The Guardian 21 February, 2007

Native title ruling means more uncertainty
Combined Wongatha claim is dismissed

Ken Boase

The Goldfields Land and Sea Council (GLSC) is considering an appeal against a Federal Court judgement dismissing the combined Wongatha Native Title Claim.

In the West Australian gold­fields city of Kalgoorlie on February 5, Justice Lindgren said the Wongatha claimants had not proved continuous connection to the claim area of 160,000 square km as one group.

However, Justice Lindgren left the door open for future smaller claims from individuals or family groups.

More than 90 witnesses gave evidence during the formal court hearings between 1999 and 2003, detailing their knowledge of country and the sites of significance to them, including a flint factory destroyed by mining development some years ago.

The WA Department of Indigenous Affairs lists on its registry 1053 sites that lie within the claim area, which stretches from 85 km north of Kalgoorlie to the edge of the Central Desert Reserve, west of Warburton.

The judge also dismissed a submission from the WA Government that native title did not exist, and the open-ended decision has left claimant groups and other stakeholders frustrated that the decision has merely created further uncertainty.

GLSC Executive Director Brian Wyatt said he was pleased that the judgement had disallowed the WA and Federal Government applications for native title to be struck out, but overall the decision was very disappointing.

"After five years in the court the decision is a big disappointment given the unambiguous prior ownership of the country by Aboriginal people and the strength of their evidence of unbroken connection to the lands", Mr Wyatt said. "We reject the decision".

"The idea, which comes from a reading of the judgement, that larger group claims are somehow lesser claims is very puzzling".

The National Native Title Tribunal and State and Federal governments encouraged the amalgamation of smaller claims and Wongatha and other claimants had obliged.

"It’s time to stop this confusion. It’s long overdue for governments in particular to get native title out of the courts and get serious with negotiated settlement of claims.

"The decision will be closely examined and discussed with claimants before the next legal steps are decided.

"An appeal is a strong possibility and that’s all I can say without knowing the detail of the grounds we might appeal on."

Unreasonable and confusing

One of the more confusing aspects of Justice Lindgren’s judgement was his opinion that the Wongatha claimants could not prove a continuous connection to land dating back to 1829 when WA was claimed by the British Crown on the Swan River.

"The claimants must prove what Indigenous laws and customs were being acknowledged and observed in the Goldfields at the date of sovereignty — 1829," Justice Lindgren said.

"But the first explorer did not reach any part of the Wongatha claim area until 1869, and, in substance, European settlement did not occur there until the gold rush in the 1890s.

"In other words, the first substantial written records we have of Aboriginal people anywhere in the Wongatha claim area relate to the last decade of the 19th century, yet the claimants bear the onus of proving what the position was there in 1829.

"There was progressive population shift from the desert to the fringes of European settlement in the Goldfields because of various attractions there, principally, a reliable supply of food and water, in contrast to the drought-stricken desert.

"As a result, the claimants cannot prove that their ancestors lived within the Wongatha claim area at sovereignty.

"If those ancestors and their descendants had remained in the desert, the claimants might have been the beneficiaries of a consent determination today in respect of a desert area", said Justice Lindgren.

Until then…

Wongatha Elder Aubrey Lynch said, "We do not accept the decision and the State stands condemned for having turned its back on us, both in the court and in the out-of-court search for an agreed settlement".

"We genuinely pursued a negotiated settlement of the claim — as advocated by the Federal Court — only to be spurned by the State, which strung us along in the mediation process for over four years with no result.

"The State proved insincere and untrustworthy. It always said it strongly favoured out-of-court settlement of native title claims, but what it says and what it does are two different things.

"Whatever the court has decided, we still know that this is our land and we will continue to expect others to treat us as the traditional owners," Mr Lynch said.

"Now we will have to go through it all over again."

GLSC Director Mr Wyatt said a further meeting with some of the 2000 claimants on February 14 would result in a response to the judgement, including whether smaller claims would be lodged and how they would be funded.

Koori Mail

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