Lawyers challenging Australia’s biggest Native Title settlement say the passing of time has become a “live issue” as the National Native Title Tribunal prepares to hand down a decision on the controversial $1.3 billion deal signed three years ago.
Perth-based lawyer Kevin Morgan is fighting the $1.3 billion agreement package between the WA Government and the South-West Aboriginal Land and Sea Council on behalf of Noongar members Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong, who don’t want their Native Title extinguished.
With a National Native Title Tribunal decision on the controversial case pending, Mr Morgan said the amount of time that has passed since on-country authorisation meetings were held has raised questions about whether the process should have a use-by date.
“Does the authorisation go stale at some stage?” Mr Morgan said.
The settlement deal was placed back before the NNTT late last year by WA’s Labor Government.
The deal was originally put on the table by the state’s former coalition government and the SWALSC, but was successfully challenged in the Full Court of the Federal Court by Mr Morgan and former Federal Court judge Ron Merkel.
The Full Court of the Federal Court ruled in February last year that four of the six Indigenous Land Use Agreements in the package could not be registered because not all Native Title claimants had signed it, leading Federal Parliament to change the Native Title laws.
The ILUAs resubmitted to the NNTT relate to the Ballardong People, South West Boojarah, Wagyl Kaip and the Whadjuk peoples. ILUAs for the Yued and Gnaala Karla Booja peoples will be decided at the same time.
Mr Morgan, on behalf of his clients, is again challenging the agreement, arguing that only a small proportion of Noongar people voted in the process — he estimated the number at less than 1000 of the state’s 35,000 Noongar people.
He said it was difficult for many others to vote because voting was only conducted on-country and proxy votes weren’t accepted.
Mr Morgan said the 2300 Noongar people who were in prison at the time couldn’t vote.
“We think a major flaw is the lack of opportunity (for) imprisoned Noongars to have a say,” he said.
Mr Morgan said he hoped the NNTT decision would be made in the next six weeks.
WA Aboriginal Affairs Minister Ben Wyatt said they were expecting a decision on the agreement from the Registrar of the NNTT later this year. He said the earliest the settlement could begin would be 2019.
“I sincerely hope that the settlement can be finalised as soon as possible,” Mr Wyatt said.
“While I understand that there will be those that will continue to object to the settlement, it will undoubtedly provide significant social, economic and cultural opportunities for the Noongar people.”
The SWALSC was contacted for comment.