French, Justice Robert --- "The Federal Court and the native title process" (FCA) [2005] FedJSchol 14

The Federal Court and the Native Title Process-
Presentation to Native Title Ministers’ Meeting
Canberra, 16 September 2005

Justice RS French

A. Litigation in the Federal Court of Australia

1. 1. The constitutional and statutory function of the Federal Court of Australia is to hear and decide cases. In native title proceedings there is a tension between that function and the role of supervising statutory mediation processes with a view to minimising the number of cases that have to be heard and decided.
2. The judges of the Court who have to hear and decide cases at first instance operate as individuals, albeit within the framework of the law and the Rules of Court. Although subject to appeal for errors of law or fact they cannot be given directions by third parties about the way in which they discharge their judicial functions.
3. Each judge has responsibility for a list of cases which is managed, generally by the judge, from a first directions hearing to trial and judgment. This is the individual docket system. It is central to case management in the Court.
4. The statute law and the Rules of Court allow for various things to be done to expedite the resolution of litigation whether by agreement or otherwise:
   

(i) Directions hearings at which judges make orders for timetabled steps in the preparation of a case for trial.

(ii) Case management conferences to resolve procedural issues in complex and multi-party cases.

(iii) Strike out procedures for hopeless cases.

(iv) The hearing and determination of specific issues of fact and law where such decisions may resolve a whole case one way or the other without the necessity to proceed to a full trial of all the issues.

(v) Compulsory conferences of experts to reduce areas of dispute at trial.

(vi) Identification of facts which can be agreed between parties to reduce areas of dispute at trial.

(vii) Referral of the parties to Court-annexed mediation using a court officer or an external mediator. The primary mediation mechanism in such cases is assisted negotiation. Other mechanisms have been used on occasions such as early neutral evaluation.

5. It is inescapable that the hearing and determination of legal disputes generally and particularly disputes involving factual issues of any complexity is labour intensive, time consuming and expensive. The Court endeavours by its case management techniques to reduce the time and cost involved in litigation wherever possible.
   

2. Special Features of Native Title Litigation and its Interaction with the Federal Court Process

1. Applications for determination of native title are, from the outset, proceedings in the Federal Court. They are subject to the Rules of Court. They are generally subject to all the case management measures applicable to ordinary litigation, subject to the particular requirements of the Native Title Act.
2. The Native Title Act has specific provisions which affect the conduct of such cases including:

(i) Authorisation of the applicants by the native title holders.

(ii) Registration of the claim by the Tribunal for the purpose of the future act process and public notification of the claim so that persons who may be affected can become parties in the Court proceeding.

(iii) Referral by the Court of the claim to mediation by the Tribunal after notification has been completed.

(iv) Reporting on the progress of mediation by the Tribunal to the Court;

(v) provision for the negotiation of native title related (or non-native title outcomes) with the assistance of the Tribunal.

(vi) Consideration by the Court of termination of the mediation if it would serve no useful purpose.

3. The Court is not expressly authorised to direct the timetabling of steps in the mediation process. That is because the mediation process is essentially consensual. Parties are encouraged however to produce timetabled mediation protocols. In Western Australia directions have been given requiring compliance with agreed timetables subject to permitted slippage of up to two months and allowing for applications to reprogram.
   

100. Challenges of the Process

1. Native title litigation is time consuming and expensive. It involves the painstaking proofing and preparation of the evidence of indigenous witnesses who may be spread over large areas of land, research by anthropologists including large numbers of interviews with indigenous people, and the preparation of anthropological, historical, archaeological and linguistic reports. It also involves the assembly of land tenure information in the area of the claim including historical tenures and the history of dealings with the land generally.
2. There will only ever be a relatively small number of litigated determinations. The resources available to participants, including governments, applicants and other parties, to conduct native title litigation is insufficient to support a high volume of such litigation. Resource constraints extend to the availability of human resources in terms of expert witnesses and lawyers versed in the area who are prepared to devote the amount of time necessary to the preparation and conduct of such cases. Judges hearing such cases must devote significant amounts of their time to the hearing process and the preparation of judgments which tend to be substantial.
3. Litigated determinations are beneficial when they produce answers to questions of principle affecting the resolution of other applications or have a factual flow-on effect in particular regions.
4. The mediation process is also time consuming and expensive albeit not at the same level as the litigation process. It involves representative bodies or other representatives obtaining instructions from communities asserting native title rights and interests, the proper definition of such communities by reference, inter alia, to genealogies, anthropological, historical and linguistic considerations. It may require resolution of intra-indigenous issues and disputes about the membership of claim groups and the scope of traditional land and waters.
5. The Court cannot impose upon the parties a more intensive management regime with respect to mediation or litigation than their resources financial and human can bear. The establishment of priorities, at least within regions, is a desriable aspect of the management process. The primary responsibility for identifying priorities must lie with the major parties, namely the representative bodies and the relevant governments. The parties are best placed to agree priorities with each other.
6. The satisfaction of connection requirements can be labour intensive and time consuming. The Court has held that this is an element of the mediation process and not a pre-condition to it. As an element of the mediation process there should be some degree of flexibility in the way in which connection can be demonstrated to the satisfaction of the relevant governments. These may include the hearing by the Court of limited evidence on that question – see Frazer v State of Western Australia [2003] FCA 351.
7. The post-judgment process including the creation of prescribed bodies corporate and the establishment of agreements to manage the relationship between declared concurrent rights and interests is not trivial. It is itself potentially time consuming. In consent determinations these matters are generally resolved as part of the package.
   

4. Responses to the Challenges

1. The Federal Court has adopted a variety of approaches and mechanisms across Australia in the management of its native title case load. The objectives are:

(i) Expedition of the mediation process consistent with available resources.

(ii) The identification and management of cases to go to trial.

2. The effectiveness of any case management mechanism is limited by the capacity of the parties to engage with the process, a matter determined generally by the resources available to them and competing demands on those resources.
3. Some of the mechanisms used by the Court are:
   

(i) In each State, except Queensland and New South Wales, there is a single judge allocated to supervise the progress of cases under mediation. This is know as the Provisional Docket. Cases going to trial are allocated to another judge to manage. This is called Substantive Allocation. There are differences of approach within that framework.

Western Australia - the Provisional Docket is managed on a regional basis with regular reviews at six monthly intervals.

Queensland – each of the resident judges takes responsibility for managing the list within a region.

New South Wales – the Provisional Docket judge allocates most cases for substantive management early in their life.

Victoria – there is a Provisional Docket judge for the whole State.

South Australia – there is a Provisional Docket judge for the whole State.

Northern Territory – the South Australian Provisional Docket judge also manages the Northern Territory list.

(ii) A Court-convened pre-mediation case conference is used in Victoria to set the parameters for the mediation of claims and to explain the function of the Court to the participants.

(iii) Case management conferences with the parties for regions where some cases are under mediation and some going to trial and a number of judges are involved. Groups of up to five judges have sat together in such case management conferences for the Goldfields and the South West region of Western Australia.

(iv) The requirement that the parties negotiate mediation protocols and timetables which are provided to the Court and subject to directions by the Court that they be complied with, albeit allowing for reprogramming.

(v) The taking by the Court of preservation or limited evidence both as an aid to preserving the evidence of the infirm or the elderly and as an aid to determining whether the relevant connection exists between the native title claim group and the land and waters in question. Such evidence can be used as an aid to mediation and also as an aid in early neutral evaluation.

(vi) Court annexed mediation including early neutral evaluation.

(vii) Compulsory conference of experts – eg Guournditch – Mara in Victoria – North J; Proposed compulsory conference of experts in Yankuntjatjaun/Antakirnga claim in South Australia.

(viii) Springing orders to strike out claims for non-compliance with directions or, more realistically, where there is a stalemated dispute between members of the native title claim group and progress appears unlikely.

(ix) Strike out applications where no progress is being made or where there is an absence or withdrawal of authorisation.

4. Other Options Worthy of Consideration

1. Closer integration of Court and Tribunal processes eg selective participation of trained court officers in critical aspects of NNTT mediation to emphasise that the mediation is conducted as an incident of a judicial process thereby supporting the authority of the Tribunal and the importance of the process.
2. A closer and more systematic consideration of opportunities in mediation for referral by the Tribunal of questions of fact and law to the Court for determination. This facility exists under the Act but has so far not been used. Such a referral, regardless of the importance of the question referred may have a galvanising effect on some mediations.
3. The use of an administrative inquiry under the Act to gather evidence in a region and to make findings which can be used as an incident of the mediation process or adopted by the Court under the existing provisions of the Act in litigation. Such inquiries are possible under s 137 but the process appears to cumbersome and constrained and some amendment of s 137 may be needed to facilitate it. An inquiry of this kind could be a useful adjunct to the progressing of native title related outcomes in areas where there is a significant number of claims and Aboriginal people but little realistic prospect of either a consent determination or a litigated determination.
   

5. Conclusion

No amount of judicial ingenuity an innovation can overcome the fundamental constraints imposed by the capacities of the parties to engage with the process. There is, however, a menu of techniques which can be deployed more effectively to make the resolution of native title claims and the mediation process more timely and economic.