Issue 3, 2006 | Glen Kelly

Noongar Native Title Finding Brings New Hope

September 19, 2006 stands as a historic day for Noongar people.  It stands as the completion of a cycle, of gaining a recognition of their rights to their country after almost 200 years of ill treatment and degradation at the hands of the colonial and subsequent State and Commonwealth Governments.

It was the day when native title was recognised.  It was a day of great happiness.  It was also a day of reflection – so many had died broken hearted and melancholy while waiting for this outcome to occur.

Still, this finding is of an interim nature, just one step in having native title rights over traditional country recognised – it dealt with the step of society and connection.

The hearing that this finding has lead to is referred to as the “Separate Proceeding” of the Single Noongar Claim (SNC) a claim that covers an area of some 185,000 km2 in the South West of WA.  It is labelled the “Separate Hearing” as it deals with only a small portion of the SNC, an approximately 6,000 km2 area centred on the Perth and its surrounds.  In addition, the hearing only deals with matters of traditional connection to country, which is only one pillar of a native title ruling.

The hearing commenced as the State Government insisted to the Court that, as it would not entertain a native title negotiation in the Perth Metropolitan area, it must be litigated.  The strategy of the State was that, after demonstrating a lack of connection to the area, they could do away with the “menace” of native title in the region for good, and as a corollary, greatly weaken the bargaining position of the Noongar people in the remainder of the SNC.

The strategy proved deeply misguided: the State was unsuccessful.

Wilcox J found that, “the contemporary Noongar community acknowledges and observes laws and customs relating to land which are a recognisable adaptation to their situation of the laws and customs existing at the date of settlement.  In particular, contemporary Noongars continue to observe a system under which individuals obtain special rights over particular country ... [p]resent day Noongars also maintain the traditional rules as to who may ‘speak for’ particular country”.

In short, there is a Noongar society that recognises and practices a distinct body of law and custom that is sufficiently true to the legal system of their Noongar ancestors.

There was one group of people that weren’t surprised by this finding.  This group was Noongars themselves, who have striven to maintain this body of law and custom in the face of wave after wave of dispossession policy pushed by the State, regardless of the cost.

But amongst the happiness, there have been cries of outrage.  Most surprising was the Labor State Government, who had the Deputy Premier making a speech in Parliament on the flawed nature of this decision and the way the State was set to contest it – even before the full text of the judgement was made available.  A hasty response?  Noongar  people were certainly surprised by the speed and the forcefulness at which this supposedly progressive Government responded to this decision. 

One might imagine that there was some element of payback here, that perhaps the same State Solicitor’s office which had promoted the ill-advised strategy of dealing with the metropolitan claim first was quick to get some alarmist advice in front of the Deputy Premier.  Just idle speculation, of course, but no lawyer likes to have their work described in the kind of harsh language that Justice Wilcox employed at times to describe the performance of the State Solicitor’s Office.

Professional pride aside, though, what’s actually at stake? 

The State Government have little to lose in relation to this decision.  This is particularly because of the level of extinguishment of native title that has occurred in the Metropolitan area, and indeed in the greater South West as a result of land tenure history.  That is, the granting of land tenures since the commencement of the Swan River Colony such as freehold, leasehold and some crown reserves that extinguish native title.

But Noongars have much to gain, including greater participation in the management of country, the ability to maintain law and custom and the ability to pass on information to new generations.  Things that already happen; but now, enshrined in law.

But there is much more.  Native title provides Noongars with an opportunity to negotiate their own futures and not rely on the dubious stewardship of Government. 

This is illustrated by a recent agreement negotiated by claimants for the Boddington Gold Mine.  Using what is best characterised as the toehold of native title, claimants struck an agreement worth 100 dedicated Noongar jobs over the life of the mine, about 20 years, scholarships, training and some cultural assistance.

At today’s wages, this agreement will be worth about $150 million over the life of the mine – but importantly, this represents wages earned.  It doesn’t really cost the mine anything, they would be employing people anyway, it doesn’t cost the state anything – if anything it saves it, as there will be a number of people moving from welfare to work.  Isn’t that what Governments want?

These types of outcomes are an amazing opportunity for Noongars and Government alike.  For Noongars, they build self sufficiency and all the positives that flow.  For Government, a large body of Noongar people are released from their programmes as they move into private arrangements.  Surely this is the aim of all parties?

It is unfortunate then, that Governments are appealing this decision in an effort to overturn the ruling.  On the 5th of October 2006, the State Attorney General stated that “The Western Australian Government is not appealing the decision by Justice Wilcox in order to overturn native title.” (Commonwealth Must Embrace Native Title, Jim McGinty, 5/10/06).  Strange then, that the appeal lodged by the State seeks that the orders made by Wilcox J be set aside.

Stranger still is that State Government rhetoric to justify an appeal is centred upon this idea of certainty of the law.  It is a mirror argument to that used by the Court Liberal Government in the heady days of the native title debate of the 1990’s, an argument attacked by the Labor party while in opposition, but taken up with gusto in the present day. 

The argument is, of course, a red herring – there is plenty of certainty in the law, what is needed now is leadership.

Of course, the States appeal has nothing to do with certainty.  If it did, it would accept findings of fact and move on.  The State seeks to do nothing more than overturn the decision, which begins to make the public statements of the State Attorney General look a little on the misleading side.

Perhaps most disturbing in all of this is that when analysed, the appeals of the State and the Federal Governments are almost a mirror of each other.  Indeed, apart from one very significant detail – the appeal of the progressive State Labor Government goes even further than that of the conservative Federal Liberal Government. 

This is a sad reflection on the poor manner in which native title policy is being administered in WA.  The tail is wagging the dog, and the legal bloodhounds, the ideologues of the state’s legal apparatus are defining the executive’s position, irrespective of, and seemingly in opposition to, the public position of the Government. 

The fact is that this decision doesn’t need to be appealed, given that the State loses little in this finding and that Noongars gain so much.  An appeal is not about good Government, nor is it substantively in the public interest, given the amount of extinguishment and given the potential of the Noongars to release themselves from the apparatus of the state – an outcome that all have said they are keen to see.

An explanation as to why this finding is being appealed is that it is a habitual response from a WA Government.  Faced with a situation that Noongars may actually be able to advance themselves, the Government must carry on the tradition of white WA – a tradition of dispossession, a tradition which dictates that Noongar people should never be allowed to be anything but second class citizens and should live only under terms that are defined by the Government.

Time will tell.  If the State does succeed however, one thing is sure, the State Labor party will go down in history as the perpetrators of the new wave of dispossession in the South West.

This is a legacy they would do well to ponder.