Native Title Year in Review 2017 - Determination of native title claims
Decisions provide clarity and guidance on range of issues
The following articles appear below:
- Full Court narrows the circumstances in which prior extinguishment can be disregarded: s47B gets the squeeze
- FMG appeals finding of exclusive native title over its Solomon Hub Mine
- Federal Court varies determination of native title for the first time – is this the tip of the iceberg?
- Federal Court makes more negative determinations delivering certainty for all stakeholders
- Native title claims finally being resolved in NSW
- Full Court confirms decision to dismiss claims notwithstanding it would mean loss of RTN rights
Full Court narrows the circumstances in which prior extinguishment can be disregarded: s47B gets the squeeze
In February and March 2018, the Full Federal Court handed down two decisions that narrowed the operation of section 47B of the Native Title Act. The Full Court in Tjiwarl and Attorney General v Helicopter-Tjungarrayi (Ngurra Kayanta and Ngurra Kayanta #2) [2018] FCAFC 35 found that exploration licences and petroleum exploration permits were "leases" for the purposes of section 47B, so that section 47B would therefore not apply to disregard prior extinguishment.
Section 47B of the Native Title Act
Section 47B of the Native Title Act 1993 (Cth) provides that historical extinguishment of native title can be disregarded if, at the time the native title claim is lodged, that area is occupied by the claim group and certain exclusions do not apply.
Those exclusions are:
- the area is covered by a freehold estate or a lease (section 47B(1)(b)(i)); or
- the area is covered by a reservation, proclamation, dedication, condition, permission or authority under which the whole or a part of the land or waters in the area is to be used for a public purpose or for a particular purpose (section 47B(1)(b)(ii)).
Until recently, the Federal Court's approach had been that neither of these exclusions applied to exploration tenements in Western Australia. This meant that section 47B of the Native Title Act could operate on land that was the subject of an exploration licence or petroleum exploration permit at the time the claim was made, so that the prior extinguishment of native title effected by the grant of these tenements could be disregarded. This would allow exclusive native title to be determined to exist.
Tjiwarl
Trial Judge finds "exploration licence" not a "lease" so and exclusion doesn't apply
Consistent with earlier authority, the Tjiwarl trial judge had found that a "lease" in section 47B(1)(b)(i) of the Native Title Act included a mining lease, but not an exploration licence. We report on the Tjiwarl decision in our article Full Court resolves recent uncertainty surrounding the validity of grants under the Native Title Act, but High Court may yet hear the issue.
Full Court overturns Trial Judge – section 47B(1)(b)(i) exclusion applies
The Full Court disagreed and said that the definition of "mine" in the Native Title Act, which includes to "explore or prospect for things that may be mined", meant that the term "lease" would also include an exploration licence. The exclusion in section 47B(1)(b)(i) of the Native Title Act therefore applies in the case of an exploration licence.
As a result, section 47B will not apply and the historical extinguishment of native title in areas covered by an exploration licence at the time a native title claim is lodged cannot be disregarded.
High Court appeal
The native title holders filed an application for special leave to appeal to the High Court on the section 47B issue. The special leave application will be heard later this year.
Attorney General v Helicopter-Tjungarrayi (Ngurra Kayanta and Ngurra Kayanta #2) (Ngurra Kayanta)
Trial Judge finds that neither of the exclusions in section 47B(1)(b) applied
This was a test case on the application of both limbs of section 47B(1)(b) of the Native Title Act.
In relation to the first limb, the State of Western Australia argued that petroleum exploration permits were "leases" and thereby excluded the operation of section 47B under the first limb in section 47B(1)(b)(i). The State invited the Court to not follow the decision of the Tjiwarl trial judge on the ground that it was clearly wrong.
The Court rejected the State's argument and followed Tjiwarl. The Court held that an exploration permit is for exploration only and does not constitute a "mining lease" under the Native Title Act and is therefore not a "lease" for the purposes of section 47B(1)(b)(i) of the Native Title Act.
In relation to the second limb, the Commonwealth intervened in the proceedings and argued that the second exclusion in section 47B(1)(b)(ii) applied, ie that the petroleum exploration permits were permissions or authorities under which the land was to be used for a particular purpose.
This argument was in direct contradiction of the Full Court decision in Banjima People v Western Australia [2015] FCAFC 171 (which we reported on in our 2016 Native Title Year in Review and 2015 Native Title Year in Review). The Commonwealth contended that the permits were different from those considered by the Full Court in Banjima and did in fact comprise permissions or authorities granted for a particular purpose (namely petroleum exploration).
The Court rejected this argument and held that the permits were indistinguishable from the Banjima permits and that the exclusion in section 47B(1)(b)(ii) did not apply.
Full Court overturned trial judge on first limb but not second
The State and the Commonwealth both appealed to the Full Court. The Full Court heard the Ngurra Kayanta appeal on 12 February 2018 and therefore was able to take into account the Full Court's decision on 1 February 2018 in Tjiwarl.
Consistent with the Full Court in Tjiwarl, the Full Court in the Ngurra Kayanta appeal found that petroleum exploration permits were "leases" that excluded the operation of section 47B.
The Commonwealth's appeal on the operation of the second limb of section 47B(1)(b) was dismissed.
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FMG appeals finding of exclusive native title over its Solomon Hub Mine
Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803; [2017] FCA 129
Fortescue Metal Group has appealed the Federal Court's determination that the Yindjibarndi people hold exclusive native title to land including FMG's Solomon Hub iron ore mine in Western Australia (Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803). This will require the Full Court to revisit a number of earlier decisions on the evidence required to establish exclusive native title rights and interests.
Trial judge found exclusive native title over Solomon Hub Mine
In July 2017, the Federal Court held that the Yindjibarndi people hold exclusive native title to land including Fortescue Metal Group's Solomon Hub iron ore mine in Western Australia (Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803).
The Yindjibarndi People already held non-exclusive native title rights and interests to a large area north of the claim area, which was recognised after a contested hearing. The Full Court in that matter (Moses v Western Australia [2007] FCAFC 78) held the Yindjibarndi did not hold exclusive native title because, although there remained a practice of seeking permission to enter Yindjibarndi land, this occurred as a matter of respect not in recognition of a right to control access.
However, since the Moses decision, the Full Court has held that a traditional custom by which persons were expected to seek permission before entering land (so as to gain spiritual protection) gives rise to exclusive native title (Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths) and Banjima People v Western Australia (No.2) [2015] FCAFC 171 (Banjima)).
The Yindjibarndi People successfully relied upon these principles to claim exclusive native title in these proceedings. The Court rejected arguments from the State and FMG asking the Court to find only non-exclusive native title.
As the holders of exclusive native title right and interests, the Yindjibarndi people have the right to exclude any person who is not a Yindjibarndi person from those parts of the determination area where exclusive native title was found to exist.
FMG's Appeal
FMG filed a notice of appeal in December 2017 appealing the findings on exclusive native title (WAD611/2017). The matter will be set down for hearing in 2018.
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Federal Court varies determination of native title for the first time – is this the tip of the iceberg?
For the first time, the Federal Court has varied an approved determination of native title in Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia [2017] FCA 40. The variation was made by consent to confirm that native title exists in relation to areas of pastoral improvements which had been excluded from the original determination area on the authority of a Full Court decision that was overturned by the High Court.
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia
Original determination – pastoral improvements excluded from determination area
The Federal Court made a consent determination of native title in July 2013 finding that the Wiluna claim group and the Tarlka claim group held native title rights and interests in relation to certain pastoral land in Western Australia (WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755).
Justice McKerracher made orders on the terms set out in a Minute of Proposed Consent Orders signed by the Applicant and all respondent parties. The consent orders provided the Determination, as it relates to pastoral improvements, could be varied if, on appeal from the decision in Brown (on behalf of the Ngarla People) v State of Western Australia (2012) 203 FCR 505, the High Court overturned, set aside or otherwise found to be incorrect the ruling in De Rose v South Australia (No 2) (2005) 145 FCR 290 concerning pastoral improvements. In De Rose it was held that pastoral improvements had the effect of extinguishing native title.
Application to vary determination of native title to add pastoral improvements to determination area
As was widely anticipated, the High Court held in Western Australia v Brown [2014] HCA 8 that the Full Court decision in De Rose concerning pastoral improvements was incorrect and that pastoral improvements do not extinguish native title.
After the High Court's decision in Brown, the Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (as the registered native title body corporate for the native title holders in Wiluna) (Tarlka) filed an application to vary the determination of native title pursuant to section 13 of the Native Title Act.
Section 13(5) of the Native Title Act states that the grounds for variation or revocation of an approved determination of native title are:
"(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b) that the interests of justice require the variation or revocation of the determination."
The determination was made by consent in February 2017 (Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia ([2017] FCA 40).
The Court was satisfied that both grounds in section 13(5) of the Native Title Act had been met. The High Court's decision in Brown was an event that had taken place that caused the determination to no longer be correct, as it incorrectly determined areas of pastoral improvements as areas where native title did not exist. It was in the interests of justice to give effect to the agreement recorded in the minute of consent orders – the determination expressly provided for this change in law. The variation application had the consent of all parties and was supported by a joint submission.
Was the Tarlka variation the tip of the iceberg?
Pre-Tarlka
This was the first time that the Federal Court has varied a determination of native title. The Federal Court has been asked to consider two earlier applications to vary a determination of native title and both were unsuccessful for reasons relating to the capacity of the applicant to bring the application such that the Court was not required to consider section 13(5) of the Native Title Act.
In one of those applications (Wintawari Guruma Aboriginal Corporation RNTBC v State of Western Australia [2015] FCA 1053) Justice Rares referred to how the ordinary principles applicable to varying an order made by consent would apply in the context of section 13(5) of the Native Title Act. Justice Rares referred to these comments by the High Court (in the 1956 decision of Harvey v Phillips (1956) 95 CLR 235 at 243-244):
"The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like."
These comments suggest that the Court may not readily vary a consent determination of native title, but may be confined to the circumstances of the case.
Consent determinations that flag a variation application
In both BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671 (Birriliburu) and Taylor v Western Australia [2017] FCA 1255 (Taylor), consent determinations of native title recognised exclusive native title over the area of exploration tenements relying in the earlier interpretation of section 47B(1)(b) of the Native Title Act before the Full Court decisions in Tjiwarl and Ngurra Kayanta.
Recognising the legal uncertainty surrounding the application of section 47B of the Native Title Act in this context, the parties in Taylor adopted the same approach as the parties in Tarlka. They expressly agreed in the minute of consent orders that the Commonwealth could make an application to vary the determination if the High Court (or the Full Court if special leave is refused or an application for special leave is not made) overturns Ngurra Kayanta. The parties in Birriliburu adopted a similar approach.
The parties were prudent to record their agreement in the consent determination. It should greatly assist to progress any application under section 13 of the Native Title Act to vary the Taylor and Birriliburu determinations.
Mandandanji Court flags section 13(2) application
In Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247 the Federal Court made a consent determination of native title recording that native title does not exist in relation to the claim area comprising approximately 20,000 square kilometres in southern Queensland. We discuss this decision further below in our article below Federal Court makes more negative determinations delivering certainty for all stakeholders.
Justice Rares noted that the determination was subject to the possibility of a future application to vary the determination under section 13(2) of the Native Title Act if events occur that cause the determination to no longer be correct or the interests of justice require it.
Yindjibarndi Aboriginal Corporation RNTBC v WA
In May 2017, the Yindjibarndi Aboriginal Corporation RNTBC filed an application to vary the determination of native title made by the Full Federal Court in Moses v Western Australia [2007] FCAFC 78 on the grounds that the law relating to the nature of exclusive possession of native title has fundamentally changed.
The application states that the events that have taken place since the determination are the Full Court decisions in Griffiths and Banjima both of which recognise spirituality as being capable of supporting a right of exclusive possession. Previously, the law required that an applicant for exclusive possession native title must prove a right to control access that existed in a usufructuary or proprietary sense.
The Yindjibarndi RNTBC will submit that the native title holders would be entitled to exclusive possession on the Full Court's new approach to this issue and that the interests of justice favour the variation be made.
The Court has made orders for the filing of pleadings and a case management conference in May 2018. The application is opposed by the State of Western Australia and FMG.
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Federal Court makes more negative determinations delivering certainty for all stakeholders
The Federal Court has made a number of negative determinations of native title in 2017-2018, including by consent. These include Sandy on behalf of the Yugara People v State of Queensland [2017] FCFCA 108 over the Brisbane area, Yirendali People v State Of Queensland [2017] FCA 273 after a surrender of native title, Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247 and Agius v State of South Australia (No.6) [2018] FCA 359 covering the majority of the Kaurna claim area over Adelaide.
Turrbal and Yugara – No native title over Brisbane area
The proceedings involved competing native title claims made by the Turrbal People and Yugara People over a large part of the greater Brisbane area, including the Brisbane CBD. The proceedings had a long history, with the Turrbal claim first lodged in 1998.
In 2015, the Federal Court rejected both claims on the basis that the claim groups were unable to prove a continued and substantially uninterrupted system under which traditional laws and customs were acknowledged and observed (Sandy on behalf of the Yugara People v State of Queensland (No.2) [2015] FCA 15). The Court held that neither claim group possessed the necessary communal, group or individual rights and interests required to prove native title in the claim area.
In March 2015 the Federal Court made a determination that native title does not exist in relation to the claim areas (Sandy on behalf of the Yugara People v State of Queensland (No.3) [2015] FCA 210).
Both groups appealed to the Full Court and the appeals were heard together in November 2016.
On 25 July 2017, the Full Federal Court dismissed the appeals from the Federal Court's decision and confirmed that native title does not exist (Sandy on behalf of the Yugara People v State of Queensland [2017] FCFCA 108). The Full Court agreed with the trial judge that neither the Turrbal or Yugara applicants were able to establish a continuity of laws and customs. Put simply, the Turrbal or Yugara groups had lost their traditional connection to the land.
The Full Court followed their earlier decision in Bodney v Bennell (2008) 167 FCR 84 (in relation to the Perth CBD native title claim) and noted at [221] that:
"A substantial interruption of the connection of a people to a claim area by the traditional laws and customs is not to be mitigated by reference to white settlement. The continuity inquiry does not involve consideration of why acknowledgment and observance ceased."
The Full Court said the case of the Turrbal applicants was not relevantly different from that of the claimants in Risk (on behalf of the Larrakia People) v Northern Territory (2007) 240 ALR 75 (in relation to the Darwin CBD native title claim) in which the Full Court concluded that, by reason of dispossession of much of their traditional lands, they were precluded from exercising many of their traditional rights.
The Yugara applicants also appealed the trial judge's separate determination that native title did not exist.
The Full Court confirmed that the trial judge had the discretionary power to make a negative determination of native title (see CG v Western Australia (2016) 240 FCR 466 (Badimia) (see the discussion of this case in our 2016 Native Title Year in Review). It dismissed the appeal and found that the discretion was properly exercised, taking into account the long history of the competing claims and the need for finality in the proceedings.
Yirendali Claim – No native title over large area in Western Queensland
In Hill on behalf of the Yirendali People v State Of Queensland [2017] FCA 273 the Federal Court made a consent determination of native title recording that native title does not exist in relation to a large area in Western Queensland.
In this case, the consent determination followed the registration of an ILUA providing for the surrender of native title in relation to the whole of the claim area in exchange for certain benefits from the State, including land exchange and revenue sharing. The negotiation of the ILUA followed the State notifying the claim group that it did not accept that they could establish the necessary connection to the claim area under the Native Title Act.
The Court considered the principles governing the exercise of its discretion to make a negative determination set out in Badimia and held it was appropriate to make the negative determination.
Mandandanji Claim – No native title over large area in Southern Queensland
In Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247 the Federal Court made a consent determination of native title recording that native title does not exist in relation to the claim area comprising approximately 20,000 square kilometres in southern Queensland.
The parties had agreed that native title had been extinguished in all but 5% or 6% of the claim area and their experts disagreed about whether the claim group were in fact descendants of the persons who held native title at sovereignty. Unlike Yirendali, the consent determination was not underpinned by an ILUA in favour of the claim group.
The Court said at [25] – [26]:
"The sad reality appears to be that there is no longer any claim group that can prove that it has native title rights and interests in the originally very large claim area, or even the smaller scattered portions of over 115,000 hectares that could have been made the subject of a positive determination that native title rights and interests still existed …
In that context, I am satisfied that it is unlikely that any other claim group exists that could make a case for a positive determination in respect of the limited portions in the claim area that have not experienced acts of extinguishment of native title."
Interestingly, Justice Rares noted that the determination was subject to the possibility of a future application to vary the determination under section 13(2) of the Native Title Act if events occur that cause the determination to no longer be correct or the interests of justice require it.
Kaurna Claim – Mixed results over Adelaide area
The Kaurna People's native title claim over 7000 square kilometres in the Adelaide area was also resolved in a manner that included a negative determination of native title, but the consent determination in this case recognised the Kaurna People as native title holders of the determination area and the Kaurna People had the benefit of a settlement ILUA with the State of South Australia (Agius v State of South Australia (No.6) [2018] FCA 358).
The State accepted that the Kaurna People were descendants of the Adelaide tribe who held native title at sovereignty and for the purposes of a consent determination were prepared to accept that there had been sufficient ongoing connection since sovereignty.
The Federal Court made the following orders by consent:
- a determination that non-exclusive native title rights and interests exist in relation to only 17 parcels of land within the determination area;
- a determination that native title does not exist in relation to the majority of the determination area;
- dismissing the claim (without any finding of extinguishments) in relation to approximately half the claim area to the north and south of the determination area, with an acknowledgement that future claims over both areas could be filed by a different native title claim group.
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- proponents may have termination rights if the agreement contains "contrary determination" clauses contemplating a negative determination; or - the agreement may be frustrated - similar issues arising from the dismissal of a claim and the effect of an agreement were dealt with in the Bidjara People Claim Group and Ors v PAPL (Upstream Pty Ltd) and Ors [2017] QLC 44 (we discuss this case in our article Remember - native title agreements are contracts!).
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Native title claims finally being resolved in NSW
After many years of lagging behind the other States when it comes to resolving native title claims, NSW saw three landmark determinations of native title in 2017 (Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993, Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971 and Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992). This represents a 50% increase in the number of consent determinations of native title in that State in only 12 months.
First determination of native title over sea in NSW
History was made when the Federal Court determined for the first time that native title exists over the seas of NSW.
In a consent determination made on 31 August 2017 (Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993), the Federal Court recognised that the Yaegl People hold native title to the seas within 200 metres from the mean low water mark between Woody Head and Wooli, extending out to 350 metres in a buffer zone around the culturally significant area of Dirrungun Rocks at the mouth of the Clarence River at Yamba.
The Yaegl People's native title rights and interests include the right to take, use, share, offer and exchange resources in the determination area for non-commercial purposes (except in the buffer zone around Dirrungun Rocks), and the right to maintain and to protect places, objects and areas of importance or significance under traditional laws and customs.
The decision means that the native title holders cannot be restricted from fishing or gathering resources from the area for personal, domestic or non-commercial communal needs. It does not, however, confer a right to control access to or use of the determination area or affect the rights of other people to access and use the area.
Second consent determination for Barkandji People
On 22 August 2017, the Federal Court determined by consent for the second time that the Barkandji and Malyangapa People hold native title to land and waters in south-west NSW (Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971). The Barkandji determination has the largest external boundary of any determination in NSW, covering 128,000 square kilometres.
The recent determination addressed approximately 50 parcels of land for which consensus could not be reached in time for the earlier consent determination in June 2015 (plus an additional 21 parcels that had not been previously formally described).
There were several reasons for the lack of consensus. Most notably, the local government parties were not satisfied with the State's assessment of the native title status of about 40 parcels of reserved Crown lands in which they had an interest. The State had opted not to undertake a comprehensive tenure history for approximately 3,500 Crown land parcels reserved for public purposes, and on that basis, accepted the existence of non-exclusive native title.
The August 2017 determination identifies native title as having been extinguished to 40 parcels of reserved Crown land, which had, presumably, been originally assessed by the State as subject to native title.
Western Bundjalung People hold native title in northern NSW
On 29 August 2017, the Federal Court determined by consent that the Western Bundjalung People hold native title to numerous areas of land and water situated between Casino, Grafton and Tenterfield in northern NSW (Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992).
The determination is contingent upon the registration of an indigenous land use agreement between the Western Bundjalung People and State, negotiated as part of the claim resolution process, which is expected to occur before 28 May 2018.
The decision recognises the non-exclusive native title rights and interests of the Western Bundjalung People, which include the rights to gather and use the traditional natural resources of the area and the right to take and use water for personal, domestic and communal purposes (including cultural purposes).
The determination also provides that native title has been extinguished to much of the claim area, and in doing so provides a greater degree of certainty to land users than the common practice in Queensland of simply not referring in the determination to land where native title has been extinguished.
Justice Jagot criticises systemic issues with NSW native title claims process
Justice Jagot described the six year process as "swift" compared to other NSW claims but stated that "six years is not swift or even acceptable compared to any proper standard for litigation in this country" particularly in the context of the injustices the Native Title Act seeks to rectify. Justice Jagot listed various factors that contributed to the systemic issues infecting the State's processes for the resolution of claims, including routinely disregarding Court orders, dysfunctional interagency communication and lack of clear guidelines regarding the State's approach to determining whether applicants had a "credible basis" for connection before negotiations can commence.
Justice Jagot questioned whether unnecessary delays were being caused by the State imposing higher standards for establishing connection under section 223 of the Native Title Act than would be required by the Court. Her Honour noted that the disparity of power and resources meant that the State must be acutely sensitive to the requirements of good faith, reasonableness and the avoidance of conduct which may be oppressive. The fact that the State has no published guidelines explaining what it requires in respect of connection and no guidelines or templates about the kinds of ILUAs that may be appropriate contributed to the State's systemic issues.
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Full Court confirms decision to dismiss claims notwithstanding it would mean loss of RTN rights
Henwood v Northern Territory of Australia [2017] FCAFC 182
The Full Federal Court has dismissed an appeal from a trial judge's decision to dismiss claims that are not being prosecuted with reasonable diligence in circumstances where the dismissal resulted in a loss of the right to negotiate under the Native Title Act. The test is whether the dismissal will result in a "practical prejudice" to the claimants' legal rights (Henwood v Northern Territory of Australia [2017] FCAFC 188).
Trial judge dismissed the claims for want of prosecution
The nine native title applications subject to this appeal were "polygon" claims, so-called because their boundaries mirrored the irregular shapes of mining tenures. These polygon claims had been made in the late 1990s and early 2000s following section 29 notices under the right to negotiate provisions of the Native Title Act. The boundaries of the polygon claims did not correlate either with the areas over which native title rights and interests may exist or with the boundaries of the pastoral leases which they partially covered. The Northern Land Council (NLC) was the representative body and the solicitor on the record for each of the claims.
The Court acted on its own motion to dismiss the claims, on account of the failure of the applicants to prosecute the proceedings with reasonable diligence. In doing so, the trial judge noted several earlier cases in which the Court had exercised the power to dismiss proceedings for want of prosecution in the native title context and that several related to "prolonger inactivity by applicants in pursuing their claims". The Court considered the procedural background, including the Court's attempts since 2008 to progress the claims in a timely way and its many steps since 2014 to press the NLC to prosecute the claims more diligently.
The principal basis upon which the NLC, on behalf of the applicants, resisted the dismissal of the proceedings was that, while current, the applications provided the claimants with standing in the right to negotiate process under the Native Title Act. The NLC emphasised that part of the policy of the Native Title Act was to vest in registered claimants the right to negotiate in respect of future acts, and that these are valuable rights. The NLC contended that it would be inappropriate for the Court to dismiss matters in which there are current future act negotiations or in which there is some prospect of negotiations occurring in the future.
The trial judge said (at [48]):
"In my opinion, it is 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 or an agreement may be negotiated. The Court should be more concerned with situations in which the evidence discloses that the dismissal would, or is likely to, have some practical effect on the claimants."
Full Court dismisses appeal and upholds dismissal of claims
The appeal raised important issues concerning the interaction between the power of the Court to dismiss proceedings that are not being diligently prosecuted and the operation of the Native Title Act, in particular the right to negotiate provisions.
The Full Court upheld the findings of the trial judge, that the central consideration was not the possibility that a future act might be proposed or an agreement negotiated, but rather whether the claimants would, or are likely to, suffer any "practical prejudice" or "practical effect" on their rights. If there is no practical prejudice, then it would be appropriate (and was appropriate in this instance) for the Court to dismiss claims that are not being prosecuted with reasonable diligence.
The assessment of whether any practical prejudice arose should be made in respect of each of the claims. What it will look like will vary according to the circumstances, but in this matter the existence of a moratorium on fracking in the Northern Territory was an appropriate basis on which to find that there would be no practical prejudice to the applicants in one claim. It is worth noting that, at first instance, the trial judge had chosen not to dismiss three claims not the subject of the appeal, because he had been satisfied in those cases the evidence disclosed that the claimants may suffer some practical prejudice.
In this case, both the trial judge and the Full Court were extremely critical of the failure of the NLC to progress the claims in question in accordance with the court timetable. The NLC's submission that it did not have sufficient staff or financial resources to progress the matters fell on deaf ears, with the Court referring to the long history of failure to comply with deadlines and the numerous warnings from the Court itself.
The appeal was dismissed.
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