Stephen Hagan, Editor of the National Indigenous Times
LOCAL Elder Shane Mortimer is facing alone the might of Australia's new alternative power industry, wind farms. Last week he took Goldwind Australia Pty Ltd to the NSW Supreme Court because "they just ignored any Native Title right because either it was convenient for them or their numerous lawyers advising them just do not get it".
"After 20 years of Native Title claims under the Native Title Act the ingrained thought and understanding is that any Native Title claim can be treated just like chicken shit," Mr Mortimer said.
Mr Mortimer said his success in having extended his injunctive relief for three weeks to file his case left the wind farm lawyers gob smacked.
"Particularly how they tried to intimidate me to drop my claims," he said.
Mr Mortimer has argued the white law did not "invent" Native Title in the Mabo case but recognises that under the now common law of Australia, the colonial legal fiction that on the moment of raising the British flag, all lands now belonged exclusively to the King.
"The second legal point," Mr Mortimer said "is understanding and knowing the difference between existing common law Native Title as declared in the Mabo case to be already on all unalienated crown land (land that the Crown has not yet alienated by lawful grant - that is, granted to others).
"This common law Native Title must be treated the same as any other land grant by the Crown or suffer invalidity because of the Racial Discrimination Act 1975.
"I am not a lawyer but I can read and I can understand what is mine," Mr Mortimer said.
Mr Mortimer advocates by dropping all Native Title claims under the NTA, Aboriginal peoples can begin to fully enjoy what has always been since the Mabo case "the enjoyment of exercise common law Native Title rights outside of the NTA corruptive system as seen by the lawful Traditional Owners as they see it today."
His current case in the Supreme Court of NSW is testimony to both his own strong beliefs to what is his and his understanding of the law.
"Industry and Governments at all levels, Councils, Territory, State and Federal are not carrying out due diligence, as required by law on Native Title under the NTA or even glancing at any existing common law Native Title before developments are commenced," Mr Mortimer said.
"My challenge is to seek the protection of the law according to law."
Mr Mortimer said Goldwind Australia Pty Ltd was to commence development of 87 wind turbines at Gullen Range near Crookwell in central New South Wales this week. The turbines cost about $3 million each.
"So last Wednesday, September 5, I commenced proceedings without a lawyer in the NSW Supreme Court seeking an Interlocutory Injunction because my existing common law Native Title rights to land identified as where this wind farm project will roll over just ignored.
"The Australasian Law Awards 2012 Winners, Middletons lawyers for the developer, sent an e-mail to me on August 30 after I delivered the summons for their client, Goldwind Australia Pty Ltd to appear in court the Wednesday before, telling me my court action "was destined to fail" as it was in the wrong court; that their client would not appear in the Supreme Court; that the case had to be heard in the Land and Environment Court and that they would hand back my summons at 9am on September 5 at the Supreme Court. The lawyer went on to reiterate, that even if the case was heard in the Land and Environment Court it would fail.
"Middletons lawyer then phoned me on Tuesday evening as I was being driven to Sydney and asked if I received his e-mail.
"He then proceeded to tell me the summons was returnable at 9am and reiterated that they would not be filing a Notice of Appearance for the Supreme Court and that the case was doomed to fail. I responded by saying I would let the Judge be the arbiter of that and I would see him in court," Mr Mortimer said.
"The following morning in the Supreme Court, my court list number 42 for the day, we waited around for a couple of hours before the Registrar called the number. I handed the Registrar's assistant a copy of the e-mail from Middletons and when the Registrar read it and asked me to explain, I told the Registrar about the additional phone call from the Middletons' lawyer. In short, I then told the Registrar I was commencing new proceedings, that I am questioning the process not the project and that I was approaching the Common Law Division of the Supreme Court because the case is about the denial of my common law Native Title rights and that Native Title had nothing to do with the Land and Environment Court.
"Well, at no surprise two Middletons' lawyer did appear in court and by this time it was about 11am and he had not returned the 'returnable' summons," Mr Mortimer said.
"The lawyer gave a host of reasons why the Land and Environment Court should hear the matter and proceeded to say how the development was worth multi-millions of dollars, to which I countered the land is our soul and no amount of money could compare to country.
"The Supreme Court Registrar then asked how long it would take me to prepare a detailed case and I asked for two or three weeks. He gave me until September 26 to submit the case outline and scheduled a hearing for October 10 in the Supreme Court," Mr Mortimer said.
Mortimer, who is not a lawyer, is seeking an Indigenous lawyer or barrister to help him prepare his case.
"These wind farm developments are adversely impacting on communities around Australia already and affecting Indigenous communities all around the planet," he said.