The Federal Court has accepted a "novel application" to preserve the evidence of five Karajarri people from Western Australia for a future Native Title claim.
The decision will allow evidence from Karajarri people James Albert (Jimmy) Edgar; Janet Mary Clare Cox (nee Edgar); Thomas John Edgar (Undabudi); Judy Anne Edgar; and Joseph Michael (Joe) Edgar to be taken and preserved for a future and foreshadowed Native Title claim, even if that Claim has not yet been formally commenced.
All five are above sixty, with Karajarri common law holders Jimmy Edgar and Janet Cox in their eighties and suffering from health conditions, with chief justice Mortimer arguing any of Ms Cox's evidence "may be affected by loss of memory".
"I consider there is a need to expedite the preservation of her evidence, and her age alone combined with the evidence about the average life expectancy for First Nations peoples, particularly those living in remote and very remote places, gives ample justification," the chief justice said.
As such, the court found the "concurrent evidence of the five Karajarri people is appropriate in the circumstances".
"It almost goes without saying that the factors I have considered above overwhelmingly favour the testimony of the four remaining Karajarri people being taken on country, or in locations close to country, where they are likely to feel at their most comfortable and safe, and therefore most likely to provide reliable evidence," chief justice Mortimer said.
The court heard of difficulties faced by groups in bringing Native Title claims, with cost and resources being significant impediments. Furthermore, the life expectancy of First Nations people - drastically lower than non-Indigenous people across the country - meant it was imperative evidence was submitted and preserved before people passed away.
In a notable statement describing the reality of Native Title ltigation, chief justice Mortimer said: "It need not be the case, and it would be ironic and inequitable if the Parliament had erected so many barriers to the commencement of a proceeding that the very parts of the Australian community whose interests, historical disadvantages, and mistreatment this legislation is designed to redress cannot access the legislative regime at all."
"That would be a situation inimical to the Preamble to the NTA [Native Title Act]," she said.
The court accepted the evidence of Karajarri Traditional Lands Association's (KTLA) chief executive Kasawadinata Bin Rashid - who highlighted KTLA's "shortfalls" in both financial and human resources to bring about a claim - as well as those of principal legal officer for the Kimberley Land Council (KLC), Justine Toohey, who said in costing anywhere between $450,000 and $800,000 per year, Native Title litigation was well beyond the financial means of most registered Native Title bodies corporates (RNTBC) in the Kimberley.
Ms Toohey also spoke of "large-scale litigation fatigue," where in her experience, "participation in the processes under the NTA can leave deep scars within communities and can leave people feeling extremely fatigued".
As the applicant, the KTLA foreshadowed a Native Claim under the NTA, with Mr Bin Rashid saying it was their wish for the KLC to represent them in any compensation claim because of KLC's expertise.
However, the KLC said they didn't "have capacity to prepare and commence a Native Title compensation" claim on KTLA's behalf due to not having enough grant funding from the National Indigenous Australians Agency (NIAA) to cover the cost of preparing, commencing, and resolving a Native Title compensation claim in addition "to the other urgent matters that the KLC has to prioritise".
The chief justice said even if funding and resource practicalities were put to one side, the evidence goes a long way to explaining the practical reality of why - in the view of some outsiders - it takes a "a longer time than expected" for Native Title holders to initiate another stage of litigation or agreement making under the act, even after the determination of claims and future act processes.
Chief justice Mortimer found that whilst the "budgetary and operational constraints of the KLC mean it is not likely to be feasible for the KLC to assist the applicant to prepare and file a compensation claim before the current estimate of 2026," there was a "real prospect" the KTLA would be able to file the foreshadowed compensation claim with the assistance of the KLC in 2026.
"There is a reasonable prospect that none of the five Karajarri people will be well enough to be available to give oral evidence after the foreshadowed compensation claim is filed," she said.
