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About this NPA

The Native Title National Practice Area (NPA) includes applications relating to:

  • native title claims concerning the rights and interests of Aboriginal and Torres Strait Islander peoples to land and waters according to their traditional laws and customs, including determinations, revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records
  • reviews or appeals from decisions of the National Native Title Tribunal (NNTT)
  • matters arising under or in relation to any Indigenous Land Use Agreement (ILUA) or other agreement made under the Native Title Act 1993 (Cth) (Native Title Act) or concerning a Prescribed Body Corporate (which holds or manages native title under the Act).

Introduction to Native Title

Under the Native Title Act, 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 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
  • what the nature and extent of the native title rights and interests are in relation to the area
  • what the nature and extent of any other interests are in relation to the area
  • what the relationship is between the native title rights and interests and other interests
  • 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.

What is the process for a determination?

The majority of native title applications are claimant applications for a determination of native title. The process for determination is as follows:

1

Filing: Once the application forms have been completed (see Forms section) 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'.

2

Registration: Once a native title determination application is accepted for filing, the Court sends a copy of the application to the Registrar of the National Native Title Tribunal (NNTT Registrar) for registration testing and notification.

The NNTT 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 NNTT Registrar does not accept the claim for registration, the applicant may ask the Court to review the Tribunal’s decision.

3

Notification: The NNTT 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 and is called the “notification period”.

4

The Court will receive the applications to become a party and will decide whether or not the person is a party.

5

Then, usually, a case management hearing will be held, attended by the applicants and other parties (and their lawyers). At the case management hearing, the Judge may finalise the party list and refer an application to case management or mediation by a Federal Court Native Title Registrar.

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.

Case Management

A native title proceeding will be allocated provisionally to a Native Title NPA Judge in the relevant registry, who will be responsible for case management of the proceeding until the proceeding is allocated to a docket judge. The docket judge will be a Native Title NPA Judge and will be responsible for case managing and determining the matter.

A native title proceeding will also be allocated to a specialist Federal Court Native Title Registrar to assist in the case management of the proceeding.

Specialist Native Title Registrars assist in the management and co-ordination of native title work. The Registrars perform Judge directed and statutory duties and functions, as well as conducting mediation and other conferences to facilitate the timely resolution of matters by the Court. The Registrars also provide high level support to the Native Title NPA Judges, as required.

Staff with native title experience are also available in each local Registry to assist applicants and parties in the practice and procedures of the Court and to assist in the organisation of hearings in remote localities.

Native Title List of Priority Cases

The Federal Court recognises that it is not possible for all pending native title cases to be intensively managed at the same time by the Court and the parties. It is therefore necessary for the Court to determine a list of priority native title cases within the pending native title case load so that cases are properly resourced and efficiently progressed to trial or agreed outcomes. Cases that, for a variety of reasons, may never result in a native title or related outcome can also be identified in the priorities and managed appropriately.

The process of making decisions about the order in which a Court will deal with pending cases involves numerous factors to be taken into account. This process includes consideration of cases on a state, territory or regional basis.

The Federal Court approaches this difficult and important issue by reviewing each case, either through case management hearings, regional case management conferences, state or region based call-overs and state based users’ forums. This allows for the views of the applicants and all parties to be considered in determining the list of priority native title cases.

The criteria the Court refers to when determining priorities includes:

  • whether the case involves a matter of the public interest 
  • whether the resolution of the case will impact on other cases or the attitudes of the parties and in turn speed up the resolution of other related cases 
  • the level of future act activity 
  • the views of the parties 
  • the level of preparedness of the Applicant (that is, the extent of evidence gathered and issues identified) and 
  • the age of the case.

Importantly, in publishing the list of priority native title cases the Court acknowledges that it will evolve and change for a variety of reasons. Some may think their cases should be included and others may think their cases should be excluded. As such the list may change, as matters are resolved, removed or included and a current and interactive list will be maintained on the Court’s website.

Cases not mentioned on the list are also important and the Court will maintain an oversight of all pending cases through the Court’s usual case management. It may also be assumed that the Court will actively manage cases not on the list.

The Court’s cases are set out on the following priority lists:

ADR and Native Title Mediators

The purpose of alternative dispute resolution (ADR) mechanisms such as mediation, is to help the parties to reach an agreement or to clarify the issues that are really in dispute.

From 2009 onwards the Native Title Act placed the responsibility for managing all aspects of native title cases, including who should mediate a native title case, with the Court.

The Court 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.

For more information regarding inclusion on the Court’s national list of native title mediators, see the Expressions of Interest webpages, which also sets out how the referral process operates and payment of mediation fees.

Practice Notes

All practice notes are to be read with the Central Practice Note.  It is the essential guide to practice in the Federal Court in all proceedings.

The NPA practice note sets out the arrangements for the management of native title proceedings:

NPA Practice Note:

Other practice notes which may be relevant to this NPA include:

General Practice Notes:

Forms, Rules & Fees

Filing fees for commencing a proceeding in this NPA may apply. Information about Court fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Forms, Fees & Costs or from the Registry.

Forms and Rules

The most commonly used forms and rules relating to native title proceedings are set out below. When commencing a native title proceeding, forms from both the Federal Court Rules 2011 (Cth) (Rules) and the Native Title (Federal Court) Regulations 1998 (Cth) (NT Regulations) (Native Title Forms) are used.

An application commenced under section 61 of the Native Title Act is an “originating application” for the purpose of the Federal Court Rules.

1.  Native Title determination application (Claimant application)

An application mentioned in s 61(1) of the Native Title Act by a claimant for a determination of native title in relation to an area for which there is no approved determination of native title may be commenced by filing:

Forms:

Rules:

Guide to Affidavit accompanying Claimant Application (Native Title Form 1):

  • Section 62 of the Native Title Act requires that a claimant application must be accompanied by an affidavit sworn by the applicant that verifies that the applicant: 
    • believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and
    • believes that none of the area covered by the application is also covered by an approved determination of native title; and
    • believes that all of the statements made in the application are true; and
    • is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it. Section 251B of the Native Title Act states what it means for the applicant to be authorised by all the persons in the native title claim group. 
  • The affidavit must also set out the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it.  

2.  Non-claimant application

An application mentioned in s 61(1) of the Native Title Act by a non-claimant for a determination of native title in relation to an area for which there is no approved determination of native title, may be commenced by filing:

Forms:

Rules:


3.  Revised Native Title determination application

A revised native title determination application (under section 13(1) and (5) of the Native Title Act) for revocation or variation of an approved determination of native title may be commenced by filing:

Forms:

Rules:

Notes:

  • The grounds for variation or revocation of an approved determination of native title are:
    • that events have taken place since the determination was made that have caused the determination no longer to be correct or
    • that the interests of justice require the variation or revocation of the determination.

4.  Compensation application

A compensation application (as mentioned in section 61(1) and 50(2) of the Native Title Act) for a determination of compensation may be commenced by filing:

Forms:

Rules:

Notes:

  • The Native Title Form 4 must also be accompanied by appropriate information (including maps – refer to s 62 Native Title Act) to identify the boundaries of the area covered by the application and any areas within those boundaries that are not covered by the application.

5.  Notice of intention to become a party to an application

Forms:

Rules:

Notes:

  • Refer to Guide to Native Title Form 5 for how to complete and file this form
  • Native Title Form 5 should be used when a person or organisation who want to give notice that they intend to become or want to become a party to a Native Title Determination Application
  • Filing fee: Nil, however, if you do not file the Native Title Form 5 within the notification period and still want to become a party to the Native Title Determination Application you should contact the Federal Court Registry. Filing fees and other Court fees are usually payable in this circumstance when an application is made outside the notification period

6.  Application for review of decision not to accept claim for registration

If the NNTT Registrar has refused to accept a claim for registration, the applicant may, within 42 days after the date of notification of the decision, apply to the Court for a review of that decision (section 190F(1) of the Native Title Act) by filing:

Forms:

  • Form 108 – Originating application for review of decision not to accept claim for registration

Rules:


7.  Originating application to remove details of agreement from the Register of Indigenous Land Use Agreements

A person who wants to apply to the Court for an order under section 199C(2) of the Native Title Act for the removal of details of an agreement from the Register of Indigenous Land Use Agreements must file:

Forms:

  • Form 109 – Originating application to remove details of agreement from the Register of Indigenous Land Use Agreements
  • Form 59 – Affidavit

Rules:

Notes:

  • The affidavit accompanying the Form 109 must state:
      • if the ground relied on is fraud - the date on which the fraud first came to the notice of the applicant and
      • if the ground relied on is undue influence - the date of the first occurrence of the act of undue influence and
      • if the ground relied on is duress - the date of the first occurrence of the act of duress.

8.  Other Native Title applications

An application under the Native Title Act, other than one of the applications noted above may be commenced by filing:

Forms:

Rules:

Notes:

  • These types of applications must be served on:
    • the respondent to the proceeding
    • any interested person
    • the Commonwealth and
    • each state or territory having jurisdiction over the area to which the main application relates.

For further procedural and case management information you should refer to the Central Practice Note (CPN-1) and the Native Title Practice Note (NT-1).

Legislation

The Native Title NPA comprises any proceeding relating to the following legislation:

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Important note: This information is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law.

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