Traditional, instinctive, elementary: the model litigant standard in native title

Wednesday, 1 June 2016
Tessa Herrmann

Judicial authority indicating that the Crown must act – and be seen to act – as a “model litigant” is longstanding. The model litigant standard required the Crown to act as a moral exemplar, and exercise its powers for the public good.

This paper considers the application of the model litigant standard in the native title context, with a particular emphasis upon considering ways in which the model litigant standard could be enforced by traditional owners seeking a just resolution of their native title application or just compensation for extinguishment or impairment of their native title rights. In doing so, this paper will consider the content of the model litigant standard, discuss native title matters where the model litigant standard has been at issue, and debate whether the model litigant standard can currently be effectively enforced through existing mechanisms, such as costs applications.