• Specific Year
    Any

Strelein, Dr Lisa; Bradfield, Dr Stuart --- "The Single Noongar Claim - Negotiating Native Title in the South West" [2004] IndigLawB 36; (2004) 6(2) Indigenous Law Bulletin 11


The Single Noongar Claim: Negotiating Native Title in the South West

by Dr Lisa Strelein and Dr Stuart Bradfield

In the eleven years since the High Court’s decision in the Mabo case,[1] the legal concept of native title under the common law and the Native Title Act 1993 (Cth) (‘Native Title Act’) have shown to be increasingly limited in the extent of recognition and the level of protection provided to Indigenous peoples’ rights over country.

The outcomes from native title for Indigenous peoples continue to be questioned. The enormous cost involved in litigating each native title application, it has been suggested, far outweighs the gains that have been made by the applicants. Concern has also been raised about the significant social disruption caused to Indigenous communities by the process of claiming and proving native title.

Native Title in the South West

The Ward[2] decision demonstrated that determination of the implications of extinguishment in areas with more complex tenure histories, such as the south west of Australia, are ill-suited to resolution by litigation. The precise impact on native title may be impossible to discern with clarity. The amount of land open to claim within the boundaries of each of the six pre-existing Noongar claims in the region, which could result in substantial control over decision-making, is likely to be relatively limited. However, a resolution of native title is still required.

Noongar people and the South West Aboriginal Land and Sea Council (‘SWALSC’) Executive Council have initiated a single claim policy that will see a united claim covering all Noongar country. The shared cultural, social and political reality of Noongar people has made this approach the most feasible basis for negotiating outcomes in the south west. The Courts have continued to support such broad groupings as the appropriate basis for defining groups for native title determinations.[3]

A Positive Process for Noongar People

The internal process of negotiating agreements for representation and decision-making among the Noongar people has proved to be a vehicle for social relationship building in processes that may otherwise be a source of social atomisation.[4] This positive work done to achieve support for the single claim may also provide a strong base, with ongoing structural reinforcement, for the cohesive identity of the Noongar community into the future. For these reasons, French J suggested the single Noongar claim process ‘presents an opportunity to give new impetus to the development of a comprehensive resolution of native title issues in the South West of Western Australia.’[5]

Addressing Noongar Land Needs

The Single Noongar Claim brings into sharp relief the need to respond positively to the land aspirations of Noongar people. While individual claims may have been opposed by the State on an individual basis based on technical legal arguments or matters of proof, the State cannot deny the need to achieve some native title outcome or land justice in the south west region. Via this process the Noongar people may be able to achieve greater consistency of outcomes across the community and therefore greater equity across the region by engaging in a coordinated and strategic plan of action.

Efficient Use of Strained Resources

Native Title Representative Bodies (‘NTRBs’) have a positive obligation under the Native Title Act to promote an efficient and cost-effective process for making applications and, where possible, reduce the number of applications: s 203BC(3).

While it is accepted that Indigenous parties are significantly under-funded for their responsibilities in this process, all sides now complain of insufficient resources to meet the needs of the process. The nature of native title and the processes set up under the Native Title Act, have created a regime for the determination of native title applications that promotes a protracted dispute for which the Crown funds all sides of the litigation and negotiations. Anecdotal reports from the state governments have suggested that they would be unable to complete tenure histories on more than a few claims per year (and south west claims are no doubt among the most complex). There is increasing pressure on all funding agencies and funded bodies to ‘prioritise’.[6]

Litigation of multiple claims has been identified as a substantially more onerous financial burden than the process of gathering evidence and mediation. The Kimberley Land Council recently declared that it was unable to continue to participate in the native title process due to lack of resources. The potential impact of this resource crunch on the protection and recognition of the rights of native title applicants could be devastating.[7] Moving toward a single claim substantially reduces costs associated with native title in the south west by combining necessary processes such as mediation and litigation. Moreover, while a moratorium on court dates may be required in the short term, the timeframe for the realisation of native title outcomes for the south west region should be far shorter over all. Any concern over open-ended time frames should be allayed by the Court’s indication it would ‘maintain tight control of the mediation process’.[8]

Settlement Outcomes

The efficiency of the single claim approach extends to both the negotiation process and the range of options opened up by the combining of the claims. For the State, having one point of contact for negotiation around native title and related issues in the region will enable both parties to crystallise outstanding issues and build constructive dialogue through ongoing engagement. It has been suggested that in pursuing this course, ‘the advantages to the Government will be enormous’.[9] As Wilcox J has recognised:

It is generally true of any civil litigation that an outcome negotiated between, and accepted by, the parties, is preferable to one determined by a court. I believe this is particularly true of native title litigation, where the parties may have an ongoing relationship and there may be a need for day-to-day cooperation in implementing the litigation outcome.[10]

In many of the relationships of coexistence in the south west, the primary interface will be between Indigenous peoples and the state. In this circumstance, the negotiation of the relationship with state agencies over such land holdings as classes of holdings would provide substantial efficiencies.

Agreements could be reached over groups of land tenures through Indigenous Land Use Agreements (‘ILUAs’), either as freestanding agreements or as part of a comprehensive consent determination. Efficiencies can also be drawn from the parallel processes currently engaged in for other regional approaches and negotiations at the State and Commonwealth levels.

Achieving a Consent Determination

Although the threat of litigation may be reduced by a single claim, Aboriginal & Torres Strait Islander Social Justice Commissioner Bill Jonas recently pointed out that ‘native title negotiations are constrained by the legal tests on which the recognition of native title depends’.[11] Despite this reality, Noongar people are confident in their assertion of the right to speak for country as a single Noongar group and that their evidence of connection supports this identity. A positive determination of native title is of symbolic as well as substantive importance.

The Single Noongar Claim has significant potential for achieving a consent determination in the south west that will support a broader settlement so long as the Commonwealth and State respondents do not fixate on an approach which demands ‘as a priority’ a Court determination on issues of connection.[12] The Courts have shown a willingness to accept the decisions of the parties to a consent determination that is likely to be consistent with the law. In accepting a consent determination, the Courts have not applied strict evidentiary tests on the Indigenous parties and have willingly incorporated supporting agreements concerning particular classes of tenure.[13]

Failure to commit to renewed mediation can no longer be influenced by frustration with overlaps and past administrative difficulties. The Court rejected the argument that negotiation was not sustainable in current circumstances because past negotiations have been lengthy, or were perceived to have ‘failed’.[14] The support of the state in realising the opportunities provided by a fresh approach are imperative. The Aboriginal and Torres Strait Islander Social Justice Commissioner’s Native Title Report recently argued that we are largely yet to see negotiations take place as part of a consistent, coherent policy framework.[15]

Conclusion

Native title litigation has tended to force parties into scripted roles which can be hard to escape. The legal resolution of native title also seeks to impose a single model of rights recognition over country that becomes less and less appropriate for settled area applications. In contrast, negotiating the settlement of native title can allow diverse Indigenous nations to secure outcomes that suit their particular circumstances.

The promise of Mabo was to begin a process which was bigger than this and which enabled different peoples to address unresolved issues at the heart of relations, and move toward a future based on mutual respect. The State has an opportunity with the single claim to build a new relationship between Noongar people and the government based on the fundamental recognition and respect of Indigenous rights that native title symbolises.

Dr Lisa Strelein is Manager and Research Fellow with the Native Title Research Unit of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS). Dr Stuart Bradfield is a Visiting Research Fellow with the Native Title Research Unit of AIATSIS.


[1] Mabo v Queensland [No.2] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).

[2] Western Australia v Ward (2002) 191 ALR 1.

[3] See, for example Neowarra v WA [2003] FCA 1402 (8 December 2003) [385]-[393] (Sundberg J).

[4] Murray Jones, paper presented at Native Title Conference 2003: Native Title on the Ground, Alice Springs NT 2-5 June 2003.

[5] Anderson v State of Western Australia [2003] FCA 1058 (2 October 2003) [24] (French J).

[6] See determination of no native title in Queensland due to lack of resources to fund response to non-claimant application: Kennedy v State of Queensland [2002] FCA 747 13 (June 2002). Compare recent criticisms of the funding policy applied by the Commonwealth Attorney General’s Department in the allocation of assistance to non-claimant parties, eg Brian Stacey, ‘Who bears the cost of NTRB capacity building?’, Native Title Newsletter No 6 2002, NTRU, AIATSIS, 4.

[7] Stacey, above n6.

[8] Wilkes v State of Western Australia [2003] FCA 1206 (9 October 2003) [12].

[9] Statement to Estimates Committee, Western Australia Legislative Assembly, Western Australia, (Richard Curry, Director General, Department of Indigenous Affairs).

[10] Wilkes v State of Western Australia [2003] FCA 1206 (9 October 2003) [17].

[11] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2003, HREOC, (2004), 3.

[12] Anderson v State of Western Australia [2003] FCA 1058 (2 October 2003) [18].

[13] See Clarrie Smith v State of Western Australia [2000] FCA 1249.

[14] Wilkes v State of Western Australia [2003] FCA 1206 (9 October 2003) [19].

[15] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2003, HREOC, (2004), see particularly chapters 2 and 3.

Download

No downloadable files available