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Native title is still alive

By Sean Brennan - posted Tuesday, 3 October 2006

The idea that the Mabo decision would help Aboriginal groups overcome poverty and exclusion was a powerful sentiment in 1992. It took a battering from later High Court decisions and parliamentary amendments as the native title system became technical and harsh. Outcomes were good for some, measly for others and non-existent for many more.

It seemed the promise of a genuinely new beginning for Australia might quietly die in courtrooms around the country.

But in a recent ruling, the Federal Court recognised the Noongar people as native title holders for the Perth metropolitan area. It is a decision that sparks fresh hope not only for the Noongar, but for Australia. It gives us another chance to get the focus right in native title. That is, on negotiation, not litigation.


Like other Aboriginal groups, the Noongar want to sit at the table and talk about the future. Governments who attack their success will spend their time in court, arguing about the past. The Noongar saw native title as an opportunity to organise themselves and engage with government. Their success gives government the chance to make good on its own rhetoric about economic and social development.

Scaremongering is the wrong way to go. It is an old trick and governments have cried wolf before: in 1992 after Mabo and again in 1996 after Wik. Now federal Attorney-General Philip Ruddock is spreading fear about public access to beaches and foreshore, despite the fact that the Native Title Act protects these things: the recognition of native title never takes away another person's legal rights in land.

Nightmare scenarios are calculated to discredit Aboriginal groups who have their rights recognised under Australian law. Governments would never undermine whitefella property rights in the same way.

In the Yorta Yorta case in 2002, the High Court laid down legal rules for groups to show they had maintained a traditional connection to their land. The rules were tough but left the factual determination to trial judges on a case-by-case basis. The critical question became how much change and adaptation, due to white settlement, could occur before that link with the past was lost.

Cases have gone both ways. Some claims failed. Other groups proved their continuing traditional connection to land. They did so in remote areas but also in rural Victoria and regional towns such as Broome and Alice Springs.

The Noongar put their case in a metropolitan area. Murray Wilcox is one of the Federal Court's most experienced judges. He heard evidence over many days and government argument that native title did not exist. His judgement is long and carefully reasoned. An appeal remains possible for now. But on his view of the evidence, the Noongar meet the demanding test for connection set down by the High Court.


Governments attacking the decision might reflect on two recent comments of their own. Last month the Prime Minister went to Gosnells, 17 kilometres from the centre of Perth. After an Aboriginal welcome to country, John Howard said "can I especially express my thanks for that very warm, traditional welcome, and acknowledge the traditional owners of the land on which this gathering takes place". He was talking about the Noongar.

State Government counsel in the Noongar case, Stephen Wright, acknowledged in an article this year that while urbanisation might make things difficult, past cases showed that it "is not necessarily fatal to the continued existence of native title, and each case may turn on its own facts".

So the Noongar proved their case but there is no pot of gold, as Wilcox said. The existing property rights of others are safe. Trying to pick apart the Noongar claim will miss the point. The State Government has talked of agreements that put the legal technicalities of native title to one side and focus on contemporary Aboriginal needs and aspirations.

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This article was originally published in The Age on September 25, 2006.

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About the Author

Sean Brennan is Director of the Indigenous Rights, Land and Governance Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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