White J
In this matter, White J held that 11 native title applications, all at least 13 years old, be dismissed for lack of prosecution with reasonable diligence. The respondent parties included the Northern Territory and Commonwealth governments and the Consolidated Pastoral Company Pty Ltd. The claims were ‘polygon’ claims, meaning they were made following notifications under s 29 of the Native Title Act 1993 (Cth) (NTA) and the areas to which they related conform to the irregular boundaries of mining tenures granted or proposed to be granted pursuant to the Mining Act 1980 (NT) or the Petroleum Act 1984 (NT).
In March 2008, Reeves ordered that the Northern Territory pastoral claims be heard in 10 groupings. In September 2009, the Court was given a program which contemplated all claims being finalised by 2014. In May 2014, a planning day was held and a revised plan adopted due to a lack of progress. At that planning day, the NLC agreed to identify those claims in which the applicants would not suffer any prejudice if they were discontinued, and to discontinue them. That process did not result in the discontinuance of any claims.
In April 2016, the Court referred groups 3, 7, 11 and 12, and the Town of Weddell and Middle Arm claims to case management by a Registrar of the NNTT. The Court ordered the Northern Land Council (NLC) to file and serve an affidavit in respect of each group and the two towns stating reasons which would support the matters remaining current and setting a timetable out for their disposition. The NLC only contemplated some steps in relation to the applications comprising group 3 and did not provide any steps for the remaining claims. As such the Court made orders to hear from the applicants as to why the applications should not be dismissed for want of prosecution with due diligence.
The Court conducts a callover every six months of all the native title proceedings filed by the NLC in the Northern Territory Registry. At several of the callovers, the Court expressed its concern about the lack of prosecution of the claims and warned the parties of its possible intervention. The Court noted that to date, the applicants have done very little to prosecute the claims and it appeared that there was no prospect of them doing so. In those circumstances, the Court can act on its own motion pursuant to rr 1.40 and 5.23 of the Federal Court Rules 2011 (Cth) to dismiss the applications by reason of the failure of the applicants to prosecute their claims with reasonable diligence.
The principal argument put forward by the NLC, on behalf of the applicants, was that while current, the applications provided the claimants with standing to negotiate with respect to future acts pursuant to Subdivision P of Division 3 of Part 2 of the NTA. The NLC further emphasised that part of the policy of the NTA is to vest in registered claimants the right to negotiate in respect of future acts and that the course of negotiated of agreements can be protracted. As such the NLC said it would be inappropriate for the court to dismiss these matters in which there are current future act negotiations or in which there is some prospect of negotiations occurring in the future.
White J held that it was 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. He held that the court is more concerned in situations where the evidence discloses that the dismissal of the application, would or is likely to, have some practical effect on the claimants. On that basis, his Honour considered that the dismissal of the Roper Valley North, Mary River West and Ban Ban Springs applications would cause practical detriment to the claimants’ ILUA and future act negotiations. White J was not satisfied that the dismissal of the remaining matters would cause sufficient practical prejudice to the applicants to warrant the court refraining from dismissing the applications.
White J did not consider the NLC’s submission that the lack of prosecution was due to the insufficient funds and resources available to the organisation persuasive. His Honour noted that while the Court has in a practical way taken account of the exigencies of the funding arrangements for the pursuit of claims for the determination of native title, it has not regarded funding difficulties as a decisive consideration: Bennell v State of Western Australia [2004] FCAFC 338 at [37]; Kokatha Native Title Claim v State of South South Australia [2006] FCA 838, at [10]; Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073 at [25], Levinge v Queensland [2012] FCA 1321; at [18]-[19] and Agius v State of South Australia (No 4) [2017] FCA 361 at [78], [80]. His Honour did not consider it appropriate to give weight to the difficulties of the NLC. White J considered that the matters had been on foot for a significant time, during which the NLC could have addressed those issues.
His Honour found that the claims had been on foot for a long time without any significant action taken to progress them, and it was 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. White J found that the programs for progressing the claims set by the Court had not been adhered to, and the applicants had made no attempt to meet the timeframes they themselves nominated. His Honour adjourned the Roper Valley North, Mary River West and Ban Ban Springs claims to the callover to be held on 20 October 2017, and dismissed the remaining applications.