THE Federal Government has made a last-minute attempt to defeat
a native title claim over parts of Darwin in what has been been
called a radical attempt to wind back native title.
Canberra is intervening in an appeal by the Larrakia people to
overturn the rejection of their native title claim over parts of
Darwin.
It is not only trying to defeat the appeal, but it is arguing
that the original judgement did not make a strict enough
interpretation of native title law.
The Commonwealth argues that native title law has been set off
course by several judgements since the 2002 Yorta Yorta decision in
which the High Court ruled that claimants must prove a continuing
connection with the land.
In its submission to the Federal Court, Canberra names five
native title rulings — including this year's granting of
native title over Perth to the Noongar people — that it says
have been based on an incorrect reading of the law.
The Commonwealth's intervention was so unexpected that it led to
a savaging by the presiding judge. In a directions hearing earlier
this month, Justice Robert French said the intervention — just
days before the start of hearings — raised "a serious question
about the propriety of (its) actions".
But in a later hearing, Justice French offered "a small olive
branch" by saying his earlier criticism had been "overstated in
scope and tenor".
In April, the Federal Court rejected the Larrakia people's claim
over parts of Darwin, saying that while there was still a Larrakia
society it had not continuously observed traditional laws and
customs. The Larrakia are appealing against this decision.
The Commonwealth, which is also appealing against the Noongar
decision, says the outcome of these appeals is "likely to be
seminal in the future direction of native title jurisprudence".
Its submission argues for a much stricter interpretation of many
of the central tenets of native title law.
This interpretation would make it much harder for indigenous
communities to prove native title exists over an area, according to
native title experts.
Glen Kelly, chief executive of the Southwest Aboriginal Land and
Sea Council, which represents the Noongar people, said the
Commonwealth's submission appeared to be aimed at "winding back
some of the key judgements in native title".
That submission argues that the concepts of society and
traditional laws and customs are inextricably linked.
The paper also argues that if the laws have changed through time
or the distribution of the laws has changed — that is, they
are observed by a different group of people — then the chain
of possession of the land is broken. "Evolved laws are euphemisms
for changed laws," it says.
