Collier, Justice Berna --- "Prioritisation of Native Title cases in the Federal Court of Australia" (FCA) [2011] FedJSchol 9

Speeches Native Title Seminar, Brisbane Prioritisation of Native Title cases in the Federal Court of Australia Justice Berna Collier 27 May 2011 Good morning, and thank you for inviting me to speak at the conference. The topic of my paper this morning is “Prioritisation of native title cases in the Federal Court of Australia”. As at 30 April 2011, our total current caseload for native title matters was 471 matters. Of this caseload, 221 matters – namely 46.9% – have been before the Court for more than 10 years. As the table below shows, the Northern Territory and Western Australia are over-represented in respect of such cases, however Queensland has a significant number of “older” cases too. ACT/NSW NT QLD SA VIC WA TOTAL 17 73 44 16 10 61 221 A key reason for my choice of this topic is that it is important not only to acknowledge the importance the Court places on native title cases, but to note the renewed attention the Court is giving to having these cases heard. Prioritisation of cases for hearing is a key plank in this endeavour. Today, I would like to tell the profession more about what the Court is doing, particularly here in Queensland, to achieve the objective of dealing with aged native title cases. In speaking today, I would like to particularly acknowledge upfront my reliance on the work of a Queensland committee convened and chaired by Justice Dowsett in developing principles relevant to prioritisation in the Court. Native title – why are so many cases unresolved? Australia is a continent, and indigenous people lived the length and breadth of this land for thousands of years before Europeans arrived. The enormous and tragic dislocation of indigenous people from their country has been acknowledged and documented elsewhere. Until the watershed decision of the High Court in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, native title was not recognised in this country, in land under pastoral lease or otherwise. As is well known, a result of the decision of the High Court in Mabo was that the Commonwealth Parliament enacted the Native Title Act 1993 (Cth). It follows from these events that over 200 years had passed between the arrival of Europeans and legal recognition of native title in Australia. During this time much knowledge was lost of indigenous occupation, customs and traditions. The development of a native title application involves complex issues of identification, consultation, negotiation and compromise, organisation, research and fact finding, extensive exploration of traditions of oral history, and, at the end of the day, determination. Historical events have made engagement with these issues even more difficult. They have, without question, impacted on the manner in which native title cases are prepared and prosecuted. They provide some explanation for the statistics I will come to shortly. Interestingly, one of the first cases under the Native Title Act 1993 (Cth) decided by the Federal Court was Wik Peoples v State of Queensland (1994) FCA 113, a decision of Drummond J delivered on 11 March 1994 barely 9 weeks after the Act became law. Of course, this case went on to the High Court in Wik Peoples v State of Queensland (1996) 187 CLR 1, which became another seminal case in this area of law. After this promising start lodgement of native title applications in the Court proceeded slowly, with 12 native title matters filed in 1995/96, 11 in 1996/97 and 37 in 1997/98. The reason for this of course was the structure of the legislation at the time. As you may be aware, prior to amendments to the Native Title Act in 1998, the legislation provided for the Tribunal to accept applications and to make determinations which were in, or consistent with, the terms sought by the applicant. Determinations made by the Tribunal were registered with the Federal Court, and took effect as orders of the Court. In circumstances where agreement could not be reached on the terms of the determination, the President of the Tribunal was required to direct the holding of a conference of the parties or their representatives to help in resolving the matter. It was only if the application was opposed, or notwithstanding mediation no agreement could be reached, that the matter was referred to the Federal Court. In 1998/99 a staggering 875 native title matters were filed in the Court. This followed commencement of the Native Title Amendment Act 1998 (Cth) on 30 September 1998, resulting in 794 applications before the National Native Title Tribunal being taken to have been filed with the Court. You will recall that the Native Title Amendment Act 1998 (Cth) was enacted in light of the decision of the High Court in Brandy v Human Rights & Equal Opportunity Commission where the High Court held that provisions of the Racial Discrimination Act 1975 (Cth) purporting to vest judicial power of the Commonwealth in the Human Rights and Equal Opportunity Commission were contrary to Chapter III of the Commonwealth Constitution, and hence invalid. The statutory model in the Native Title Act was the same as the model in the Human Rights and Equal Opportunity Commission Act 1986 (Cth), in particular the provision that determinations of the relevant administrative body took effect as orders of the Federal Court. From this point on, it was clear that determinations could no longer be made by the Tribunal – they were required to be made by the Court. Since 1998 the position has been that all native title applications must be filed in the Federal Court although once filed the Court may refer a relevant matter to the Tribunal for mediation. The heavy caseload post 1998 rose to as high as 849 current native title and related applications before the Court in 2002-03. As I have already noted, the number of current native title matters before the Court has gradually dropped, to 471 as of this week. Importance of case management In his swearing-in speech on 22 March 2010, Chief Justice Keane said as follows: “And more fundamentally, this Court ensures, throughout the Commonwealth, equality before the law. Importantly in this latter regard, in relation to native title, it is the special responsibility of this court to ensure that the Native Title Act, governing the belated recognition of Indigenous rights, is administered fairly and with decency and respect to all parties. Because of the importance of the recognition, albeit belated, of native title to the life of the nation, the just determination of claims to native title must continue to have the highest call on this Court’s resource.” But, to what extent does the call on this Court’s resource mean that the Court needs to employ strategies to bring matters to resolution, however old they are? In asking this question I note that, as a general proposition, commencement and subsequent conduct of litigation primarily require decisions by the parties. It is their case, they are the ones who will be directly impacted by the Judge’s decision, and to that extent they are entitled to present their respective cases in the manner they please. However many of you will be aware that the role of the Court in relation to conduct of native title matters has changed over the past few years. For example, since amendments to the Native Title Act 1993 (Cth) effected by the Native Title Amendment Act 2009 (Cth) the Court has been empowered to refer native title cases to mediation by “an appropriate person or body”, which includes a Registrar of the Court as well as third parties (section 86B), in addition to the Tribunal. Further, not only has the Court taken a front-seat role in relation to native title applications as a result of the 2009 amendments to the Act, but there have been a number of recent developments in which the importance of case management in the Federal Court by the Court has been clarified. So, while it is well-known that the Federal Court operates on the docket system of case management, it is also clear from such recent cases as Aon Risk Services Australia Ltd v Australian National University and Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd that case management in itself plays an important role in the manner in which the Court approaches decision-making. Further, in 2009 the Commonwealth Parliament enacted the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), which introduced Part VB into the Federal Court of Australia Act 1976 (Cth). In particular, section 37M of the Federal Court Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible (section 37M (1)). This specifically includes the just determination of all proceedings before the Court (section 37M (2)(a)), the efficient disposal of the Court's overall caseload (section 37M (2)(c)) and the disposal of all proceedings in a timely manner (section 37M (2)(d)). In commenting on this legislation, the Full Court in Wright Rubber Products Pty Ltd v Bayer AG observed: 42 There is now no room to debate whether it is necessary for Courts to hear and determine cases with as much expedition as is reasonably possible. It is necessary. The point was made by the plurality in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [114] and emphatically made by Heydon J at [156]…. 43 Delay can have insidious consequences…. In the case of native title cases, one insidious consequence of delay in resolution of applications is the fact that, in many cases before the Court, senior elders in native title groups have died while waiting for their application to be determined. These elders are invariably the repositories of traditional knowledge in respect of claims. Such events, so tragic and unfortunately so common, are surely not to be tolerated as inevitable incidents of native title applications. And so, while continuing to acknowledge that cases remain the primary responsibility of the parties – how does the Court direct its resources to dealing with the hundreds of native title cases which remain before it, in particular the hundreds of cases which are 10 years old or older, to assist in bringing those cases to resolution? Strategies to deal with the number of native title filings Historically the enormous increase in the native title workload of the Court in 1998 lead to initiatives being introduced in that year to endeavour to deal with it. Those initiatives included: proposing a time goal of three years from commencement for the completion of pending and new native title claims; implementing a national case allocation system which enabled the Court to use all its judicial resources across Australia for managing and hearing native title matters; and introducing a range of practice and procedure changes deigned, among other things, to reduce the size of claims (by combining applications) and to refine the range of issues in dispute between the parties (by case management conferences). As is clear from the number of matters currently filed in the Court, these strategies have been to some extent effective. Alas, however, the statistics spoke for themselves, and there continued to be a large number of native title matters before the Court. Clearly, something else needed to be done. Development of the approach to prioritisation Following the Native Title Forum in Queensland in 2009, Justice Dowsett saw the need to develop a process to address the problem of so many native title cases being unresolved, for so long. The Court’s National Practice Committee (Native Title) similarly saw the problem and adopted and refined an approach developed by Justice Dowsett. It was recognised that steps needed to be taken to improve the time taken to resolve native title cases, in particular intensive management of the cases by both the Court and the parties. The problem, of course, is that there are hundreds of cases, and it is not possible for the Court to intensively case manage all pending cases at the same time. The conclusion reached by the Committee was that there was a need to prioritise the hearing of cases across each State and Territory and within the area of each Native Title body. To that extent the purpose of prioritisation is to: identify the overall Native Title workload represented by native title applications in order to assist the Court and all stakeholders in planning, including budgeting. provide all parties, as well as the public, with a reasonable indication of the time and resources likely to be required in the conduct of such applications. therefore, to provide a basis on which the Court and all stakeholders could plan their operations in the short and medium terms, including in relation to research, proofing of witnesses, preservation of evidence and retaining and briefing experts and counsel. With this purpose in mind, the goals of the Court are: to dispose of all existing native title applications within 10 years from 1 January 2011; and to dispose of all native title applications made after that date within 5 years of the completion of the notification in the Tribunal, subject to the priority of dealing with applications existing as at 1 January 2011. In implementing the Court’s approach to prioritisation, case lists have been prepared in consultation with stakeholders. These case lists, which are published by the Court, list cases managed by each representative body to which the Court is giving priority in respect of resolution, whether the resolution be by trial or consensually. The lists are to be produced twice per year, in late February/early March and late September/early October. Let me also repeat upfront a statement on the Federal Court 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 conferences, directions hearings or callovers. I note this statement because none of the native title cases on my docket are listed in a priority applications. I can assure you however that I give my cases no less attention for want of being on that list. This approach is taken by all Judges of the Court with native title cases on their dockets. If you haven’t seen the current priority list for Queensland, here it is: File number Short title Region Date filed/lodged Judge Status QUD6001/1998 Wik Peoples Part B Cape York 24/03/1994 Greenwood J Mediation between the parties. Consent determination late 2011 QUD84/2004 Gangalidda and Garawa People Gulf 25/05/2004 Dowsett J Consent determination late 2011 QUD66/2005 Gangalidda and Garawa People #2 Gulf 8/03/2005 Dowsett J Consent determination late 2011 QUD579/2005 Kalkadoon People #4 Mount Isa 22/12/2005 Dowsett J Listed for Consent determination 12/12/2011 QUD6013/2001 Combined Gunggandji Claim North 27/04/2001 Dowsett J Consent determination November 2011 QUD6016/2001 Combined Mandingalbay Yidinji-Gunggandji Claim North 27/04/2001 Dowsett J Consent determination November 2011 QUD6010/1998 Quandamooka People South East 3/01/1995 Dowsett J Consent determination listed 04/07/2011 QUD6024/1999 Quandamooka People #2 South East 10/09/1999 Dowsett J Consent determination listed 04/07/2011 QUD6003/2003 Djiru People #2 North 7/03/2003 Dowsett J Consent determination listed 01/09/2011 QUD6006/2003 Djiru People #3 North 7/07/2003 Dowsett J Consent determination listed 01/09/2011 QUD6249/1998 Birri Gubba Central 30/09/1998 Rares J Consent determination listed for 26/07/2011 QUD23/2006 Karingbal #2 Central 20/01/2006 Reeves J Listed for hearing commencing 10 October 2011 QUD216/2008 Bidjara People Central 23/07/2008 Reeves J Listed for hearing commencing 10 October 2011 QUD6115/1998 Bularnu, Waluwarra & Wangkayujuru #1 Mount Isa 30/09/1998 Dowsett J Consent determination September 2011 QUD6006/2002 Bularnu, Waluwarra & Wangkayujuru #2 Mount Isa 12/03/2002 Dowsett J Consent determination September 2011 QUD296/2008 Wanyurr Majay People North 15/09/2008 Dowsett J Consent determination 31/08/2011 QUD6196A/1998 Turrbal People South East 13/05/1998 Reeves J Listed for trial commencing 28/11/2011 QUD6196B/1998 Turrbal People South East 13/05/1998 Reeves J Listed for trial commencing 28/11/2011 QUD6208/1998 Muluridji People North 8/07/1998 Logan J NNTT mediation. Consent determination late 2011 QUD6035/2001 Muluridji People #2 North 4/10/2001 Logan J NNTT mediation. Consent determination late 2011 QUD6119/1998 Kowanyama People Cape York 23/03/1997 Greenwood J Partially determined. NNTT mediation. Consent determination late 2011 How are cases prioritised? As we note on our website, the process of making decisions about the order in which the Court will deal with pending cases involves numerous factors to be taken into account, and is complicated by the need to consider cases on a State, Territory or regional basis. The national criteria of the Court in determining priorities are: 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. These criteria are not in order of importance. In Queensland these criteria have been modified following extensive work undertaken last year by a native title user group committee involving local stakeholder representation and chaired by Justice Dowsett. In Queensland, these modified criteria have been widely distributed and are: where significant resources have already been invested in case preparation, negotiations towards settlement, acceptance of evidence of connection and tenure analysis. where there are substantial prospects of success and few obstacles in the path to resolution, keeping in mind the possible interests of respondents in having unmeritorious claims identified and dismissed. where there is high potential benefit for claimants. where claims have been outstanding for lengthy periods of time. where claimants are concerned that their knowledgeable elders are dying before evidence can be taken/preserved. where older claims are withdrawn and replaced with new registered claims, which have been purged of previous problems. where Deed of Grant in Trust (or DOGIT) claims need early resolution to allow for housing and infrastructure development in needy communities. where vested interests necessitate resolution. where there is significant proposed future activity. where a claim has precedent value and/or may expedite the resolution by agreement of a number of other claims. the relative merits of claims for priority amongst all cases. where cases are of particular public interest. the need to ensure that all cases are progressing. Prioritisation – is the 10 year goal inflexible? The goal of the Court to dispose of all existing native title applications within 10 years from 1 January 2011 is exactly that – a goal. No Court-imposed gate will shut on an existing application on 1 January 2021. The bottom line is that it is the aim of the Court that existing applications be resolved as soon as practicable. Having said that, 10 years from now does not seem an unreasonable period of time for resolution of cases, some of which are already 17 years old. Prioritisation – is there anything special about the cases on the current list? The cases on the current list in Queensland are not only old cases, they are also cases where a tremendous amount of work has been expended by the parties and the Court to get them to the stage where they are ready for either trial or consent determination. Cases not on the list include those which are not ready for either trial or consent determination, and which will now be subject to intensive case management by the Court. Prioritisation – is the Court committed to trial in respect of prioritised cases? The Court’s goal of resolving current applications within 10 years does not equate to a decision that these matters must go to trial. The Court has never indicated other than a commitment to consensual resolution of native title applications where possible. A significant aspect of the prioritisation system is that matters, whether broad or discrete, will be referred to mediation where appropriate. However applications are brought to Court in anticipation that they will go to trial, which is, after all, the traditional approach to determining litigation in Court. It is also a fact that, realistically, some matters settle because the trial dates are looming and the associated cost and publicity of the trial are becoming issues of immediacy rather than vague prospects for a distant future. To that extent, relatively early identification of credible trial dates is a feature of the prioritisation system. How does the system work? The manner in which the system is to work has already been communicated to the profession. In the interests of completeness, I include it as follows: The prioritisation system will apply to each application from the completion of the notification process in the Tribunal. The Managed Case List From that time, and generally for a period of 18 months, the case will be assigned to the Managed Case List. The period may be shortened in the event of urgency or unusually rapid progress. During that period, the Court will generally require: delivery of a statement of claim; disclosure of at least some of the applicant’s evidence; and mediation or intensive case management. The applicant will be expected to address evidentiary shortcomings identified during this phase of case management. At the end of this period, the parties will be expected to identify whether or not the case is likely to be resolved, by consent determination or otherwise without trial, within a further period of 2 years. The case will then be transferred to either: the Consent List; or the Trial List. The Consent List A case may be transferred to the Consent List at any time, but this will usually occur at the end of the 18 month period on the Managed Case List. A case will remain on the Consent List only for so long as resolution is likely, without trial, and within 2 years from the date of entry on the list. The managing Judge may extend that period. Whilst a case is on the Consent List, each party will be expected to: identify a target date for final disposition; participate in mediation or intensive case management; from time to time, confirm the target disposition date or justify any proposed variation of it; attend to the preservation of evidence; disclose at least some of its evidence; at a suitable time, provide a draft consent determination or other order for disposition, with such supporting material as may be appropriate; and complete all steps necessary for disposition, including the obtaining of final orders. The Trial List A case may be transferred to the Trial List at any time, but this will usually occur at the end of the 18 month period on the Managed Case List, or at the end of the 2 year period on the Consent List. Upon transfer to the Trial List, each party will be expected to: assist the Court in fixing tentative trial dates; complete the exchange of pleadings; at some stage, confirm the tentative trial dates or justify any proposed variation; attend to the preservation of evidence; disclose at least some of its evidence; participate in mediation or intensive case management; exchange affidavits and/or statements of evidence for trial; seek and comply with directions as to trial; and prepare for, and participate in the trial. Even though a case is in the Consent List, it may be set down for trial and treated as if it were in the Trial List if the managing Judge considers that will be conducive to its early disposition. Comments on the system In considering the prioritisation system the following aspects may be highlighted. All time periods identified are discretionary and capable of either contraction or extension, although the parties would need to provide reasons why the case should not progress through the system. In summary, the applicant will have 18 months from the notification period to get its statement of claim and some of its evidence into order. While the Court will generally require mediation or other form of case management, the concept of the application being on the Managed Case List does not contemplate an open-ended process. The brevity of the period during which the case is expected to be assigned to the Managed Case List encourages the applicant to focus on the requirements of litigation, in respect of preparation of the pleadings. This is work which would be done in light of the steps taken by the applicant to achieve registration of the claim with the Tribunal under Part 7 of the Act. If the case is transferred to the Consent List, the parties have 2 years from date of entry on the list to undertake the steps which will lead to a consent determination, including providing a draft consent determination. The system contemplates that a case may be transferred to the Trial List at any time, but usually at the end of the 18 months on the Managed Case List or at the end of the period on the Consent List if the parties cannot achieve resolution of the application by consent. Once the case is on the Trial List, the parties are expected to engage with usual practices in the lead up to trial, including exchanging pleadings and preparation of evidence. Relevantly for local practitioners, the State list is co-ordinated by the Queensland judges. The Court expects that, given logistical issues associated with preparation of native title applications and prosecution of such claims, a considerable lead time will be required for setting a trial date. Trial dates will be set taking into account the reasons for the prioritisation as well as issues of equity among the various representative bodies and applicants not represented by those bodies. Notwithstanding these procedures, mediation or intensive case management are options which are available at any time to expedite resolution of the application. The processes contemplate that the Court is prepared at all times to allocate considerable resources to these matters. The Court acknowledges however that there may be funding constraints on representative bodies in relation to preparation and prosecution of claims. Additional constraints recognised by the Court are the availability of anthropological expertise to undertake the necessary research in support of the claim and the availability of experienced legal practitioners with a background in native title and litigation to actually do the work. These are problems of great significance. The 10 year goal suggests a disposition rate of 12-15 cases per year in Queensland, of which the vast majority would be consent determinations or other consensual dispositions. Kalkadoon – prioritisation in action An early, and current, example of a case on the prioritisation list and the subject of case management is Kalkadoon People v State of Queensland (No 4). I make only general comments about this case, because it has not yet been determined. It is useful to refer to the proceedings however, not only because it arises from an iconic claim in Queensland, but because I have been involved personally in some aspects of its case management. In summary: Relevant native title applications were filed with the Federal Court in 2005 and 2006 in response to an agreement which saw 6 related applications withdrawn and new applications filed. In substance, applications had been in place in one form or another since 1996. Mediation continued in the Tribunal and the matters were allocated in the early part of 2008 to the docket of Justice Dowsett. Justice Dowsett regularly reviewed the progress of the matters and in mid 2009 made orders listing both Kalkadoon #4 and Kalkadoon #5 for a hearing as to whether or not the Kalkadoon Peoples were and are a native title holding society. Extinguishment issues were agreed to be considered after the question of native title was resolved. The matters were set down for a 6-8 week hearing commencing the last week of February 2011. In August 2010 his Honour made further orders defining with more particularity the nature of the question to be heard in 2011. To assist in the preparation of the question his Honour ordered the applicant and the State of Queensland to confer to identify issues which could be agreed and those which remained in dispute. The parties came before me and Deputy Registrar Fewings in a number of case management conferences. Substantial progress was made in case management culminating in orders in November 2010 for part of the proceeding to go to mediation. An independent expert mediator was appointed and mediation listed to take place on 29 and 30 November 2010. Relevant issues were resolved following mediation by the expert mediator. One respondent continued to raise an issue concerning the extent of Kalkadoon country. Justice Dowsett referred this issue to Court annexed mediation. The expert mediator met the parties on 3 and 4 February 2011. Terms of settlement were signed on 4 February 2011. Justice Dowsett retained the hearing dates. However following communications to chambers, a formal report was provided to his Honour at the directions hearing of 7 March 2011. The matter in respect of connection was settled. Mediation in connection with all issues related to mapping was ordered to remain with the Tribunal on 7 March 2011. Otherwise, the matter was ordered removed from mediation and subjected to intensive case management by the Court. Case management conferences will be conducted on a monthly basis to ensure all identified steps are completed in the lead up to the determination hearing on 12 December 2011 in Mount Isa. Given that this matter continues to be subject to case management it is not appropriate to say much further. It is however interesting to note that intensive case management has contributed to change circumstances from where the parties were in disagreement in respect of multiple issues, to a position where the parties are working towards a Consent Determination. Conclusion The prioritisation system does not seek to undermine the role, independence or discretion of the individual docket Judge. Similarly it does not seek to in any way penalise or prejudice the parties. However the Court has a role in ensuring that cases before it are dealt with in an efficient and expeditious manner. The prioritisation system we have in place is intended to do this. The Court has demonstrated that it is prepared to devote considerable resources to assisting native title cases progress to resolution, in the interests of all stakeholders to the proceedings. Section 70 of the Native Title Act 1993 (Cth) as enacted Sections 166 and 167 of the Native Title Act 1993 (Cth) as enacted Section72 (1) of the Native Title Act 1993 (Cth) as enacted Sections 70 and 74 of the Native Title Act 1993 (Cth) as enacted Native Title Amendment Act 1998 (Cth) Schedule 5 Part 3 Tables 5 & 6 and Schedule 9 s 36 [1995] HCA 10; (1995) 183 CLR 245 s 61 (5) Native Title Act 1993 (Cth) s 86B and s 94D Native Title Act 1993 (Cth) Annual Report of the Federal Court of Australia 2002-2003 page 121 [2009] HCA 27; (2009) 239 CLR 175 [2011] FCAFC 53 [2010] FCAFC 85 Annual Report Federal Court of Australia 1999-2000 page 11