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Notices to practitioners and litigants (Native Title) issued by the Registrar

4: Access to pastoral leases Purpose of this notice The Federal Court of Australia has jurisdiction to hear and determine native title applications in Australia. Consistent with the objectives of the Native Title Act 1993 (Cth) the judges of the Court consider that, where appropriate, at least part of the hearing of the native title case should be conducted at a location or locations in the claim area. The Court has become experienced in the logistical arrangements necessary for hearings in rural and remote locations, and employs specialist staff to coordinate the arrangements for those hearings.

The purpose of this notice is to:

1. promote best practice by Federal Court staff in the organisation of native title hearings and site visits on pastoral leases; and

2. inform the applicants and respondents to a native title hearing of the Courts' logistical requirements in respect of hearings and site visits on lease holdings.

Best practice - Court staff, applicants and parties

The Court recognises the need for direct and continuing dialogue with and between the affected leaseholder, native title claimants and all other interested parties prior to a during native title hearings.

Court staff

The Court expects that its staff will:

• act in an impartial and professional manner wile visiting and coordinating hearings on lease holdings;
• initiate liaison and maintain contact with a leaseholder whose operations may be affected by the required access; and
• display appropriate sensitivity to the concerns of the affected leaseholder, native title claimants and all other interested parties.

Applicants/parties

Where evidence in a native title determination application is to be given in a remote location, the party wanting to give the evidence is to provide the Court with the following documentation:

• A topographical map on which is indicated: the location of each site to be visited; the proposed route to each site; and the properties affected by each visit and by the travel to and from the site.
• An itinerary setting out: the date or dates on which each site will be visited; the proposed departure and arrival dates and times for each visit; and an estimate of the duration of each visit.
• Where the site or sites are to be visited by motor vehicle, a document setting out the following information: a description of the route to each site with details of distances from the departure point, road junctions, turn-offs and other physical features; the nature and condition of the road surface, track or other country over which it is proposed to travel and drawing attention to any particular difficulties that may delay or inhibit travel; and whether the visit or visits can be completed during the hours of daylight.
• An estimate of the number of people that will be visiting each site.
• A document setting out any issues that the party is aware of that may affect that visit.

In the absence of any other direction the documents should be filed with the relevant registry of the Court not less than 21 days before the scheduled date for the commencement of the visits to the sites.

Affected leasehold advised

The party requesting the site visit must give a written notice of the proposed visit or visits to each owner, leaseholder, or licence holder of the land to be visited or over which it is intended to travel. The notice must be given in a reasonable period before the date of the intended visit or visits.

The notice should wherever possible, include the following:

• the proposed dates when the visits will occur;
• a map identifying the proposed sites and the proposed route for travel to and from the sites;
• an estimate of the number of persons likely to be visiting each site;
• the proposed requirements for access to each site;
• the proposed arrangements for transport to and from each site;
• the proposed accommodation arrangements at each site and in the course of travelling to and from the site;
• the expected water use at each site and in the course of travelling to and from the site;
• the proposed means of waste disposal at each site and in the course of travelling to and from the site; and
• any other matters.

Court's coordination of remote locality hearings:

Notice of hearing and preliminary arrangements

When a matter is listed for hearing by the docket judge, the usual practice will be for the District Registrar to send to each party listed on the "Schedule of parties":

• a copy of this Notice to Practitioners; and
• information about: the proposed date or dates of the hearing; the proposed date or dates on which the Court will be conducting a reconnaissance visit to the proposed site or sites where a hearing is to be conducted; and the name and contact details of the Hearing Coordinator.

The Hearing Coordinator or District Registrar will then make enquiries of each lease holder on whose property the Court is likely to enter about the following matters:

• access to the property;
• impact on station activities or stock;
• use of any airstrip; and
• other relevant matters.

Case management conference/briefing

Subject to orders of the Court, the Hearing Coordinator or District Registrar will conduct a briefing for all parties attending the hearing at the remote location. The briefing will deal with such topics as:

• the sites to be visited;
• the location from which the Court convoy is leaving and the date and time of departure;
• the mode of travel for the Court;
• any concerns that the parties may have in relation to the proposed site visits; and
• details of any special equipment the parties may need, such as a 4WD vehicle and camping equipment.

Directions

In the ordinary course, the Court will give such directions as are necessary to give effect to an agreement reached by the parties in relation to access to the site or sites for the remote locality hearing.

In the event that the parties are unable to reach agreement regarding the proposed access, the Court may make orders pursuant to Order 78 rule 37 of the Federal Court Rules in respect of access to lease holdings for the purposes of the remote locality hearing.

(Registrar)

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