Native title rhetoric

Aspirational government rhetoric surrounding native title is too often contradicted by the stark inadequacy in outcomes for native title claimants. The State of Western Australia uses particularly positive language. The Premier, Alan Carpenter, has previously declared, “Native title is a great thing for Western Australia. Native title is a great thing for Australia” but was light on detail. Unfortunately, WA’s conduct in the Noongar people’s application for native title discloses much more about its approach to the resolution of native title claims than its rhetoric.

There was commotion in some quarters in September 2006 when Justice Murray Wilcox of the Federal Court handed down the first decision to recognise native title over a capital city, determining that the Noongar people hold native title over the Perth metropolitan area.

Despite Justice Wilcox’s assurances that backyards were safe and that native title would not be a pot of gold for the Indigenous claimants or a disaster for the rest of the community, members of both sides of politics leapt to condemn the decision.

The Federal Attorney General, Philip Ruddock, ignored Justice Wilcox’s explicit reassurance as to the limited impact of native title rights and raised the spectre that non-Indigenous people could be excluded from beaches, waterways and parks but should have been aware that a finding of native title cannot affect the property rights of others.

In announcing WA’s appeal, Alan Carpenter claimed that WA would not have appealed if it believed it didn’t have to. “This isn't a matter of a State Government trying to throw out a decision because we think it's inconvenient or we reject native title. Far from it.” He claimed that the appeal was necessary to provide clarity and consistency in the law but paradoxically, affirmed that the Noongar people are the traditional owners of the south-west of WA.

The Noongar people’s claim over the Perth metropolitan area had a particularly complex and protracted history, culminating in the lodging of the Single Noongar Claim in September 2003. On application from the parties concerned about further delays, especially WA and the Commonwealth, the Court divided the Single Noongar Claim into two portions, deciding to first deal with the portion in and around the Perth metropolitan area in a separate proceeding.

In an astounding turn of events in August 2006, three years after the Single Noongar Claim was filed and after the expenditure of an enormous amount of taxpayers’ dollars, WA filed an application seeking that Justice Wilcox rescind his orders creating the separate proceeding, abandon the work that had been done and start the case again. WA argued that there was serious doubt whether the Single Noongar application was authorised.

Justice Wilcox was surprised at WA’s discourtesy in filing such a dramatic application without any warning, two months after the conclusion of the hearing. He said that at this late stage, it would be expected that the judgment would be well under way.

Further, the Judge was taken aback, as WA’s application represented a complete about face. WA had “actively and dominantly” urged him to hear the separate proceeding. “Wishing to remain polite”, Justice Wilcox described WA’s argument that it did not know that he would not hear all the issues that might arise relating to the separate area as “disingenuous nonsense”. The word “unconscionable” leapt to mind and he questioned WA’s standing as a model litigant. Such language from a judicial officer is rare.

Justice Wilcox also described as “breathtaking” WA’s argument that the application prevented him from dealing with the separate proceeding or making findings on the evidence. His Honour identified eight native title rights and interests which are held by the Noongar community as a whole.

In an example of the increasingly technical nature of native title applications, the Full Court of the Federal Court recently held that Justice Wilcox’s approach was in error. Importantly, the Full Court’s decision is not determinative of whether native title exists over the Perth metropolitan region and the issue will be decided by another judge.

It is not at all clear, however, how the claim will proceed. The Full Court left it to the new trial judge to determine whether to deal with the separate proceeding or consolidate it with the entire Single Noongar Claim. Given the protracted history of the claim and guaranteed complications, it is evident that a negotiated outcome would best serve the parties, which, ironically, is what Justice Wilcox proposed.