Landmark Victory for Native Title Holders
Over the past 16 months the KLC has been working alongside Karajarri Traditional Lands Association and Karajarri Traditional Owners, the Edgar family, to achieve an important precedent for all native title holders across Australia.
On 24 September 2024, the Chief Justice of the Federal Court delivered a precedent-setting decision that enables PBCs and Traditional Owners to have evidence heard by the Court about the knowledge and firsthand experiences of elders for future compensation claims, even if those claims have not yet been filed in the Court.
One month later, on 28 October 2024 an on-Country preservation of evidence hearing took place on Karajarri Country with members of the Edgar family. It was the first time Traditional Owners have had their evidence formally recorded in Court before a native title compensation claim.
The landmark ruling represents an important victory for native title holders and PBCs in the Kimberley and across the country, significantly strengthening the position of PBCs in potential future compensation cases.
Previously there was no established process for preserving important evidence of Elders in the Federal Court if a native title compensation claim had not already been authorised and filed.
This type of strategic litigation is important for native title holders because it provides parties with confidence and enhances understanding of existing law.
KLC CEO Tyronne Garstone said the ruling was an important outcome that will help future generations.
“Over the years the KLC has been deeply concerned as we have seen many of our Elders, our last living libraries, pass away. This landmark ruling means we can now prioritise preserving the knowledge of our Elders in legal processes for future generations - which is a first in Australia. We are making it easier for future generations of Traditional Owners to bring compensation claims, which is their right under the Native Title Act.
The evidence of five Karajarri common law holders has been preserved in the most reliable and rigorous manner possible, and will be available for use by KTLA in any future compensation claim it commences.
Through the work of the Edgar family, KTLA and the KLC we are proud to say this pathway is also now open for Traditional Owners around Australia.
At this moment we remember our Elders who have passed. We stand on the shoulders of giants and will continue their work to secure a better future for Kimberley Aboriginal people,” said Mr Garstone.
Karajarri Elder Joe Edgar said the decision by Chief Justice Mortimer was particularly meaningful because the Edgar family was able to record and preserve his brother’s evidence before he passed away in recent weeks.
“We’ll be forever grateful, and now it’s been documented and not just stories we sit around the family table or campfire to tell, to have that opportunity was a huge new thing for us.”
A major logistical feat
The on Country preservation of evidence hearing was a major logistical feat. The KLC’s native title team supported Traditional Owners and the Court on Country at six different locations over two days. It involved a 4WD convoy with 13 cars, a team to set up marquees, chairs and technology at every location.
Transcript and video recordings of the Court hearing were taken at each site, with legal representatives for the State of Western Australia and Commonwealth of Australia also present so that they had the opportunity to cross-examine each witness.
At the conclusion of proceedings, Justice Jackson thanked the witnesses and commended the KLC on the smooth and efficient way the hearing was organised.
What is strategic litigation?
Strategic litigation is legal action seeking to bring about social change for an entire community with an impact beyond the individual case. Successful strategic litigation brings about lasting political, economic or social changes and develops the existing law.
