A legal challenge could be mounted against Federal Parliament’s changes to the Native Title Act following the so-called ‘McGlade case’.
The lawyer who acted for the plaintiffs in McGlade — the David-versus-Goliath battle that blocked a $1.3 billion agreement between Noongar people and the West Australian Government — said they could take the matter back to court.
Perth-based lawyer Kevin Morgan SC of Murfett Legal said: “I would say it is quite unjust to extinguish native title by legislative decree – that appears to be what they are doing.”
Mr Morgan and former Federal Court judge Ron Merkel QC successfully represented Noongar members Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong in the McGlade case in the Federal Court.
The lawyers, acting pro-bono, successfully argued that an Indigenous Land Use Agreement could not be registered if not all individuals who made up the relevant native title claimant(s) had signed it.
The Federal Court’s ruling in their favour in February overturned a 2010 decision of the court that cleared the way for ILUAs to be registered without total consent.
But Federal Parliament this month passed amendments that were counter to the McGlade ruling and cleared the way for the Noongar deal, negotiated through the South West Aboriginal Land and Sea Council, to be back on the WA legal agenda.
The move by Parliament also cleared the way for land use agreements over Indian miner Adani’s Carmichael coal mine in Queensland. The mine is being opposed by the Wangan and Jagalingou people.
Mr Morgan said: “We won at the Full Court level. You would have thought the next step would have been a challenge at the High Court but instead they went to Parliament under a very dubious accusation that this decision would put at risk over 100 agreements that were already registered.
“I’ve never actually heard anyone support that legally. I know all that the Registrar said was he’d identified over 100 (agreements) where this scenario had existed but as to whether anyone was going to be in a position to overturn those registrations, I have serious doubts as to whether that was going to be the case.
“Parliament was nevertheless coaxed into acting out of fear and my clients would probably take issue with (former SWALSC chief executive) Mr Glen Kelly being the architect of that fear. He was the architect of these agreements and the architect of the arrangements by which such a small percentage of the Noongar population participated in them.
“He’s now gone onto bigger and more national positions and it would appear that he somehow managed to convince Parliament that these Noongar agreements should be swept up with the concerns he raised about these 100-plus agreements being at risk.
“As far as I was aware the only ones that were, were the Adani one and the Noongar ones.”
Mr Kelly, now chief executive of the National Native Title Council, told NIT this week it was his job to represent the council’s position in support of the amendments to federal politicians.
“These people are a bit shrill and alarmist and the reality is even though I was the CEO of the SWALSC, in my current role I was basically instructed to represent a position and that’s what I did,” Mr Kelly said.
“People say ‘Well, you’re biased’. Again, I was instructed to do certain things and if 126 other ILUAs across Australia weren’t affected by this decision then I suppose that charge would be true, but the fact is so many people were affected by the destruction brought by these five people that something had to be done.
“Everyone in the native title rep body sector across Australia recognised this.
“It was absolutely not fear mongering at all.
“A lot of the affected ILUAs dealt with access to country, pastoral leases, significant developments within communities such as roads, critical infrastructure … some of them dealt with protected areas. Very few of them dealt with mining.
“Most of them dealt with things that helped communities out.”
Mr Morgan said all avenues of legal funding to his clients in Australia had been cut off. An overseas donor might help fund a challenge.
“No matter where my clients have looked in Australia, they haven’t found any funding,” Mr Morgan said.
“Nothing has changed for two years. They’ve looked in the corporate sector, the government sector, their own Aboriginal representative organisation — they’ve never had any funding to check as to whether these agreements to extinguish their native title rights were lawful.
“We stepped up to the mark to assist and found out they weren’t lawful. Parliament’s now lawfulised them … I think it’s an indictment on Australia that they are expected to just sit back and quietly see their native title rights extinguished without being given any access to legal assistance and whether this is a valid means of stripping them of their last cultural inheritance.”
Mr Morgan said his clients had been shocked by Federal Parliament’s actions.
He said they also weren’t given the opportunity to participate in parliamentary discussions.
He said some politicians didn’t appear to fully grasp the effects of the amendments.
“I was shocked to see some of the Parliamentarians expressly stating that once this legislation is passed, my clients will be in a better position to renegotiate these agreements,” he said.
“That one came from Senator (Pat) Dodson. I took him to task on that at a meeting and said ‘That’s wrong, that’s totally wrong’. Nevertheless a few weeks later he repeated that in Parliament so a lot of people in Parliament I suspect think that the result of that … because they very sneakily in the legislation said that the four Noongar agreements were excluded from the ratification process in the legislation, Parliamentarians who weren’t on their game might have missed out the fact that a few sections later the Noongar agreements were dealt with in a similar fashion.
“I don’t know where they thought they were going to get a re-negotiation on, but I can assure you that … SWALSC won’t be looking at a renegotiation. They will just be lodging the documents I suspect for registration.”
Mr Morgan said Federal Parliament hadn’t even addressed why it was overturning the McGlade ruling.
“It’s not apparent from all the Parliamentary discussions as to why they got caught up in the Adani issues,” he said.
Mr Morgan said his clients were expected to continue their objections when the Noongar matter came before the Native Title Registrar in WA.
“Those objections will probably focus on similar issues that we raised beforehand about the very small — I think about three percent of the Noongar population — that participated in these agreements to permanently extinguish native title and in the interim, subject to someone somewhere providing any funding, we’ll look at whether this legislation can be challenged and no doubt see whether we can put in objections.”
Six land use agreements in WA made up the $1.3 million package that was to be full and final settlement of all current and future claims made or to be made by Noongar people under the Native Title Act on land and waters in south-west WA.
A SWALSC spokesman said this week that now the problems had been removed, it was now open for the Registrar of Native Title to consider the agreements.
A National Native Title Tribunal spokesperson said the registrar was considering the implications of the amended legislation and how it impacted the south-west ILUAs.
Mr Kelly said the amendments returned native title land use agreements to the way things were before McGlade.
He said critics consistently misrepresented what the Noongar agreement was about.
“They keep talking about selling country and native title but for some reason they consistently cannot understand that native title in the south west of WA has been extinguished almost entirely because of farms, cities and all sort of different Crown reserves,” he said.
“What they are stopping — they have stopped about 100,000 acres of land being handed over to Noongar people, they’ve stopped the generation of joint management agreements in national parks which will see customary rights and interests and access all be instituted into those management systems; they’ve stopped all sort of cultural programs and elder support programs.
“They keep talking about these agreements, but they consistently misrepresent the realities of what they are about.”