Federal Court Native Title User
Group Meeting - NSW - Minutes
15 December 1999
PRESENT:
Beaumont J (Chair), John Mathieson (District Registrar),
Margaret Quinn (Deputy District Registrar), Stephanie
Kavallaris (Deputy District Registrar), Louise Anderson
(National Native Title Coordinator), Robin Macleod (Native
Title Manager), Andrew Solomon, Rowena Finnane, John McCarthy,
Adam McLean, Susan Burton Phillips, Sarah Pritchard, Lloyd
McDermott, Jeffrey Kildea, Pat Lane, John Waters, Chris
Searle, Margaret Foy, Sophia Illiades, Matthew Hazard,
Robert Jackson, Jennifer Jude, Judy Bonner, Janet Moss,
Simon Blackshield, Eduard Neumann, Deborah Paton, Kirsty
Ruddock, Jane Warner, Joe Lane, Andra Eisenberg, Marcus
Bezzi, Susi Brown, Clare Lawrence.
APOLOGIES:
John Basten, Robert Beech-Jones, Peter Kilduff, Alan Sullivan,
Stephen Lloyd, James Renwick, Patrick Larkin, John Foley,
Ed Wensing, Andrew Chalk, Paolo Buchberger, Stephen Friend,
Wroth Wall, Melissa Begg, Hugh King, Michelle Hannon,
Vance Hughston.
1. Allocation of Native Title
Cases - Progress
ALRC Paper
A paper by the Australian Law Reform Commission on ‘The
Review of the Federal Civil Justice System’ was
made available to the meeting in draft form. This discussion
paper is as it covers some topical issues eg management
of native title cases. Any suggestions in relation to
the draft paper would be welcome and may be directed to
Mr Mathieson (District Registrar), Ms Quinn (Deputy District
Registrar), Ms Anderson (National Native Title Coordinator).
Full Court Appeals
Generally Full Court decisions are delivered within 3 to
6 months from hearing. Decisions in native title matters
will clarify issues that will assist in the future conduct
of native title matters.
First Instance Allocations
The last User Group referred to the Allocation Protocol
and its key elements eg listing before a Provisional Docket
Judge in each District Registry for case management up
to and including the first preliminary review hearing
and thereafter substantive allocation to a Docket Judge
for ongoing management and hearing. A Provisional Docket
Judge has been nominated for each State and Territory.
Substantive allocations are randomly
allocated on a national basis. On this basis there is
a possibility that a Judge from another State might be
substantively allocated to a NSW matter.
An outline was given about the number
of matters nationally before a Provisional Docket Judge
and those substantively allocated.
A table was distributed at the meeting
listing all current native title matters in NSW and it
set out an estimate of the estimated hearing times. In
allocating these matters consideration will be given to
the length of time and to grouping related matters. Any
comments regarding the table were welcomed.
It was noted there would be continued
monitoring of the progression of NSW Native Title matters
after substantive allocation.
Although most Federal Court matters
have a disposition target of 18 months , this target may
be unrealistic for native title cases given the procedures
in the Native Title Act 1993 (Cth). It is anticipated
that these cases may have a three year disposition time
which, at this stage, will be measured from October 1999.
There was some concern expressed in
relation to the three year disposition target given the
nature of native title matters and the required collection
of evidence and experts reports. It was noted that the
three year disposition target would be reviewed from time
to time.
2. Judicial Review of NNTT Registration
Test Decisions
It was noted that a Full Court Appeal
in the matter of State of Western Australia -v- Marjorie
May Strickland and Anne Joyce Nudding on behalf of the
Maduwongga People No. W6039/99 will be heard on 3 March
2000 in Perth. The appeal is from a judgment of Justice
French of 4 November 1999 dealing with the application
of the registration test by the Registrar of the NNTT.
3. Notification by NNTT
The NNTT reported on the number of
matters that it is required to notify under section 66
of that Native Title Act 1993 and it was committed to
the task. Notification may be onerous given the number
of proprietary interest holders in any particular matter.
There is currently a matter listed
in the Federal Court relating to notification in native
title matters and this will assist in giving guidance
in who is to be notified and how the Registrar of the
National Native Title Tribunal is to exercise his discretion.
The representative for the NSW Department
of Land and Water Conservation noted that the process
of notification requires both the identification of land
which is the subject of the claim and also identification
of the person/s to be notified subject to the claim. In
order to identify the person/s that should be notified
it is necessary to conduct current interest holder searches
and also legal searches which incorporate past interest
holders and other interest holders of that nature. A concern
was expressed that this process was a very large task
when contrasted against the three year disposition date.
The reason being that of the 20M Hectares currently subject
to land claims over 18M Hectares required to be searched.
The information relating to those land claims is contained
within the administrative records of various government
departments and not held in a central repository.
The representative from the NSW
Crown Solicitor’s Officer noted it may be appropriate
for the Court to make orders in relation to the notification
of matters to a particular class of interested parties
as opposed to individual applicants eg the Western Land
Lease matters.
The 60 matters currently with the NNTT
can be broken into 3 groups of which;
× 20 – Complex and Large
applications with a considerable
number of parcels of land with approximately 200 persons
involved.
× 20 - Moderate number of parties,
approximately 50 - 200.
× 20 - Small areas of land where
notification will be easier.
4 Mediation
It was noted that there is some scope
for mediation in the conduct of Native Title matters by
the Federal Court in relation to:
× identification of parties
× party joinder applications
× other procedural issues.
Registrars of the Court are available
to conduct mediations. The meeting was informed that the
Federal Court has operated a mediation program for at
least 10 years and has developed a reputation of being
efficient and effective in this area. It was noted also
that the Court is prepared to travel to on – site
locations to conduct mediations.
Where parties have travelled a long
distance to attend Court if an issue arises in Court,
Registrars would assist to mediate that issue the same
day.
5. Federal Court Proposal
for better sound amplification in hearing rooms and more
extensive cabling for ‘in Court’ use of computers
and telephone equipment
The meeting was given information about
the facilities which are and which will be available for
hearing impaired and other disability groups eg the installation
of sound loops in the Court. In addition the Court is
proposing to provide computer facilities in all Court
Rooms and adjoining interview rooms.
6. Remote Locality Hearing
The conduct of remote locality hearings
are considered nationally within the Court. The WA Registry
has had 3 remote locality hearings which have received
favourable feedback. The Court intends to draw from the
experience of the WA Registry in the conduct of other
remote hearings and is in the process of finalising 2
positions dedicated to dealing with the needs of the Court
in this area. One of those positions will be responsible
for the East Coast and one for the West Coast.
7. Proposed National Native Title
User Group Meeting in the Year 2000
Beaumont J noted the possibility of
a National User Group Meeting.
8. Other Business
It was noted that the provision of
a transcript is a large expense, for parties in native
title matters.
The Court was thanked for its
flexibility, cooperation and assistance to parties and
the profession involved in the conduct of Native Title
matters in NSW.
9. Next Meeting
Attendees will be invited to a further
meeting at a date to be determined.
