The costs of bringing a native title claim

The Federal Court in Brisbane is under an ever-increasing workload to manage its native title list, with six native title trials listed over the next 18 months and a large number of matters set down for consent determination, there are huge demands being placed on the Court. Those demands might have contributed to the recent appointment of Justice Edelman who hails from the Supreme Court of Western Australia.

Native title applications consume a significant amount of time and financial resources for the parties involved, that is especially so for Indigenous parties (often the applicants in a proceedings) and the State of Queensland. These parties play the role of the main protagonist at trial. However, there are many other parties who are faced with a decision whether to take an active role in the proceedings.

Unlike other Court proceedings, native title is usually a no cost jurisdiction. This severely limits a party’s ability to claim the costs of participating in a proceeding, even if that party has been wholly successful.

There are three recent decisions from the Federal Court that highlight how the  financial burden of bringing a native title claim has become a significant impediment for native title groups. The decisions demonstrate that in circumstances where groups have little or no financial resources it is almost impossible to prove native title.

Native Title groups must establish inter alia a pre-sovereignty society, continuity and a native group. The pre-sovereignty society, are those persons who occupied the area at the time of European arrival. The applicant must identify the laws and customs and the rights and interest of that society and then demonstrate the continuity of those laws and customs to each successive generation to the group that exist today. Any break in the chain of transmission is likely to result in a determination of no native title.

In June 2013, Justice Rares dismissed a long running native title claim over the Gold Coast region.[1] Prior to the trial the applicant made two attempts to either vacate the trial date or discontinue the proceedings, citing a lack of financial resources as one reason for its inability to meet the demands of the onerous trial programming orders. On each occasion the applicant was unsuccessful.

There was no evidence presented at the first day of the trial and His Honour dismissed the application.  In dismissing the application, Rares J made an order that native title did not exist over certain parts of the claim area. The Native Title Act 1993 makes any determination final. Meaning there can be no future claim of native title over the areas where His Honour’s orders apply.

Unlike the Gold Coast claim, the decision of Her Honour Justice Jagot in the Bidjara, Karingal and Brown River claims proceeded to a full trial. [2] The matter was heard over six weeks in Brisbane and on country in locations around Carnarvon Gorge. The claim involved a dispute between three native title groups, the Bidjara, the Karingbal and the Brown River. Brown River and Karingal were essentially two factions of the same group.

Like the applicants in the Gold Coast claim, two of the indigenous parties before the Court had no legal representation because of financial constraints. Only Brown River had the benefit of a qualified legal team.

Justice Jagot dismissed the claims of all three indigenous parties and made a finding that native title did not exist over the areas claimed. Again barring any future claim. This matter has since been appealed and is currently being considered by the Full Federal Court.

In late January 2015, Justice Jessup handed down his determination in two native title claims over the Brisbane area.[3] The claims were always going to be difficult to prove, given the substantial development that has occurred in the State’s capital. The task was made all the more difficult by the fact that the two Indigenous parties again had no legal representation at the trial. The claims were dismissed because of a failure to demonstrate continuity between the pre-sovereignty society and the native title group. 

In light of these decisions, when a party is assessing whether to take an active role in a native title proceeding, the financial circumstances of the group bringing the application is an important factor in determining the best course.

Joshua Creamer

Barrister-at-Law & RES director

10 April 2015.

[1] Levinge on behalf of the  Gold Coast Native Title Group v State of Queensland [2013] FCA 634

[2] Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

[3] Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15