The Federal Court ruling that has halted the biggest native title settlement in Australian history — WA’s $1.3 billion agreement with the Noongar people — will also impact on past and future agreements around Australia, lawyers have warned.
Some Indigenous Land Use Agreements dating back seven years could be affected, while land councils are being warned the decision could affect their day-to-day business and increase costs.
“It has profound effects for the future and also for the past,” one lawyer told NIT.
In a David-and-Goliath battle, four Noongar people took the Native Title Registrar, the WA Government and the South-West Land and Sea Council first to the High Court and then the Federal Court in a bid to stop the ruling going ahead.
Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong successfully claimed that an ILUA could not be registered if not all individuals who made up the relevant native title claimant had signed it.
Former Federal Court judge and now Melbourne QC Ron Merkel represented them in the proceedings — McGlade v the Native Title Registrar.
Their Perth lawyer, Kevin Morgan, who has been acting for them without payment, said the court action was a way to knock out the $1.3 billion deal that his clients felt stripped them of their Native Title rights.
“The agreement was voted on by about five percent of Noongars, of whom only about three percent supported it,” Morgan told NIT. “That was where our concern was driven from.
“The point we took to the court was for the purposes of stopping that in its tracks.
“The point that actually piqued our interest was the actual agreement obviously has a lot of good points from my clients’ perspective, but they are not happy with being stripped of their Native Title and they weren’t happy that the agreement under which they were to be stripped was supported by such a small percentage of their people.
“When we looked at the process, if you wanted to get such a small result you couldn’t have designed a process better.”
In its judgement, the Federal Court found that four of six ILUAs negotiated between the Noongar people and the WA Government could not be legally registered.
The six agreements made up the landmark $1.3 million package that was to be the full and final settlement of all current and future claims made by Noongar people under the Native Title Act on land and waters in south-west WA.
But the court ruled that the Wagyl Kaip and Southern Noongar agreement, the Ballardong people agreement, the Whadjuk people agreement and the South West Boojarah agreement did not comply with section 24CA of the Native Title Act and could not be registered because not all claimants had signed.
While the South West Land and Sea Council and the WA Government were this week considering their next moves, the implications of the ruling reverberated around Australia.
At the heart of the problem is that in the past seven years, ILUAs in which not all but most of the claimants agreed have been registered in line with a 2010 Federal Court decision that paved the way for them to do so.
“In 2010 there was a case, QGC and Bygrave, where the ILUA meeting was held and overwhelmingly the group wanted to enter into the ILUA and one of the registered claimants refused to sign,” said Marshall McKenna, a commercial litigation partner with WA firm Gilbert and Tobin and a specialist in Native Title.
“In that case the judge (Justice Reeves) said it’s all about the meeting, not who signs, so it didn’t matter (that) of the eight signatories only seven signed.
“That sounds sensible in those circumstances, but if you take that to its logical conclusion, that if it’s all about the meeting, then who has to sign it – no-one.
“There were problems with that decision and the logic of that decision, but it was the right decision for the circumstance or at least that was the way it was treated.
“With this one, it’s sort of the same circumstances – the meetings were held, there was a majority, that was the way in which the process had been agreed, but one of the main issues with the Noongar claim was that a vast minority of people turned up to the meetings.
“That was a factor in the judge’s decisions, but what they’ve said is that in the circumstances all of the registered claimants have to sign and the fact that they weren’t signing meant that it wasn’t an ILUA, that the approval processes weren’t adequate.
“So the question is what is going to be adequate and the ball is probably up in the air for that.”
McKenna said the outcome of the Noongar meetings was a bit like the US election.
“Everyone says they would have voted for Hillary, but they didn’t,” he said. “In a non-compulsory voting system where a whole lot of people clearly didn’t turn up, whether for lack of ability, interest or whatever, even the number of people who turned up to the meetings were not a majority of Noongar people, (not) the majorities we are talking about.
“It’s different from a relatively small claim group where you could get a proper beat on what people were thinking.”
McKenna said there could be ramifications for ILUAs registered since 2010, but only time would tell what that impact might be.
“McGlade is a game-changer back,” Mr McKenna said. “The Reeves-Bygrave decision was the game changer and this resets it back to what everyone thought was the position before Bygrave.”
He said the decision would also affect the way future ILUAs were handled.
Disputes would have to be resolved with any disaffected claimants before any attempts to register agreements with the Native Title Tribunal.
One avenue open to land councils was to seek to unappoint dissenting claimants through another section of the Act – section 66B.
“How is this going to impact on rep bodies?” McKenna said. “Here we’ve got a situation with the SW Land and Sea Council holding themselves out as having the mandate of the Noongar people and they’ve just, at least arguably, been knocked down off that mandate.
“It’s going to make their lives very difficult and the carriage of that mandate less credible than it has been.
“It could be harder for a rep body to be the point for negotiations. There may be less faith in rep bodies from a proponent’s perspective.
“I’m not sure how the rep bodies are going to handle this. One thing that occurs to me is to get the authorisation meetings right in light of McGlade is going to cost a lot of money in terms of logistics…
“If you need to get effectively 20,000 people turning up to meetings to authorise a single Noongar ILUA, that’s a lot of people, a lot of logistics and a lot of money.
“This throws a really big spanner in the day-to-day business of land councils who have to have claim meetings.
“This potentially undermines the way in which they have been doing business and it may add to their internal costs, which are not insignificant to start with.”
SW Land and Sea Council chief executive Wayne Nannup, a lawyer himself, said the council was examining the judgement and could seek leave to appeal to the High Court.
He said only a small group of people were opposed to the agreement, which had the support of the majority of Noongar people.
“There’s disappointment for sure, however we’ve been given a mandate by the majority of the Noongar community to progress the Indigenous Land Use Agreements and that was done through an authorisation process nearly two years ago,” he said.
“So that’s what we’re doing. Our client has asked us to proceed with this and that’s what we’re doing.”
The WA Government is also sticking by the $1.3 billion agreement.
WA Premier Colin Barnett said the court outcome was a delay but not a death-knell for the deal.
“It is incredibly frustrating that there is a disagreement by a small number against the majority of Aboriginal opinion,” he said.
Meanwhile, Kevin Morgan and his four clients are digging in for what he is expecting will be a continuing battle.
He said he would like to see all parties attend mediation and try to resolve their differences.
“I personally think it’s a lazy way forward to extinguish Native Title altogether,” he said. “I just think people need to work harder and ask ‘Can we finesse it so it sits better with the commercial imperatives it often clashes with?’
“And I believe they should separate the funding from the Native Title. I don’t think the right to negotiate should be used to extract funding.
“I think the right to negotiate should be used to ensure the cultural sensitivities should be upheld and I think they should be quite separate from the other issues, but for some reason everyone wants to always tie funding with Native Title.”