It’s back to the Native Title drawing board

Ngalla Koort Boodja canvas.

It’s ‘groundhog day’ as Australia’s biggest Native Title settlement is placed back before the National Native Title Tribunal, this time by Western Australia’s new Labor government.

The NNTT is accepting objections to the controversial $1.3 billion plan — originally put on the table by WA’s ousted Barnett coalition government and the South West Aboriginal Land and Sea Council — until January.

“It is groundhog day,” Perth-based lawyer Kevin Morgan of Murfett Legal said.

The settlement shook the foundations of Indigenous land use agreements across Australia back in February when the Full Court of the Federal Court ruled that four of the six ILUAs in the package could not be registered because not all Native Title claimant or claimants had signed it.

Mr Morgan and former Federal Court judge Ron Merkel successfully represented Noongar members Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong, who did not want their Native Title extinguished.

But in June the way was cleared for the settlement to be resurrected when Federal Parliament changed Native Title laws.

Mr Morgan said he was disappointed the McGowan Labor government didn’t appear to have looked at the original legal objections before re-submitting the same deal, nor had there been any attempt to re-negotiate the settlement

He said the WA government could have walked away from the agreement.

“They could have walked away from it,” Mr Morgan said. “The deal allowed them to walk.”

Mr Morgan said the matter could have been better played at a federal government level.

“I must admit … I’m very surprised that just a matter of a few weeks after some key Indigenous politicians voted in overturning this decision of the Full Federal Court and therefore resurrecting about 140 resource agreements that were otherwise in jeopardy, they then come along with their plea about (getting) a voice in Parliament and other such things and they are surprised that Cabinet has just said ‘No, go away’.

“I’m thinking ‘Shouldn’t you have put that proposal to them before they voted in favour of the amendment legislation?’, but for that amendment legislation, there would be about 140 resource projects come to a grinding halt and maybe they would have been in a better position to get what they wanted.

“I was very disappointed in the Indigenous politicians that swept aside this Noongar decision.”

The NNTT confirmed this week the four ILUAs for the Ballardong people, South West Boojarah, Wagyl Kaip and the Whadjuk peoples had been resubmitted for registration.

Another two ILUAs for the Yued and Gnaala Karla Booja peoples will be decided at the same time.

The timing for dealing with any objections and a decision on whether they can be registered or not is likely to be known early next year.

Mr Morgan said his clients would lodge the same objections and the matter could be headed back to court.

“Noongar Native Title hasn’t by any stretch been settled,” he said. “I can see that people think ‘Wow, why don’t we just extinguish it all and set up this fund which in due course might assist?’

“But people find it all a bit difficult and think the extinguishing of Native Title is the quickest way forward. My task was to stop that happening.

“I can see both sides of the argument, but I would think if push came to shove we could preserve Native Title and make it a bit more adaptable to commercial realities, but people take the quickest path and that’s the quickest path for them and they’ve obviously chosen the re-registration path rather than starting afresh.”

Wendy Caccetta

5 Comments on It’s back to the Native Title drawing board

  1. The amendment to the Native Title Act earlier this year resulted in the ILUA Bill (2017) sent a clear message to the nation and globally that Australian Indigenous peoples human and Native Title rights continue to be deprived. The point that Indigenous people do not have the power of veto over destructive extractive and agricultural developments in their Traditional lands and waters showcases a fundamental flaw in the law. This flaw is exacerbated by processes such as government imposed time restrictions which do not provide the opportunity to engage the due diligence necessary to fully understand cumulative impacts of development. Without all of the appropriate information vulnerable people and places are unable to access free and prior consent decision making consistent with our traditional law and customs as the benchmark for inter generational equity. Federal and state legislation must to be reviewed against International benchmarks for justice so that it meets international standards of justice rather than the parochial, mean spirited, minimalist approach experienced in Australia to date (Wagaba).

  2. Well I hope you get a response from SwALSc as that journey has been 40+ years in the making. It was NOT as quick fix but a well research and planned execution to self determination lead by hundreds of Elders around the south west. 1994 yrs of cruel inhuman treatment. Our land is taken by towns and mining pre 1975. Our land will always be in our heart but realistically we cannot access it. We have been never ceded sovereignty and surrendering this imposed government act of of control, division and false promises, gives far more opportunities than what we will get with native title that you have to win in the first place.

    The decision was in Bibbulmun people’s hands and they voted yes for change and opportunities for rebuilding of the nation.

    This was a desire of the old People, far more wiser than those that went against the majority. It was what the old People and the Elders wanted and it took 40yrs.

    Native title makes money for lawyers and divides our people and give those in settlement thief for well over 190 yrs, not much chance to anything back. Our history is brutal cruel and well planned by the establishment.

  3. Native title is an insult to the memory of our ancestors who died at the hands of the system that is offering native title. Our people will outlive your native title.

  4. Eddy Mabo destroyed the Governments and frighten them that they have to make special laws! Now they think by changing the laws will have benefits to the people they represent. But in fact the Governments are protecting the wealth they have stolen. The only party to Native Title sits with the Governor General who represents the Commonwealth (CROWN). Federation of Australia is a corporate body under the CROWN! This judgement sets a precedent. The ILUA in Victoria should been question after this judgement.

  5. I am currently stresing+++ as our Native title claim – Registered may well be strangling the legacy & dedication of elders past. All to appease the government. Well said to those comments before me It is another way that government can systematically validate the likes of the infamous “White Australia Policy AND precludes us individually & collectively from ROYALTIES which we are all entitled to have. – managing us again, changing & amending LAWS to suit govt..Historical SHAME AGAIN..

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