Getting to yes; or no: thinking about how to better case manage native title proceedings in the Federal Court of Australia

Thursday, 18 June 2015
Justice Michael Barker

The overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth), that apply to proceedings under the Native Title Act 1993 (Cth) as they do to all other civil proceedings in the Court, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. While many such proceedings in the Court, whether claims for determination of native title or compensation, are resolved by consent determinations, some matters still go to a contested hearing. Either way, the process of case management, and negotiation between parties, is not quick, or inexpensive, and the question is raised whether it is as efficient as it could be. In this paper the current profile of the Court’s caseload since 2010, when it instituted a national priority list of cases for resolution, through 2012 when it assumed full case management, including mediation, of native title matters, to the present, will be outlined. So too will be the various processes adopted in different parts of Australia by claimants and governmental parties in attempting to negotiate outcomes. The question will be asked whether it is not possible, by examining these processes, to discern the elements of a national “best practice” model of case management and negotiation that enables the just resolution of native title proceedings, more quickly, inexpensively and efficiently.