Native Title Guide
Under the Native Title Act 1993 (Cth), the Federal Court of Australia is responsible for the management and determination of all applications relating to native title in Australia.
Native title describes the recognition by the Australian legal system of rights and interests of Aboriginal and Torres Strait Islander peoples to land and waters according to their traditional laws and customs.
Native Title was first recognised in the Australian legal system in 1992 by the High Court in the historic Mabo decision. Native title may include rights of possession, occupation, use and enjoyment of traditional country.
It may include the right to access an area of land or the right to participate in decisions concerning how the land or waters are used by other people. Native title may also vary according to the rights of other people and may exist alongside other rights (called ‘co-existence’).
Native title cannot be bought or sold. It can be transferred by traditional law or custom, or surrendered to government, which can then pay compensation to the native title holders in the same way as it does when acquiring rights to other property.
The role of the Court
The Court is responsible for managing all aspects of native title cases. All applications for a determination of native title must be filed with the Court.
The Court has wide powers in native title cases. It can:
- decide who are the ‘parties’ (the people involved in a case);
- decide whether new people or organisations can become involved in proceedings as parties;
- refer a claim to an appropriate person or body for mediation including a Registrar of the Court or another individual or body;
- order adjournment of proceedings to allow time for the parties to negotiate;
- make orders to ensure that overlapping native title applications which cover the same area are dealt with in one proceeding; or
- make a determination that native title is to be held in trust.
What is the process for determination?
1. Filing: Once the application is accepted for filing in the Court a copy of the application is provided to the Native Title Registrar so it can apply the registration test and notify the application.
2. Registration: The Native Title Registrar will apply the registration test. Passing the registration test gives the native title claim group certain procedural rights, including the right to negotiate (eg. over mining or mineral exploration). Applications which fail the registration test can still proceed through the Court, but the applicants do not have the right to negotiate. If the Native Title Registrar does not accept the claim for registration, the applicant may ask the Court to review the Tribunal’s decision.
3. Notification: The Native Title Registrar will advise the public and any individual or body (including State or Territory governments) whose interests may be affected by a native title determination to apply to the Court to become a respondent party to the case. The period in which a person can apply to the Court is three months.
4. The Court will receive the applications to become a party and will decide whether or not the person is a party.
5. Then there is usually a directions hearing which is attended by the applicants and other parties (and their legal representatives). At the directions hearing, the Judge may finalise the party list and refer an application to case management by a Registrar of the Court or mediation.
6. If agreement is reached between the parties for a determination of native title, the Court will then consider making a determination of native title consistent with the agreement.
7. If an agreement is not reached between the parties then the Court may hear the evidence and determine whether native title exists.
How to make a native title application
To make a native title application you need to fill out an application form.
Once the form has been completed you need to file it with the Court. You can do this electronically through the Court’s eLodgment application, in person by bringing it to the Court, or by posting or faxing it to the Court. This is called 'filing'.
Registration and notification by the Native Title Registrar
One of the jobs of the Native Title Registrar is to apply the registration test. If the application passes certain legal tests the application is registered. Passing the registration test gives the native title claim group certain procedural rights, including the right to negotiate (e.g. over mining or mineral exploration).
The Native Title Registrar is also responsible for the public notification of a native title application to allow those people or organisations whose interests may be affected by a native title application to apply to the Court to become a respondent party to a case. This process takes three months and is called a ‘notification period’.
Following the notification period the Court will then decide who the respondent parties are to the case.
Management of cases
The Native Title Act 1993 (Cth) sets out the role of the Court in native title matters. The Federal Court of Australia Act 1976 (Cth) sets out the approach of the Court to all the cases files with it, including native title cases. As it empowers the Court to ensure that all parties assist the Court to efficiently, quickly and inexpensively resolve cases.
To achieve this Judges of the Court are actively involved in managing a case from beginning to end. This system ensures coordination between the Court and parties regarding a list of priority cases within the pending native title case load so that cases are properly resourced and efficiently progressed to trial or agreed outcomes.
Most cases are allocated to a ‘provisional docket Judge’ soon after they are filed in the Court and this Judge manages the application for the Court. If it is necessary to hear evidence of the case then depending on the circumstances the case may be allocated ‘substantively’. The substantive allocation is often to the same Judge who has managed the application to date.
Registrars of the Court also have an important role in the daily supervision of cases and assist in the overall case management system.
The native title list is managed as a national list. The Court has established a National Native Title Co-ordination Unit to provide advice to the Chief Justice and other Judges on management of native title cases.
Staff with experience in native title are also available in the Registries of the Court to assist applicants and parties in the practice and procedures of the Court and to assist in the organisation of hearings in remote localities.
Progress and resolution of cases
After an application has been filed with the Court a Judge may refer the application to case management by a Registrar of the Court or mediation.
The purpose of case management and mediation is to help the parties to reach an agreement or to clarify the issues that are really in dispute.
If parties are unable to reach agreement the application will usually be heard by a Judge. At the hearing each of the parties will present their evidence. It is still possible, even after the hearing has started, for the Judge to direct the parties to try to reach an agreement on some of the issues in dispute through case management or mediation.
Native title cases
Resolving native title applications is a complex and time-consuming process. It involves recognition of the operation of two systems of law: Australian common law and statute law on the one hand and the traditional law and custom of the Aboriginal and Torres Strait Islander peoples on the other.
To decide the question of whether native title exists and who it holds it, the Judges will usually hear evidence in the area subject to the claim and also visit important sites.
Sometimes the Court uses video link-up technology so that people living in remote areas can give evidence which is then televised to the courtroom.
What is a determination?
A determination of native title is a decision by the Court whether or not native title exists in relation to a particular area of land or waters.
If the Court decides that native title does exist it will also make decisions about:
- who the people are who hold native title common or group rights; and
- what the nature and extent of the native title rights and interests are in relation to the area; and
- what the nature and extent of any other interests are in relation to the area; and
- what the relationship is between the native title rights and interests and other interests; and
- whether the native title rights and interests allow the native title holders to possess, occupy, use and enjoy the land or waters to the exclusion of all others.
The Court can make a determination of native title when either:
- agreement is reached between the parties for a determination of native title; or
- parties are unable to reach agreement and the Court hears the evidence and determines if native title exists.
Who can represent me?
You can attend hearings in person (without a lawyer) or be represented by a lawyer. You can also ask the Court to allow you to be represented by a person who is not a lawyer.
You can ask an association, society, organisation or other body to act as your agent in the proceedings. An agent can act for more than one party in the proceedings.
The decision to allow you to be represented by a person who is not a lawyer or an agent in any case will be ultimately a matter for the Court.
Reviewed July 2015