A last-ditch bid to establish a collective representation scheme for landholders affected by native title claims is underway after the Federal Government cut financial assistance for defendants.

For the past 15 years, the Federal Government has provided equal financial assistance to both claimants and defendants involved in native title claims.

However, under cost-cutting reforms announced late last year, the Gillard Government cut assistance to pastoral respondents, while leaving assistance for claimants intact.

For the duration of the Federal assistance program, which ceased on December 31, the pastoralists' scheme was administered by AgForce and the legal work was conducted by Brisbane-based legal firm Thynne & Macartney.

Thynne & Macartney partners Bill Loughnan and Ari McCamley told Beef Central this week that the firm felt compelled to develop an alternative scheme so the pastoral industry continued to have a voice as native title determinations are made across Queensland.

When Federal funding ceased on December 31, AgForce provided funding to continue the old scheme until February 28 to ensure pastoral respondents complied with negotiation timetables and orders of the court to that date.

While AgForce had been able to secure some funding commitments from the Queensland Government and other industry groups, the pledged assistance fell below the already meagre funding previously provided by the Federal Government, which Mr McCamley said had been subsidised by the legal firm in recent years.

The conditions under which the additional funding commitments were obtained also meant that funding was not able to be used to subside legal costs.

'User-pays' model

Mr McCamley said it had become clear that the only viable option for representation of native title respondents was to move to a ‘user-pays’ model.

"Without effective representation for pastoralists, the real danger is that claimant groups will become more demanding and the State will concede connection and agree to determinations of native title that increasingly affect day-to-day pastoral operations," Mr McCamley said.

Thynne & Macartney has written to 512 pastoral respondents previously represented under the AgForce-administered scheme urging them to join a user-pays scheme for a cost of $500 per claim.

Mr McCamley said a collective approach to representation enabled pastoral lessees to adopt a common approach across multiple claims and to speak with a single voice, and was also far less expensive for each respondent compared to maintaining single legal representation.

The level of take up in coming weeks will determine if the scheme proceeds.

“Unless there is widespread knowledge and uptake of the new scheme, pastoralists will either have to pay for individual representation, represent themselves or withdraw from the claims,” Mr McCamley said.

“Given the usual cost of individual representation in any litigation, we see a common respondency scheme as the only cost-effective option for the industry.”

He said new clients who not involved in the previous scheme, or who are effected by new native title claims in future, would also be eligible for representation. However the additional legal work required in those instances would also involve a different fee proposal to that offered to existing members of the scheme.

If sufficient numbers of respondents do not participate, payments made to the scheme will be refunded to participants and alternative solutions discussed. 

Mr McCamley said the Gillard Government persisted with its decision to cut funding for pastoral respondents despite numerous expressions of support for the scheme from the Federal Court judges involved in native title and many of the Aboriginal land councils in Australia.

The cessation of Commonwealth funding had also coincided with a recent increase in activity in native title proceedings, which reinforced the importance of adequate representation for pastoral respondents.

Funding cuts a 'slap in the face': NFF

The National Farmers Federation has described the Federal Government’s cost-cutting reforms as a “slap in the face” to affected landholders.

NFF president Jock Laurie said the Government’s decision to cut funding for defendants while maintaining assistance for claimants had created an inequality in access to justice.

“This has severely jeopardised the goodwill of the current system for the sake of Government cost cutting,” Mr Laurie said.

“By cutting this funding for respondents, the Government will save only $2.2 million over two years.

“This is hardly a vast sum of money for the Government at a time when it is boasting about its millions of dollars in savings, yet is vital for the more than 1600 respondents still to have their native title cases heard.”

Rather than delivering new efficiencies, the cost-cutting reforms would have the opposite effect.

“Under the old system, one lawyer and one Native Title Officer represented all of the pastoral respondents in one claim.

“Now, with the funding cut, self-represented farmers or legal representatives for a host of individuals are fronting the courts, slowing down the process.

“Ironically for the Government, this will end up costing more than the $2.2 million they had hoped to save.”

Mr Laurie said Federal Court judge, Justice Rares, recently described the Commonwealth’s cutting of respondent funding as ‘ridiculous’ and an ‘outrageous interference’ in the orderly process of the court.

“With only two years left to run in existing native title cases, we call on the Government to put people ahead of profit and reinstate respondent funding,” Mr Laurie said.
 

• Thynne & Macartney can be contacted on (07) 3231 8888 or visit their website by clicking here