In 1997–98, due to a backlog in native title claims nationally, the Federal Court and the National Native Title Tribunal (NNTT) both received a dramatic increase in funding, which resulted in the Larrakia claim over Darwin being called forward for hearing. Given the levels of disputation within Larrakia, and the divisive history of the Kenbi Land Claim, a negotiated or mediated settlement was arguably the preferred course of action by the applicants. As noted a number of commercial deals had already been negotiated on the basis of claims lodged but not heard, including the lucrative Darla urban development agreement in Palmerston and an agreement in relation to the Wickham Point gas plant (NLC 2003: 46).
Hearing of traditional evidence in the major claim over 216 areas of land and waters in and around Darwin began in September 2002. The claim, and in particular the evidence of traditional owners was hotly contested by the Northern Territory government and the Darwin City Council. Justice Mansfield stated, notably:
The respective positions of the parties could hardly have been more diametrically opposed, save for the realistic acknowledgments the applicants made in respect of the extinguishing effect of a number of those past legislative and executive actions (Mansfield J 2006: [30]).
And later:
The issues on the hearing have been hard fought. Apart from facilitating the course of the evidence, the Territory and the other respondents have made no admissions (Mansfield J 2006: [59]).
Constructions of Larrakia as having lost their traditions and having no system of law that had plagued Larrakia in the Kenbi Land Claim and throughout the 1990s, were used to aggressively refute the evidence of Larrakia witnesses, and in some cases humiliate them. The historical record, with its many assertions of Larrakia ‘dying out’, and no longer practicing ‘traditional culture’ ultimately outweighed the oral evidence of contemporary Larrakia people.
As a mark of the government’s opposition to the claim, and as an indication of the belief that the claim would be highly contestable, the Northern Territory government submitted a respondent anthropologist’s report, which had never occurred in a Northern Territory native title claim before. Given that the hearings were public, reports of the evidence have seeped into the public domain. Ken Parish, an ex-ALP politician, local barrister and academic posted the following on his Northern Territory University sponsored blog site, The Parish Pump:
I recently sat through significant parts of the ‘traditional’ evidence in the Larrakia native title claim. I don’t know what the judge will make of it, but I must say I found most of it totally unconvincing. Even I knew more about Aboriginal culture, law and tradition than most of the Larrakia ‘traditional’ witnesses! (Parish 2002).