Native title rhetoric

Justice North of the Federal Court detailed this difference in a consent determination for the Gunditjmara people in western Victoria. Justice North said that such agreements do not need the same factual basis that would satisfy the court at a hearing. His Honour observed one reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by state parties. The Native Title Act (NTA) does not intend to substitute a trial, in effect, conducted by state parties and contemplates a more flexible process than is often undertaken.

Justice North is, and has been, the trial judge for a number of native title applications in WA and has criticised the implementation of the WA connection guidelines. His Honour has noted that the terminology of “requirements” to be satisfied by native title claimants may infect a negotiation process with a quasi judicial role by the state.

Satisfying itself that a credible basis exists for a consent determination arises from a state’s role in protecting the public interest. That it requires satisfaction as to some degree of connection is not controversial. However, a major complication as to the proper role of connection guidelines arises from the dual role of the state in native title applications.

As counsel for WA has pointed out, state parties have an interest in their own right. If native title is granted, a state’s right to deal with land may be affected; compensation may be payable; and there are costs and responsibilities in complying with the NTA’s future act process.

There must be genuine concern as to the fairness and integrity of process when one of the parties, with its own interest in the proceeding, sets the guidelines that must be fulfilled and creates necessary preconditions.

The native title process as a means of squarely addressing the impact of dispossession and disadvantage and rectifying past injustice, as the NTA was enacted to do, must seem incomprehensible to the Noongar community. The legalistic approach to the resolution of native title claims taken by the WA government leaves it hampered from fulfilling the obligations imposed by the NTA.

WA says that it recognises the Noongar people as the traditional owners in the south-west but squandered an opportunity to give fundamental meaning to that recognition. There was so little at stake and so much goodwill possible that it is hard to imagine that technical “certainty” could have been worthwhile.