Govt cuts legal funding for landholders in native title claims

James Nason, 29/11/2012

Rural landholders will be left to foot potentially hefty legal bills to represent their interests in native title negotiations from next year under new Federal Government cost-cutting measures announced yesterday.

From January 1, 2013, only native title claimants will continue to receive government support in having their claims heard.

Federal attorney general Nicola Roxon said the Federal Government will cease funding to respondents in native title claims from the beginning of next year.

Farmers say the announcement could lead to the collapse of native title negotiations across the nation, and is likely to cost far more than the $2.2m in annual funding the move is likely to save.

The National Farmers’ Federation (NFF) is calling on the Government to review the decision and to ensure that respondents have equal access to justice as claimants in the native title claim process.

“Farmers have been willing participants in native title claims and settlements since 1996, under a system that, to date, ensures both the claimant and the respondent have fair and equal access to assistance and legal representation,” NFF President Jock Laurie said.

“Respondents will now be left to foot the hefty bills for legal representation themselves or be left to represent themselves.

“Either way this move will create inequality between the treatment of claimants and respondents.”

The NFF said the move “severely jeopardised” the goodwill of the current system for the sake of Government cost cutting.

“By cutting funding for respondents, the Government will save only $2.2 million over two years – hardly a vast sum of money for the Government, yet vital funds for the more than 1300 respondents still to have their native title cases heard.

“If funding for respondents is cut, momentum will be lost as the Courts and other parties deal with an influx of self-represented farmers or legal representatives for a host of individuals – as opposed to the current system where one lawyer and one Native Title Officer represents all of the pastoral respondents in one claim.

“Worse still for the government, this is likely to cost more than the $2.2 million they seek to save.”

Mr Laurie said a judge who presided over a native title claim in Queensland recently made the comment that claims can be fraught with the potential for creating tension and anxiety amongst those with primary interests in land the subject of a native title claim, particularly pastoralists.

“Justice Logan said that the representation and advice made available by the Commonwealth does much to dispel the tensions and anxiety and to result in the efficient progress and resolution of a native title claim.

“In his judgement, he says that he very much doubts such resolution would be possible without the availability of such advice.

“We urge the Government to continue to fund landholder and leaseholder native title respondents to ensure a fair and equitable system for all involved, and to ensure the process of hearing claims can continue in good faith.”

AgForce Queensland senior native title officer, Dr John Stewart, said the withdrawal of funding to respondents in the process would lead to the complete breakdown of a system that, in its existing form, provides positive outcomes for all stakeholders.

“We have a system in place that allows for all respondents to a claim to be represented by one lawyer and one Native Title Officer and this is efficient use of resources,” Dr Stewart said.

“If funding is eliminated and pastoralists are forced to engage their own legal representation there will be instances where in excess of 50 lawyers will act of behalf of respondents in one claim alone.”

“Common sense says this will lead to chaos in the Federal Court, protracted claim negotiations and ultimately cost the Government more given the time it will take to settle these native title claims.”

“It will no doubt also further frustrate participants in the process including traditional owners.”

Dr Stewart said AgForce was not questioning native title laws but had grave concerns about how these laws would be efficiently enforced in the future.

“We accept the law and are in no way are we questioning the need for claims to be finalised in a way that acknowledges the requirements of all stakeholders,” he said.

“However without Federal funding this finalisation will be an expensive and protracted process and lead to an unworkable legal mess.”

“We urge the Government to continue funding representation for respondents to ensure the efficient implementation of the system and the best possible outcome for claimants and respondents alike.”

Federal National leader Warren Truss said Attorney General Nicola Roxon’s announcement would turn the 16-year-old native title dispute resolution system on its head.

“In just a few weeks the federal government will abandon the principle of equality and fairness that is currently provided under section 213A of the Native Title Act 1993. This clause currently provides legal funding assistance for both claimants and respondents in native title cases,” Mr Truss said.

He said the decision to save a “lousy $2m over two years” would tilt the scales of justice in favour of one side over another by only providing funding to help those lodging claims.

“Striking a fair balance in resolving native title disputes is essential. As things stand, claims are generally assessed and resolved within two years in a spirit of goodwill without financial penalty to either party.

“The last thing any of us want is for a landowner to lose a native title dispute because the costs of testing claims are prohibitive for them.

“In Question Time yesterday the Prime Minister dismissively asserted that ‘commercially viable enterprises’ did not need assistance.

“But this change threatens to seriously undermine the course of justice in native title cases by skewing the ability to pursue legal avenues.


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