Changing court practices

Mediation and intensive court management

3.62       The original Native Title Act provided that applications were to be filed in the National Native Title Tribunal (the Tribunal) and determinations of the Tribunal were to be given effect as if they were orders of the Federal Court. Such a scheme was held to be unconstitutional[93] and from 1998 applications were filed in the Federal Court. However the Court would refer each application to the Tribunal for mediation.[94] From 2007 the Tribunal had sole responsibility for mediation, but in 2012, the mediation function was transferred from the Tribunal to the Federal Court.[95]

3.63       The Federal Court has shifted away from the referral of entire matters to mediation, and prefers ‘intensive case management to identify the issues in dispute … and … referral of particular issues to mediation’.[96] The Court suggests that this approach has contributed to the increased number of determinations in 2012 and 2013.[97]

3.64       In July 2010, the Federal Court established a priority list for case management. A range of strategies have been used to assist the parties to reach agreement on connection issues, including:

  • case management conferences where experts identify the issues likely to be contentious, prior to beginning fieldwork;

  • orders timetabling the provision of connection material and the respondent’s analysis of that connection material;

  • conferences of experts in the absence of lawyers, supervised by a registrar, aimed at narrowing connection issues;

  • court-appointed experts, frequently where there is a dispute between Indigenous people;

  • mediation on country, where state experts can question claimants; and

  • early evidence hearings.[98]

3.65       These initiatives have been generally well received. The Cape York Land Council said the initiatives have increased the rate of determinations and are generally beneficial.[99] Central Desert Native Title Services commented that ‘native title claims are no longer stuck in a circle of never-ending negotiations with respondent parties’, and that

Programming matters for trial has also meant that the State of Western Australia, who are the primary respondent to native title claims, has been required to become more articulate in its opposition to native title claims and more pro-active in progressing claims such as with the early provision of tenure information.[100]

3.66       Similarly, the Queensland Government reported that

Case management by the Federal Court provides a more disciplined framework within which the parties to claims are required to be more accountable for the prosecution of matters … [and] has ensured that all aspects of claims are dealt with in a professional and timely manner.

3.67       On the other hand, the North Queensland Land Council said:

It would be desirable for the court to recognise that its compressed time frames work against some native title groups particularly where the groups have been fractured and widely separated by removal policies as is the case in Queensland.[101]

3.68       Prior to the introduction of intensive case management for native title matters, the Social Justice Commissioner raised concerns that the pressure of court deadlines can distract the parties from negotiating broader agreements and divert resources away from negotiations. The Commissioner suggested that there should be an option for parties to obtain a long-term adjournment of a matter if both parties consent.[102]

Right to negotiate

3.69       Case management of native title claims must be seen in the context of the right to negotiate, which contributes to two unusual features of this type of litigation. First, claims are frequently made not at a time of the claimant’s choosing, but in response to a future act notice.[103] If the group does not already have a determination, the right to negotiate is only available to a person who, four months after the notification day, is a registered native title claimant.[104] An Aboriginal or Torres Strait Islander group must lodge a claim in order to ‘speak for country’ and seek protection of their rights and interests. At this time, the group may not have confirmed its membership, the boundaries of the lands and waters held under Aboriginal or Torres Strait Islander law, or the scope of the rights and interests held. The North Queensland Land Council said ‘the idea that within three months a claim could be researched, hold an authorisation meeting, lodge a claim and then one month later pass the registration test is fanciful in the extreme’.[105] It takes several years and significant resources for an expert to prepare a report on these matters, and the group may not have access to the resources or the expert at the time of the claim. Susan Phillips has suggested that courts need to show patience in these circumstances, where native title applicants can be ‘properly understood as respondents to the proceedings of others’.[106]

3.70       Secondly, as noted above, the right to negotiate can affect a claim group’s incentive to speedily progress the claim.[107]

Can the increased rate of determinations be sustained?

3.71       It is not clear that the faster rate of determinations can be sustained. Cape York Land Council pointed out that existing claims are more complex than past ones and there are more disputes.[108] Others have agreed that current claims are more difficult than past claims[109] and the National Farmers’ Federation noted that many unresolved claims involve disputes about the composition of the claim group and overlap with other claims.[110]

3.72       Justice Barker has suggested that

the overall success of this next phase is highly dependent upon a tripartite endeavour involving the Federal Court, claims groups and their representatives, and respondent parties, especially governments, and their representatives.[111]

3.73       He calls on the parties to:

  • show flexibility, for example regarding non-native title outcomes;

  • undertake tenure analysis soon after the lodgement of a claim;

  • avoid full-blown hearings on connection by ‘better disclosure and exchange of information in the pre-hearing stage’; and

  • avoid formulaic requirements for proof of connection.[112]

3.74       He also notes the importance of adequate resourcing.[113]