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.
