Australia’s High Court now has a majority of female Justices. For the first time in its history, the recent appointment of Jayne Jagot, created excitement in the legal profession. Justice Jagot brings a compassionate reputation along with, as expected, outstanding legal expertise.
A long and difficult case within her Federal Court remit concerned flood ravished Lismore. Its final phases were arbitrated and determined amid, and in the aftermath of physical devastation. National attention focused on work by the Aboriginal newspaper, The Koorie Mail, based in Lismore. Despite extensive damage to its offices, The Koorie Mail set up support not only for local Aboriginals, but also for the entire community in the immediate aftermath of the emergency and into the days, weeks and months that followed. The Koori Mail team helped coordinate food, clothes, counselling, and essential items for thousands of flood-affected residents relying on financial support from donations.
Not known is the simultaneous struggle and distress of court cases and mediations, that occurred at the same time as the flood recovery.
Justice Jagot had long involvement in the case of Widjabul Wia-bal v Attorney-General of New South Wales,[1] concerning native title to lands in and around Lismore.
In interlocutory proceedings brought before the Court on 24 August 2022,[2] evidence was presented that referred to Elders being treated with disrespect and, therefore, absenting themselves from western majority-vote, corporate decision-making processes set up without their involvement. It raised Aboriginal evidence conflicting with ‘white’ expert anthropological evidence as to the correct persons entitled to form part of the native title group. It was put to Her Honour that it was important, despite the case duration, to carefully examine these issues to best secure a decision that would achieve greater support among the People and so best secure ongoing future acceptance and harmony. Application was made to delay final consent Determination until these matters were fully considered.
The State would not proceed with a consent Native Title determination without an Indigenous Land Use Agreement (ILUA). The Applicants produced evidence that Elders considered the proposed ILUA offered no benefit to the People.
Her Honour’s judgement mentioned her personal concern and ‘anxious consideration.’[3]
She acknowledged that Australia’s dispossession of Aboriginal People, its failure to reach a lasting equitable agreement and Aboriginal disadvantage, involved ongoing trauma for Aboriginal People.[4] She referred to the ‘exhausting, debilitating and re-traumatising’ native title process that required proof of who you are, who you are descended from, where your country is, the continuity of traditional laws and customs, and the translation of those traditional laws and customs into categories recognised by Australian common law.[5] She acknowledged that the native title process can exacerbate the splintering effects of dispossession, re-open old wounds, generate and reinforce community disfunction and magnify the harm done.
She commented that ‘[w]hen we see this evidence of community and individual pain, this anguish, this grief, particularly when manifested as community discord, we should know and understand that we are seeing the effects of the past in the present. … We should acknowledge this pain and the sources from which it springs. … We need to tread as lightly as we can and try to do no more harm.’[6]
Nevertheless, in a double negative approach, she found herself ‘not able to accept that there has been … any material shortcomings in the processes.’[7]
She rejected concerns of future disharmony and refused further delay, noting the expense of court processes, mediations as well as court government bureaucratic and administrative processes.
She rested her judgment on the interests of justice, ultimately concluding that the interests of justice demanded that there be no further delay and that it would be profoundly wrong for the Widjabul Wia-bal People not to have their native title consent determination.
KELLEHERS AUSTRALIA
8 November 2022
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This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] Federal Court File No. NSD 1213 of 2018. See also Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34 (Reeves, Jagot and Mortimer JJ).
[2] Widjabul Wia-bal v Attorney General of New South Wales [2022] FCA 1187 (Jagot J).
[3] Ibid, [91], 45.
[4] Ibid, [72],42.
[5] Ibid.
[6] Ibid, [72], 43.
[7] Ibid, [79].