Angale on behalf of the Irlpme Arrernte People v Northern Territory of Australia

The legislative framework 11 Section 94C of the NT Act defines the circumstances in which native title applications, apparently made in response to future act notices given in relation to land or waters wholly or partly within the area covered by the native title application, are subject to dismissal by the Court. This circumstance arises where the procedural rights of the native title claimants in relation to the future acts have been exhausted and no steps are taken to advance the resolution of the application itself. Section 94C(1) provides: Order dismissing an application relating to a future act (1) Subject to subsections (2) and (3), the Federal Court must, on the application of a party or on its own motion, dismiss an application made by a person under section 61 if: (a) the application is for a determination of native title in relation to an area; and (b) it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and (c) the future act requirements are satisfied in relation to each future act identified in the future act notice; and (e) either: (i) the person fails to produce evidence in support of the application despite a direction by the Court to do so, or to take other steps to have the claim sought in the application resolved despite a direction by the Court to do so; or (ii) in a case to which subparagraph (i) does not apply, the Court considers that the person has failed, within a reasonable time, to take steps to have the claim sought in the application resolved. 12 Subsections 94C(1A), (1B) and (1C) set out the circumstances in which s 94C(1)(b) will be satisfied. Subsections 94C(1D), (1E), (1F) and (1G) set out the circumstances in which s 94C(1)(c) will be satisfied. For present purposes, those subsections of s 94C do not need to be set out in full. The balance of s 94C provides: (2) The Court must not dismiss the application without first ensuring that the person is given a reasonable opportunity to present his or her case about why the application should not be dismissed. (3) The Court must not dismiss the application if there are compelling reasons not to do so. However, the fact that: (a) a subsequent future act notice has been given that specifies all or part of an area that is included in the area covered by the application; and (b) paragraph (1)(d) is not satisfied in relation to each future act identified in the subsequent future act notice; is not, of itself, a compelling reason. (4) To avoid doubt, the Court's dismissal of an application under this section does not affect any rights, liabilities or obligations of a person under: (a) an agreement of the kind mentioned in paragraph 31(1)(b); or (b) a determination made under subsection 32(4) or section 36A, 38 or 42; or (c) an agreement made in accordance with, or a determination made under, any alternative provisions that are equivalent to the provisions mentioned in paragraphs (a) and (b). (5) To avoid doubt, this section does not affect the Court's power to dismiss an application under the Federal Court of Australia Act 1976. 13 Section 94C(6) contains a number of definitions. The only ones relevant for present purposes are: future act notice means: (a) a notice of a future act given under section 29; and (b) a notice of a future act given under alternative provisions. 14 Notification to the Court of applications affected by s 94C is a function conferred on the Native Title Registrar by s 66C of the NT Act, which provides: (1) If: (a) an application is of the kind mentioned in paragraph 94C(1)(a); and (b) paragraph 94C(1)(b) is satisfied in relation to the application; and (c) paragraph 94C(1)(c) is satisfied for each future act notice referred to in that paragraph; the Registrar may advise the Registrar of the Federal Court of those facts. (2) The Registrar may seek advice from the relevant governmental officials in the Commonwealth or in a State or Territory as to: (a) whether all or part of an area specified in a future act notice is included in the area covered by an application; and (b) whether paragraph 94(C)(1)(c) is satisfied for each future act identified in a future act notice; and may advise the Registrar of the Federal Court accordingly. (3) In this section: future act notice has the same meaning as in section 94C.

Consideration 15 It is clear from what has been acknowledged on behalf of the applicants, the timing of the application, and the coincidence of the claim area with the area of the Exploration Licence that s 94C(1)(b) is satisfied. The future act notice in relation to the Exploration Licence has been resolved by agreement, and the Exploration Licence has been withdrawn, so that s 94C(1)(c) is also satisfied. The Native Title Registrar has notified pursuant to s 66C. Directions were given to the applicants pursuant to s 94C(1)(e) on 5 August 2009. 16 There has been a failure to comply with the Court's directions under s 94C(1)(e)(i) of the NT Act, and there has been a failure to take steps within a reasonable time to have the claim resolved. The Court has given the applicants a reasonable opportunity to make submissions about how the matter should progress. The CLC has not sought any further time to do so. The applicants have failed to take any steps to progress the claim. On what the Court has been told, they do not intend to do so. Nor do they have any intention of seeking to widen the claim area by amending the application. It is therefore clear that the applicants have failed, within a reasonable time, to take steps to have the application resolved. Hence, the mandatory dismissal power under s 94C of the NT Act is available to the Court, on its own motion, and subject to s 94C(3) the Court should dismiss the application. 17 I do not consider that there are compelling reasons not to dismiss the claim: cf Button Jones (on behalf of the Gudim People) v Northern Territory of Australia [2007] FCA 1802. On the contrary, the application has served its purpose for the applicants and they presently have no intention of progressing it. Their asserted native title rights and interests in the claim area will continue to be available to be asserted by them. In due course, they may choose to pursue those asserted rights over the claim area or over a broader area more accurately reflecting lands over which they claim to have exercised native title rights and interests since settlement. There is no barrier to them pursuing such a claim in the future. There is no prejudice to them suggested on their behalf by the CLC if the application is now dismissed. Nor is there any apparent prejudice to any other person or entity. Neither counsel for the CLC nor for the Northern Territory has suggested any. 18 In the circumstances, the application should be dismissed pursuant to s 94C of the NT Act. I so order. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitor for the Applicant: Central Land Council

Solicitor for the Respondent: Solicitor for the Northern Territory