Native Title Practice Note (NT-1)

J L B Allsop, Chief Justice 25 October 2016

1. Introduction

1.1 This practice note sets out arrangements for the management of native title proceedings within the National Court Framework ("NCF"). It:

(a) is to be read together with the:

Central Practice Note (CPN-1), which sets out the fundamental principles concerning the NCF of the Federal Court and key principles of case management procedure. The Central Practice Note is an essential guide to practice in this Court in all proceedings; and

Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") and the Federal Court Rules 2011 (Cth) ("Federal Court Rules");

(b) takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing;

(c) sets out the arrangements for the management of native title proceedings. It is intended to set out guiding principles for the conduct of these proceedings and is not intended to be inflexibly applied.

2. Overview and Definition

2.1 This Native Title National Practice Area ("NPA") comprises any proceeding arising under the Native Title Act 1993 (Cth) ("NTA") and covers matters arising under or in relation to any Indigenous Land Use Agreement ("ILUA") or other agreement made under the NTA, or concerning a Prescribed Body Corporate (which holds or manages native title under the NTA).

3. Commencing Proceedings

3.1 Subject to the matters clarified below, the Federal Court Rules and forms apply to the commencement of proceedings in this NPA and are available on the Court's website.

4. Allocation Principles

4.1 The individual docket system referred to in paragraph 4.1 of the Central Practice Note that generally applies in the Court will be modified in the case of the Native Title NPA.

4.2 Upon filing, a native title proceeding will be allocated to a provisional docket judge in the Native Title NPA who will be responsible for case managing the proceeding until such time as the proceeding is allocated to a trial docket judge in the Native Title NPA, who will then be responsible for case managing the proceeding and hearing and determining the matter.

4.3 Upon filing, a native title proceeding will also be allocated to a native title registrar to assist in the case management of the proceeding.

5. Case Management

5.1 Parties and their representatives should familiarise themselves with the guiding case management information set out in Part 8 of the Central Practice Note, including those parts which address the overarching purpose within the Federal Court Act.

5.2 Given the nature of native title cases, tailored case management processes may apply to native title cases to the extent necessitated by the character of the matter or the needs of the parties.

6. Case Management Hearing

6.1 The first hearing in a native title proceeding will be a case management hearing before the provisional docket judge, which may be followed by further case management hearings conducted by the provisional docket judge or a native title registrar as may be appropriate.

Specific Case Management Considerations for Native Title Proceedings

6.2 Parties should attend the first case management hearing having given careful consideration to the following issues, amongst others:

The file

(a) the appropriate short title of the proceeding (see r 34.130 of the Federal Court Rules);

(b) the relationship, if any, the proceeding has to any other native title proceeding (see r 34.134 of the Federal Court Rules);

(c) the relative priority to be given to the resolution of the proceeding;

Alternative Dispute Resolution

(d) the timing of any required connection and tenure analysis relating to the proceeding;

(e) whether the proceeding would appear to be capable of resolution by agreement through an ILUA and/or consent determination negotiations under the NTA;

(f) whether early agreement is possible between the applicant and any respondent party who holds an interest which is not likely to be disputed by the applicant, and if so, whether that agreement may obviate the need for further active involvement of that respondent party in the proceeding;

Pleadings

(g) what connection and extinguishment issues are likely to arise in the proceeding;

(h) whether, when and how the matter should be pleaded, and in respect of how: whether by way of statement of issues, facts and contentions, formal pleadings or points of claim and defence;

(i) where relevant, the nature of interests of respondent parties to a proceeding following the ending of the notification period in respect of an application under the NTA;

Trial process

(j) whether an early evidence order or a preservation evidence order is required;

(k) whether the matter should proceed by way of a separate question as to: whether native title exists; whether native title has been extinguished (or both); or whether some other separate question should be determined;

(l) whether any separate question should be determined as a matter of priority;

(m) identification of likely matters of cultural or customary concern and how they should be responded to (see r 34.121 of the Federal Court Rules);

Evidence

(n) whether the parties are likely to rely on expert evidence in the proceeding and, if so, on what topics; and

(o) any other matter that will assist the Court to bring about the resolution of the proceeding as quickly, inexpensively and efficiently as possible.

7. Alternative Dispute Resolution

7.1 Section 86B of the NTA provides for the Court (unless an order is made under s 86B(3) that there be no mediation under the NTA) to refer each application made under s 61 to an appropriate person or body for mediation as soon as practicable after the end of the s 66 notification period.

7.2 The Court expects that most, if not all, proceedings should first be referred to and remain in active case management unless and until it appears that mediation, or some other form of alternative dispute resolution referred to in Part 28 of the Federal Court Rules (or as noted in Part 9 of the Central Practice Note), should be ordered either in respect of the whole of the proceeding or a particular issue arising in the proceeding.

7.3 Where a matter is referred to mediation, it may be referred to a native title registrar, a member of the National Native Title Tribunal or a private mediator with specialist skills. A list of available private native title mediators is published on the Court's website.

8. Potential Consent Proceedings

8.1 If it appears that a proceeding may potentially be resolved by negotiation and consent, the Court will, at the earliest opportunity, refer the matter to case management by the native title registrar to explore whether, and if so how, a resolution of the proceeding by consent may be achieved.

9. Potential Contested Proceedings

9.1 If it appears that a proceeding is likely to progress to trial, the provisional or trial docket judge, after consultation with the parties, will consider:

(a) whether the matter should proceed by way of a separate question as to: whether native title exists; whether native title has been extinguished (or both); or whether some other separate question should be determined, if that question has not already been answered;

(b) if expert evidence is proposed to be adduced at the trial, the issues to be dealt with and the appropriateness of the evidence being given concurrently by the expert witnesses at the trial;

(c) whether the trial will be held "on country", in whole or in part and, if so, the appropriate season or time of the year the trial should be held on country;

(d) whether interpreters are required and any other trial requirements;

(e) programming orders leading to the trial including for any pre-trial case management hearing or process that may be required prior to the scheduled trial date, having regard to Part 13 of the Central Practice Note; and

(f) noting paragraph 6.2(m) above relating to cultural and customary concerns, whether evidence from particular witnesses or in relation to particular topics should be the subject of orders restricting which persons may hear the evidence to be given or have access to the transcripts: for example, general restricted evidence.

10. Interlocutory Hearings and Urgent Applications

10.1 The aim of the Court is to limit the number of interlocutory steps in any native title proceeding through active case management. Parties and their representatives should familiarise themselves with the guiding further interlocutory steps information set out in Part 12 of the Central Practice Note.

10.2 Depending on the nature of any interlocutory application that is made, the provisional or trial docket judge may hear and determine the interlocutory application or recommend that the application be heard and determined by another judge within the Native Title NPA, if that be appropriate, given the nature of the interlocutory application.

10.3 Urgent applications of an originating nature are rare in native title proceedings. Should there be any necessity to commence a native title proceeding urgently, such applications will be dealt with through the general duty system as set out in Part 5 of the Central Practice Note.

11. Further Practice Information and Resources

11.1 Further practice and procedure information and resources for this NPA are available on the Court's Native Title NPA "homepage".

11.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves.

Enquiries and Contact Information

11.3 General queries concerning the practice arrangements in the Native Title NPA should be raised, at first instance, with the native title section of your local registry. If a native title registry officer is unable to answer your query, please ask to speak to the NCF Coordinator in your local registry.


J L B ALLSOP
Chief Justice
25 October 2016