Noongar Native Title II
It will be worth monitoring the direction of political and public debate on native title issues, following the unexpected federal court decision to recognise the native title claim of the Noongar people over areas in and around. There were already amendments to the Native Title Act mooted by the federal government, and it is possible they may seek to conflate things they don’t like with this latest decision with the purportedly more administrative changes that were already in the wings. I will add any extra statements or pieces of coverage on the issue to this post that I think may be useful.
The Australian gives a run to Philip Ruddock, who goes for the scaremongering angle that public access to urban open spaces and national parks could be at risk. Interestingly, the paper has a fairly sympathetic editorial.
“People should calm down and start looking at the benefits that could come out of this. I have not seen anyone outside of this Aboriginal community who have lost. This is a fantastic decision – it opens up a lot of help for a lot of indigenous people.”
Indigenous leader and NSW Labor parliamentarian Linda Burney, who is running for the ALP presidency, said
“The thing people need to understand is that native title is a property right, like any other property right in Australia. What this determination could mean is very positive outcomes for not only the indigenous community but the Australian economy.”
So far, it seems to be only some politicians and lawyers wanting to talk up the supposed terribleness of this decision. Even the WA Chamber of Minerals and Energy says it is not alarmed. Academic Jon Altman, from the Centre for Aboriginal Economic Policy Research, was reported as saying the decision was largely symbolic but could lead to developers making partial payments to traditional owners as well as the state.
The decision has also received coverage internationally. Al Jazeera gives a fair bit of space to an AFP report on the issue. BBC News provides a straightforward outline of the decision. In a sign of how easily the decision can be misunderstood or wrongly portrayed, New Zealand’s Newswire states that “Aborigines win land rights over Perth”. The Independent newspaper in the UK headlines it’s story as “Aborigines given ownership of Perth by judge”. Even more misleading is the South African Star, which says that “Aborigines now ‘own’ Perth” and the court decision “marks the first time a large metropolitan area in Australia has been ruled to belong to the indigenous people.” Also way off beam is the ShortNews website which says “Aborigines Awarded Major City by Australian Federal Court”. (and contains some comments which show how readily some people are to take the chance to turn to bigotry, even before they get encouraged).
Check the trackbacks at the bottom of the comments for a few other sites which cover this issue. There is also a good post outlining the basic facts on John Quiggin’s blog. Other sites with some commentary include Benneton Talk. Some basic information on Native Title can be found at this link.
For those who are keen, you can read the full statement issued by Justice Wicox, the judge who determined the Noongar matter. If you’re pressed for time, the final paragraph is one which is worth pondering:
In my opinion, it would be desirable for all parties carefully to review these reasons for decision and consider their desirable future action. This is litigation, and litigation is normally adversarial. However, this litigation is not a private squabble about money. It is litigation that deals with matters of great importance to the indigenous people of south-west Western Australia and, indeed, to all Western Australians. This litigation has significant implications for what has recently been called ‘reconciliation’ between indigenous and non-indigenous Australians. It ought not be conducted like a game, where one side must triumph over the other. I believe it would be worthwhile for the government and local government respondents carefully to consider to what extent, if at all, their proper functions would be impeded by a formal Determination along the lines suggested by my answer to the separate question. On the other side, it would be worthwhile for the Applicants to consider how they might assist to ameliorate any genuine problem. In short, it would seem to be desirable for the parties to engage in some serious thought and discussion before any of them spends more money on legal action.
Noel Pearson has called the Noongar decision a “mighty moral victory” (as opposed to a legal or political victory).
Another Queensland Aboriginal Leader, Murrandoo Yanner, has slammed Kim Beazley for reinforcing the hysteria about Native Title rather than countering it.
ADDITION: (25/9)
The Australian has an article with a number of strong comments from WA Aboriginal leader, Peter Yu:
“Not one Aboriginal person has expressed a desire or wish to have such exclusive interests and rights that it excludes other Australians, “
There is also a good opinion piece in The Age by Sean Brennan who says the Noongar decision “gives us another chance to get the focus right in native title.”
Crikey contains a piece by Graham Ring, the editor of the National Indigenous Times, detailing how the Attorney-General Philip Ruddock’s comment about public access to beaches being potentially at risk “has made a serious error in law”. Mr Ring also somewhat hopefully suggests that “if the Prime Minister is satisfied that his Attorney General has grievously misled the public over a crucial legal matter that falls squarely within his portfolio, he must surely seek Mr Ruddock’s resignation.”
WA Premier Alan Carpenter has also labelled Mr Ruddock’s comments as “ridiculous”. Mr Carpenter’s other comments on the matter are some improvement on what his government has come out with to date, but he is still indicating his government “may have to” appeal the Court’s ruling.
UPDATES: (30/9)
Some more links to a range of articles follow – partly for the benefit of people following the debate, and partly as my own online filing system, so I can find all of these in the one spot later on.
- A piece in the Gold Coast Bulletin about a new Native Title claim on behalf of the Yugambeh people, which features a member of the Prime Minister’s handpicked National Indigenous Council, Wesley Aird.
- An article in The Australian, featuring the views of former Prime Minister, Paul Keating, who was PM at the time the first verson of the Native Title Act was adopted in 1993.
- From the West Australian, the WA Deputy Premier continues to warn of a Native Title nightmare unless the government appeals.
- An article in the Canberra Times, “The backyards are still safe.”
- Another piece in the West Australian, conataing a plea from the Noongar people for the government not to appeal.
- Oxfam Australia, which has been working in indigenous communities for many years, criticises the WA government’s plan to appeal.
- This piece on the ABC website gives the WA government’s justification for deciding to appeal the Noongar decision.
31 Comments, Comment or Ping
Rob Guy
I love it. The irony of mainstream thought and political fear-mongering here in Australia in 2006, is that it is so South Africa – 1980!
Were all those pro-sanctions marches actually to do with protecting Australia’s export fruit trade …. never. There is tons of fear and racism in Australia. Funny how when some of my now fellow countryman find out I was from South Africa they feel compelled to tell a racist joke. Philof Mudd&ick and Con Howabsurd’s distortions don’t help.
As a linked addendum, where are the media laws preventing the domination of newspapers by a few interest groups? Nothing radical can happen in the opinion stakes while editorial influence is confined to the establishment.
Sep 22nd, 2006
skepticlawyer
Trackback
Sep 22nd, 2006
red crab
its obviouse to me that no one exept me on this blog has had enything mutch to do with the noogar ppl .
i have only one thing to say as far as recosilatin go.s in western australia they have just shot themelves in the foot big time.
Sep 23rd, 2006
Andrew Bartlett
Some more updates – (links at bottom of the main post above)
Noel Pearson has called the Noongar decision a “mighty moral victory” (as opposed to a legal or political victory).
Another Queensland Aboriginal Leader, Murrandoo Yanner, has slammed Kim Beazley for reinforcing the hysteria about Native Title rather than countering it.
Sep 23rd, 2006
John Tracey
Pearson has identified a strategy that makes sense to me, to establish connection to country (the current ruling) and then negotiate on a broader claim with substance. The conglomeration of neighboring claims has facilitated this as all internal disagreements become irrelevent. The internal dispute are what stalls most claims.
However negotiation is not a right given by native title law, it is the politically expedient way to circumvent native title. As Pearson and others have said, just the basic task of building an inventory of titles that may (or may not) contain native title is decades of lawyer dollars, not a step towards resolution.
The only way forward is a change of attitude on the part of the federal government which is most likely to occur through a change of government.
Beazly’s sycophantic aping of Howard’s meanness is not a good omen for change.
Unless Beazly can be pressured by the Democrats and the Greens then he will preside over genocide as his predecessors have.
The Perth decision, in particular the publicity surrounding it gives a good “moral victory” from which to drive something of substance.
I cannot see the ALP having control of the senate without the Greens and any Democrats that survive. Now is the time, not once the ALP has committed itself to anything, to pressure the likes of Peter Garrett wo has just been a shiny trinket hanging around Beazly’s neck.
There needs to be a backbench revolt in the ALP on land rights similar to the conservative rebellion on asylum seekers.
However, commentary that is supportive of the symbolism with no number crunching or other strategy to force change is just that – commentary.
How can us ordinary punters pressure the likes of Garrett and the left of the ALP?
Sep 23rd, 2006
Andrew Bartlett
How can us ordinary punters pressure the likes of Garrett and the left of the ALP?
I’ve been pondering that question, particularly after reading Noel Pearson’s piece. I wonder if a starting point might be to try to build a national campaign calling on the ALP not to appeal the Noongar decision.
Any chance to build on this Court decision will be, at best, put on hold for years if an appeal goes ahead, regardless of what it’s final outcome might be. However, if WA Labor (and federal Labor) can be convinced to accept the decision and work with it, it could go a long way to bringing a change of attitude.
From everything I’ve read (thus far), it does not appear that the Court’s decision contains any new interpretation of Native Title law – it simply assessed the facts as showing that continued association exists. This apparently surprised some people, but I can’t see how it opens up anu new points of law that merit being tested in a High Court appeal.
I don’t know if the federal government can or would appeal if the WA Labor government decided not to – it would look pretty dreadful if they did (not that this would stop them if they thought there was a net vote gain for them). But the key decision seems on whether to appeal rest with WA Labor.
I would have thought there’d be a number of Labor figures who would back such a push –
NSW MLA Linda Burney (who is currently running for the party’s National President spot) could be one. The party shadow Minister is Chris Evans, who has a reasonable record to date, given the constraints he has to operate in. He is also a West Australian which may be a help.
Sep 24th, 2006
kyangadac
I’ve written some comments regarding Justice Wilcox’ judgement at my blog. I think that it is important to point out to people that the situation of the Noongar is unique. They are the largest confederation in Australia, numbering close to 30,000 and the claim area is larger than the state of Victoria. As I point out in my blog, this made all the difference when it came to deciding issues of fact. Which also means that nothing can be imputed from this decision about the Gold Coast or any other part of ‘civilized’ Australia.
Sep 24th, 2006
Obadiah
I thought as far as Aboriginal culture was concerned; no one owned the land! What a bunch of hypocrites, just like their supporters. Well all you white fella’s better start looking for a new home! Maybe you can reverse ‘Darwinism’and make-like fish! The Indian/Pacific oceans are nearby. Failing that (hope you can swim), it’s a hell-of-a-swim for all you white fella’s and shiela’s!
Sep 24th, 2006
John Tracey
Andrew, yes, yes, yes……..but
As if I was in a position to dictate to the ALP, the ALP must see a direct connection between support for native title and their stated objectives of improving Aboriginal health, economy etc. There must be a commitment to using native title and any other means necessary to do something real.
Given the symbolism of both native title and the specific Perth decison, it would be too easy for the ALP to support native title as a hollow token gesture.
As I have mentioned somewhere else, Garrett and Evans have committed the ALP to a non partisan plan to improve Aboriginal lifestyle. The problem is no plan exists, and simply focusing on not appealing does not contribute to making a plan.
A campaign such as you have suggested can probably go no further than demanding that Beazly support native title. But the behind the scenes dealing with constructing an ALP progam should they take government is where the real possibilities of creative solutions are. The momentum of a minimalistic public campaign could drive such behind the scenes stuff.
Garrett has mumbled something about replacing ATSIC with a representative body too. This is essential for a non-partisan plan. If the plan is a pooling of ignorance amongst white powerbrokers it will be an illusion. The structural involvement of Aboriginal Australia has to be part of the plan.
Sep 24th, 2006
Andrew Bartlett
True enough, JT – I was just thinking of a starting point. And if we can’t even get to the starting line, then it will at least show there’s no point putting major energy into trying to go down that particular track.
Sep 24th, 2006
John Tracey
kyangadac
I haven’t read your wilcox article yet but I will, in the meantime….
The Perth conglomeration of claims rolled into one is not unique. Accross the board native tile has lead to border arguments between different claim groups. Many areas are now beginning to conglomerate to deal with this – internal disputes need not take up the time of the federal court as there is consensus on the broader claims. I know that all the claims in North West Queensland including Mt. Isa have been similarly put together and are now proceeding as a whole in the process. This process is happenning all over the place through the centralisation of claim processes in regional Native title representative bodies who are administerng the process from the Aboriginal side of things.
The Perth model is just the first cab off the rank but this is the new way of doing native title.
And Obidiah,
you may well have thought that Aboriginal people do not own the land. You are not the first non-Aboriginal person to assert this. Joseph Banks said this. The high court said this in the unsuccessful Gove case. Their ruling said that there was evidence that Aboriginal people belonged to the land but the land did not belong to the people. However the Mabo case dismissed this fiction, overturned the gove principle and acknowledged an ancient system of land law..
Just because Aboriginal title to land does not involve paper title does not mean their is no ownership or possessive structure. Such an assertian is racist and ethnocentric .
When God gave the promised land to Moses there was no paper title.
and I suggest a treaty is a better option than making like a fish. Why cant you see peaceful mutually beneficial options? You should try and look for them.
Sep 24th, 2006
harold
just in case anyone thought Obadiah’s ravings on the other post was just a case of someone getting carried away with some religious zealotry towards Muslims, she/he has at least does us a favour and shown that she/he is just an all round nasty bigot. It saves having to read any of his/her future comments just in case there’s anything of merit being said.
I suppose that was and maybe still is the ‘Christian’ approach/excuse, at least for some – the Aborgines are all heathens anyway, so we need show them no concern.
Sep 24th, 2006
Obadiah
Tell that to the millions of white South Africans and Zimbabwians why don’t you? White Australians are just fortunate enough to be in the majority! If the shoe-was-on-the-other-foot, Bartlett, and his crew would certainly have no representaion in Parliment, nor would you for that matter, particulaly if you were white! Yes White, (dare I say that dirty word)!
So you ‘bleeding hearts’ better purchase your swimming gear! But I do doubt very much any country would have you!
BTW: That was the God of Abraham, Isaac and Jacob, the ‘Living God’, speaking, when the land was promised to Moses. There is not one ‘iota’ of comparison to Native Title claims. You see Mr Tracey; to draw-such-a-long-bow is to take the ‘text’ out of ‘context’, it then becomes a ‘pre-text’, thereafter you can make it up as you go along!
When it come to racisism you lefties are the professionals, you just don’t know it. You lot are to busy ’straining at knats’ while swallowing a shit-load of Camels!
I feel terribly sad for you all…not (sic)!
Sep 24th, 2006
Andrew Bartlett
very ‘Christian’ of you Obadiah …not
I think your view is more than clear for readers of this site – in future, if you can’t express it in accord with the comments policy of this site, your comment will just be deleted.
Sep 24th, 2006
John Tracey
Obidiah, from your post I can read that you are angry and hateful, but beyond that I cant work out what the hell you are on about.
I believe there is enourmous relevence of Bible stories to Aboriginal law and vice-versa.. The wisdom of the ancients as applied to holy land. Can you see any conceptual similarities between the words “holy land” and “sacred land”?
gee whizz, even the law of polygamy and the rights of subsequent wives immediately after the 10 commandments is the same as Aboriginal customary law.
Read your bible! There is only one true god so the god that gave life to Aborigines for 75000 years or more must be the same god that gave the holy land to Moses.
Sep 24th, 2006
Obadiah
I have been ‘gagged’ by messrs Bartlett and company. They do not want intelligent debate, for that exposes them to reality!
Sep 24th, 2006
Graham Bell
Andrew Bartlett [on post No.4}:
I noticed that you quoted Mr Noel Pearson and Mr Murrandoo Yanner, whose names and faces are especially well-known through the mainstream news and entertainment media.
Do other Aborigines have any opinions?
Good luck to all those directly involved with the Noongar decision.
Sep 24th, 2006
Andrew Bartlett
Graham
I’ve mentioned both Warren Mundine and Linda Burney in the original post. I’ve seen a few other single line quotes in amongst much larger pieces in the mainstream media, but it’s a good question – I’ll look a bit harder and wider for some more.
Sep 24th, 2006
red crab
andrew here is a chance for you to come to the west and find out for yourself what is likey to happen at ground level .where we live together.
the noongars are not like the ppl from the east .
and west australians are a little more agressive than the rest of australia .
its fine to make a decision from a distance that takes no corage at all .
here is a thought tic west australians off to the point where they sussead from the rest of australia and sort there own problems out .
there go,s australias ecconemy.
Sep 25th, 2006
Andrew Bartlett
Graham
I’ve added a link at the end of the post to comments made by a senior WA Aborginal leader, Peter Wu.
I’ve also added a link to an opinion piece from The Age.
Sep 25th, 2006
Andrew Bartlett
Some more links added from Crikey and the ABC, focusing on legal assessments of Philip Ruddock’s comments that access to beaches may be at risk.
Sep 25th, 2006
Graham Bell
Andrew Bartlett:
Thanks for link to Peter Yu’s comments.
I supposed I’m cheesed off with continually hearing the ideas, suggestions and comments made by various Aborigines decades ago being flogged off these days by the news media as something brand-spanking new.
Whenever this happens, the word “plagiarism” leaps immediately to mind …..
Anyway, I wish all the Noongar people and their neighbours all the best.
Sep 26th, 2006
Matt
One potentially huge ramification of this legal decision which, as far as I can tell, has received virtually not media attention over the past two weeks is that of compensation.
My understanding is that, according to Native Title law, successful native title applicants may seek compensation for any unallocated crown land which was sold off as freehold any time after 1975 (the date the Racial Discrimination Act was enacted). In the Perth metropolitan area, this includes entire suburbs which were built in the 1970s and 1980s (Hillary’s, Karrinyup etc).
In fact, when the Single Noongar Claim first went to trial, the Noongars’ representatives, SWALSC, specifically stated that they would seek multi-million dollars in compensation if their claim was successful, which was reported at the time. See:
http://news.sbs.com.au/livingblack/index.php?action=news&id=122833
http://news.ninemsn.com.au/article.aspx?sectionid=1769&subsectionid=2984§ionid=1769&subsectionid=2984&id=66899
Strangely, though, we have heard virtually nothing of this since Wilcox handed down his judgment. This I find particularly surprising, because I believe that compensation is ordinarily worked out by assessing the market value of the land. If you’re talking about the market value of entire Perth suburbs, I suspect you’re looking at a compensation bill more in the vicinity of billions rather than millions (especially given the recent Perth property boom which has made suburban property prices skyrocket).
I suspect that this is a major reason behind the state government’s decision to appeal Wilcox’s decision. But by the same token, the fact that they have not sought to highlight this to the public perhaps goes to show that they are not as hell-bent on “scaremongering” as many critics have charged.
Sep 29th, 2006
kyangadac
Matt
I’m not convinced that ‘entire suburbs’ have been built on ‘unallocated crown land’ since the 1970’s. Can you demonstrate that this land was ‘unallocated’ and not zoned ‘future urban’ or was ‘rural freehold’ or ’state park or reserve’ – all these categories would have extinguished Native Title(I think).
Besides which the real issue is that the longer the delay the more compensation that will ultimately be due, if the appeals fail. If there was any chance of multi-million $ compensation being actually due-you can bet that the Feds will specifically disallow it – ‘Gawd knows what those would spend the money on!’
John Tracey,
While claims in other areas of Australia are being amalgamated to expedite hearings etc. this Federal Court hearing revolved around whether Noongar society could be seen as a coherent unit – a determination made for the purposes of hearing the Noongar claim as a whole.
Sep 30th, 2006
John Tracey
yes indeed, kyangadac. A very significant ruling and precedent to facilitate the rest which, it just occured to me, is perhaps why it is being opposed so strenuously?
Maybe it is not a matter of interpretation of the law but perhaps a realisation that this different way of administering claims will unclog obstacles and get things moving again. A threat to those who depend on the stagnation and confusion of native title in order to keep doing business as usual.
as every commentator and their dog has said, including me, there is nothing of threat in the Noongar claim. The backlash has appeared absurd to me and I have assumed we just have the beginnings of a anti Aboriginal federal campaign issue to complement Brough’s community violence hysteria recently.
But perhaps the ramifications not spoken of could be in its administrative precedence ot its legal meaning.
A largely urban claim that has established (the truth of) an ongoing cultural connection to land would I assume have enoourmous consequences on remote area claims who are fighting out similar native title court cases there, with no supermarkets or housing estates to have extinguished native title.
State and federal governments have always used “divide and conquor” in dealing with Aboriginal affairs, the Perth regional model has certain defences to this.
Sep 30th, 2006
Andrew Bartlett
I’ve added a whole bunch of extra links as an update at the end of main post above – partly for the benefit of people following the debate, and partly as my own online filing system, so I can find all of these in the one spot later on.
Oct 1st, 2006
Graham Bell
Andrew Bartlett:
I can’t believe the naivity of the government in actually deciding to appeal the decision. There are indeed implications ….. horribly costly ones for all of us in making such an appeal. Why on earth don’t they have Random Breath Tests on the government’s advisors? It might stop colossal blunders like this if they did.
Oct 6th, 2006
Rob
http://au.news.yahoo.com/061020/21/10zkt.html
Queensland Councils (Central too!!!!!) are negotaiting and signing agreements on Aboriginal Land Issues. This turnaround from Pauline Hanson country is akin to the start of the death of apartheid!!! Is this for real? Wow!
Oct 20th, 2006
lala
I wont discuss the decision unless I am discussing with that mob, one of the biggest problems in this country is people running their mouths about issues and people they know nothing about, on a real and personal level. Too much over-intellectualising. For example – re: 22
Wat is regarded as intellectual ‘plagiarism’ in the white community is political legacy in the blak.
Think abt it.
Nov 3rd, 2006