Foster v Northern Territory of Australia

BACKGROUND 1 This claim has a lengthy and unsatisfactory history. It commenced in 1998, but in its initial form the National Native Title Tribunal was not satisfied that it should be registered for a variety of reasons, including that it did not comply with ss 190C(2) or 190C(4) of the Native Title Act 1993 (Cth) (the NT Act). It had significant deficiencies or non-compliance with the provisions with ss 61 and 62 of the NT Act. 2 It has never been registered by the National Native Title Registrar under the NT Act. 3 In accordance with the NT Act as then in force, the claim was referred to the National Native Title Tribunal for mediation. No successful mediation took place. The mediation was ceased by orders made on 6 May 2009 simply because it was proving pointless in the particular circumstances. 4 Thereafter, the Court has, from time to time, made orders in an endeavour to secure from the applicant her proposals for progressing the claim. That has involved attendances for directions on 20 occasions since that date. The applicant has appeared in person or by a member of the claim group on her behalf (generally a member of her family) on those occasions. No meaningful progress has been achieved. 5 In that period, the Northern Territory has provided to the applicant such documents as it has available to it, concerning the historical references to the claim area in anthropological and other literature. That was to try and assist the applicant with understanding the material which she might rely on, or secure, to advance her claim. 6 Pro bono legal advice has been given to the applicant on the topic of whether there are any meaningful orders which might be achieved if the claim were to succeed, having regard to the fact that the claim area is also the subject of a grant of land to the Malak Malak Aboriginal Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act). The advice was duly given, although of course the Court does not know what that advice was. Following the giving of advice, that pro bono grant of legal assistance came to an end. 7 In early 2013, it was reported to the Court that solicitors had been appointed to act for the applicant on behalf of the claim group, but those solicitors attended the directions hearings only on three occasions. 8 On 10 April 2013, counsel for the solicitors then on the record appeared and sought an adjournment for six months because of the recent appointment of those solicitors and so that those solicitors could review the claim and give appropriate advice to the applicant. At a directions hearing on 3 September 2013, after a period of nearly six months, another counsel appeared for the applicant on instruction from those solicitors and indicated that a further adjournment was necessary to give proper advice. That counsel appeared again on 7 November 2013, and informed the Court that nothing had been done. On that occasion, the Court directed the applicant to file and serve by 27 February 2014 a memorandum of the orders the applicant proposed to progress the claim to resolution. The Court indicated that it would consider striking out the application at the next directions hearing if no such document were filed. 9 No such document was filed. 10 On 5 March 2014, a different member of the claim group appeared to represent the applicant and the claim group and sought more time to consider the position. That application was granted. On 27 May 2014, although the applicant had on that date provided a letter to the Court outlining why she had not progressed the claim, there was no suggestion of any orders which might be made which would enable the Court to give directions to progress the matter. On that date, with the acquiescence of the person from the claim group then appearing for the applicant, the Court made orders for the discontinuance of the application, and that the oral notice of discontinuance be treated as the notice of discontinuance with the additional order that full compliance with the Federal Court Rules 2011 (Cth) to give a notice of discontinuance be excused, noting that the order then made should be suspended for 28 days. The operation of the notice was deferred for 28 days in case the applicant (who did not attend that directions hearing) wished to continue with the claim notwithstanding the intimation by the person who then represented her on behalf of the claim group at that directions hearing. The application was re-enlivened by the applicant filing an affidavit on 13 June 2014 indicating that she did wish to maintain the claim. 11 The matter has since come on for further directions on 17 September 2014, 28 October 2014 and most recently on 3 December 2014. On the last occasion, both a son and daughter of the applicant appeared and sought to explain that the applicant may wish to keep the claim alive and to pursue it, but could not make any suggestion as to how that should be done. The application was adjourned to a date to be fixed with a direction that the applicant file and serve such evidence as she proposes to rely upon by 17 January 2015, so that the matter could then proceed in some form. The Court indicated on that occasion that, depending upon the content of that proposed evidence, or if no such evidence were filed, the Court would consider in any event whether it should simply dismiss the claim of its own motion. 12 No such evidence has been filed. 13 As I foreshadowed on 3 December 2014, I have considered whether or not the proceeding should be dismissed under s 84D(4) or s 190F(6) of the NT Act or s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 14 In practical terms, the particular source of power does not much matter. Section 84D(1) empowers the Court to direct that evidence of authorisation be produced. Despite the requests of the Court, no evidentiary material has been produced. Hence, after balancing the need for due prosecution of the application and the interests of justice, the Court may make such orders as it considers appropriate. It is probably more appropriate to rely on s 190F(6) as the source of my power in this instance, as the concerns I have entered go beyond the issue of authorisation. It applies when an application for the determination of native title has been made, but not registered. It is clear that s 190F(5)(a) and (b) are satisfied, as it is now many years since the claim for registration was not accepted. Consequently, s 190F(6) is enlivened. The recital of the history then shows why subs (6)(a) is satisfied, leaving the Court with the discretion to dismiss the application under subs (6)(b). 15 In any event, in my view, the Court's power under s 31A(2) of the FCA Act is equally available. It is generally accepted that the criterion for the exercise of that power - the "no reasonable prospect of successfully prosecuting the proceeding" test - lowers the bar for the Court summarily dismissing a claim: see eg Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [53]-[56] per Hayne, Crennan, Kiefel and Bell JJ. To that extent the observations in Landers v State of South Australia (2003) 128 FCR 495 must now be qualified. In that case, I said at [7]: Whichever power is relied upon on the motion, it is accepted that the principles applicable to consideration of a summary dismissal application should be applied. The Court should only dismiss the application if the case for its dismissal is very clear: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130. 16 It is important nevertheless to bear in mind that the power, whatever its source, is a discretionary one. 17 In the present circumstances, I propose to dismiss the claim. The reasons for doing so are two-fold: (1) The claim is long outstanding, and the applicant on the material before me has no real prospect of succeeding in successfully preparing any material to support the claim or progressing it to a hearing. The history of the conduct of the matter demonstrates that. If the claim is not disposed of, it will simply remain in its present unsatisfactory and undeveloped state indefinitely into the future. There is simply no reasonable prospect of the applicant successfully prosecuting the claim. (2) In the light of that finding, it is in the interests of justice that the claim be dismissed. There are three matters in favour of exercising my discretion in that way: (i) The claim area is the same area as has been granted to the Malak Malak Aboriginal Land Trust under the ALR Act. That grant was made following the Report of the Aboriginal Land Commissioner, Mr Justice Toohey, to the Minister for Aboriginal Affairs entitled the "Daly River (Malak Malak) Land Claim" (AGPS 1982) and Sch 1 Pt 1 of the ALR Act. The effect of that grant is to give to the Malak Malak People (represented by the Northern Land Council in this proceeding), in effect, rights equivalent to freehold rights over the claim area. There does not appear to be any way in which the recognition of the claim group, for whom the applicant is the representative, as traditional owners of the claim area under the NT Act could secure any meaningful rights which are recognised at common law, because such rights would not be as extensive as the rights which exist as a result of the land grant. (ii) Indeed, from observations made from time to time at the directions hearings by or on behalf of the applicant, it appears that the real concern of the applicant on behalf of the claim group, who she describes as the Kamu people, is that the interests of the Kamu people as part of the group to whom the land grant (to the Malak Malak Aboriginal Land Trust) was made under the ALR Act have not, in their view, adequately been recognised. Given their status as part of the group of "traditional Aboriginal owners" of the claim area under the ALR Act (see s 3 of that Act) there is a serious issue as to whether the claim group, that is the Kamu people as defined in the original application in this proceeding (which has not been amended), could be recognised as the traditional owners of the claim area in the face of the determination of the Aboriginal Land Commissioner giving rise to the land grant to the Malak Malak Aboriginal Land Trust on behalf of a wider group of traditional Aboriginal owners, which includes the Kamu people. That is a position taken both by the Northern Land Council on behalf of the Malak Malak Aboriginal Land Trust and the other families whose interests as traditional Aboriginal owners exist in the area granted under the ALR Act. (iii) The applicant, despite the opportunity now extended over a lengthy period, has not given any real and meaningful response to how the application, if prosecuted successfully, could result in a determination of rights recognised at common law held by the Kamu people as traditional owners in the face of the grant to the wider group (including the Kamu people) under the ALR Act, to the exclusion of others recognised as traditional Aboriginal owners of the claim area through the Malak Malak Aboriginal Land Trust. That is, there is no real benefit to be gained to the applicant or to the claim group of which she is the representative if the claim were to succeed. (iv) The dismissal of the claim does not amount to a determination that there were no Aboriginal persons who, at the time of European settlement, lived on and around the claim area and were bound together by a normative system reflected in their traditional laws and customs in relation to the land and waters of the claim area; nor does it amount to a finding that the normative system has not continued to exist to the present time (adapted in response to the exigencies of history); nor does it amount to a finding that the applicant and the claim group are not members of the society which still lives by and within that normative system traceable back to the society which existed at settlement. Consequently, the dismissal of the proceeding does not represent the negative finding that the applicant and the Kamu people are not (either with others or alone) the persons who should be recognised as the holders of native title over the claim area under the NT Act. 18 Those various factors weigh strongly in favour of bringing the claim as presently put forward to an end. It is, of course, trite to add that the Northern Territory and the other respondents, and the NLC with the wider group it represents, are entitled to have the claim brought to an end in the interests of justice. A claim which, having been instituted, is really not going to be prosecuted in any meaningful way is not one which it is fair to the respondents to allow to stand, as it were, in suspended animation indefinitely. 19 In those circumstances, and for those reasons, the application is dismissed. 20 I observe the obvious that, in making that order, I am not making any finding about whether the way in which the Malak Malak Aboriginal Land Trust operates does or does not properly hear and give effect to the voice of the applicant and the Kamu people to the extent that their voice should be heard and given effect to. That is not a matter which arises in this proceeding. That is a matter on which the applicant might well seek advice. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.