It’s back to the Native Title drawing board
It’s ‘groundhog day’ as Australia’s biggest Native Title settlement is placed back before the National Native Title Tribunal, this time by Western Australia’s new Labor government.
The NNTT is accepting objections to the controversial $1.3 billion plan — originally put on the table by WA’s ousted Barnett coalition government and the South West Aboriginal Land and Sea Council — until January.
“It is groundhog day,” Perth-based lawyer Kevin Morgan of Murfett Legal said.
The settlement shook the foundations of Indigenous land use agreements across Australia back in February when the Full Court of the Federal Court ruled that four of the six ILUAs in the package could not be registered because not all Native Title claimant or claimants had signed it.
Mr Morgan and former Federal Court judge Ron Merkel successfully represented Noongar members Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong, who did not want their Native Title extinguished.
But in June the way was cleared for the settlement to be resurrected when Federal Parliament changed Native Title laws.
Mr Morgan said he was disappointed the McGowan Labor government didn’t appear to have looked at the original legal objections before re-submitting the same deal, nor had there been any attempt to re-negotiate the settlement
He said the WA government could have walked away from the agreement.
“They could have walked away from it,” Mr Morgan said. “The deal allowed them to walk.”
Mr Morgan said the matter could have been better played at a federal government level.
“I must admit … I’m very surprised that just a matter of a few weeks after some key Indigenous politicians voted in overturning this decision of the Full Federal Court and therefore resurrecting about 140 resource agreements that were otherwise in jeopardy, they then come along with their plea about (getting) a voice in Parliament and other such things and they are surprised that Cabinet has just said ‘No, go away’.
“I’m thinking ‘Shouldn’t you have put that proposal to them before they voted in favour of the amendment legislation?’, but for that amendment legislation, there would be about 140 resource projects come to a grinding halt and maybe they would have been in a better position to get what they wanted.
“I was very disappointed in the Indigenous politicians that swept aside this Noongar decision.”
The NNTT confirmed this week the four ILUAs for the Ballardong people, South West Boojarah, Wagyl Kaip and the Whadjuk peoples had been resubmitted for registration.
Another two ILUAs for the Yued and Gnaala Karla Booja peoples will be decided at the same time.
The timing for dealing with any objections and a decision on whether they can be registered or not is likely to be known early next year.
Mr Morgan said his clients would lodge the same objections and the matter could be headed back to court.
“Noongar Native Title hasn’t by any stretch been settled,” he said. “I can see that people think ‘Wow, why don’t we just extinguish it all and set up this fund which in due course might assist?’
“But people find it all a bit difficult and think the extinguishing of Native Title is the quickest way forward. My task was to stop that happening.
“I can see both sides of the argument, but I would think if push came to shove we could preserve Native Title and make it a bit more adaptable to commercial realities, but people take the quickest path and that’s the quickest path for them and they’ve obviously chosen the re-registration path rather than starting afresh.”