WHITE J:
1 This decision concerns the question of whether two applications for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) should be dismissed because they have not been, and will not be, prosecuted with reasonable diligence.
2 The two applications were commenced in 2001. They are known by the names Mount Drummond and Cresswell/Benmara, which are the names of pastoral leases over at least some of the areas to which the applications relate. The pastoral leases are in the eastern part of the Barkly Tableland. The applications are known generically as "polygon" claims. Paragraph [7] of Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461 (Bulabul) sets out the reason why applications of the present kind are known as "polygon" claims.
3 The Northern Land Council (NLC) commenced each application on behalf of the respective applicants and remains the solicitor on the record in both matters. In 2001 and 2003, the NLC also commenced a large number of other applications for the determination of native title in respect of areas in the Northern Territory.
4 From their commencement until 2007, the two applications were, in accordance with the arrangements then applicable, primarily managed by the National Native Title Tribunal. On 13 March 2007, Mansfield J made orders pursuant to s 86C of the NT Act for mediation in Mount Drummond and Cresswell/Benmara (and in a large number of other applications) to cease. This Court then 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.
5 Shortly thereafter, and following a series of directions hearings and meetings, the Court allocated the various applications commenced by the NLC into groups. Mount Drummond and Cresswell/Benmara were, with other applications, given the designation "Group 2". On 27 October 2016, the Court divided Group 2 into two subgroups and classified Mount Drummond and Cresswell/Benmara, together with NTD6024/2001 Kiana Calvert and NTD6001/2002 Mallapunyah/Cresswell, as "Group 2A".
6 It is the experience of the Court that polygon claims such as Mount Drummond and Cresswell/Benmara are not ever prosecuted to a determination. Instead, the claimant groups file fresh applications over areas with boundaries which correspond to, or are more closely aligned with, pastoral lease boundaries. Usually, before determinations are made on those replacement applications, the relevant polygon claims are discontinued. It is evident that the NLC contemplated a similar course being followed with respect to the Mount Drummond and Cresswell/Benmara applications. This means that those applications are unlikely ever to be prosecuted to conclusion in any event, and they have been kept on foot until replacement applications have been filed.
7 Progress in replacing many of the polygon applications has been slow. Paragraphs [28]-[38] of my reasons in Bulabul set out some of the detail concerning that progress in the period between 2007 and March 2017. It is not necessary to repeat it all presently.
8 In 2009 the NLC provided the Court with a program for the disposition of the applications it had commenced. If that program had been implemented, it would have seen all applications finalised by 2014, and all applications in Group 2 finalised by 2011. However, over the ensuing years the expected time for finalisation of the Group 2 claims was progressively extended: to 2012; to 2014, then (in 2014) to processes for addressing claims in a number of Groups not even being considered before 2015 and 2016, but with the prospect of consent determinations being made in 2017 or 2018.
9 Until April 2019, the Court conducted a callover every six months of all the native title proceedings filed by the NLC in the Northern Territory Registry. At these callovers, the Court periodically expressed its concern about the lack of prosecution of the majority of claims and warned the parties of its possible intervention.
10 In November 2015, Mansfield J informed the NLC that it should be providing a realistic timetable for the completion of all applications, including the Group 2 applications. At that same callover, the NLC informed the Court that, in the case of Group 2, there were a number of intra-mural disputes which the NLC would seek to mediate internally during 2016. In addition, the NLC said that it hoped to hold information meetings for Group 2 early in the dry season of 2016, so that applications to replace the polygon claims could be authorised in late 2016.
11 At the callover on 13 April 2016, Mr O'Donnell, the then Principal Legal Officer of the NLC, informed the Court that a "[m]ediation [of the intra-mural disputes] was conducted in October and was successful but it required further research and that further anthropological research [had been] undertaken last week and as we speak". Mr O'Donnell assured the Court that the NLC was giving appropriate attention to the matters and that it hoped to have progress before the next callover.
12 At the next callover in October 2016, the NLC informed the Court that information meetings were scheduled to occur from October 2016 to July 2017 as a precursor to authorisation meetings for replacement applications concerning the Group 2A and Group 2B pastoral lease claims. The Court then made orders referring the matters to a case management conference before the Registrar, with a view to the parties identifying the timelines by which the steps to finalise the matters would be taken.
13 One year later in October 2017, the NLC informed the Court that, contrary to its previous expectations, no authorisation meetings had been held in the Group 2A matters due to the re-emergence of the previously mediated intra-mural dispute. The Court was informed that a large number of persons in the Group 2 matters had sought independent advice from Midena Lawyers and were asserting native title rights and interests other than in accordance with the proposed Group 2A pastoral lease claims. Orders were made maintaining the matters in case management, so that private discussions could take place between Midena Lawyers and the NLC.
14 At the 26 October 2018 callover, the Court was informed that the intra-mural dispute had not resolved and that, while it remained unresolved, the filing of pastoral lease claims to replace the polygon claims could not be progressed. In a further attempt to resolve the dispute, the applicants sought, and the Court made, an order referring the applicants in the four Group 2A matters to mediation before a Registrar. That mediation took place in Darwin over a three day period from 26 to 28 February 2019 but did not produce an agreed outcome.
15 At the callover in April 2019, the NLC sought the adjournment of the Group 2A matters in order to give it time in which to seek instructions for each application to be withdrawn. Counsel expressed confidence that the NLC would receive those instructions in relation to Kiana Calvert and Mallapunyah/Cresswell but was less confident that it would receive those instructions in relation to Mount Drummond and Cresswell/Benmara. The Court adjourned the Group 2A matters to a case management hearing on 22 May 2019, "in the expectation that the Applicants will by 4pm on Monday 20 May 2019 have informed the Court and the parties whether they are seeking leave to discontinue or some other order and noting that in the absence of an application for leave to discontinue or some firm proposal for the prosecution of the applications, the Court may list the matters for hearing of the question of whether they should be struck out for want of prosecution."
16 At the case management hearing on 22 May 2019, the Court granted the applicants in Kiana Calvert and Mallapunyah/Cresswell leave to discontinue. Notices of discontinuance in each matter were filed on the following day. The position with respect to Mount Drummond and Cresswell/Benmara is different.
17 There are four persons who comprise the applicant in NTD 6039/2001 (Cresswell/Benmara). One of these persons died on 21 December 2017 and she has not been removed as an applicant. In his affidavit made on 20 May 2019, the NLC solicitor with carriage of the matter deposed to having received instructions from two of the remaining three persons comprising the applicant that they supported the discontinuance of the application. The fourth-named applicant, Jimmy Holt, has been receiving advice in relation to the application from Midena Lawyers. Mr Midena informed the NLC on 17 May 2019 that Jimmy Holt does not support discontinuance of the application. There is accordingly disagreement among the persons comprising the applicant in Cresswell/Benmara as to what should be done with that application.
18 Jimmy Holt is the sole applicant in NTD 6012/2001 (Mount Drummond). Mr Midena has also informed the NLC that Mr Holt does not support the discontinuance of this application either.
19 Although Mr Holt is the sole applicant, the underlying difficulties arising from the polygon nature of the claim and the intra-mural dispute mean that the NLC cannot prosecute NTD 6012/2001 nor put in place the necessary processes for the commencement of a replacement application.
20 At the case management hearing on 22 May 2019, counsel confirmed that the NLC is not in a position to prosecute further either NTD 6012/2001 (Mount Drummond) or NTD 6039/2001 (Cresswell/Benmara), or to file replacement applications, and that it had no plans to do so. Counsel for the NLC attributed the NLC's position to the intra-mural difficulties in the claim groups.
21 The Court has been concerned for some time by the age of the two applications and the time which has elapsed without them being prosecuted actively. That concern became acute on the Court being told that the NLC would not be prosecuting these applications or replacement applications.
22 Accordingly, on 23 May 2019 I made orders listing these two matters for hearing on 3 September 2019 for consideration of whether they should, on the Court's own motion, pursuant to rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth) (the Rules), be struck out for want of prosecution. I put in place a timetable for the filing of any affidavits and outlines of submissions to be relied upon in relation to that hearing.
23 No party has filed an affidavit or outline of submissions. Before the hearing on 3 September 2019, the NLC confirmed that, as the applicants in the two applications are "not in a position either to pursue the applications further, or to pursue replacement applications, or to seek leave to discontinue the action" the NLC did not propose to file any documents in connection with the hearing.
24 The Northern Territory also confirmed that it did not intend to file any affidavits or submissions and that it did not wish to be heard in relation to the striking out of the two applications for want of prosecution. The pastoralist respondents adopted the same position.