FEDERAL COURT OF AUSTRALIA

Hazelbane on behalf of the Warai and Kungarakany Groups v Northern Territory of Australia [2011] FCA 1186

THE COURT ORDERS THAT:

1.    The applicant in NTD 18 of 2006 is given leave to discontinue that application upon the following terms:

(1)    the Notice of Discontinuance be filed and served within seven days;

(2)    Margaret Daiyi, Linda Ford and Kathleen Devereaux cease to be respondent parties to that application;

(3)    the native title claim group described in NTD 18 of 2006 or any member thereof not be permitted to -

(i)    institute a further application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title over the claim area known as the Town of Batchelor; or

(ii)    apply under s 84(5) of the NT Act to become a party to NTD 6057 of 2001 or NTD 21 of 2005 or either of them for the purpose of asserting any native title right or interest in the claim area the subject of those applications inconsistent with the claims of the applicants in NTD 6057 of 2001 or in NTD 21 of 2005;

except by leave of the Court;

(4)    in the event that NTD 18 of 2006 is discontinued pursuant to the leave hereby given, there be no order as to the costs of that matter;

(5)    NTD 6057 of 2001 and NTD 21 of 2005 are adjourned for further directions to 9:00 am on 18 January 2012;

(6)    any party may apply for further directions or orders as that party may be advised on reasonable notice to the other parties.

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

THE COURT ORDERS THAT:

1.    The applicant in NTD 18 of 2006 is given leave to discontinue that application upon the following terms:

(1)    the Notice of Discontinuance be filed and served within seven days;

(2)    the native title claim group described in NTD 18 of 2006 or any member thereof not be permitted to -

(i)    institute a further application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title over the claim area known as the Town of Batchelor; or

(ii)    apply under s 84(5) of the NT Act to become a party to NTD 6057 of 2001 or NTD 21 of 2005 or either of them for the purpose of asserting any native title right or interest in the claim area the subject of those applications inconsistent with the claims of the applicants in NTD 6057 of 2001 or in NTD 21 of 2005;

except by leave of the Court;

(3)    in the event that NTD 18 of 2006 is discontinued pursuant to the leave hereby given, there be no order as to the costs of that matter;

(4)    NTD 6057 of 2001 and NTD 21 of 2005 are adjourned for further directions to 9:00 am on 18 January 2012;

(5)    any party may apply for further directions or orders as that party may be advised on reasonable notice to the other parties.

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

THE COURT ORDERS THAT:

1.    The applicant in NTD 18 of 2006 is given leave to discontinue its application upon the following terms:

(1)    the Notice of Discontinuance be filed and served within seven days;

(2)    the native title claim group described in this application or any member thereof not be permitted to -

(i)    institute a further application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title over the claim area known as the Town of Batchelor; or

(ii)    apply under s 84(5) of the NT Act to become a party to NTD 6057 of 2001 or NTD 21 of 2005 or either of them for the purpose of asserting any native title right or interest in the claim area the subject of those applications inconsistent with the claims of the applicants in NTD 6057 of 2001 or in NTD 21 of 2005;

except by leave of the Court;

(3)    in the event that NTD 18 of 2006 is discontinued pursuant to the leave hereby given, there be no order as to the costs of that matter;

(4)    NTD 6057 of 2001 and NTD 21 of 2005 are adjourned for further directions to 9:00 am on 18 January 2012;

(5)    any party may apply for further directions or orders as that party may be advised on reasonable notice to the other parties.

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

REASONS FOR DECISION

1        The third applicant, who brought application NTD 18 of 2006 on behalf of the Rak Mak Mak Marranunggu People, has applied for leave to discontinue the application. Normally, such an application would be uncontentious, but there is a significant context in which the application is made.

2        Each of the three applications referred to in the title to this judgment were directed to be heard together. That is because each of the three applications is an application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for a determination of native title over the same area of land. The claim area in each of the three claims is described as the land and waters over the area known as the Town of Batchelor in the Northern Territory, and is depicted by maps and other references in each of the three claims. Section 68 of the NT Act directs that there shall be only one determination of native title for any particular area of land. Consequently, s 67 empowers the Court, if there are two or more proceedings relating to native title determination that cover in whole or in part the same area, to make such orders as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

3        Moreover, the philosophy underlying the NT Act generally is that resolution of claims, including completing claims, by the agreement of the parties is to be encouraged. That was re-enforced by the amendments to the NT Act effected by the Native Title Amendment Act 2009 (Cth), as explained in the Second Reading Speech to the Native Title Amendment Bill 2009 (Cth) (Hansard, 14 May 2009). The Court had been informed by the Northern Territory and by counsel for the first applicant and the second applicant that discussions between them had indicated a reasonable prospect of their respective claims being resolved by agreement. More recently, the third applicant had declined to participate in those discussions, presumably on the basis that the third applicant considered the claim of the Rak Mak Mak Marranunggu claim group over the relevant area to be the correct one and one not to be compromised by agreement between them and the people or groups on whose behalf the first applicant and the second applicant brought their respective claims.

4        In those circumstances, where there was no apparent prospect of an agreed resolution of the claims, the Court ordered that the question of whether the third applicant represents a native title claim group, who have native title rights and interests specified in their particulars of claim dated 16 July 2010 in the claim area, subject to any issues of extinguishment, be heard and determined separately from and before other issues in the proceedings.

5        The document dated 16 July 2010 was the document by which the third applicant provided details of the claim in more specific terms than those which had previously been provided. In particular, that document specified the native title rights and interests which the applicant for that claim group claimed in respect of the claim area, rights which were claimed to the exclusion of all others, including to the exclusion of the first applicant claim group or of the second applicant claim group (subject to any areas over which their claims had been partially or wholly extinguished).

6        The matter then proceeded to trial to determine that question. It did so after extensive efforts by mediation, and by case management, to seek agreement about the resolution of the claims by compromise, in essence between the Northern Territory, the first applicant and the second applicant. It was common ground that after those very extensive efforts persisting over a number of years that the parties were stale-mated. The Court was confronted with three competing claims for the determination of native title over the same area, albeit a small area, and an inability for those claims to be progressed in any way notwithstanding the otherwise apparent prospects of the Northern Territory together with the first applicant and the second applicant reaching some agreement to lead to a satisfactory outcome for those parties without a hearing.

7        The matter was further complicated by the third applicant having limited legal representation. The consequence was that the third applicant was confronted with some difficulty in prosecuting the claim. That difficulty was to some extent resolved by both the Northern Territory and the Northern Land Council, the relevant native title representative body for the area, and those solicitors and counsel representing the first applicant, assembling and making available to all applicants such published historical, anthropological and other material as was available concerning the status of indigenous interests in the claim area, and surrounding areas, including determinations in surrounding areas made by the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). That resulted in the Solicitor for the Northern Territory making available to the Court and the applicants all that material compiled in 10 folders called “Book of Documents”, and the first applicant through the Northern Land Council making available to the Court and to the other applicants and respondents a further three folders of material. The first two were entitled the “First Applicant’s Supplementary Book of Documents”; the third volume was entitled the “First Applicant’s Further Book of Documents”. Directions were given about the taking of evidence. In the course of the hearing, the witnesses for the third applicant were given as much assistance from the Court and from counsel for the first and second applicants and the Northern Territory as was appropriate, consistent with their duties to the Court, and in the case of counsel to their respective clients.

8        Mrs Kathy Devereaux, one of the persons comprising the third applicant, appeared at the hearing on behalf of the third applicant over the first five days of hearing from 23 to 27 May 2011. The matter was then adjourned to a further date as Mrs Devereaux said she perceived the desirability of seeking further assistance by legal representation and also sought an opportunity to adduce in an appropriate form proposed expert or other anthropological evidence to support the claim. That adjournment application was granted. Subsequently the matter was listed for further hearing to commence on 17 October 2011 in relation to the identified question.

9        On that date, counsel for the third applicant, appearing for a limited purpose, applied for an order giving the third applicant leave to discontinue the claim. The consequence would be that the question identified would be unresolved. On the other hand, assuming the claim of the third applicants were to be discontinued, at least on the face of things there would remain only the claims of the first applicant and of the second applicant for a determination of native title over the Town of Batchelor, and the real prospect that those applicants together with the Northern Territory would by agreement resolve the issues between them. That proved to be an over simplification as to the consequences of the third applicant’s proposed discontinuance.

10        In the course of submissions, counsel for the third applicant indicated that, notwithstanding those instructions, the third applicant wished to remain as a respondent party to the claims of the first applicant and the second applicant and apparently, depending upon how those claims were progressed, to resist their claims on the basis that the Rak Mak Mak Marranunggu People were in fact the right people who hold native title rights and interests over the claim area to the exclusion of the first applicant and the second applicant. With respect to the third applicant’s status as a respondent party, I note that they do not presently appear as a respondent on the file with respect to the second applicant’s application. Moreover, it was possibly (although not specifically contemplated at the time) that the Rak Mak Mak Marranunggu People might themselves apply again for a determination of native title over the claim area at a later date.

11        Such an outcome would obviously be unsatisfactory having regard to the extensive history of the three claims, the apparent deadlock in negotiations, and the fact that, almost certainly, somehow or other any agreement between the first applicant and the second applicant and the Northern Territory (and the other respondent parties) to address the claim area would come to the attention of the Rak Mak Mak Marranunggu People, so that they could assert that which they wished to continue to be able to assert as to their status. It appears from the submissions that the decision to seek leave to discontinue the proceeding was taken because, having regard to recent events which need not be specified, the funding which the third applicant thought would be available to secure legal representation was no longer available, and that the third applicant did not think that it could properly and fully present its claims without recourse to legal representation notwithstanding the competent way in which the claim had previously been presented up to this time through Mrs Devereaux.

12        However, the application for leave to discontinue, if granted, would simply put off again the resolution of the issue as to the status of the Rak Mak Mak Marranunggu People over the claim area, with no apparent reason to think that the issue might otherwise be resolved. There was every likelihood that the Court would simply have to re-confront the issue at some indefinite time in the future. Neither the first applicant nor the second applicant nor the Northern Territory would, realistically, be able to progress the resolution of those claims. They had already been inactive for some years. That, obviously, was an unattractive outcome. The Court raised with counsel for the third applicant those matters, and that the alternative course of declining the application and proceeding with the hearing – albeit with Mrs Devereaux labouring under her perceived disadvantages – might be preferable. The third applicant had had a further six months to assemble additional evidence, including an expert linguist. The other parties had assembled their evidence and were ready to proceed with the hearing.

13        The application for leave to discontinue the application invokes the power of the Court in r 26.12(2)(c) of the Federal Court Rules. It is accepted that, in the present circumstances, leave to discontinue the application is necessary. It is also accepted that, under r 1.35, the Court may impose terms upon which leave to discontinue the application may be given, including terms which go beyond or to some extent are inconsistent with r 26.14. There is also no suggestion that the third applicant is not acting within the authorisation granted under s 251B of the NT Act in making the present application for leave to discontinue.

14        I note that leave to discontinue an application for the determination of native title made under s 61 of the NT Act, upon terms not dissimilar from those the subject of these orders, has been given in Close on behalf of the Githabul People #2 v State of Queensland [2010] FCA 828 and in Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation [2011] FCA 77. The starting point, as Finn J said in McKenzie v State of South Australia [2006] FCA 891 at [5], is that normally the Court will allow an applicant to discontinue if the applicant wants to, provided no injustice is caused to the other parties.

15        As a result of further discussions, each of the applicants and the Northern Territory, indicated that they were agreed upon the third applicant being given leave to discontinue its claim upon the following conditions: firstly that the third applicant and the Rak Mak Mak Marranunggu People, either through the presently named applicant or in other ways, not be permitted to bring a further claim under s 61 of the NT Act in respect of the claim area for determination of native title without the leave of the Court, and secondly that those persons also not be permitted to take a role as respondents in relation to the claims of the first applicant and of the second applicant without the leave of the Court. It was contemplated that the third applicant and the Rak Mak Mak Marranunggu People would remain as respondents to the first applicant’s claim. It was anticipated that such leave would not be given by the Court except in a substantially restricted way. In practical terms, as counsel for the third applicant accepted, such leave would not be given unless the third applicant was able to present proposed cogent supporting anthropological evidence in support of the claim.

16        Although that position went some way to addressing the Court’s concerns, it did not entirely do so. That is simply because, in essence, it amounted to putting off resolution of the issue which was blocking any agreed resolution of the three claims so that the third applicant would have a further lengthy period to seek supporting anthropological evidence for the claim of the Rak Mak Mak Marranunggu People and, if that evidence became available, it would be unlikely that the present position of three competing claims for the same area would not recur. Time and expense would have been wasted. The first applicant and the second applicant and the Northern Territory could negotiate only in the shadow of the potential survival of the claim of the third applicant.

17        Ultimately, as I indicated in the course of submissions, I propose to give leave to the third applicant to discontinue its claim, on the basis that the discontinuance will be promptly effected, upon the proposed agreed conditions, but also on the basis that the representatives of the Rak Mak Mak Marranunggu People and the third applicant be removed as a respondents to the claim of the first applicant. The third applicant would be precluded from taking a role in opposition to the claims of both the first and second applicants, as well as be precluded from bringing a further claim under s 61 of the Act, unless and until the third applicant or the Rak Mak Mak Marranunggu People applied for leave of the Court to re-join as respondent parties to either of those applications, or to bring a new claim.

18        That of course would not preclude them from engaging in any negotiations with other claimants or the Northern Territory in relation to the Town of Batchelor area.

19        Section 84 of the NT Act deals with parties to proceedings. Not surprisingly, the Rak Mak Mak Marranunggu People through its representatives became a party to the claim of the first applicant as persons claiming to hold native title in relation to the land or waters in the area covered by that application and as persons whose interests in relation to that land or waters might be affected by a determination in that claim. They did so by giving notice to the Court of their desire to be a party within the period specified in the notice under s 66 of the NT Act. In essence, they on behalf of the Rak Mak Mak Marranunggu People had a right to be, and chose to be, a respondent party to that proceeding: s 84(3). By removing them as a respondent party, as I now propose to do, the Rak Mak Mak Marranunggu People are not precluded from becoming a party to the proceedings again, but they will now need the Court’s leave before permitting them to do so. Section 84(5) provides:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the persons interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

20        Section 84(8) empowers the Court at any time to order that a person who is a respondent party to a proceeding cease to be a party to a proceeding. That is an unrestricted discretion, but there are circumstances which the Court is obliged to consider in making such an order specified in s 84(9). I make it clear that the making of the order I propose to make is not based upon the factors specified in s 84(9). It is made in the context of the observations referred to above.

21        There were additional matters which influenced me in the exercise of the discretion under r 26.12 of the Federal Court Rules.

22        In the first place, in my view, there is now a reasonable prospect that each of the first applicant, the second applicant and the third applicant and the Northern Territory will collectively be able to reach agreement as to the disposition of their respective claims. The orders I make do not preclude the third applicant from participating in those discussions. I make it plain that the orders being made reflect no view on my part as to whether any one or other of the applicants ultimately would establish an entitlement to a determination of native title over the claim area. In particular, they reflect no view on my part about the strength or weakness of the claim of the third applicant. There has simply been no adjudication on the claim of the third applicant, and the leave now granted will mean that, so far as the parties expect, there will be no such adjudication one way or the other.

23        Counsel had different views as to the extent to which those prospects of an agreed resolution existed. Counsel for the third applicant said that there was “a realistic prospect” of the third applicant agreeing to resolution of its claim over the claim area with the Northern Territory, and in the context of the claims of the first applicant and second applicant also otherwise being resolved. Counsel for the first applicant described an agreed outcome between all applicants and the Northern Territory as “reasonably likely” and that the prospects of resolution of the claims would be enhanced by the discontinuance of the claim of the third applicant. The discontinuance of the claim of the third applicant, as I have noted, would not in fact preclude the third applicant from renewing its claim, or applying to re-become a respondent party to the claim of the first applicant or to apply to become a respondent party to the claim of the second applicant, but there was some significance to the other applicants in the fact of the discontinuance in terms of their respective negotiating positions. While counsel for the second applicant conveyed the view that the likelihood of a settlement was reasonably high, the Solicitor for the Northern Territory was, perhaps, a little more sanguine, expressing the position as being a “real prospect” of resolution of the three claims.

24        In all events, having regard to the alternative of either forcing the third applicant to proceed with the claim in circumstances where the third applicant is reluctant to do so for practical rather than legal reasons, but also where at present the third applicant does not presently have cogent supporting anthropological evidence in support of the claim, so that there is a risk that (perhaps without the benefit of full evidence) its claim might be dismissed, the prospect of a negotiated outcome for all is one which is better and more in accordance with the objectives of the NT Act.

25        Moreover, despite the apparent intransigence of the third applicant to date (I use the word “apparent” simply because, so far as the Court is concerned, it has firmly and persistently indicated a lack of preparedness to undertake any negotiations at all), the present circumstances are recognised by all counsel including counsel for the third applicant as giving rise to an environment in which negotiations might now be progressed effectively whereas previously they could not be progressed effectively.

26        The momentum for overall resolution of the claims which now exists can be maintained. The Court proposes to adjourn the applications of the first applicant and the second applicant for directions to 18 January 2012. In the absence of any overall agreement to address their claims, they will then be progressed by directions listing each of those claims for hearing in as soon a timeframe as can be arranged. It is not insignificant in that regard, that, for the purposes of resolution of the question which the Court is presently set to determine, both the first applicant and the second applicant have assembled significant evidence to demonstrate their significant interest in the claim area, if not with the level of refinement of their particular claims to support the grant of native title. They are advanced, therefore, in their preparation generally for the progression of their respective claims.

27        Finally, whilst it is acknowledged that the third applicant can continue to participate in the negotiations, I am informed that any negotiated resolution will more probably result in an agreement or a series of agreements between the Northern Territory and one or other of the applicants on behalf of their respective claim groups in relation to particular sections of the Town of Batchelor rather than to a determination of native title in terms of s 61 of the NT Act. Given the development of the Town of Batchelor to date, that is probably a more sensible way to approach negotiations. I do not know the detail of the negotiations or the potential outcome. I was informed that the negotiations will be directed to such a form of outcome rather than to a determination that native title exists or does not exist in relation to the Town of Batchelor, obviously because of the extent to which there may have been either total or partial extinguishment of large parts of the present claim area.

28        Any agreement entered into between the parties might previously have been the subject of an Indigenous Land Use Agreement under Div 3 of the NT Act, which would then be required to be registered under the NT Act. There is a Register of Indigenous Land Use Agreements maintained by the Registrar of the National Native Title Tribunal: Pt 8A of the Act. Registration of an Indigenous Land Use Agreement, depending upon its particular character, is effected under ss 24BI, 24CK or 24CL, or 24DL of the NT Act and there are procedures preceding registration, registration tests, scope for objections to registration, and the like, as well as the registration decision to be made by the Native Title Registrar, as well as the process for objections dealt with in Div 2A of Pt 3 (ss 77A and 77B) of the NT Act. As was mentioned in the course of the hearing, an agreement between the parties may now be made by the Court under s 87 of the NT Act. That power may be exercised on the basis of the agreement between the parties rather than after a hearing, and may relate to part of the claim. Section s 87(4) provides, even if the agreement and the proposed order does not involve the Court making a determination of native title, the Court may, by Order, give effect to the agreement. For the purposes of making such an Order, the Court may act upon an agreed statement of facts between the parties: s 87(8)-(10) and (11). That is an alternative venue for prompt recording of the parties agreement, assuming they reach an agreement.

29        For the reasons given, the third applicant is given leave to discontinue the application in matter NTD 18 of 2006 upon the following terms:

(1)    the Notice of Discontinuance be filed and served within seven days;

(2)    Margaret Daiyi, Linda Ford and Kathleen Devereaux cease to be a respondent party to NTD 6057 of 2001;

(3)    the native title claim group described in NTD 18 of 2006 or any member thereof not be permitted to

(i)    institute a further application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title over the claim area known as the Town of Batchelor; or

(ii)    apply under s 84(5) of the NT Act to become a party to NTD 6057 of 2001 or NTD 21 of 2005 or either of them for the purpose of asserting any native title right or interest in the claim area subject of those applications inconsistent with the claims of the first applicant or the second applicant;

except by leave of the Court;

(4)    in the event that NTD 18 of 2006 is discontinued pursuant to the leave hereby given, there be no order as to the costs of that matter;

(5)    NTD 6057 of 2001 and NTD 21 of 2005 are adjourned for further directions to 9:00 am on 18 January 2012;

(6)    any party may apply for further directions or orders as that party may be advised on reasonable notice to the other parties.

Associate:

Dated:    19 October 2011