Latest News

What Justice Jagot said about the Yaegl native title claim

Geoff Helisma

Justice Jayne Jagot made some startling observations when she handed down her orders, pointing out the “shameful” length of time the Yaegl claim, first lodged in 1996, took.
The court ruled on both the longest and shortest claims made in NSW: while the Yaegl 1996 claim is the oldest existing matter in the Federal Court of Australia.
Justice Jayne Jagot: Today, at last, the Yaegl people will be recognised for having that [which] they should have always had: that [which] remained unrecognised by the common law of Australia.
…The Yaegl People first sought recognition in November 1996, nearly two decades ago.
I say and regret that today we are resolving the oldest matter that exists in the Federal Court of Australia; what is known as the Yaegl #1 proceeding.
At the same time we will be resolving the land-based [claim] of the much more recent, but related, Yaegl #2 proceeding, filed in 2011.
That we have finally reached this milestone, belated as it is, is a testament to the unity, determination and strength of the Yaegl People.
They, as a people, have endured the disposition from their lands as a result of European settlement, which the Native Title Act 1993 is intended to recognise and progress, and have endured, also, the best part of two decades of legal process to obtain legal recognition of who they are: the Yaegl People.
…In the Native Title consent determination hearings over which I have presided, I have spent time focussing on the effect of gross delays in determining these matters since the inception of the Native Title Act.
…How extraordinarily pernicious [are the] effects of such delay; the kind of delays that have been experienced in native title matters entrenched in justice over generations.
How sad, indeed, how shameful it is that … many of the people who start the claim often become too aged or too infirm to see the matter through, or pass away, never having seen their labours bear fruit.
Delays of this kind sap away any sense of justice or fairness in the process.
It erodes confidence in the institutions which are meant to serve our common interests; incanting still a sense of despair in the capacity of those who should be engaged in the process. These effects are intolerable.
The short point I want to make is this: They are no longer being tolerated.
The fact, that the Yaegl #2 claim has been resolved in less than four years is a testament to what can be achieved when all parties are focussed and acting in good faith.
Today, at last, the Yaegl People have achieved what they set out to do. In so doing, they have satisfied the requirements of sections…
They have satisfied, too, the requirements of the State, as to the substance of their rights and interests.
To do so, they had to file 39 different statements and affidavits, seven anthropological reports, two historical reports, various geological reports and give evidence for [their] country in a hearing conducted by the National Native Title Tribunal, in the context of a mediation, in 2011.
Let me pause here so you can take notice of just how much the Yaegl people had to do to establish a credible basis for their claims…
One cannot help wonder why so much material, no doubt at very substantial expense … had to be prepared and provided so that meaningful negotiations could commence…
The burden on the State is to satisfy itself that there is a credible basis for the application. Given that standard, it is legitimate to ask why it was necessary in this matter for there to be 39 different statements and affidavits, seven anthropological reports and two historical reports.
No other Aboriginal people were claiming the same land as the Yaegl People.
…The onerous processes to which the Yaegl People have been subjected leaves no room for doubt, that the State has done all it can to act as the guardian of the public interest and third parties.
The … consent orders thus reflect an outcome negotiated at arm’s length, reached by a voluntary process…
Accordingly … the court orders that … the native title, as determined, is to be held on trust by Yaegl traditional owners…
There be no orders as to costs
…My congratulations to the Yaegl People.

X