Chalk & Fitzgerald - Lawyers & Consultants

Federal Court releases draft of Native Title National Practice Area practice note

On 16 October 2015 the Federal Court released a consultation draft practice note for the “Native Title National Practice Area”. This is part of a major overhaul of the case management system launched by Chief Justice Allsop, known as the National Court Framework (NCF). The NCF aims to build greater confidence of the profession and the community in areas of specific knowledge and skill by refining the practice and procedure of the Court in key caseload areas such as native title.

The NCF will include a new Central Practice Note and eight new National Practice Areas (NPA) each with a specific practice note. The complete list of NPAs is:

· Native Title

· Commercial and Corporations

· Administrative and Constitutional Law and Humans Rights

· Taxation

· Intellectual Property

· Employment and Industrial Relations

· Admiralty and Maritime

· Criminal Cartel Trials

All of the draft consultation NPA practices are available here:

Each bespoke practice note is supposed to guide the Court and parties through litigation by maintaining the existing docket system but improving the allocation and handling of proceedings filed through a more efficient and structured process. The consultation drafts have been developed with the input of judges, registrars and National Native Title Tribunal staff and are now open for public feedback.

The draft practice note for the Native Title NPA covers a range of procedural matters as well as distinct issues that relate to proceedings bought under the Native Title Act (the Act). It compels applications to consider alternative dispute resolution mechanisms, for example, “whether the proceeding would appear to be capable of resolution by agreement through an Indigenous land use agreement and/or consent determination” as well as referring to section 96B of the Act, which requires each application unless otherwise ordered by the Court to be referred for mediation. Nonetheless, the note outlines that “most, if not all, proceedings should first be referred to and remain in active case management”. The draft practice note also asks parties to consider “what connection and extinguishment issues are likely to arise” in the context of pleadings as well as practical considerations if the trial is to be heard on country.

It is anticipated that the practice notes will be finalised and issued in March 2016.