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On the brink of native title history as Mabo comes of age


'Noongar country' by Chris Johnston Pristine traditional Noongar country hovers above modern urbanised south-west AustraliaIn the Mabo decision of 3 June 1992, the High Court of Australia ruled that at the time of the British invasion, the Indigenous peoples of Australia owned the Australian continent and they were entitled to have their rights protected under British law. The court recognised the existence of native tile for Indigenous Australians who could demonstrate ongoing connection to their land and observance of their customs since 1788.

The Mabo decision changed the course of Australian history — it raised the morale of Indigenous peoples after 200 years of denial and today, successful native title determinations cover 20 per cent of the continent.

At present, the native title process is on the threshold of its most momentous outcome. This began in September 2003 when the South West Aboriginal Land and Sea Council (SWALSC) lodged a native title claim on behalf of 218 family groups of Noongar people with the Federal Court of Australia.

Noongar country covers the southwest corner of Western Australia stretching from below Geraldton on the west coast to halfway between Albany and Esperance on the south coast and includes the Perth metropolitan area. The Federal Court split the Noongar claim into two parts: Part A concerned native title rights over Perth; Part B covered the remainder, and was set aside for a separate proceeding.

In his decision, Justice Wilcox found in favour of the Noongar people. He ruled that the traditional norms the Noongar people follow today are to a large extent those that Noongar people observed at the time the British claimed sovereignty of WA in 1829.

He accepted that Noongar society continues largely as a group united by common observance of traditional laws and customs. Consequently, he ruled that Noongar people hold native title rights over Part A of their claim.

The WA Government and the Commonwealth appealed immediately. The full Federal Court of three judges heard the appeal. On 23 April 2008, the Federal Court upheld the appeal and referred the matter back to the court for hearing by another judge.

The appeal judges ruled that Noongar people had failed to prove continuous observance of their traditional laws and customs in each generation from 1829 to the present day. The ruling demonstrates the onerous burden of proof native title claimants have in proving their claim. Nonetheless, there was a twist in the tale of the case.

Following the appeal verdict, SWALSC and the WA Government acknowledged they could not afford protracted court battles. Subsequently, the WA Government informed Parliament in December 2008 that it had signed a Heads of Agreement document with SWALSC to begin negotiations to settle the claim via an alternative process.

This required that Noongar people concede that native title does not exist in the claimed area, in return for land and financial benefits.

The WA Government agreed to provide $2.65 million over three years to implement a capacity building program for claimant groups. The parties are now engaged in discussion regarding the WA Government's in-principle offer it made in December 2011. In October 1992, SWALSC released a statement that they anticipate that Noongar people who number 30,000 will vote to accept or reject an agreement during 2013.

In its discussions on an economic base, SWALSC is arguing for an increase in the government's offer of $60 million per year for ten years for the Future Fund and $10 million per year for ten years for Noongar Traditional Owner Corporations.

These funds will not be drawn upon in the first ten years, in order to build a sustainable economic base for Noongar governance, land management and community development. SWALSC reports the offer rates among the largest that First Nation peoples have negotiated overseas.

The WA Government indicated it is prepared to transfer 200,000 hectares of land into Noongar ownership. Discussions are centred on securing land in and around towns in the southwest for transfer in subsequent years.

Regarding recognition of traditional ownership, SWALSC has secured a commitment that a negotiated settlement will result in an Act of WA Parliament that recognises Noongar people as the traditional owners of southwest WA.

SWALSC is pushing for the establishment of a Noongar Cultural Centre that will promote Noongar heritage and cultural development as well as tourism. SWALSC emphasises that most of these issues would not be part of any regular native title settlement negotiated under the Native Title Act 1994.

SWALSC CEO Glen Kelly says Noongar people are close to achieving the comprehensive outcome that Indigenous peoples across Australia hoped would flow from Eddie Mabo's High Court victory on 3 June 1992. 

Paul Newbury headshotPaul Newbury writes on indigenous, environmental and sustainability issues. In 1999, he was editor and principal author of Aboriginal Heroes of the Resistance from Pemulwuy to Mabo published by the social justice organisation Action for World Development. 

Topic tags: Paul Newbury, Mabo, native title, reconciliation



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Existing comments

Thanks Paul for this comprehensive update.

Joe Castley | 03 June 2013  

Hurrah it is about time that Aust. first peoples got reparation for some of the wrongs done to them.

Kath Bowen | 07 June 2013  

Paul, Well may we celebrate the unfolding events in WA but I must alert the likes of you and other interested parties, to the real agenda of the 'Land Tenure Review 'recently conducted by Qld Govt .Anyone can read the real agenda to grant Freehold Title to the States Pastoral Leases .This can only be achieved by extinguishing Native Title over such land ,which will fulfil promise of then deputy PM Tim Fischer to Longreach grazier Rally 'To deliver bucketfuls of Extinguishment ' .When I alerted a young Qld MP to the real intent of Land Tenure Review & our dismay at the passionate attention being given to it by the Qld Deputy Premier ,(given none of affected lands are in his electorate ) ,he literally blurted out the current major Parliament House gossip & there lies an explanation .

John Kersh | 11 June 2013  

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