Traditional Owners in Western Australia's south west are concerned some communities are falling through gaps in the native title system.

Njaki Njaki man and Chair of the Njaki Njaki Aboriginal Corporation Michael Hayden told National Indigenous Times his people are "smack bang in the middle" of the Marlinyu Ghoorlie and Ballardong native title groups, and "have quite a few issues that have been unresolved for a long time".

"We're definitely frustrated given the amount of money poured into ensuring rights and interests of Traditional Owners are met, resourced and represented fairly and properly. Ours haven't, and as a result of that, our Country has been subsumed within the Ballardong claim on one side and Marlinyu Ghoorlie on the other side, with other Aboriginal groups making decisions on our traditional lands," he said.

The roots of a flawed system

Mr Hayden said there is a range of reasons - including historical factors, lack of fair representation, lack of legal and financial resources, lack of effective engagement with Traditional Owners, and "plain spite and bitterness" - behind the problems.

He noted there had been multiple claims in the south west of Western Australia which, due to resourcing and other issues, had seen the representative bodies amalgamate multiple groups into claims "which has led to the many issues associated with the South West Native Title Settlement we see now".

"These came about due to the bigger, more populated claim groups out voting the smaller, less populated claim groups and making the claim areas bigger," Mr Hayden said.

"Also, the Native Title Rep body couldn't get their act together to obtain the necessary resources to represent each Traditional Owner claim fairly and equally. They took what they thought was the easier, less administratively burdensome structure for them to facilitate.

"This meant native title claims was less (in number) but bigger (in people size and apical ancestors identified). At the same time this created cultural authority issues, cultural and corporate governance issues, right people for Country, fair, equal and inclusive representation and the issues that come with amalgamated Traditional Owners in a claim.

"Many of these matters are still unresolved with government just pushing through ticking boxes referring any Noongar who has issues to back to the agreement adding to the frustrations felt by many."

He said that while 14 Noongar Traditional Owner groups have been recognised by the WA state parliament via the Noongar Recognition Act 2016, there are only six regional corporations "to fulfill the rights and responsibilities in the Native Title context through the Noongar settlement".

Mr Hayden said that apart from the Yued and Whadjuk Corporations, other claims covered in the Southwest settlement feature an amalgamation of Traditional Owner groups - with diverse results.

"Clearly 14 Traditional Owners don't fit into six regional corporations and that's another layer of complex issues that have not been resolved," he said.

"Karri Karrak (Aboriginal Corporation), in their Constitution, acknowledge all the Traditional Owners in their region. Gnaala Karla Booja (Aboriginal Corporation) does the same, Wagyl Kaip (Aboriginal Corporation) have gone to the Noongar Traditional Owner structure for their Cultural Advice Committee (CAC) business, whereas Ballardong, in their constitution, don't acknowledge the other Traditional Owners in the region.

"(B.A.C.) are the only regional corporation with amalgamated Traditional Owner groups that aligns its own name to the corporation and excludes Njaki Njaki and Wilman Traditional Owners, so not only do they not have a neutral name but they don't have fair representation on the board and Cultural Advice Committee."

Mr Hayden said the situation has a significant effect on managing Country.

"We are the Njaki Njaki People ... eastern Noongars, that's our Country. The impact of this goes to what you can do on Country, and what you can't do on Country. All heritage issues connected to development approvals on Njaki Njaki country must go through Ballardong Aboriginal Corporation - who don't have a Njaki Njaki person on their board, because they don't have a fair and equal representative governance structure," he said.

"It's not a fair, equal and inclusive process in terms of corporate governance and cultural governance structures and in dealing with those matters. That's where a lot of the issues stem from with us in the southwest settlement; with the way that they structured the Eastern wheatbelt claims."

Others speaking for Njaki Njaki Country

Mr Hayden said that within the Ballardong claim, he would be "confident to say that of the 32 plus apical ancestors (connected to the claim), 90 per cent of them do not have a traditional connection to the Njaki Njaki area".

"If anything, they only have historical connection, meaning their apical ancestors were not born in our Country and only moved there for work and due to government policies of the day... that doesn't give them any authority or rights ... allowing them to speak on our Country. It is against cultural protocols and is ethically wrong".

"We have two apical ancestors going back to the 1860s and 1840s in the area we claim, so we are very assertive about our rights and understanding native title basis for claiming those rights is through your apical ancestors. If you don't have any apical ancestors for the areas you claim, you don't actually have authority or rights that supercede those Traditional Owners who do.

"Our traditional lands go from west of Kellerberrin, north to Bencubbin, north-east of Mukinbudin, east of Yellowdine and east of Mt Holland and south-east to Forrestania, down south pass Hyden and Kulin, west of Corrigin and west of Kwolyin and back up to west of Kellerberrin, and our original claim went over this area. You only need to review the old reports (linguistic, enthographic and others) that were done prior to native title to see the evidence of our peoples' transition across their traditional lands.

"The whole concept of native title and the legal structure around it, and going on the white men's law with lines on maps and all this type of stuff, is a crock of shit to be honest with you. It has created a situation in which Aboriginal people across Australia are missing out on their native title and cultural heritage rights due to legal processes and mis-representation - or no representation and no financial resources at all. This is despite the Federal Government using tax-payer funds to invest hundreds of millions of dollars over decades to Native Title Rep Bodies to fulfil their statutory functions under the Native Title Act ... for them to work with Traditional Owners to ensure their rights and interests over their Traditional Lands are firstly represented, facilitation of their claim to the federal court, resolving disputes, notifying and informing those Traditional Owners about activities."

Mr Hayden said the Njaki Njaki people has "synergies and very strong connections with both our neighbours being Ballardong, and the Kabrun, ... Our lands are subsumed by both groups on either side of us".

"We tried to get involved within the MG native total claim process, we were dismissed from the get-go, even though we haven't left the Country since the white man arrived in WA, and we've maintained our connection since then," he said.

"We have never had sufficient financial resources from both the SWALSC and GNTS Native Title Rep bodies to represent our rights and interests.

"We have never had proper effective research completed and our old people had never had the opportunity in a legal setting to share our knowledge, connection and tell their stories about country for any native title claim. We feel that we've been ostracized, dismissed, denied and disrespected from both Rep Bodies and our rights to Country are not going to be pursued in this whole process, because of the decisions of a few."

Exhausting every avenue

Mr Hayden said the Njaki Njaki people have tried many avenues to pursue a just outcome.

"Under the native title process you must hold authorisation meetings... claim group meetings in which the members vote on resolutions and recommendations for the Native Title rep body to action. At the time the original claim boundary of the Region 2 native title claim (which later became known as Ballardong) extended over the area which we claim our rights and interest - which covered the eastern side of Ballardong and the Western side of MG," he said.

"We had an authorisation meeting in 2006 where we removed that boundary to go back to Ballardong's traditional land. And the resolution was for Njaki Njaki people - through SWALSC (the South West Aboriginal Land and Sea Council), to put in our own claim over our traditional Country - but that never happened. An authorisation meeting made a resolution passed by all the members to do that, but SWALSC didn't act on it, so our opportunity for that was missed. We followed the process as per the Native Title Act.

"Three years after that... I asked my Elders and understood there was no follow-up to that particular resolution to start the process for our own claim, so I wrote a two-page letter to the Land Council and said 'What's going on and why haven't you followed the instructions of the claim group? The Land Council wrote me a 10-page response letter with all this legal jargon blaming my Elders for not coming back to them to start the process. I said to them 'that's not how this works and you have failed to do your job'."

Mr Hayde said that under the federal Native Title Act, Njaki Njaki Traditional Owners also tried mediation through the Rep Body and the National Native Title Tribunal with the then president, who was the mediator.

"SWALSC, Njaki Njaki and Ballardong went through that process. Things were on track and progressing. then SWALSC ended the mediation, and again some resolutions we made were not acted on and nothing got resolved. Those resolutions were for the governance of the Regional Corp functions to be inclusive, equal and representative of all Traditional Owners, with a neutral name," he said.

"I also ensured SWALSC do cultural mapping to show people where their apical ancestors come from and that map showed the claim group working party that only four of the many apicals ancestors came from Njaki Njaki country and all the rest are from Ballardong country. My family has two of those apicals ancestors in Njaki Njaki country so - we are not happy and have been frustrated for a long time."

He said the Njaki Njaki people did not have access to the resources necessary to continue their work, and relied on pro bono legal help for as long as possible, with requests for public funding via SWALSC being knocked back.

"This is over many years, that we've been pushing just to get proper fair, equal and inclusive representation for our rights and interests. We have been denied, dismissed consistently by SWALSC, and the (WA) government knows - we approached different ministers, different members of parliament," Mr Hayden said.

"One of them, when we met with him in Dumas House a number of years ago, said, 'we can't unscramble what's already been scrambled'. Well, you have got to do something, because there's a people who are missing out on our rights and interest in our Country."

Heritage protection problems

Mr Hayden said the issue was having an impact on many things, including heritage protection.

"Heritage is a major issue... We have quite a lot of renewable projects; those entities developing renewable projects and other proponents have to go 170km down the road to the Ballardong Corporation, go through the board and have discussions with them," he said.

"Any surveys or opportunities on our lands must go through them, to talk about who's going to come do surveys on our country or once a project starts who will be monitoring those works. That causes so much division, distress and conflict. We're five minutes from these projects. We have an office in town, as the Njaki Njaki Aboriginal Corporation, and we have to deal with crap like this.

"We've managed to establish relationships with some of these developers, and we are getting runs on the board and finally in a position in developing draft MoU's and Agreements getting things done because they understand right Traditional Owners for country. So, we're dealing with them directly, and that will hopefully bring about procurement contracts on projects, community development funds, community benefit funds, greater management of our heritage, employment and training opportunities and outcomes that will assist in developing programs and services benefitting our Njaki Njaki people."

He noted there are multiple current projects on Njaki Njaki Country, but the Traditional Owners "never had one discussion with them".

"And the people doing surveys are all Ballardong with no apical ancestor in our Country... That's when the frustration builds, our Elders become distressed, and division is heightened," Mr Hayden said.

"We've got another few projects in the pipeline that are happening on our Country, and because of the flawed structure, exclusion and inequality with representation of Traditional Owners proponents are getting frustrated that they have to go through the Ballardong Corporation to do all the heritage agreements.

"These proponents are getting frustrated as they are constantly being told by the WA Department of Planning, Lands & Heritage that Ballardong are the entity under this land use agreement that they have to deal with, even though proponents recognise Njaki Njaki as the Traditional Owners for the area within the WA Noongar Recognition Act 2016, they still have to go to another mob to make decisions on our traditional lands.

"Development Opportunities, heritage, business, contracting, employment and training, is all being held up and stagnated because of the way the structure is with the WA Government, Ballardong regional corporation and SWALSC."

'No Traditional Owner group should be subsumed by another'

Mr Hayden said no Traditional Owner group should be in a position in which they are "subsumed by another Traditional Owner group who has no apical ancestors in that area they claim".

"We Njaki Njaki Noongars are not allowing this anymore. Heritage, project development, naming of places, identity, signage on buildings, land use, employment, economic development, rangers' programs, funding opportunities - we face major constraints due to this situation," he said.

Mr Hayden said no one denies that the land in question is Njaki Njaki Country, (and that the Federal Court Judge from the MG determination acknowledged this in his judgement handed down in December last year) but the problem arises from "the system, the structure and the lack of representation in the legal system".

"We have been denied our own claim... We got the claim group instructions from an authorisation meeting, we tried mediation, we went pro bono, we tried to access additional funds through the rep body, as per the Native Title Act. Each time we fall short," he said.

Mr Hayden said a resolution through "fair representation with ward systems and changing the (Ballardong) organisation to a neutral name ... is not hard to do" and "would unite people rather than divide and cause conflict and distress".

"We have rights and interests, and SWALSC were meant to represent us fairly, because they're the legal body to do so and that was their role. From what I've been told is their belief that we are a sub-group of Noongar, we are the only Noongars they put in that category. So, my people have been subsumed by another group... We have the apical ancestors, we have the traditional connection, we have the stories and we have never left our Country."

A way forward

Mr Hayden has written to a number of WA ministers and MPs in regards to the situation.

"Clearly structural and systemic changes in the (Ballardong corporation) rule books are needed to ensure all Traditional Owners within the ILUA (Indigenous Land Use Agreement) region are fair, inclusive and have equal representation in what I believe is a ward system. The name of the regional corporation has to be reflective of the Traditional Owners in the ILUA region," he said.

"Prior to last year's AGM in November I reached out to them and 'we need this regional corporation to be fair, inclusive and equal in representing the rights of all Traditional Owners in this area, it's around process, it's around the facts, it's around the Southwest Native Title settlement'. I'm trying to navigate our way to get more inclusive in this whole process.

"One of the things I suggested is to make amendments in the governance structures to ensure there is inclusive, fair and equal representation through a Traditional Owner ward system aligned to the Recognition Act where we Njaki Njaki have equal amount of seats at the table, the same as Ballardong and the same as Wilman (because we are equal, Traditional Owners with the same rights and interest, speaking on our own lands and neither Traditional Owner group trying to control others Traditional Owners' Country and to avoid this crap we are currently dealing with."

Mr Hayden has suggested two members from Ballardong, two members from Njaki Njaki, and two members from Wilman would be the ideal composition of the Corporation's board.

"I said a male and female preferably to be representative on the board, with your independents, whoever they may be, to sort out the actual corporate governance. So, it's fair, it's equal, it's representative, and it's inclusive of all the Traditional Owners within the original claim boundary," he said.

Mr Hayden noted that the Ballardong Cultural Advisory Committee, to his knowledge, has one Njaki Njaki representative and no Wilman representative.

"I said 'do away with that structure, so you've got a corporation that will reflect the cultural governance, because you've got equal representation that's fair and inclusive on the board with a ward system, and what's done in Wilman country, the Wilman people sort out, what's done in Ballardong, Ballardong people sort out what's done in Njaki Njaki, Njaki Njaki people sort out'," he said.

He said there are other corporations in other areas of the state that appear to be a model for equitable representation.

"I look at Gumula Aboriginal Corporation where they have three different Traditional Owner groups with the one entity, all representing their own Country. From what I can see, their governance is reflective of 'three Traditional Owner groups, in the one entity' sitting at the table making decisions," he said.

More than just words

Mr Hayden said another step forward would be a name change for Ballardong Aboriginal Corporation to reflect the diversity among the people it represents.

"There needs to be a neutral name, reflecting all the Traditional Owners."

He cited other Regional Corporations whose names are more representative and inclusive.

"Karri Karrak - neutral name, Wagyl Kaip - neutral name... Gnalla Karla Boodja - neutral name and then Yued, is for Yued people. Whajuk is for Whadjuk people. Ballardong - it's not just Ballardong people, there's Njaki Njaki people to the east, and Wilman people in the south," he said.

Mr Hayden noted that naming goes deeper than the surface, and beyond symbolism.

"There was a major development in town in Merredin where the Lotteries West funded the redevelopment of the CBD in the park. The local government reps, came to us and said, 'we would like a dual name for the park'. I said, 'no worries, I'll sit with Elders and we'll come up with the name'. So, we came up with a new name. That was all good, but Lotteries West wanted the input of the Ballardong regional corporation's directors and to ensure that they're happy with the name that we Njaki Njaki chose for our park and our town on our Country," he said.

"People may think it's a little thing and means nothing but it does; it's about our identity, it is about our rights, interests and responsibilities, it's about our Country, it's about our old people and our next generation coming through."

Call for WA Government to 'clean up their own mess'

Mr Hayden said the Noongar Settlement was the state government's 'baby', and they need to take responsibility for its shortcomings.

"They weren't shy in coming forward to say 'look at us, best outcome in the biggest native title deal, $1.3b outcome, this is the closest outcome to a treaty'," he said.

"They've got to deal with this one that's gone wrong. We Njaki Njaki people need the state government ministers responsible to come and sit down with us and resolve this matter once and for all. They need to understand the history ... their treatment of our rights and interests and everything they've done that has led to this situation we are now in."

Mr Hayden said the WA Government has continually claimed they have no role to intervene in the operational or strategic decisions.

"This is despite the WA Government being the party with Noongars that signed the ILUA. You cannot recognise us as a Traditional Owner within a Settlement then turn around and say we don't recognise your heritage responsibilities and decisions as a Traditional Owner. That is a smack in the face to all Noongars," he said.

"ORIC has said issues raised need to follow regulatory processes under their Act, meaning calling for special general meetings despite us saying that will advantage Ballardong with their numbers as they are more of them. The National Native Title Tribunal says due the Settlement, the Native Title Act does not apply."

Mr Hayden said Njaki Njaki requests for a meeting with Ballardong Corporation have been refused.

"Various Government departments have refused to meet with us to try and find a way forward also. So, with all this buck passing, I have requested a response from both the WA Government and BAC to advise who that authoritative entity is that holds all parties to account on the implementation of this ILUA. I have never received a response from either party," he said.

"We know it's so complex with so many layers and so many structures that many people don't understand much about it. It was meant to be the benchmark of Native Title Negotiations in the country, 'Australia's most comprehensive native title agreement, our country's first treaty' etc, let me and many others out there assure you it is far from that.

"At a minimum both these parties could let Noongars know who that authoritative entity is so we can take our grievances to them and we all know it can't be themselves. We know there are many holes that are meant to cover multiple agreement outcomes and areas. We all know this ILUA is a long way off being the watertight agreement Noongars thought it would be.

"We Njaki Njaki people are not backing down on matters concerning our lands. I don't think we are the only Traditional Owner group who are in this position, I know there are more across Australia with no resources fighting for their rights and interests as they have missed out also. Culturally, morally and ethically it's wrong."

WA Government washes their hands of the situation

A WA Government spokesperson told National Indigenous Times that the government "acknowledges the Njaki Njaki people as one of the 14 Noongar Groups recognised under the Noongar (Koorah, Nitja, Boordahwan) Recognition Act 2016 and the South West Native Title Settlement".

"The Settlement's six Indigenous Land Use Agreements were authorised by the Noongar Agreement Groups, made up of descendants of the recognised apical ancestors for each area. Regional Corporations were then created to represent these groups and are independent CATSI‑registered organisations," they said.

"As these bodies make their own operational and strategic decisions, the State Government does not intervene. For any specific questions, it's best to contact the relevant Regional Corporation directly."

National Indigenous Times contacted SWALSC for comment on March 10 and received no response.

On the same day, National Indigenous Times contacted the Ballardong Aboriginal Corporation, setting out the concerns raised by Mr Hayden and asking:

• To what extent are the concerns being raised valid, in the view of the BAC?
• To what extent are the claims regarding representation accurate?
• What work does the BAC do to ensure Njaki Njaki and Wilman Traditional Owners are fairly represented in decision-making?
• Will the BAC consider / examine a restructure - or revised rules - to ensure the Njaki Njaki and Wilman peoples have formal authority over their own Country?

The Corporation responded promptly and advised a response to the questions would be issued within two weeks.

On June 11 National Indigenous Times followed up the inquiry and received no response, and inquired again on Thursday, July 9, if the Corporation would respond to the questions.