The Gunditjmara and Eastern Maar indigenous community won native title claims in south-east Victoria last week, but lessons learnt from previous wins show a long road still lies ahead.

Gunditjmara spokesman Damien Bell told Crikey the Gunditjmara community experienced disillusionment during the 15-year long court battle for native title and didn’t expect the government to foot the bill for court costs.

Native title holders have described the Native Title Act as a positive step towards reconciliation and recognition of indigenous entitlements under Australian law. But the Victorian government is yet to offer a settlement package to the community, which won claims to Deen Maar Island (or “Lady Julia Percy Island”) last Wednesday.

“That personal toll on individuals and the community is immense,” Bell said. “I know we could have done a lot more with the money that’s been spent on the native title claim if that money was given to us directly.”

Court expenses can reach $10 million — a figure that can exceed state budget funding allocated to indigenous programs.

In the past, native title holders have expressed disappointment over the lack of rights and government funding granted once communities are lawfully recognised as traditional owners of the land.

“It’s been a mixture of feelings and emotions getting native title,” said Thomas King Junior of the Karajarri people after their 2004 native title win in west Kimberly. “You are happy in one sense that you have achieved this milestone and recognition … But to the other extreme it’s been a bit sad, frustrating and disappointing because of a lack of support from the government.”

An Australian Institute of Aboriginal and Torres Strait Islander Studies (AITSIS) research paper accused the government of “failing” native title holders by denying their Prescribed Bodies Corporate (PBC) — who manage native title affairs — adequate funding.

In 2002, the Yorta Yorta people received $7.2 million — less than 20% — of the $37.5 million allocated to their native title claims for northern Victoria and southern NSW.

Wayne Atkinson, senior fellow at the University of Melbourne, accounted the difficulties in distributing funding to the “burgeoning native title industry”: “A gravy train of lawyers and experts … Only a small portion of substantive funds allocated to assist native title holders in mounting their claims ever got to the native title holders.”

Successful claimants said they lost sight of planning practical outcomes upon winning native title claims as their strength had been exhausted from the lengthy court process, which can drag on for up to 30 years.

“No one in their wildest dreams could imagine getting beyond winning native title,” Mervyn Mulard, chair of the Karajarri Royal Native Title Bodies Corporate (RNTBC), said of the Karajarri people’s experiences. “All was focused on winning native title and getting the land, there was never a plan for after native title … So there was no structure for us. No way for us to go to the next level.”

Each native title outcome is unique as the Native Title Act 1993‘s very foundations rest on a right to negotiate between claimants, RNTBC and government bodies. Settlement agreements — which the Gunditjmara people are yet to discuss — and commercial and environmental interests involved can also affect native title holders’ entitlements.

Documents outlining the Gunditjmara people’s new land claims are also tied up in red tape as Crown rights can impinge on native title rights. A fact sheet compiled by Native Title Services Victoria states: “Any existing interests — such people with licences over Crown land — are unaffected by this determination … the existing interests prevail over native title rights to the extent of any inconsistency.”

Bell is confident the government will create a settlement package to adequately fund his people’s PBC. But indigenous commentators are still pushing for the government to create formal structures within the native title system in order to gain certainty that land owners’ rights will be protected under the act.

In 2009, former human rights commissioner and Kungarakan elder Tom Calma wrote to the Australian Law Reform Commission: “If the government continues to slowly morph the system in this direction through policy announcements, but without strengthening the underlying structure of the system, then it will continue to be laden with broken promises to indigenous communities.”

Peter Fray

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