Claims first lodged in 1998 have still not been finalised due to ‘extraordinarily time consuming’ system

Federal court justice Margaret Jagot says any prospect of dealing with current native title applications in the foreseeable future was a ‘quickly receding fantasy’.

Federal court justice Margaret Jagot says any prospect of dealing with current native title applications in the foreseeable future was a ‘quickly receding fantasy’. Photograph: Lloyd Jones/AAP

The New South Wales government is under pressure to deal with massive delays and “fundamental systemic” failings in its handling of native title claims.

The federal court delivered a stinging criticism of the NSW government on Tuesday, saying its native title system was “extraordinarily time consuming”, unwieldy and placed an “enormous” burden on public resources.

Federal court justice Margaret Jagot criticised the government’s approach, saying the court was still waiting to finalise claims first lodged in 1998.

She said any prospect of dealing with the state’s primary land title claims in the foreseeable future was a “quickly receding fantasy given the day-to-day reality with which we are confronted”.

“Whatever the arrangements behind the scenes, the present system means that the resolution of native title claims in NSW is extraordinarily time-consuming, resource intensive, unwieldy and often ineffective,” Jagot said.

“Given this, it should be no surprise that consent determinations in NSW, when we finally reach one after years of effort, are at risk of derailment. But this does not mean the current situation is acceptable.”

The state opposition has seized on the criticism. The shadow Aboriginal affairs spokesman, David Harris, said the judgment was “a slap in the face to the entire NSW government and its sloppy approach to native title”.

“NSW is essentially being accused of undermining some of the basic elements of the Native Title Act, whether in spirit or in fact, by failing to brief the attorney general and other key stakeholders within established timeframes,” he said.

“Aboriginal people are already upset by timeframes taken for determination of outstanding land claims and this federal court judgement would give them no cause for optimism that the government has any credible system in place to improve the situation.”

Typically, once a claim is first registered, courts are forced to wait for state governments and Indigenous groups to negotiate through mediation on native title claims.

If the parties reach an agreement, the court simply formalises it through a ruling known as a consent determination.

But Jagot said the government appeared to lack the proper resourcing to deal with native title claims efficiently.

It had no clear guidelines for the creation of Indigenous land use agreements, and had no published guidance on what was required to prove a connection to land.

That effectively left Indigenous communities “in the dark as to what the state requires”.

Jagot made the criticisms while handing down a decision in the landmark native title claim of the Western Bundjalung people, from NSW’s northern rivers region.

The claim has taken six years to reach conclusion. Jagot said that was swift by NSW standards.

“But six years is not swift or even acceptable compared to any proper standard for litigation in this country, and particularly not when the context is considered,” she said.

“I do not know the public resources which have been applied to this matter over the six years but … it seems safe to say that they have been enormous.”

NSW attorney general, Mark Speakman, said he wanted to cut delays and was considering what could be done to streamline the native titles process. Speakman conceded the Western Bundjalung agreement took too long, but said it was the most detailed to date in NSW.

“Native title claims are complex, involving numerous issues and parties,” he said. “Long delays in resolving native title claims in the federal court are not unique to NSW.”

Speakman pointed to Australian Law Reform Commission data suggesting a national average of six years and three months for a consent determination. He said guidelines were being prepared for Indigenous land use agreements, using the Western Bundjalung decision as a precedent.

The court heard the Western Bundjalung people first had contact with Europeans in the 1830s.

Conflicts in the 1840s led to a revenge attack that killed at least 17 Aboriginal people at Pagans Flat. Jagot said Pagans Flat was remembered “for this horrific event by the Western Bundjalung people of the present day, and which should be remembered by us all”.

The Western Bundjalung people have remained in the area and still practice traditional laws and customs along the Clarence River.