Button Jones (on behalf of the Gudim People) v Northern Territory of Australia

CONSIDERATION 10 French J in Webb v State of Western Australia [2007] FCA 1342 at [10] said the advice from the Registrar under s 66C cannot determine for the Court that the conditions specified in s 94C(1) and as explained in the subsequent subsections of s 94C are established as a matter of fact. Those facts are for the Court to determine. However, as in that case, the relevant events as to the filing of each of the native title determinations, the issue of the future act notices and the outcomes upon the issue of those notices were not in dispute. That is, the existence of the conditions in s 94C(1)(a), (b) and (c) are not really in issue. The Registrar's reports, of course, do not address the alternative conditions in s 94C(1)(e) of the Act. 11 French J also explained the Court's further role in the light of advice from the Registrar under s 66C in the following way at [11]-[12]. Where the Native Title Registrar provides an advice under s 66C and the Court finds the facts set out in his advice, consideration of mandatory dismissal does not follow automatically. Section 94C(1)(e) contemplates that the Court may require an applicant to produce evidence in support of the application or to take steps to have the claim resolved. Alternatively, the Court may consider whether the applicant has failed, within a reasonable time, to take steps to have the claim resolved. Any such judgment will require an assessment of whether the applicant has engaged with the mediation process for which the NT Act provides or has prepared or complied with directions for steps to be taken with a view to the trial of the action. The Court does not proceed to consider dismissal until there has been a failure to comply with its direction under s 94C(1)(e)(i) or there has been a failure to take steps within a reasonable time to have the claim resolved. It will be seen that before it gets to the point of considering mandatory dismissal the Court has a degree of leeway under the section to move the applicants forward. The mandatory dismissal power, in effect, provides a tool or sanction to be used by the Court to dispose of applications lodged to get procedural rights and not otherwise being pursued. 12 I respectfully agree with and adopt his Honour's observations. The parties were content for me to determine what should be done in relation to each of the 55 applications on that basis. 13 Before considering whether, in this and in each of the other 54 applications referred to, s 94C(1)(e) has been engaged, it is necessary to determine whether the report of the Registrar given on 29 June 2007 gives rise to any different issues because of the form of s 94C up to 21 July 2007. I do not think it does. That is simply because, in relevant respects, the provisions in s 66C(1) and in s 94C as in force up to 21 July 2007 still exist in practical terms with the same substantive effect. The question of whether each of the 55 applications was made in response to a future act notice is to be answered upon the same considerations: subs 94C(1)(b) is now explained by subss 94C(1A), (1B) and (1C) but in practical terms the relevant circumstances are the same. Also, the terms of the former s 94C(1)(d)(i) are now repeated in s 94C(1D) as circumstances in which the future act requirements are satisfied. The two reports from the Registrar rely upon the same sets of features in the earlier report as in the later report, albeit they are found in different subsections. There are, of course, changes of substance made to s 66C and s 94C by Act No 125 of 2007, but those changes do not relate to the basis for the two reports of the Registrar referred to above. 14 For the reasons which follow, I do not consider that this application, or any of the other 54 applications, require the Court at this point in time to dismiss them under s 94C(1) of the Act. In my view, the power and obligation to do so, which is then subject to subss 94C(2) and (3) has not yet arisen. That is because, at present, neither of the conditions in s 94C(1)(e) are satisfied. Only when each of the conditions in s 94C(1) is satisfied will the Court be empowered and obliged to dismiss an application to which it applies, subject of course firstly to the opportunity being given to present a case why the application should not be dismissed as required by s 94C(2), and secondly to the Court considering if there are compelling reasons not to do so as provided by s 94C(3). 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. It is desirable to address the several categories in which the claims the subject of the Registrar's reports fit. 17 The relevant categories of matters are set out below. The number of the applications the subject of the two reports of the Registrar within each category are set out in parenthesis after each relevant category is identified. They are: · Darwin matters (2) · Northern towns and related (1) · Pastoral estate matters (44) · Central matters (5) · Parks and reserve matters (3) 18 The Darwin matters were addressed through the lead matter in which judgment was delivered on 13 April 2006: Risk v Northern Territory of Australia [2006] FCA 404. An appeal to the Full Court was dismissed on 5 April 2007: Risk v Northern Territory of Australia [2007] FCAFC 46. An application for special leave to appeal to the High Court by the Larrakia applicants was refused on 31 August 2007: Risk v Northern Territory of Australia [2007] HCATrans 472. A separate application for special leave to appeal to the High Court by Mr Kevin Quall, a separate applicant to one of the proceedings consolidated for hearing and leading to the judgments referred to above is outstanding. It is expected to be heard early in 2008. 19 Given that state of affairs, clearly the condition for the exercise of the power to dismiss those two applications specified in s 94C(1)(c) is not satisfied. So, the Court at present cannot exercise that power in relation to those two applications. The applicants have not been directed to produce evidence in support of the application or directed to take other steps to have the claims resolved. Nor, given the timing, do I consider that the applicants have failed, within a reasonable time, to take steps to have the claims resolved. 20 The Northern towns and related matters were addressed through the lead matter (called the Timber Creek claim) in which judgment was given on 17 July 2006: Griffiths v Northern Territory of Australia [2006] FCA 903. An appeal from that decision has been heard but judgment has not yet been delivered. 21 When that Full Court decision has been delivered, the parties to the Northern towns and related matters (including the one matter which is the subject of advice by the Registrar) may be directed to produce evidence in support of those applications or to take other steps to have the claims resolved. There are no such directions at present, and it follows that there are none which the applicants have not complied with. Nor, in my view, have those applicants (including those applicants in the one matter which is the subject of advice by the Registrar) failed within a reasonable time to take steps to have the claims resolved. The circumstance may soon arise that some steps to progress one or more of those claims should reasonably be taken, but it has not yet arisen. 22 The lead matter in the Pastoral estate matters was called the Newcastle Waters claim. Judgment was delivered on 26 June 2007: King v Northern Territory of Australia [2007] FCA 944. Final orders were made on 26 September 2007. No appeal from that decision has been instituted. 23 Obviously, in the light of that decision and the formal determination of the native title rights and interests which exist in that claim area, there is a good prospect of other applications for the determination of native title over areas covered by pastoral leases being resolved by consent. 24 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. 25 The Central matters and the Parks and reserves matters attract slightly different considerations. 26 The Court has been informed by the parties that the Parks and reserves matters are the subject of agreement, conditional upon certain amendments being made to a schedule to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). It has also been informed that the proposed amendments are likely to be made, and are simply awaiting a "spot" in the legislative program schedule. Once those amendments are passed, the matters are likely to be discontinued. The Court has accepted that position, and that the parties are acting reasonably in securing the adjournment of these matters from time to time until the legislative program can accommodate the proposed amendments. Clearly, in those circumstances s 94C(1)(e) is not satisfied so there is no power to dismiss these applications under s 94C(1) available at present. 27 The Central matters are variously in the process of negotiation. On 3 September 2007, part of the township of Tennant Creek was the subject of a consent determination: Patta Warumungu People v Northern Territory of Australia [2007] FCA 1386. At the same time an Indigenous Land Use Agreement in respect of parts of that township was executed. That contemplates further action following the proposed legislative amendment referred to in the preceding paragraph. The parties have reported at directions hearings of the progress of their consideration of the other Central matters claims referred to by the Registrar in his reports. The Court has not made directions for the progress of those matters which have not been complied with, and, as long as the parties adhere to the program which they have indicated, is satisfied, and is likely to remain satisfied with the progress of those claims. Consequently, I do not presently consider that the conditions specified in s 94C(1)(e) for the exercise of the power in s 94C(1) in respect of the five matters identified has arisen.

28 In those circumstances, I will at present simply note the two reports of the Registrar. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant: Mr R Levy

Solicitor for the Applicant: Northern Land Council

Counsel for the Northern Territory: Ms J Bonner with Ms A Kneebone

Solicitor for the Northern Territory: Solicitor for the Northern Territory

Counsel for Bains River Cattle Company Pty Ltd & Rosewood Station Pty Ltd: Ms C Walter

Solicitor for Bains River Cattle Company Pty Ltd & Rosewood Station Pty Ltd: Ward Keller Lawyers

Counsel for the Conservation Land Corporation: Ms A Cameron

Solicitor for the Conservation Land Corporation Clayton Utz

Date of Hearing: 5 November 2007

Date of Judgment: 22 November 2007