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Opinion And World View: Mabo Comes Of Age As The Noongar Decision Nears The Peoples Vote

Paul W. Newbury reports that an imminent decision could lead to the out of court settlement of native rights to land across Asutralia.

In the Mabo decision of 3 June 1992, the High Court of Australia ruled that at the time of the British invasion, the Australian continent belonged to its Indigenous peoples and they were entitled to have their rights protected under British law.

The High Court acknowledged the existence of native title for Indigenous Australians who could demonstrate ongoing connection to their land and observance of their customs. Otherwise, the decision legitimised the Crown’s alienation of land up to 1975. Today, successful native title and land rights determinations cover 23 percent of the continent.

The native title process is at present on the threshold of its most momentous outcome that could lead to the settlement of native title claims out of court across the nation. This began in September 2003 when the South West Aboriginal Land and Sea Council (SWALSC) lodged a native title claim on behalf of 218 family groups of Noongar people with the Federal Court of Australia (FCA).

Noongar country covers the southwest corner of Western Australia (WA) stretching from below Geraldton on the west coast to half-way between Albany and Esperance on the south coast and it includes Perth Metropolitan Area.

The FCA split the Noongar claim into two parts: Part A concerned native title rights over Perth and it set aside Part B that covered the remainder for a separate proceeding. Noongar elder Angus Wallam spoke plaintively of his connection to his land when he said on being questioned in the Noongar case, White Fella got it but it’s still in my heart, this is my country.

In his decision, Justice Wilcox found in favour of the Noongar people. He ruled that the traditional norms the Noongar people follow today are to a large extent those that Noongar people observed at the time the British claimed sovereignty of WA in 1829.

He accepted that Noongar society continues largely as a group united by common observance of traditional laws and customs. For instance, when he considered the traditional law of seeking permission to visit a sub-group’s country, he found the practice has an acceptable level of adaptation to changed circumstances.

The rule does not apply if a person is merely driving through another’s country to seek medical treatment but Noongar people strongly disapprove of breaches of the rule. Justice Wilcox ruled that Noongar people hold native title rights over Part A of their claim.

The WA Government and the Commonwealth appealed immediately. The Full Federal Court of three judges heard the appeal over three days. On 23 April 2008, the FCA upheld the appeal and referred the matter back to the court for hearing by another judge. Nonetheless, the appeal judges stated that Justice Wilcox had ruled correctly there is a Noongar nation.

The appeal judges ruled that Noongar people had failed to prove continuous observance of their traditional laws and customs in each generation from 1829 to the present day. They criticised Justice Wilcox for considering the changes inflicted on Noongar society by European settlement as a factor in the people’s retention of their customs.

WA governments in colonial times forced Noongar people onto missions and reserves; banned customary observance and forbade them speaking their language. The judges said the reason why Noongar society abandoned some of its traditional laws and customary practices was irrelevant. The ruling demonstrates the onerous burden of proof native title claimants have in proving their claim. Nonetheless, there was a twist in the tale of the Noongar case.

Following the verdict, SWALSC and the WA Government acknowledged they could not afford protracted court battles. Subsequently, the WA Government informed parliament in December 2008 that it had signed a Heads of Agreement document with SWALSC to begin negotiations via a settlement process that requires that following acceptance, the claimants agree that no native title exists in the area of the claim.

The WA Government agreed to provide $2.65 million over three years to implement a capacity building program for claimant groups. The parties are now engaged in settlement of the whole Noongar claim.

In October 1992, SWALSC released a statement that negotiations based on the Government’s in-principle offer released in December 2011 are progressing well and they anticipate that Noongar people who number 28,000 will vote to accept or reject the agreement during 2013.

In its discussions on an economic base, SWALSC is arguing for an increase in the government’s offer of $60 million per year for ten years for the Future Fund and $10 million per year for ten years for Noongar Traditional Owner Corporations.

These funds will not be drawn upon in the first ten years in order to build a sustainable economic base for Noongar governance, land management and community development. SWALSC reports the offer rates among the largest First Nation peoples have negotiated overseas.

In regards to a land base, the WA Government had indicated it is prepared to transfer 200,000 hectares into Noongar ownership and discussions are centred on securing land in and around towns in the southwest for transfer in subsequent years.

Regarding recognition of traditional ownership, SWALSC has secured a commitment that a negotiated settlement will result in an Act of WA Parliament that recognises Noongar people as the traditional owners of southwest WA.

In relation to governance by traditional owner corporations, the state has agreed to fund six regional Noongar councils with local administration and one central Noongar coordinating body.

Re joint management of State Forests and National Parks, the traditional owners will have a central role in managing their country and Noongar rangers and management officials will be employed within the WA Department of Environment and Conservation.

SWALSC is using the negotiation process to promote housing and the establishment of a Noongar Cultural Centre that will promote Noongar heritage and cultural development as well as tourism. SWALSC emphasises that most of these issues would not be part of any native title settlement negotiated under the Native Title Act 1994.

Jody Broun who is Co-Chair of Australia’s peak Aboriginal representative body, the National Congress of Australia’s First Peoples, says her body’s concerns are rights, culture, leadership, unity, empowerment and sustainability. These are being addressed in the Noongar negotiations.

SWALSC CEO Glen Kelly says Noongar people are close to achieving the comprehensive outcome that Indigenous peoples across Australia hoped would flow from Eddie Mabo’s victory handed down twenty-one years ago by the High Court of Australia.


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