Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia

Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia - [2017] FCA 461 - FCA 2017 case summary — Zoe

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The applications 7 With the exception 8 The NLC commenced 9 The circumstances 10 As already noted, Action No. Date of Commencement Group 3 NTD6062/2001 25/10/2001 NTD6026/2000 18/12/2000 NTD6011/2001 15/02/2001 NTD6013/2001 15/02/2001 NTD6014/2001 15/02/2001 NTD6063/2001 25/10/2001 NTD6064/2001 25/10/2001 NTD6065/2001 25/10/2001 NTD6066/2001 25/10/2001 NTD6067/2001 25/10/2001 Group 7 NTD6004/2002 12/03/2002 NTD6060/2001 11/10/2001 NTD6029/2002 12/09/2002 Group 11 NTD6018/2000 05/12/2000 NTD6029/2000 18/01/2001 NTD6006/2001 01/02/2001 NTD6018/2001 01/03/2001 NTD6021/2001 13/03/2001 NTD9/2004 25/05/2004 NTD20/2004 15/12/2004 NTD6015/2000 13/11/2000 NTD24/2004 03/12/2004 Group 12 NTD6049/2001 02/08/2001 NTD6009/2002 20/05/2002 NTD6011/2002 16/07/2002 Middle Arm NTD6014/1999 02/12/1999 Town of Weddell NTD6025/2000 18/12/2000 of the two applications which concern town areas, the applications are known as "polygon' claims. That is because the claims were made following notifications under s 29 of the NT Act and the areas to which they relate conform to the irregular boundaries of mining tenures granted or proposed to be granted by the Government of the Northern Territory of Australia pursuant to the Mining Act 1980 (NT) or the Petroleum Act 1984 (NT). These boundaries have no correlation with the areas over which indigenous societies have, or may have, native title rights and interests. Nor do they have any correlation with the boundaries of pastoral leases granted by the Government of the Northern Territory, pursuant to the Pastoral Land Act (NT). each application on behalf of the respective applicants and remains the solicitor on the record in each matter. In addition to commencing the subject applications, the NLC also commenced numerous other polygon claims in the same years. The other applications are not the subject to this decision. That is because determinations of native title have been made on the existing or new applications in respect of the areas which were the subject of some 43 polygon claims, because it is likely that there will be determinations on new applications in relation to the areas of others in the relatively near future, or because of other factors which it is not necessary to specify presently. in which the polygon claims were originally filed does not appear in the affidavit material, although, as I have indicated, they did follow the proposed grant or grant of mining tenures over the areas to which they relate. originally the Court listed 27 applications for consideration of dismissal. However, at the hearing the Court granted leave to the applicants in 10 proceedings to discontinue them. The full list of the applications listed for consideration of dismissal, including those which have since been discontinued, is contained in the following table. Name of the Action Status Roper Valley North Roper Valley Discontinued Mountain Valley Discontinued Urapunga #2 Discontinued Goondooloo Moroak Discontinued Mountain Valley/Mainoru Discontinued Chattahoochie/Mount McMinn Discontinued Big River/Urapunga Discontinued Goondooloo Moroak #2 Discontinued Wongalara Discontinued Welltree Lower Reynolds River LaBelle Downs Mary River Mt Ringwood Mary River West Bonrook NLC seeking instructions to discontinue Ban Ban Springs Jindare Edith River Mary River West Portion 4410 West Ban Ban #2 Discontinued West Mathison Dry River Willeroo - Delamere Middle Arm NLC seeking instructions to discontinue Town of Weddell NLC seeking instructions to discontinue

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The Court's powers 19 Rule 5.22 provides for the circumstances in which a party will be "in default". This includes the circumstance in which a party fails "to prosecute or defend the proceedings with due diligence". 20 Rule 5.23 provides that, when it is an applicant who is in default, a respondent party may apply to the Court for an order (relevantly) that the proceeding be stayed or dismissed in whole or in part and immediately or upon the satisfaction of specified conditions. 21 By r 1.40, the Court may exercise a power mentioned in the Rules "on its own initiative". The power to dismiss in r 5.23 is one of those powers. 22 The discretion conferred by Rules such as r 5.23 is broad and unconfined: Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520, (1990) 27 FCR 388 at 396; Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [14]. In Lenijamar, Wilcox and Gummow JJ said, in respect of a predecessor of r 5.23, at 395-6: [T]he power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of "inordinate and inexcusable delay" on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties. … [T]wo situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. … . 23 There are several instances of the power to dismiss for want of prosecution being exercised in the native title context. These include Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8; 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; MT (dec'd) v Western Australia [2015] FCA 697; and Galway v Victoria [2015] FCA 497. Several of these cases concerned prolonged inactivity by applicants in pursuing their claims. Thus, in MT (dec'd) v Western Australia, Barker J said at [91]: This then is not a case where there is some passing default that can be remedied, easily or otherwise. This is not a case where there is some technical failure to comply with orders made. This is not a case where a party comes forward and, by reference to satisfactory explanation, seeks an indulgence to remedy its default. Rather, this is a case where nothing of substance has been done by the applicant in advancing the case since the Bagshaw Report was made available to it and its constituent members more than 10 years ago, and nothing is likely to be done in that regard. 24 In Galway v Victoria, North J said at [6]: The decision to strike out the matter does not reflect upon the existence or otherwise of any native title rights which the group or the individual groups may have. Rather, this is a procedural decision which is based on the fact that the application has been on foot without significant progress for such a long time. The order to strike out the application is made because without progress it would be wrong to keep the parties returning to the Court for no good reason. … . 25 Finally, in Atkinson v Minister for Lands, Jagot J said at [25]: The diligence of the applicants in pursuing their funding application is also not to the point. These proceedings are not about funding. These proceedings concern the applicants' substantive claims for native title over the subject land. The applicants, having been permitted to exhaust every opportunity to obtain funding to support the making of their claims, either are or are not in a position to prosecute those claims in these proceedings. If, as the history of the proceedings suggest, the applicants are not able to do so, then it is contrary to the interest or justice to permit the proceedings to consume yet more time and resources with no real end in sight. 26 The matters giving rise to the Court's consideration of whether to exercise the power to dismiss, on its own initiative, the present applications are set out in the next section of these reasons.

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The procedural course 27 From their respective commencements until 2007, each application was, in accordance with the arrangements then applicable, primarily managed by the National Native Title Tribunal (the NNTT). On 13 March 2007, Mansfield J made orders pursuant to s 86C of the NT Act for mediation in relevant matters to cease. This Court took over the primary management of the applications, as well as the other native title applications filed in the Northern Territory Registry. There were a large number of these applications. 28 Shortly thereafter, and following a series of directions hearings and meetings, the Court allocated the various applications into groups. Fifty five applications were the subject of advice by the Native Title Registrar under s 66C of the NT Act. The Court considered whether it was required to dismiss any of the applications having regard to the terms of s 94C(2) and (3) of the NT Act, but decided that orders to that effect were not necessary: Button Jones (on behalf of the Gudim People) v Northern Territory of Australia [2007] FCA 1802. Mansfield J outlined in Button Jones the strategy the Court had adopted with respect to the progressing of the claims: [15] A strategy to address and manage the many applications for the determination of native title under s 61 of the Act was adopted by the Court following directions hearings and user group meetings. The parties to those many applications, which include the 55 applications the subject of the two reports from the Registrar, participated in that process from time to time, including the various applicants, the representative bodies, the Northern Land Council and the Central Land Council, the Northern Territory, the Commonwealth and the various respondents. [16] That strategy involved grouping the various applications into categories to the intention that a "lead matter" in each category be progressed to resolution in as timely a manner as practicable, so that issues common to the applications in that category would be heard and determined if they could not be resolved by mediation and by agreement. It was then expected that the other applications within that category would, subject to issues peculiar to it, be able to be resolved by agreement between the parties, assisted to the extent desirable by ongoing Court supervision through directions given as appropriate and by mediation also as appropriate. The "lead" matters in the categories in which each of the 55 applications now under consideration fall have now resolved or are about to resolve, or there are other circumstances indicating the prospect of this timely resolution. It is therefore expected that there will be a progressive resolution of those claims, or many of them, with the passage of time and without the need for further hearings. … (Emphasis added) 29 Later, at [24], Mansfield J said: At present, I do not consider the power in s 94C(1) is available to be exercised in relation to any of them because the condition for its potential exercise specified in s 94C(1)(e) is not satisfied. It is clear from the matters referred to above that there are no directions in relation to the 44 Pastoral matters referred to in the Registrar's reports which those applicants have failed to comply with. It is also clear that the Court does not presently consider that the applicants in those matters have failed within a reasonable time to take steps to have those claims resolved. The strategy for consideration and resolution of the s 61 claims in the Northern Territory means that now the Court will expect that the decision in King [2007] FCA 944 will provide a foundation or springboard to the progressive resolution of many of the Pastoral matters, including the 44 referred to by the Registrar, in the proximate future. The Court will review the parties' progress in that regard in due course. (Emphasis added) 30 As can be seen, the Court's expectation was that there would be a progressive resolution of the applications. It was thought that the identification of groups and lead claims would facilitate that. In King v Northern Territory of Australia [2007] FCA 944 to which Mansfield J referred, the Court had, in relation to six "lead" matters (or parts thereof), determined a number of issues which were capable of general application, and the hope was that this would facilitate the resolution of the other claims. 31 In February 2008, pursuant to orders made by Mansfield and Reeves JJ on 27 February 2008 and subject to some exceptions which are currently immaterial, the Registrar circulated to the applicants for native title in pastoral claims, a memorandum containing proposed groupings of those claims in which there was "a common or substantially common native title claim group for the balance of the pastoral claims". 32 The Court has sought to progress the grouped applications in an orderly and timely way. On 26 March 2008, Reeves J ordered that the pastoral claims be heard in 10 groupings. Reeves J also fixed 23 April 2008 as the time by which the Northern Territory should indicate any special defences to the newly grouped claims (or the time it required to identify those defences) and by which the NLC should specify with precision the native title rights and interests which the applicants would assert in relation to each claim. On 6 May 2009, Reeves J made orders that the parties in seven groups were to provide a proposed priority listing with a view to programming at least two pastoral groups for determination each year. Over the years, the number and composition of the groups has changed in the light of new information and new understandings. 33 In August 2008, the aim of the principal parties was to have all claims resolved within five years. 34 At a hearing on 16 September 2009, the decision was made to adopt a "pastoral lease" approach, rather than native title being determined by reference to the area of each polygon claim. A number of considerations indicated that this was a sensible course, and it had the support of the parties including the Northern Territory Cattlemen's Association (the NTCA). This approach contemplated new claims being filed for areas corresponding with the pastoral leases and, on the making of determinations, the existing polygon claims being discontinued. At the same time, the Court was given a program which contemplated all claims being finalised by 2014. 35 Since that time, there have been continual slippages in the progress of the matters for resolution, as the following programs for the resolution of the claims illustrate: Program as at 16/9/2009 2009 2010 2011 2012 2013 2014 ? Group(s) 4 6, 8 1, 2 10, 11 5, 12, 13 3, 9 7

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36 Still further slippages have occurred. At the planning day conducted on 28 May 2014, a revised timetable was adopted as follows: By mid-July 2014, five more Group 9 claims to be filed with anthropology reports to be provided shortly thereafter. By end 2014, first half Group 1 consent determinations to be effected. By mid-2015, meetings to be held for first half of Group 2. In July-November 2015, meetings to be held for second half of Group 2. By end September 2015, CDs to be agreed in balance of Group 1, Group 9 and first half of Group 2 claims. In 2016, CDs to be held in balance of Group 2 and Group 10 claims. In 2015 and 2016, consider processes for addressing Group 3 and then Groups 1, 2, 9 and 10 claims. 37 At that same planning day, the NLC agreed to identify those claims in which the applicants would not suffer any prejudice if the claims were discontinued and then to discontinue them. It recognised that this would have the advantage of the Court retaining only those applications requiring active prosecution. However, that process, if it was carried out, did not result in the discontinuance of any claims. 38 Since 2014, the Court has been pressing the parties, and in particular the NLC on behalf of the applicants, to prosecute more diligently the outstanding claims. By way of illustration, I set out some of the comments made by the Court at the more recent callovers. 27 November 2015 In relation to actions NTD 6002/1999 and NTD6001/2000 (concerning the Town of Katherine and Lot 1348 Katherine respectively), Mansfield J said: "I did go back and look at what we discussed last September at the review and looked at what had not been done by September 2014 which had been planned to be done and then looked at what was promised in September 2014 and as far as I can see it has taken 18 months to fall 12 months behind … [t]here is a need for the NLC to get more resources into this because it is just not doing what it said it would do." In relation to seven applications concerning Towns, Mansfield J said, when adjourning them to the next callover: "[Y]ou shouldn't just assume that if you - if the resources are not applied to these claims, the Court will not do something else with them." In relation to four other claims, which included the claims in NTD6014/1999 and NTD6025/1999 concerning Middle Arm and the Town of Weddell respectively, Mansfield J said: "We're now looking at claims, one of which was instituted in 1999 and you're not even going to look at it until 2017 or 2018. It's a disgrace. I know there is a new team there and these might be legacy issues but that doesn't - the NLC exists and has existed. So it's not the individuals' accountability but it's a legacy issue for the NLC and it's just not good enough." In relation to Group 2, but really in relation to the pastoral lease claims more generally, Mansfield J said: "In 2009 … you - the NLC said all of these … claims would be finished by 2014. We're now at the end of 2015 and we've got Groups 2, 10, 3, 5, 11, 12 and 7. … Now, what's the NLC doing about resources for these claims? If you do one group a year, that's another eight years - or seven years. … People seem to have ignored [their] responsibilities in the past and it is serious. Now, it's not going to be the case that these claims are going to progress one per year for the next eight years - or one group per year for the next eight years. Something better has to happen. I will stand them all over to the next callover, that is, all of the remaining pastoral lease claims, but you can assume that White J will be more inquisitive and more aggressive than I am at the next callover. … and I think you should, on behalf of the NLC, provide a timetable which is more realistic than the one which was provided in September 2014 and the earlier ones about how these are all going to get through in a respectable future time." 13 April 2016 In relation to Groups 3, 7, 11 and 12, the following exchange occurred: "White J: My observation is that I think just about all of these - perhaps with a couple of exceptions - were commenced in 2000, 2001 or 2002, so we are looking at between 14 and 16 years having gone by since they were commenced and, as I understand it, Mr O'Donnell, the NLC is indicating there may not be any action on them until 2018. Mr O'Donnell: Yes. They're just not on the radar in terms of our current financial and staff resources, I'm afraid, your Honour. White J: Well, I understand that but - and I think you can take it for granted that I'm taking into account that native title proceedings have their own considerations which make them quite different from other litigation in the Court, but there's hardly any other kind of litigation in this Court in which the Court would allow a matter just to drift on for that length of time. Mr O'Donnell: Indeed. … ." In relation to the claim concerning Middle Arm and the Town Weddell, I reminded the parties that Mansfield J had at the last callover described the progress of those matters as a "disgrace".

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39 At the callover on 13 April 2016, the Court referred Groups 3, 7, 11 and 12, Town of Weddell and Middle Arm to case management by a Registrar with a view to addressing the need for the matters to remain current. In addition, the Court ordered the NLC to file and serve an affidavit in respect of each group and the two towns deposing to the facts, matters or circumstances which could support the matters remaining current and setting out a timetable for their disposition within a reasonable timeframe. 40 In compliance with those orders of 13 April 2016, the NLC filed separate affidavits from Mr O'Donnell, its principal legal officer, in relation to each of Groups 3, 7, 11 and 12 and the Town of Weddell and Middle Arm. All the polygon claim affidavits were made on 31 August 2016 and took a similar form. The affidavits in relation to the two towns were filed on 1 September 2016. In each affidavit, Mr O'Donnell deposed that the applications had not progressed at all since the callover on 13 April 2016 and that the NLC had no timeframe for their resolution. However, later in the affidavits, Mr O'Donnell deposed that he had been advised that the matters were scheduled to be finalised "2018 or beyond". He went on to depose that the NLC had had insufficient staff and financial resources since April 2016 to take instructions from the claim groups and sought a further opportunity to do so. He anticipated that the NLC would be able to take the instructions "before the end of this financial year". Finally, Mr O'Donnell provided a summary of other matters in the case load of the NLC to which it had been attending in 2015 and 2016. 41 In addition, in an affidavit made on 20 October 2016, Ms Gibson, a solicitor employed by the NLC, deposed to arrangements made with the anthropologist Ms English in relation to Group 3 pursuant to which Ms English would, by July 2017, carry out initial desktop research and field work in respect of seven pastoral leases and would, subject to the allocation of sufficient funds to the NLC's native title budget for the 2017/2018, 2018/2019 and 2019/2020 financial years, provide to the NLC by 31 December 2017 a final draft short form report in respect of those seven pastoral leases. Subject to the same contingency, Ms English would by 31 May 2019, carry out initial desktop research and field work in relation to another four pastoral leases within Group 3 and would, by 31 December 2019, provide the NLC with final draft short form reports concerning those leases. On that basis, it was apparent that it would not be until at least 2020 that the Northern Territory Government and the other respondents could consider the draft short form reports for the whole of the Group 3 pastoral leases. Ms Gibson's affidavit did not disclose when the NLC contemplates filing any new applications in respect of the claim areas. 42 The NLC also filed affidavits from another solicitor, Ms Deans, concerning some future act activity affecting some of the applications. I will refer shortly to some of that material. 43 In summary, the NLC contemplated only some steps in relation to some of the applications comprising Group 3 and did not provide any timetable at all for progressing Groups 7, 11 and 12, the Town of Weddell and Middle Arm. 44 In those circumstances, the Court made the orders set out earlier in these reasons to the effect that the Court would, on 10 March 2017, hear submissions as to why the applications in Groups 3, 7, 11 and 12, Town of Weddell and Middle Arm should not be dismissed for want of prosecution with due diligence. 45 The NLC relied on a number of further affidavits at the hearing on 10 March 2017, to which I will refer shortly. I observe, however, that in none of those affidavits did the deponents depose to any work carried out by the NLC in the nature of prosecution of the Group 3, 7, 11 and 12, Town of Weddell and Middle Arm claims and, with the exception of Ms Gibson's affidavit of 20 October 2016, depose to any arrangements for their future prosecution. In those circumstances I infer that no preparation work has been carried and that, with the exception of the arrangements with respect to the Group 3 applications to which Ms Gibson deposed, the NLC has no arrangements in place by which to do so.

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Other matters 51 In addition to the effect on future acts, the NLC relied on other matters. First, it referred to the limited financial and human resources available to it with which to prosecute the claims. The NLC submitted that the history of native title claims in the Northern Territory suggests that native title is likely to be established in most, if not all, of the applications presently under consideration if it be necessary for them to go to trial on the issue of connection. It attributed the fact that the consent determinations have not been negotiated in respect of the subject applications to the limited human and financial resources available to it and to corresponding limitations on the resources of other parties to the claim. It has to be said that the NLC provided very little by way of evidence to support this claim. Instead, the submissions were made in a conclusionary way. However, the Court has some general knowledge of the way in which representative bodies are funded. 52 Generally, 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. Thus, in Bennell v State of Western Australia [2004] FCAFC 338 at [37], the Full Court (Wilcox, French and Finn JJ) said at [37]: It is important to make the general point that the programming of native title matters in the Court's docket cannot be determined by the decisions of funding agencies or the views of representative bodies, the State or any other parties about appropriate priorities. These are all matters to be taken into account in setting realistic timeframes. But if it should happen that want of funding means that some applicants will be unrepresented at trial that is not a bar to proceeding with a trial although it will raise obvious difficulties in the management of trial process. And in Kokatha Native Title Claim v State of South South Australia [2006] FCA 838, Finn J said at [10]: Thirdly, the funding issue is one common to all of the present claimant groups. At earlier directions hearings in this matter I have indicated my view that a lack of funding cannot be relied upon to freeze proceedings otherwise appropriate for and requiring resolution. I have equally expressed my regret at the misfortune faced by applicants because of the funding arrangements being as they are. Whatever the justifications for the policies of the Executive Government in relation to funding native title claims, those policies cannot paralyse the processes of the Court once its jurisdiction has been invoked. In saying this I am not unmindful that claimant groups may well find themselves in a position of utmost difficulty in preparing for trial and that this may well jeopardise their prospects of proceeding in any event. … See also Atkinson v Minister for Lands at [25] (set out earlier in these reasons), Levinge v Queensland [2012] FCA 1321; (2012) 208 FCR 98 at [18]-[19] and Agius v State of South Australia (No 4) [2017] FCA 361 at [78]-[80]. 53 In the present case, I consider it inappropriate to attach any significant weight to the financial difficulties to which the NLC has referred. These matters have been on foot for so long that the applicants and the NLC have had more than an adequate opportunity in which to address those difficulties. Further, the NLC and the applicants have previously provided programs to the Court for the resolution of the claims which, it can reasonably be inferred, took account of any funding difficulties then being faced. 54 Next, the NLC submitted that it was significant that the Northern Territory Government had not appeared before the Court to contend that the applications should be dismissed for want of prosecution. This meant, counsel submitted, that the Court could proceed on the basis that it took the view that the public interest was being adversely affected by these matters remaining current. 55 I do not regard this as a significant consideration. As indicated earlier, the orders made on 27 October 2016 provided that those parties who did not file a notice of intention to appear at the hearing on 10 March 2017 would be presumed to take a neutral stance in relation to the dismissal of these matters. Further, I regard it as significant that neither the Northern Territory nor the Commonwealth Governments (who are in a position to speak to the public interest) has wished to submit that the public interest will be adversely affected if these matters are dismissed. 56 In any event, neither the Northern Territory Government nor the Commonwealth Government are the sole spokespersons for the public interest. The Court has a responsibility, in the interests of the public, to see that litigation in the Court is conducted with reasonable efficiency and expedition and with the least delay and expense as is practical. This responsibility reflects the interests of the litigants in the particular litigation before the Court, the interests of the litigants before the Court more generally, and the interests of the public in the efficient and effective administration of justice. In recognition of these interests, the Court seeks to maximise the utilisation of the significant resources which the public has placed in it, to avoid the prejudice to other litigants which may be caused by consequential delays to the hearing and determination of their cases, and to protect litigants in the particular case against cost and delay. See AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [92]-[93], [98]. The "overarching purpose" of this Court's civil practice and procedure provisions, as stated in s 37M of the Federal Court of Australia Act 1976 (Cth), reflects these considerations. 57 As indicated earlier, CPC appeared before the Court and opposed the dismissal of two of the applications in Group 12, namely, NTD6009/2002 (Dry River) and NTD6011/2002 (Willeroo-Delamere). It has owned and operated Manbulloo Station which encompasses the areas of these two claims, since 1994. Manbulloo Station, a 379,131 ha property, is used for cattle breeding and as a holding depot for feeding cattle before export. CPC's Chief Development Officer, Ms Cannon, deposed that CPC "feels neither judicial prejudice nor financial disadvantage in keeping these matters active". Mr Stephens for CPC elaborated the reasons why CPC considers that it does not suffer financial disadvantage if the two applications remain current even though not being prosecuted. In addition, he made the point that it can be helpful for CPC to have registered claimants and a representative body of those claimants when addressing issues which arise from time to time in the operation of Manbulloo Station. 58 I found Mr Stephens' submission helpful and have taken into account the matters to which he referred. They are not of course conclusive as the Court's consideration is not confined to the effects of the applications on one respondent.

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Conclusion 59 I have reached the conclusion that, other than in the case of NTD6062/2001 (Roper Valley North) in Group 3 and NTD6006/2001 (Mary River West) and NTD6021/2001 (Ban Ban Springs) in Group 11, the applications should be dismissed. They have been on foot for a very long time without any action being taken to prosecute them or to prosecute replacement applications based on the pastoral leases over the areas to which they relate. In fact, it is 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. The applicants have not adhered to programs previously given to the Court for their progressive resolution in a timely way. It seems that, despite the applicants having indicated to the Court the times within which they expected to resolve their claims, they have made no attempt to meet the timeframes they themselves nominated. Even now, and in light of the Court's warnings that it may take action of the present kind, the applicants (with the limited exception of some in Group 3) have taken no steps to prosecute the claims or to indicate to the Court that they will do so within a reasonable period. The lack of progress is not attributable to the remoteness of the communities, to difficulties in communications or in obtaining instructions or to other exigencies arising from the applicants' locations. The matters to which CPC referred do not persuade me that a different conclusion is appropriate in relation to NTD6009/2002 and NTD6011/2002. 60 The dismissal of the claims on the basis that they have not been prosecuted with reasonable diligence is not a decision on the merits of the claim and will not give rise to an estoppel in any subsequent proceedings brought by the applicants which are properly prosecuted: Western Australia v Fazeldean (on behalf of Thalanyji People) (No 2) [2013] FCAFC 58; (2013) 211 FCR 150 at [27]-[28], Atkinson v The Minister at [26] and Foster v Northern Territory of Australia [2015] FCA 38 at [17]. 61 The dismissal of proceedings for want of prosecution with reasonable diligence is a significant step. That is especially so in relation to the proceedings for the determination of native title. I recognise that native title litigation is not the same as ordinary private inter partes litigation, as it involves claims for the vindication of rights of a communal nature based on physical and spiritual connections over land and waters which may have existed for time immemorial: Western Australia v Fazeldean at [34]. 62 Acting with the caution that is appropriate in these circumstances, I am nevertheless satisfied that the Court should now order that the following applications be dismissed because of the applicants' failure to prosecute them with reasonable diligence. Action No. Date of Commencement Name of the Action Group 7 NTD6004/2002 12/03/2002 Welltree NTD6060/2001 11/10/2001 Lower Reynolds River NTD6029/2002 12/09/2002 LaBelle Downs Group 11 NTD6018/2000 05/12/2000 Mary River NTD6029/2000 18/01/2001 Mt Ringwood NTD9/2004 25/05/2004 Jindare NTD20/2004 15/12/2004 Edith River NTD6015/2000 13/11/2000 Mary River West Portion 4410 Group 12 NTD6049/2001 02/08/2001 West Mathison NTD6009/2002 20/05/2002 Dry River NTD6011/2002 16/07/2002 Willeroo - Delamere

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