Two WA native title claims threaten to bring national and State funding issues to a head. In one high-profile WA case, mediation has run in parallel with court hearings, but now the claimants have run out of funds as Susan Bower reports.
A LACK of funds is threatening Federal Court determination of a native title claim over 159,000 square kilometres of the northern Goldfields.
The claim by the Wongatha people is highly significant to regional pastoralists and miners, and has major ramifications for other claims, native title experts say.
However, last week the Federal Court in Sydney granted applications by some parties to vacate hearing dates due to commence in August after the Goldfields Land & Sea Council, representing the Wongatha claimants, told the court it was unable to continue its representation due to a lack of funds.
Melbourne native title specialist Brian Keon-Cohen represented the GLSC before the court pro-bono.
The council said it had received no definitive response from the Aboriginal and Torres Strait Islander Commission after applying in January this year for funding for this year’s evidence.
The vacated evidence hearings were among the last to be heard in the claim, following 63 days of evidence given in a variety of venues last year, commencing in March at the Mt Margaret Mission.
Federal Court judge Kevin Lindgren also stood over last week’s hearing partly heard.
A court representative said Justice Lindgren may now choose to subpoena someone from ATSIC before the continuation of the hearing which has now been scheduled for today.
The GLSC has asked for all this year’s hearing dates to be vacated while the WA Government had requested a two-week adjournment to “deal with” the representation issues.
A spokesman for Native Title Minister Eric Ripper said the Government would continue to attempt to settle the claim through consent determination and a GLSC spokesman said the council would also prefer to settle out of court.
Mr Ripper’s spokesman said the Government had facilitated mediation activities throughout the course of the Federal Court claim and had last conducted mediation hearings in November 2002.
The February 2002 date for the claim application hearing had been determined during the term of the previous Court Government, he said.
Since the Wongatha application had been made to the court, the Ward and Yorta Yorta decisions had made it almost impossible for a positive finding to be achieved on this claim.
Claimants now must muster considerable evidence to comply with what are considered “onerous requirements” under the current state of federal native title law.
With consent determinations required to conform to current law, stakeholders will not agree to any determination that does not appear in accordance with recent decisions.
Onlookers have variously interpreted ATSIC’s treatment of the GLSC request as a reflection of ATSIC troubles, of the commission’s view of how the GLSC has spent previously allocated funds, or of ATSIC’s assessment of the chances of success of the claim.
ATSIC says the original conditions of additional funding were always known.
These included an independent review of the progress of the claim, a report on prospects for the claim’s progress, and an evaluation of the funding allocation sought.
An ATSIC National Native Title unit spokeswoman said the commission would have the independent assessment on July 18, but was always of the view that mediation was a more cost-effective and responsible approach.
“The State Government should be seeking to resolve this claim by sitting down and mediating on this application, to the benefit of all stakeholders involved,” ATSIC said.
The commission says Federal Government funding for such claims is falling short by an annual $30-40 million, while the WA Government is of the view the Commonwealth should increase funding to land councils.
“The proper resourcing of these representative bodies is critical if we are to resolve more matters by agreement rather than through litigation or arbitration,” Mr Ripper said.
Mallesons Stephen Jaques partner Chris Stevenson says, although resourcing for all parties is always a big issue, it is uncommon for a party to run out of funds at this stage of a claim.
Mr Stevenson describes as “a total worst-case scenario” the prospect of having no court decision after the “huge” amount of time and money expended by parties associated with, or affected by the claim.
All Aboriginal evidence, from 70 representatives, has already been taken, and the remaining hearings are for expert and extinguishment evidence, involving anthropologists, archaeologists, linguists, ethnobotanists and historians.
The Wongatha claim has hung over northern Goldfields communities for years.
It is an amalgamation of 21 previously lodged claims, and affects at least 2000 people, including 18 separate claimant groups rolled into one.
The claim also comprises six associated overlapping claims.
Settlement by consent would be extremely difficult, onlookers say, with all parties required to agree on an outcome.
“And why negotiate if by spending another million now, someone thinks they can win?” Mr Stevenson observes.
However, with a court determination, relationships will be adversely affected over the long term, he says, if there is a complete win for either side.
Experts say it would be unusual for the court to proceed with this claim with the claimants underrepresented, although this would not be setting a WA precedent.
More likely, however, was that the trial would be broken up into smaller chunks of issues, such as land connections and extinguishments, and that ATSIC might fund some of these separate considerations.
Had this year’s court proceedings gone as planned, a final claim determination would still not have been made by the end of the year, GLSC legal and native title manager Bertus de Villiers said.
“We are surprised that it’s taken such an extraordinarily long time for ATSIC to consider the application,” Dr de Villiers said.
However, after the experts had given evidence, tenure would still need to be determined for the separate areas of the claim.
Pastoralist and mining groups are pushing for no adjournment to proceedings.
WMC Resources said the company supported the WA State and Commonwealth Governments in their response to have the matter proceed as scheduled.
“There has been an enormous public investment in the process to date,” a spokesperson said.
More than 130 WA native title applications are yet to be determined.
Six have already been settled by consent determination, four by the current WA Government.
The WA Government last week suspended mediation on a claim over 9,000 square kilometres of the Perth metropolitan area.
This claim is also in the Federal Court and includes an overlapping claim, self-represented by the claimant’s leader in court.
Mr Ripper’s spokesperson said the WA Government had tried to mediate over two-and-a-half years, but an underlying dispute with the overlapping claim could not be resolved.
The Government had taken a decision that it should no longer allocate resources to the matter and it would now be best resolved by court.
