Native Title in the Wild West


Last week in the Federal Court, Justice Murray Wilcox found that Perth’s Noongar people had successfully demonstrated connection to their land. Consequently, native title may have survived in some pockets of land in the Perth metropolitan area.

Since the decision, the Federal Attorney-General Philip Ruddock has embarked on a bizarre scare campaign. His statement that native title holders in Perth might be able to exclude the public from beaches and waterways is almost certainly wrong at law. The Western Australian Government’s Titles (Validation) and Native Title (Effect of Past Acts) Act 1995, which was enacted in accordance with section 212(2) of the Commonwealth Native Title Act 1993, confirms the right of existing public access to, and enjoyment of waterways, coastal waters and beaches.



Hysterical over-reaction by sectional interest groups is par for the course on native title matters. In the wake of the High Court’s 1996 Wik decision which found that native title could co-exist on pastoral leases John Singleton designed a shameful and misleading advertising campaign for the National Farmers’ Federation. In the ad, a Black child and a White child play a game of Twister until they collapse. Then a voice-over, heavy with impending doom, says ‘The Wik decision it’s not a game.’

However, a great deal more than ad-agency hyperbole is expected of the Federal Attorney-General. If the nation’s first law officer has seriously misled the public at a time when parties to the Noongar claim are considering their appeal rights, his position is untenable, and the Prime Minister must seek his resignation.

Meanwhile, the howling and wailing and gnashing of teeth generated by the Noongar decision has extended well beyond the office of the Attorney-General. Parliamentarians and public figures have queued up to query the Court’s decision. The Prime Minister said he viewed the judgment with ‘considerable concern,’ and indicated that the Commonwealth would ‘consider our position in relation to an appeal.’ The Western Australian Government is considering an appeal; and pastoralists, utility companies and telecommunications providers are also likely to be examining their options.

Thanks to Bill Leak

Potentially, a full bench of the Federal Court and then the High Court will review Justice Wilcox’s decision. A great many more games of cricket are likely to be played on the WACA before it is known if native title has survived on the surrounding parklands.

Justice Wilcox noted that native title was neither a ‘pot of gold for Indigenous claimants’ nor a ‘disaster for the rest of the community.’ Native title can exist only on what the lawyers call ‘unalienated crown land and waters.’ So strike from this apparent Indigenous land bonanza every freehold title in the Perth metropolitan area. Yes Virginia (and Bruce), your backyard is quite safe!

In the eyes of the law, leasehold title outranks the lesser tenure of native title, so leaseholders may also rest easy: even though the Wik decision contemplated the co-existence of the two titles, the rights of leaseholders inevitably prevail where there is conflict.

So, are the bitumen roads of suburban Perth to be dug up and replaced with grassy tracks, the better for loincloth-clad Aborigines to stalk wallabies at dusk? No, this isn’t going to happen. The construction of the roadway and its frequent usage has put paid to native title. It’s a cast-iron certainty that the freeway to Freo will remain the exclusive province of the whitefella’s most sacred object, the motor car.

Perhaps the Subiaco football oval will have to be abandoned to the grazing of kangaroos and the cultivation of bush-tucker plants? Will the only activity permitted on the half-forward flank in the foreseeable future be traditional dancing? Well, no. Even if your team plays its games on Crown land, the blood, sweat and tears of many seasons of struggle has taken native title considerations out of the game. The High Court’s 2002 Ward decision effectively excludes National Parks in WA from being subject to native title claim because they are vested under the Land Act, so the family camping trips to the great outdoors may also proceed unhindered.

In fact, it’s easier to extinguish native title than to fall off a log. No conscious effort is required. The construction of a house, shed or chookpen will put the matter almost beyond doubt. Planting crops will also prove the point. Even the presence of the odd fence or dirt road is probably enough to do the trick.

So if native title is determined to have survived in a swamp by the Swan River, exactly what ‘customary rights and traditional activities’ will native title holders be entitled to carry out? Some fishing perhaps with handlines, rather than harpoons or hand-grenades but that’s happening anyway. Some ceremony, probably, in a more modern form than the corroborees of high-school history books. Hunting? Taking the .22 down to King’s Park to bag a few rabbits certainly isn’t on the agenda. A finding that native title has survived doesn’t mandate the suspension of the other laws of the land.

Noel Pearson celebrated the Noongar decision as ‘absolutely extraordinary,’ speaking of it in the same breath as Mabo and Wik. But Pearson well understands the lie of this land, as he indicated when he spoke of ‘remnant land.’

The great legal maxim that ‘justice delayed is justice denied’ casts a dark shadow over the workings of native title, where processes are asked to do duty for results. Following the heady days of the High Court’s 1992 Mabo decision, the native title machinery became bogged down in bureaucracy. Over the past nine years the Commonwealth has spent more than $900 million on native title to realise a grand total of 82 determinations at a tick over $11 million each. Eighteen of these determinations were made only after lengthy and expensive Federal Court hearings.

The likely appeals against the Noongar judgment to the Full Benches of the Federal and High Courts might drag the matter out for another two years and cost the taxpayers millions more dollars.

While ‘negotiate don’t litigate’ has been the catchcry of State Governments, in practice, native title matters tend to stagnate or end up in court. The onus is now squarely on the Western Australian Government to negotiate with the Noongar. Otherwise they face a rash of expensive and time-consuming court cases to decide these issues step by step.

But this is all conjecture. The law is a complex ass, and will insist that each set of circumstances is slightly different and therefore unique. The only real certainty is that hardworking lawyers all across the country will be assured of an income for quite a while longer.

The real joy of the decision comes from the symbolic acknowledgement that we all live on Aboriginal land. The value of this pronouncement can’t be overstated.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.