Native Title Mediators
In September 2009, Parliament’s amendments to the Native Title Act 1993 placed with the Federal Court a clear responsibility for managing all aspects of native title proceedings, including the opportunity to refer a matter to mediation before a person or body other than the National Native Title Tribunal (NNTT) or a Judicial Registrar of the Court.
In 2010, the Court first compiled a list of mediators to be available to parties in the proceedings and the Court, to assist in the mediation of native title cases.
Further legislative amendments were made in 2012 that had the effect of transferring all mediation functions associated with native title claim applications to the Court, effective from June 2012. The NNTT now only conducts native title claim mediation by referral from the Court.
While the native title judicial registrars now conduct most mediation of native title matters, on occasion there is need to engage an external mediator to conduct or co-facilitate mediation. The Court therefore maintains a list of appropriately qualified professionals that will be periodically reviewed to remain current. The list might also be supplemented as a result of Court or parties’ consultation to identify other persons suitable for appointment. The list was most recently reviewed and updated in May 2017.
Review of the List
The Court aims to conduct a comprehensive review of the list every two years. At the appropriate time, the Court will advertise on this website and through relevant organisations that it is calling for new expressions of interest. All applicants for inclusion on the list will need to read and complete an Expression of Interest (EOI) form (doc - 109kb) and return the form and required documents to the Court for consideration.
Importantly, the EOI Form provides that:
- the selection of a mediator for inclusion on the list does not create a contract between the mediator and the Court; and
- inclusion on the list does not necessarily mean that the mediator will be appointed to a matter.
The referral and appointment process of a mediator in any case will be ultimately a matter for the Court. A case or part of a case may be referred by order of the Court to a mediator other than a judicial registrar of the Court, on request of a party to a case or on the Court's own initiative.
The Court will usually invite the parties to view the list and nominate a list of preferred mediators from the list. On occasion, an individual not included on the list may be approached to ascertain their interest in mediating a matter and being included on the mediation list.
Careful consideration will be given to the views of the parties as it is preferable for the parties to agree that a particular person is the appropriate person to assist them to resolve their dispute. In a situation where the parties cannot agree on a person to be appointed as the mediator, the Court may nominate three mediators from whom the parties could make a selection. Alternatively, the Court may decide which person from amongst the nominations is to be appointed.
The fees and other expenses paid by the Court for mediators are set out in Native Title Mediator List – Expressions of Interest.
Judicial Registrar - Native Title
Ph. 08 9268 7128