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.

It is not apparent how WA will proceed but a comparison of Deputy Premier, Eric Ripper’s language and actions may be instructive. In a media statement in 2002, Mr Ripper described himself as “saddened” by the High Court’s decision that the Yorta Yorta had not been able to meet the elements of proof necessary to establish their native title claim. Mr Ripper said that it was a “tragic reality that many Western Australian claims, particularly in the south-west, were unlikely to meet the legal definition of native title”.

He added, “it adds insult to injury that the most dispossessed have the lowest probability of coming up with sufficient evidence to establish their native title rights”. Mr Ripper reaffirmed that WA’s preference was for mediated settlement of native title issues (emphasis added).

Despite his heartfelt reaction to the Yorta Yorta High Court decision, when faced with the reality of native title for the Noongar in his own backyard, Mr Ripper’s response was prompt rejection.

Justice Wilcox wrote comprehensive and detailed reasons in excess of 300 pages, yet within hours of its delivery, Mr Ripper said in Parliament that the state government did not accept the ruling.

He said, “The Noongar community has experienced too much disruption for it to have survived as a single society with a normative system of law and custom, and for it to have maintained a continuous connection to the metropolitan area since sovereignty”.

Mr Ripper stated that Justice Wilcox’s decision undermined entirely the current understanding of the application of the High Court Yorta Yorta decision, which provides the fundamental principles that guide the recognition of native title. However, this criticism from WA is not isolated to the Noongar decision.

WA has long been a critic of a number of Federal Court decisions, which it considers unorthodox in their interpretation of the applicable legal principles, including determinations in favour of the Yawuru, Bardi Jawi and Ngarluma Yindjibarndi peoples. It is clear that WA has a preference for a particular interpretation of the principles, which has led it to appeal four of the five litigated determinations of native title in WA since Yorta Yorta, with markedly similar grounds of appeal.

Mr Ripper justified appealing the Noongar decision saying that Federal Court decisions that are inconsistent with the fundamental principles seriously impact the ability to set policy directions. It was only by appealing these inconsistent Federal Court decisions that the necessary clarity at law could be achieved.

Of particular concern is how WA’s conservative legal analysis impacts on setting the policy agenda for negotiation. Eric Ripper has identified that WA’s policy and connection guidelines, take account of emerging case law and precedent but are ultimately based on the principles espoused by the High Court in Yorta Yorta. Presumably, Mr Ripper meant, principles as interpreted by WA and not those from the cases that it disapproves of.

In its approach, WA does not give sufficient weight to the fact that the cases which it has criticised as unorthodox represent the current state of the law. Full Court decisions have the weight of precedent and must be applied until overturned.

Ironically, policy and connection guidelines based on WA’s narrow interpretation may set a higher standard for proving connection in negotiations than the court requires. This may leave claimants in negotiations with WA with a major dilemma when they disagree as to the applicable legal principles. Do they bargain away possible rights to get an agreement over the line? Short of resources and mindful of the strain of native title applications, do they insist upon going to the Court to challenge WA’s interpretation?

WA’s conservative analysis of applicable legal principles not only affects its interpretation of what must be “proven” in negotiations but also to what standard. Yet, the process of mediating claims to reach a consent determination stands apart from litigation and requires a different approach.

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.