Penangke on behalf of the Arrapere People (Molly Hill) v Northern Territory

[2011] FCA 147

FEDERAL COURT OF AUSTRALIA

Penangke on behalf of the Arrapere People (Molly Hill) v Northern Territory [2011] FCA 147

Citation:		Penangke on behalf of the Arrapere People (Molly Hill) v Northern Territory [2011] FCA 147
Parties:		LINDSAY BOOKIE PENANGKE ON BEHALF OF THE ARRAPERE PEOPLE (MOLLY HILL) v NORTHERN TERRITORY OF AUSTRALIA
File number:		NTD 6005 of 2003
Judge:		REEVES J
Date of judgment:		24 February 2011
Date of hearing:	9 December 2010
Place:	Brisbane (Heard in Alice Springs)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	10
Solicitor for the Applicant:	J Nugent of Central Land Council
Solicitor for the Respondent:	P Gatis of Solicitor for the Northern Territory

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 6005 of 2003

BETWEEN:	LINDSAY BOOKIE PENANGKE ON BEHALF OF THE ARRAPERE PEOPLE (MOLLY HILL) Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGE:	REEVES J
DATE OF ORDER:	24 FEBRUARY 2011
WHERE MADE:	BRISBANE (HEARD IN ALICE SPRINGS)

THE COURT ORDERS THAT:

1.The application filed on 6 October 2003 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 6005 of 2003

BETWEEN:	LINDSAY BOOKIE PENANGKE ON BEHALF OF THE ARRAPERE PEOPLE (MOLLY HILL) Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGE:	REEVES J
DATE:	24 FEBRUARY 2011
PLACE:	BRISBANE (HEARD IN ALICE SPRINGS)

REASONS FOR JUDGMENT

1. This is an application for the determination of native title made under s 61 of the Native Title Act 1993 (Cth) (“the Act”) in relation to an area of land of approximately 8.96 sq km at Molly Hill, which is about 300 km northeast from Alice Springs in Central Australia.

2. At various callovers of the Central matters native title list in the Northern Territory since early 2009, I have been informed by Mr Nugent, who acts on behalf of the applicant, that this application was made in response to a future act notice in relation to a mineral lease application.  He said that this eventually led to a mining agreement being entered into between the proponents of that mineral lease application and the applicant.  Since then, Mr Nugent has been seeking instructions from the applicant to discontinue the application.  For whatever reason, the applicant has been unwilling to give those instructions.

3. When the matter was mentioned at the Central matters callover on 3 August 2010, Mr Nugent reiterated the above information and said that the situation had reached “something of a stalemate”.  As a consequence, I made the following orders:

   1.The applicants file and serve by 29 October 2010 a document setting out a program for the further progress of the claim, with the intent that, if no such document is filed and served, such a failure may indicate that the applicants do not intend to prosecute the claim further.

   2.Any other party may, by 29 October 2010, file and serve a document setting out a program that that party proposes for the further progress of the claim, or for any other orders that that party seeks.

   3.The matter be adjourned for further consideration of the matter to the callover at 9.00 am (CST) on 8 December 2010.

4. The Central matters callover was stood over from 8 December 2010, to 9 December 2010.

5. By 29 October 2010 and, indeed, by 9 December 2010, no document had been filed by either the applicant, or any other party in response to the above order.

6. At the callover on 9 December 2010, Mr Nugent did not seek to make any submissions about the future of the proceedings, particularly as to whether or not the Court should make orders dismissing this application under s 94C of the Act.

7. Section 94C relevantly provides:

   (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.

8. Taking into account what I have been told by Mr Nugent on behalf of the applicant and the matters set out in s 94C(1A) to (1G) (not reproduced above), I am satisfied about each of the matters set out in s 94C(1) above. In particular, I am satisfied that:

   ·this is an application for the determination of native title in relation to an area of land;

   ·from the timing of the application, it is apparent that it was made in response to a future act notice given in relation to the area of land concerned;

   ·the future act requirements have been satisfied in relation to each future act identified in the future act notice; and

   ·based upon the failure of any party, particularly the applicant, to file by 29 October 2010 a document specifying how the proceedings are to be progressed, I am satisfied that the applicant has failed within a reasonable time to take steps to have these proceedings resolved.

9. I am also satisfied about the matters set out in subss (2) and (3) of s 94C (not reproduced above), namely that:

   ·the applicant has been given a reasonable opportunity to present his or her case as to why this application should not be dismissed; and

   ·there are no compelling reasons why I should not dismiss the proceedings.

10. For these reasons, I therefore order, under s 94C of the Act, that this application be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:       24 February 2011