In this matter Jagot, Griffiths and Mortimer JJ granted an extension of time and leave to appeal the decision of the primary judge to dismiss nine native title applications for lack of prosecution with due diligence: see Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461. Their Honours dismissed the appeal.
The appeal raised important issues concerning the interaction between the power of the Court to dismiss an application where there has been a failure to prosecute the proceedings with due diligence and the operation of relevant provisions of the Native Title Act 1993 (Cth) (NTA). In particular, those provisions relate to the right of the applicants to negotiate with respect to future acts under Subdiv P of Div 3 of Pt 2 of the NTA.
Initially there were 27 native title applications from the Northern Territory invited to show cause for why the proceedings should not be dismissed and nine of those applications were subsequently discontinued. The decision to dismiss the nine s 29 NTA polygon claims was on the basis that they were not prosecuted with due diligence by the Northern Land Council (NLC). The decision was not based on the merits of the claim and does not prevent future applications over the areas.
The appellants challenged the finding of the primary judge that the native title applicants would not suffer any prejudice from the dismissals. The Court was not satisfied that the appellants demonstrated any appealable error as per House v the King (1936) 55 CLR 499, as there were no future acts underway. The Full Court found at [31] that ‘it is unarguable that the primary judge did not take into account the fact that dismissal of the applications would result in the appellants’ loss of the right to negotiate. His Honour evaluated the weight and significance of that right in the particular circumstances of the case and by specific reference to the finding that it was unclear whether MacMines would be able to engage in the relevant exploration activities having regard to the [hydraulic fracturing of unconventional gas reservoirs (fracking)] moratorium. In view of the evidence below, it was reasonably open to the primary judge to make that finding.’
Their Honours also rejected the second, third and fourth grounds of appeal on the basis of a finding of no current activity and the fifth ground for appeal was dismissed on the basis that the appellant’s had misunderstood the primary judge’s reasons for judgment. For the six and seventh grounds of appeal, the appellant argued that the primary judge had failed to consider the significant lack of resources for the NLC to prosecute the claims but this was rejected. The eighth ground for appeal was that the primary judge concluded that the applications would most likely never be prosecuted. The appeal Court rejected the appellant’s assertions that the judge had undertaken an irrelevant consideration as to the likelihood that the claims would ever be prosecuted. To succeed on these grounds the appellants would need to establish that the judge was prohibited from so considering which the Court found they had not done so.
The appellants also contended that the primary judge acted inconsistently with the order made in October 2016 to the effect that any respondent who wished to be heard at the hearing in March 2017 needed to file and serve a notice, and that if they did not the Court would assume that the party took a neutral stance on the issue of whether an application should be dismissed. The Full Court rejected this assertion.
For these reasons the nine appeals were dismissed and in the absence of any active respondents, no order was made as to costs.