1: Conduct of native title proceedings in the Federal Court of Australia

This notice sets out revised arrangements for the conduct of native title cases, which will be managed regionally but within a national framework, by designated Native Title List Judges.  

This notice deals with: the extended role of the Native Title List Judge, an improved approach to the regional and national management of cases, mediation and the role of the trial judge.

National arrangement

In each registry one or more nominated judges manage first instance native title matters.  These judges are now referred to as Native Title List Judges. Assisted by Native Title Registrars, the Native Title List Judges will co-ordinate native title work and harmonize practice and procedure in accordance with this notice.

The Native Title List Judges are:

Regional management of the Native Title List

Building on models of regional management of the case load already in place in the Court, there will be greater emphasis upon the regional management of native title cases, allowing the progress of cases to be coordinated and streamlined across a region or regions.

The Native Title List Judge may conduct regional case management conferences with any trial judges allocated native title cases in the region.  Either alone or within the regional case management conference, the Native Title List Judge will manage the list with a view to ensuring that:

(a) it is managed on a regional or like-case basis so that groups of applications in a particular region can be reviewed together regularly;

(b) a specific and credible mediation timetable on a case specific and/or regional basis is prepared and complied with;

(c) those cases filed directly in response to future act notices and by which the Applicant seeks to gain procedural rights are identified; and

(d) the timely resolution of cases is pursued.

Trial judges

The Native Title List Judges and Native Title Registrars may conduct case management conferences with the National Native Title Tribunal (the NNTT) and the parties to identify cases that should proceed to trial with priority.  Cases may be given priority if they can function as a lead case within a group of claims or for a region and, by resolving legal questions or factual issues of general application, can provide a basis for consent determinations or negotiated agreements in other matters within that group.

As a general rule the Chief Justice will allocate a case to a trial judge only once it is actively progressing to trial.

Within a regional case management conference, or in an individual matter, the trial judge may give consideration to case management measures to assist in the progress of a case in which mediation before the NNTT has ceased.  These may include the appointment of an expert to assist the Court or the referral of a case to a form of ADR such as mediation or a compulsory conference of experts.

Cases already in the substantive list

Cases substantively allocated to a trial judge before the implementation of this notice which are not likely to be tried or be the subject of a consent determination within a reasonable time may be returned to the Native Title List.  The Chief Justice will invite judges to review their existing allocated cases, with a view to identifying matters appropriate for management by the relevant Native Title List Judge.  The decision will be a matter for each judge after hearing submissions from the parties

Dated:  13 June 2007

M. E. J. BLACK
Chief Justice