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 rights
of Aboriginal and Torres Strait Islander peoples to land
and waters according to their traditional laws and customs.
It was first recognised in the Australian
legal system in 1992 by the High Court in the historic Mabo
decision. Native title may include 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
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:
refer native title and compensation
applications to the National Native Title Tribunal
for mediation;
decide who are the ‘parties’ (the
people involved in a case);
decide whether new people or organisations
can become involved in proceedings as parties;
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.
The role of the National Native Title
Tribunal
The main job of the Tribunal is to
help people to resolve native title issues and to make
agreements about the use of land. The Tribunal is not
a court and does not decide whether or not native title
exists.
To do its job the Tribunal follows
the following procedure:
First, the Tribunal assesses each
native title application. If the application passes certain
legal tests the application is registered.
After the application has been registered
there is a three month period for the Tribunal to notify
people and organisations whose interests may be affected
by a native title application (this is called the notification
period).
The Federal Court then decides who
the parties to the application are, and in most cases
the Federal Court will then refer the application to
the Tribunal for mediation.
If the claim is not resolved by agreement through mediation,
the matter goes back to the Federal Court.
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 send it to the Court. You can do this by
bringing it to the Court, or by posting
or faxing it or by sending
it by the internet. This is called 'filing'.
Mediation at the National Native
Title Tribunal
The Native Title Act encourages negotiation and agreement.
Once the parties are identified, the Court may refer
the application to the National Native Title Tribunal
for mediation.
At the Tribunal, a Tribunal member
will act as a mediator to assist the parties to come
to an agreement on whether native title exists and if
so, who holds it.
The mediation can continue for at least three months.
After this time, any of the parties
can ask the Court to stop the mediation and have the
application heard by a Judge.
Mediation at the Federal Court
After an application has been filed
with the Court a Judge may order that a mediation or
case management conference be arranged. Usually all of
the parties agree.
The mediator, who may be a Registrar
of the Court, will help the parties to reach an agreement
or to clarify the issues that are really in dispute.
If the mediation is unsuccessful
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 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 belongs to, the Judges
will usually take 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.
Management of cases
The Court has implemented an innovative
case management system called the Individual
Docket System.
Under this system, Judges of the
Court are actively involved in managing a case from beginning
to end. Most cases are allocated to Judges soon after
they are filed in the Court.
The native title list is managed
as a national list. Once an application has been filed
it will be allocated to a 'provisional docket judge'
who monitors the application for the Court.
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 most 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.
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.
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 who hold the common
or group rights comprising native title are; and
the nature and extent of the native
title rights and interests in relation to the area;
and
the nature and extent of any other
interests in relation to the area; and
the relationship between the rights
and interests between the people and their rights;
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:
an agreement reached through mediation is
referred to the Court; or
parties are unable to reach agreement and
the Court hears the evidence and determines
if native title exists.
What is the process for determination?
1. Filing: Once the application is
filed the Court checks whether it is complete and correct.
If it is, the application is sent to the Tribunal.
2. Registration: The Tribunal 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 usually proceed to mediation and/or trial, but the
applicants do not have the right to negotiate. If the
Tribunal does not accept the claim for registration,
the applicant may ask the Court to review the Tribunal’s
decision.
3. Notification: The Tribunal 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 party to mediation. 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 the Tribunal
for mediation.
6. If mediation in the Tribunal is
successful, the agreement reached will be referred to
the Court, which may make a determination of native title
consistent with the agreement.
7. If the mediation is not successful,
the Tribunal will provide a report to the Court. The
Court may direct that further mediation occur or may
hear the case.
