The Awabakal and Guringai Aboriginal people have been forced to withdraw a native title claim over land spanning from Maitland in the north to the outskirts of Sydney.
The state government recognised the claim group as the descendants of the original inhabitants of the land, but found they were unable to prove they had followed their traditional laws and customs continuously since the time of white settlement.
The group’s Townsville-based lawyer, Michael Owens, said to challenge the decision in the Federal Court would have amounted to a “David and Goliath” battle with the state government, given members had already spent over $100,000 out of their own pockets on the claim.
“They were facing the prospect of having to take on the state of NSW, who have the benefit of the public purse ... [and] come along with one or more QCs and a bevy of lawyers.
“If the group fail, it can prevent another claim being put in at a future point in time. They were able to protect that right, which is critically important,” Mr Owens said.
A member of the claim group, Shane Frost, has spent the past two decades piecing together research for the attempt at native title recognition.
He told the Herald he was “gutted” at the defeat.
“It’s been an absolute heartache going through the process,” Mr Frost said.
“All we ever wanted was to have recognition that our people, the Awabakal people, are the people of the area that we claimed. We never wanted to take anything away from anyone.
“If people knew that’s all it was, I don’t think they would be up in arms about it.”
Under legislation passed in 1993, following Eddie Mabo’s historic court victory, Indigenous people granted native title often have the right to access and use land for a variety of purposes, including the right to hunt, fish, gather, camp, undertake ceremonies and use certain natural resources.
In a limited number of cases, they can possess and occupy an area to the exclusion of all others.
Most people are unaffected by successful claims, however, because if land has already been granted by the state to another person, that person’s rights prevail.
Claim group member Kerrie Brauer was able to prove her ancestral links to Awabakal figures Queen Margaret and King Ned, of Lake Macquarie.
She said it was “very disappointing” that the claim had been withdrawn, but the state government’s recognition of the group’s ancestral ties was a significant first step.
“It does give the chance for the younger generations to come up behind us if they want to continue the fight,” she said. “The state has indicated that they would like to continue talks outside the native title process.”
It’s been an absolute heartache going through the process ... all we ever wanted was to have recognition that our people, the Awabakal people, are the people of the area that we claimed."Shane Frost, Awabakal man
Ms Brauer said it was extremely difficult to prove that laws and customs had been upheld continuously over time when the very purpose of the early Aboriginal missions was to “disrupt that”.
“The Sydney and Newcastle areas were among the first to be colonised and you were told you can’t hunt, you can’t speak your language,” she said. “It’s a catch 22 scenario.”
Consisting only of direct descendants of the original Awabakal people, the claim group is separate and distinct from the Awabakal Aboriginal Local Land Council, based in Newcastle.
Members of the land council must also be Aboriginal but do not have to be a direct descendant of an Awabakal person.
The council also has a separate process for undertaking land claims.
“The materials that our ancestors have left, I have no greater say ... over those sites than any other Aboriginal person,” said claim group member Peter Leven, who works in heritage.
“For me, it’s a personal connection to these items that I touch when I do my job … these are things that my direct ancestors have made.
“We actually said to the state, we’re not interested in the money or compensation … money isn’t going to fix what’s happened. Recognition will fix what’s happened.”
Mr Owens was originally a property lawyer but has devoted the last 20 years to assisting with native title claims, much of the time working pro bono.
He said it was “extraordinarily difficult” for Aboriginal people to meet the requirements of the Native Title Act in the areas that had been densely populated following white settlement.
“Numerous submissions have been made to various federal governments of both persuasions to soften or amend the provisions, because in some places, it’s nearly impossible to prove it,” he said. “They were exposed to the full blow torch of history.”
Mr Owens said that unlike in other states, NSW did not have any published standards or criteria that had to be met for a native title claim to be successful.
“All we ever got from the state was that it didn’t meet the criteria,” he said. “They didn’t say how, what, why, when or where.
“With the Awabakal and Guringai people they were also denied access to federal government funding ... they were completely and utterly by themselves. When they’re not receiving that funding, it’s very much David and Goliath.”
Mr Frost said Aboriginal people were being encouraged to embark on claims with no idea how difficult, costly and lengthy the process would be.
“[It] chews you up and spits you out, in a way.”