regular scrutiny of the case by the registrar and then also at the regular regional callovers of native title cases.

23    A point made on behalf of Respondents other than the State is that each, in one way or another, has a degree of frustration in cases where an application lingers on a list without being prosecuted. It is a moot point whether a case dismissed for want of prosecution can be brought again. The fact that the point is moot can lead some Respondents to the difficult situation of not wanting to incur expense in seeking the dismissal of a particular case not being prosecuted because of the prospect that, even if it is dismissed, it may surface again under another guise.

24    It is not necessary today to decide whether or not, had I dismissed this case, it would be possible for it to be brought again. One option which can, though, be exercised, in my opinion, by the Court even where a case is dismissed for want of prosecution is to order that it not be brought again without the leave of the Court and that would be so even if the case were otherwise one that might pass a registration test. It should not, therefore, be assumed that cases which are dismissed for want of prosecution can be brought afresh without any particular scrutiny having to occur quite apart from a registration test. I expressly reserve whether, in this particular case, in the event that circumstances arise where it is appropriate to vacate the self-executing part of the order whether, nonetheless, an order of dismissal ought to be attended with a requirement for the case not to be brought again without leave of the Court.

25    I make that observation only to underscore the singular importance, particularly in a case which, on the face of Attachment F, has some prospect of duly prosecuted the claim.

26    For these reasons then, I am satisfied that I should not, in the circumstances of this case, dismiss it forthwith but rather proceed to make the following orders which will take up, in the main, orders sought on the part of the State. As to that and having regard to the evidence given this morning by Mr Hill, I note that there is no need to make provision in terms of draft order 1 for the convening of a claim group meeting.

Associate:

Dated:    12 May 2011