More NPA logo with link NPA logo with link

About this NPA

The Native Title National Practice Area (NPA) includes applications relating to:

  • native title claims concerning the rights and interests of Aboriginal and Torres Strait Islander peoples to land and waters according to their traditional laws and customs, including determinations, revised native title determination applications, compensation applications, claim registration applications, applications to remove agreements from the Register of Indigenous Land Use Agreements and applications about the transfer of records
  • reviews or appeals from decisions of the National Native Title Tribunal (NNTT)
  • matters arising under or in relation to any Indigenous Land Use Agreement (ILUA) or other agreement made under the Native Title Act 1993 (Cth) (Native Title Act) or concerning a Prescribed Body Corporate (which holds or manages native title under the Act).

Introduction to Native Title

Under the Native Title Act, the Federal Court of Australia is responsible for the management and determination of all applications relating to native title in Australia.

Native title describes the recognition by the Australian legal system of rights and interests of Aboriginal and Torres Strait Islander peoples to land and waters according to their traditional laws and customs.

Native title was first recognised in the Australian legal system in 1992 by the High Court in the historic Mabo decision. Native title may include rights of possession, occupation, use and enjoyment of traditional country.

It may include the right to access an area of land or the right to participate in decisions concerning how the land or waters are used by other people. Native title may also vary according to the rights of other people and may exist alongside other rights (called ‘co-existence’).

Native title cannot be bought or sold. It can be transferred by traditional law or custom, or surrendered to government, which can then pay compensation to the native title holders in the same way as it does when acquiring rights to other property.

The role of the Court

The Court is responsible for managing all aspects of native title cases. All applications for a determination of native title must be filed with the Court. The Court has wide powers in native title cases. It can:

  • decide who are the ‘parties’ (the people involved in a case)
  • decide whether new people or organisations can become involved in proceedings as parties
  • refer a claim to an appropriate person or body for mediation including a registrar of the Court or another individual or body
  • order adjournment of proceedings to allow time for the parties to negotiate
  • make orders to ensure that overlapping native title applications which cover the same area are dealt with in one proceeding or
  • make a determination that native title is to be held in trust.

What is a determination?

A determination of native title is a decision by the Court whether or not native title exists in relation to a particular area of land or waters.

If the Court decides that native title does exist it will also make decisions about:

  • who the people are who hold native title common or group rights
  • what the nature and extent of the native title rights and interests are in relation to the area
  • what the nature and extent of any other interests are in relation to the area
  • what the relationship is between the native title rights and interests and other interests
  • whether the native title rights and interests allow the native title holders to possess, occupy, use and enjoy the land or waters to the exclusion of all others.

The Court can make a determination of native title when either:

  • agreement is reached between the parties for a determination of native title or
  • parties are unable to reach agreement and the Court hears the evidence and determines if native title exists.

What is the process for a determination?

The majority of native title applications are claimant applications for a determination of native title. The process for determination is as follows:

1

Filing: Once the application forms have been completed (see Forms section) you need to file it with the Court. You can do this electronically through the Court’s eLodgment application, in person by bringing it to the Court, or by posting or faxing it to the Court. This is called 'filing'.

2

Registration: Once a native title determination application is accepted for filing, the Court sends a copy of the application to the Registrar of the National Native Title Tribunal (NNTT Registrar) for registration testing and notification.

The NNTT Registrar will apply the registration test.

Passing the registration test gives the native title claim group certain procedural rights, including the right to negotiate (eg. over mining or mineral exploration).

Applications which fail the registration test can still proceed through the Court, but the applicants do not have the right to negotiate. If the NNTT Registrar does not accept the claim for registration, the applicant may ask the Court to review the Tribunal’s decision.

3

Notification: The NNTT Registrar will advise the public and any individual or body (including State or Territory governments) whose interests may be affected by a native title determination to apply to the Court to become a respondent party to the case. The period in which a person can apply to the Court is three months and is called the “notification period”.

4

The Court will receive the applications to become a party and will decide whether or not the person is a party.

5

Then, usually, a case management hearing will be held, attended by the applicants and other parties (and their lawyers). At the case management hearing, the Judge may finalise the party list and refer an application to case management or mediation by a Federal Court Native Title Registrar.

6

If agreement is reached between the parties for a determination of native title, the Court will then consider making a determination of native title consistent with the agreement.

7

If an agreement is not reached between the parties then the Court may hear the evidence and determine whether native title exists.

Case Management

A native title proceeding will be allocated provisionally to a Native Title NPA Judge in the relevant registry, who will be responsible for case management of the proceeding until the proceeding is allocated to a docket judge. The docket judge will be a Native Title NPA Judge and will be responsible for case managing and determining the matter.

A native title proceeding will also be allocated to a specialist Federal Court Native Title Registrar to assist in the case management of the proceeding.

Specialist Native Title Registrars assist in the management and co-ordination of native title work. The Registrars perform Judge directed and statutory duties and functions, as well as conducting mediation and other conferences to facilitate the timely resolution of matters by the Court. The Registrars also provide high level support to the Native Title NPA Judges, as required.

Staff with native title experience are also available in each local Registry to assist applicants and parties in the practice and procedures of the Court and to assist in the organisation of hearings in remote localities.

Native Title List of Priority Cases

The Federal Court recognises that it is not possible for all pending native title cases to be intensively managed at the same time by the Court and the parties. It is therefore necessary for the Court to determine a list of priority native title cases within the pending native title case load so that cases are properly resourced and efficiently progressed to trial or agreed outcomes. Cases that, for a variety of reasons, may never result in a native title or related outcome can also be identified in the priorities and managed appropriately.

The process of making decisions about the order in which a Court will deal with pending cases involves numerous factors to be taken into account. This process includes consideration of cases on a state, territory or regional basis.

The Federal Court approaches this difficult and important issue by reviewing each case, either through case management hearings, regional case management conferences, state or region based call-overs and state based users’ forums. This allows for the views of the applicants and all parties to be considered in determining the list of priority native title cases.

The criteria the Court refers to when determining priorities includes:

  • whether the case involves a matter of the public interest 
  • whether the resolution of the case will impact on other cases or the attitudes of the parties and in turn speed up the resolution of other related cases 
  • the level of future act activity 
  • the views of the parties 
  • the level of preparedness of the Applicant (that is, the extent of evidence gathered and issues identified) and 
  • the age of the case.

Importantly, in publishing the list of priority native title cases the Court acknowledges that it will evolve and change for a variety of reasons. Some may think their cases should be included and others may think their cases should be excluded. As such the list may change, as matters are resolved, removed or included and a current and interactive list will be maintained on the Court’s website.

Cases not mentioned on the list are also important and the Court will maintain an oversight of all pending cases through the Court’s usual case management. It may also be assumed that the Court will actively manage cases not on the list.

The Court’s cases are set out on the following priority lists:

ADR and Native Title Mediators

The purpose of alternative dispute resolution (ADR) mechanisms such as mediation, is to help the parties to reach an agreement or to clarify the issues that are really in dispute.

From 2009 onwards the Native Title Act placed the responsibility for managing all aspects of native title cases, including who should mediate a native title case, with the Court.

The Court compiled a list of mediators to be available to parties in the proceedings and the Court, to assist in the mediation of native title cases.

For more information regarding inclusion on the Court’s national list of native title mediators, see the Expressions of Interest webpages, which also sets out how the referral process operates and payment of mediation fees.

Practice Notes

All practice notes are to be read with the Central Practice Note.  It is the essential guide to practice in the Federal Court in all proceedings.

The NPA practice note sets out the arrangements for the management of native title proceedings:

NPA Practice Note:

Other practice notes which may be relevant to this NPA include:

General Practice Notes:

Forms, Rules & Fees

Filing fees for commencing a proceeding in this NPA may apply. Information about Court fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Forms, Fees & Costs or from the Registry.

Forms and Rules

The most commonly used forms and rules relating to native title proceedings are set out below. When commencing a native title proceeding, forms from both the Federal Court Rules 2011 (Cth) (Rules) and the Native Title (Federal Court) Regulations 1998 (Cth) (NT Regulations) (Native Title Forms) are used.

An application commenced under section 61 of the Native Title Act is an “originating application” for the purpose of the Federal Court Rules.

1.  Native Title determination application (Claimant application)

An application mentioned in s 61(1) of the Native Title Act by a claimant for a determination of native title in relation to an area for which there is no approved determination of native title may be commenced by filing:

Forms:

Rules:

Guide to Affidavit accompanying Claimant Application (Native Title Form 1):

  • Section 62 of the Native Title Act requires that a claimant application must be accompanied by an affidavit sworn by the applicant that verifies that the applicant: 
    • believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and
    • believes that none of the area covered by the application is also covered by an approved determination of native title; and
    • believes that all of the statements made in the application are true; and
    • is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it. Section 251B of the Native Title Act states what it means for the applicant to be authorised by all the persons in the native title claim group. 
  • The affidavit must also set out the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it.  

2.  Non-claimant application

An application mentioned in s 61(1) of the Native Title Act by a non-claimant for a determination of native title in relation to an area for which there is no approved determination of native title, may be commenced by filing:

Forms:

Rules:


3.  Revised Native Title determination application

A revised native title determination application (under section 13(1) and (5) of the Native Title Act) for revocation or variation of an approved determination of native title may be commenced by filing:

Forms:

Rules:

Notes:

  • The grounds for variation or revocation of an approved determination of native title are:
    • that events have taken place since the determination was made that have caused the determination no longer to be correct or
    • that the interests of justice require the variation or revocation of the determination.

4.  Compensation application

A compensation application (as mentioned in section 61(1) and 50(2) of the Native Title Act) for a determination of compensation may be commenced by filing:

Forms:

Rules:

Notes:

  • The Native Title Form 4 must also be accompanied by appropriate information (including maps – refer to s 62 Native Title Act) to identify the boundaries of the area covered by the application and any areas within those boundaries that are not covered by the application.

5.  Notice of intention to become a party to an application

Forms:

Rules:

Notes:

  • Refer to Guide to Native Title Form 5 for how to complete and file this form
  • Native Title Form 5 should be used when a person or organisation who want to give notice that they intend to become or want to become a party to a Native Title Determination Application
  • Filing fee: Nil, however, if you do not file the Native Title Form 5 within the notification period and still want to become a party to the Native Title Determination Application you should contact the Federal Court Registry. Filing fees and other Court fees are usually payable in this circumstance when an application is made outside the notification period

6.  Application for review of decision not to accept claim for registration

If the NNTT Registrar has refused to accept a claim for registration, the applicant may, within 42 days after the date of notification of the decision, apply to the Court for a review of that decision (section 190F(1) of the Native Title Act) by filing:

Forms:

  • Form 108 – Originating application for review of decision not to accept claim for registration

Rules:


7.  Originating application to remove details of agreement from the Register of Indigenous Land Use Agreements

A person who wants to apply to the Court for an order under section 199C(2) of the Native Title Act for the removal of details of an agreement from the Register of Indigenous Land Use Agreements must file:

Forms:

  • Form 109 – Originating application to remove details of agreement from the Register of Indigenous Land Use Agreements
  • Form 59 – Affidavit

Rules:

Notes:

  • The affidavit accompanying the Form 109 must state:
      • if the ground relied on is fraud - the date on which the fraud first came to the notice of the applicant and
      • if the ground relied on is undue influence - the date of the first occurrence of the act of undue influence and
      • if the ground relied on is duress - the date of the first occurrence of the act of duress.

8.  Other Native Title applications

An application under the Native Title Act, other than one of the applications noted above may be commenced by filing:

Forms:

Rules:

Notes:

  • These types of applications must be served on:
    • the respondent to the proceeding
    • any interested person
    • the Commonwealth and
    • each state or territory having jurisdiction over the area to which the main application relates.

For further procedural and case management information you should refer to the Central Practice Note (CPN-1) and the Native Title Practice Note (NT-1).

Legislation

The Native Title NPA comprises any proceeding relating to the following legislation:

Protocols

Guidelines (PDF, 183 KB)

Native title allocation guidelines

1. Preamble

The Native Title National Practice Area (NPA) is unique. The NPA requires a unique commitment from judges of the NPA.
It is the responsibility of the judges of the NPA to apply the Native Title Act 1993 (Cth) (the Act). The Preamble to the Act identifies the unique circumstances of Aboriginal peoples and Torres Strait Islanders in Australia. These include:

  • The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
  • The progressive dispossession of Aboriginal peoples and Torres Strait Islanders largely without compensation and the failure of successive governments to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.
  • The fact that Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
  • That the Act is intended to rectify the consequences of past injustices and to secure the adequate advancement and protection of Aboriginal peoples and Torres Strait Islander and to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

The judges of the NPA recognise that in order to discharge their functions under the Act it is necessary to not only develop and possess knowledge of the law, but also to recognise and understand the unique historical, social, economic and individual circumstances of Aboriginal peoples and Torres Strait Islanders, their relationships with the land, one another, with governments, and with other people.

To facilitate the development and continuity of this recognition and understanding by judges of the NPA, it is appropriate that guidelines be adopted and published concerning the allocation of matters to judges on the NPA.

In this NPA, expertise involves both knowledge of the law and the required recognition and understanding of the unique circumstances of Aboriginal peoples and Torres Strait Islanders. This recognition and understanding takes time, commitment and experience with Native Title matters on the part of each judge.

The judges of the NPA recognise that for the Court to maintain its expertise in this NPA it is necessary that:

  • the NPA maintain a sufficient number of judges, which requires the appointment of judges new to the NPA by the Chief Justice as and when required;
  • judges with experience in the NPA mentor judges new to the NPA, particularly in respect of the case management of Native Title matters; and
  • judges new to the NPA are given appropriate matters to develop their expertise in the NPA.

These guidelines are intended to be reviewed every two years.

2. Definitions

  • NPA experienced judge: means all judges on the NPA with 3 years' or more experience on the NPA or substantial prior experience in practice and includes all co-ordinating and regional case managing judges.
  • NPA other judge: means any other judge appointed on the NPA who is not an NPA experienced judge.

3. Appointment to the NPA

Appointment to the NPA is within the authority of the Chief Justice: s 15(1AA) of the Federal Court of Australia Act 1976 (Cth).
Aim: to ensure judges who are appointed to the NPA understand the unique commitment appointment to the NPA requires.
Aim to ensure the dissemination, continuity and development of expertise of all judges on the NPA.
Aim: to ensure judges in the NPA have sufficient time and allocations to develop the required expertise.
Aim: to have appropriate gender representation on the NPA.
Aim: for all judges on the NPA to complete culturally relevant training.

4. NT Registrars

  • Maintain current system of NT Registrars for regions.

5. Regions

  • Maintain regions for case management purposes.
  • Regional case managing judges are responsible for ensuring that, well in advance of them ceasing to a be a regional case managing judge and in consultation with the Chief Justice, they have facilitated the appointment of another NPA judge to be the regional case manager for the region, including jointly case managing the maters in the region for an appropriate period.

6. General

All allocations of a matter to the docket of a judge are within the authority of the Chief Justice under s 15(1AA) of the Federal Court of Australia Act 1976 (Cth).

Under the Court's National Court Framework (NCF), matters are allocated in rotation to judges in the NPA in the registry of the filing, subject to:

  • the availability of judges in the NPA in the registry of filing;
  • considerations of balance of workload and commitments of judges; and
  • the character of a matter calling for a different approach. However, this will only be in very limited circumstances. [1]

In the Native Title NPA, allocations will be in rotation to judges on the NPA on a national basis, subject to the considerations identified above and in accordance with these guidelines.
Where appropriate, the use of video-technology is encouraged to facilitate the national operation of the NPA and to acknowledge the importance of cost effective case management in this NPA, as a prima facie "no-cost" jurisdiction, where almost all parties are publicly funded.
Aim: substantive allocations to dockets should facilitate the following objectives:

  • maintain the national operation of the NPA;
  • provide excellence in the administration of justice in the NPA, recognising its unique character; and
  • facilitate the dissemination of relevant knowledge and experience of judges on the NPA across Australia.

Note: this does not exclude the Chief Justice, or National Operations Registry (NOR) advising the Chief Justice, from considering budgetary and other matters as may be relevant in the making of allocations to a docket of a judge.

Aim: co-ordinating judges and regional case managing judges should receive sufficient allocations to develop and maintain expertise.

Aim: other judges should receive sufficient and appropriate allocations to enable them to develop expertise.

7. Appeals

Aim: to include one other judge on all appeals.
Aim: to include at least one co-ordinating judge/regional case managing judge on all appeals.

  • On filing, refer the appeal to an NPA experienced judge and to the NT Registrar responsible for the matter at first instance for case management.

8. Claimant applications

  • On filing, refer the claimant application to the NT Registrar for the region and the regional case managing judge for case management.
  • If and when it appears to the regional case managing judge that the claimant application will proceed to a consent determination (CD), the regional case managing judge should recommend to the NOR that the matter be substantively allocated to any NPA judge for a consent determination hearing.
  • If and when it appears to the regional case managing judge that the claimant application will not proceed to a CD, the regional case managing judge should case manage the claimant application to a point the regional case managing judge considers appropriate in the circumstances. As soon as it appears reasonably practicable to do so, the regional case managing judge should recommend to the NOR that the matter be substantively allocated to any NPA judge, an NPA experienced judge, or an NPA other judge as may appear appropriate having regard to the nature of the claimant application.
  • Interlocutory application/separate question – on filing, the regional case managing judge should recommend to the NOR whether the interlocutory application/separate question should be determined by the regional case managing judge or substantively allocated to any NPA judge, an NPA experienced judge or an NPA other judge as may appear appropriate having regard to the nature of the interlocutory application/separate question.

9. Non-claimant applications

  • On filing, refer the non-claimant application to the NT Registrar for the region and the regional case managing judge pending completion of the notification under s 66 of the Act.
  • If the non-claimant application is undefended – substantively allocate to any NPA judge, with preference for an NPA other judge if available.
  • If the non-claimant application is defended – the regional case managing judge should recommend to the NOR that the matter be substantively allocated to any NPA judge, an NPA experienced judge, or an NPA other judge as may appear appropriate having regard to the nature of the non-claimant application.
  • If the non-claimant application prompts the filing of a claimant application – the NOR should notify the regional case managing judge who is or was managing the non-claimant application and that regional case managing judge should recommend to the NOR whether: (a) the claimant application should be substantively allocated to the judge who has been allocated the non-claimant application; or (b) both applications should be substantively allocated to an NPA experienced judge.

10. Compensation applications

  • On filing, substantively allocate to an NPA experienced judge.

11. NNTT decision review

  • On filing, the NOR should consult with the relevant regional case managing judge to determine if the review application should be allocated to any NPA judge, an NPA experienced judge or an NPA other judge as may appear appropriate having regard to the nature of the review application.
  • Following the consultation, substantively allocate to any NPA judge, an NPA other judge or NPA experienced judge as may appear appropriate having regard to the nature of the review application.

12. Section 13 variation application

  • On filing, substantively allocate to an NPA experienced judge.

13. Judicial review applications

  • On filing, substantively allocate to any NPA judge.

14. Future act applications

  • On filing, substantively allocate to any NPA judge.

15. PBC disputes

  • On filing, PBC disputes should be characterised as matters within the Native Title NPA, regardless of the characterisation of the cause of action identified by the filing party on the initiating application.
  • On filing, substantively allocate to any NPA judge.

16. Miscellaneous disputes

  • The NOR should consider in consultation with the regional case managing judge if allocation should be to any NPA judge, an NPA experienced judge or an NPA other judge as appears appropriate having regard to the nature of the dispute.
  • Following consultation, substantively allocate to any NPA judge, an NPA experienced judge or an NPA other judge as appears appropriate having regard to the nature of the dispute.

[1] See https://www.fedcourt.gov.au/about/national-court-framework/allocations which explains allocations under the Court's NCF.


On country protocol (PDF, 111 KB)

On country hearing protocol for parties

The holding of a hearing or part of a hearing on country is a matter for the Court to decide in the exercise of its discretion.

The Court appreciates the burden an on-country hearing place on parties, legal representatives, local communities and resources. The Court seeks to work in partnership with people, and with responsible native title representative bodies, to run orderly, efficient, culturally respectful and appropriate, and cost-effective on country hearings.

This protocol applies to all parties involved in an on country hearing including any consent determination.

Protocol

1. Parties should agree a case specific on country hearing timetable and procedure in advance of the on country hearing in consultation with the Native Title Registrar responsible for the matter.

2. The case specific on country hearing timetable and procedure should include information for the Court about:

  1. the manner at which and locations and times at which evidence will be given;
  2. proposed orders to address general or site specific cultural concerns;
  3. requirements for interpreters (see point 3 below);
  4. safety and comfort requirements at different areas and sites including:
    • available methods of communication for emergencies;
    • level of accessibility;
    • availability of toilets;
    • footwear;
    • dress;
    • shade;
    • food and water.
  5. cultural requirements at different areas and sites including:
    • conduct of and participation in any welcome ceremony, and the position of all parties about any welcome ceremony;
    • gender restrictions or concerns;
    • public attendance or not;
    • numbers permitted;
    • dress requirements;
    • permissibility of video recording, photographs and other forms of recording both generally and at specific sites by parties, news outlets and members of the public;
    • media coverage requests and requirements; and
    • other requirements (eg no touching, no picking, no collecting); and
  6. such other requirements as may be identified by the parties, the Native Title Registrar or the judge.

3. Parties should give early consideration should be given to the need for interpreters and practitioners should be informed by the Native title Registrar responsible for the matter about the Recommended National Standards for Working with Interpreters in Courts and Tribunals (Recommended Standards). If interpreters are required for any witnesses and/or parties, parties should ascertain whether certified interpreters are available, the method of interpreting to be adopted, the equipment and facilities required by the interpreter(s), and the impact that the need for evidence to be interpreter is likely to have upon the duration of the trial. The expectation is that if certified interpreters are available, those at the highest level of certification should be engaged if reasonably practicable. If certified interpreters are not available in the language concerned, the matter should be raised early in the preparation of the matter for trial so as to best ensure the accuracy of interpreting by the untrained bilingual: e.g. by the provision of a professional mentor (Recommended Standards at 57). 

4. Any difficulties with the proposed procedures should be resolved well before the on country hearing. In this regard, parties should apply for orders (agreed or in dispute) required for the orderly, efficient, culturally respectful and appropriate, and cost-effective conduct of the on country hearing in a timely manner.

Latest Judgments

Latest Speeches & Papers

Subscribe

To stay up-to-date with news in the Federal Court, including developments in this NPA, subscribe to our email subscription services.

We provide subscriptions to the latest judgments and events (by NPA); Practice News to keep up-to-date with changes to practice and procedure; and Daily Court Listings.

All Subscriptions

Important note: This information is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law.

NPA Judges

National Coordinating Judges

  • Jagot J
  • Mortimer J
  • Rangiah J
  • Charlesworth J
  • Banks-Smith J
NPA Judges

Urgent Applications