Shock court ruling scuttles historic $1.3b WA native title agreement


The biggest native title settlement in Australian history—worth a massive $1.3 billion—is in danger of being scuttled after a shock Federal Court ruling that will have national ramifications.

In a judgement handed down in Perth yesterday the court found that four of six land use agreements negotiated between the Noongar people in Western Australia and the Barnett Government cannot legally be registered.

The six agreements made up a landmark $1.3 million package which was to be full and final settlement of all current and future claims made, or to be made, by Noongar people under the Native Title Act on land and waters in south-west WA.

The South-West Aboriginal Land and Sea Council had hoped the settlement would breathe new life into its community.

But the Federal court ruled that the Wagyl Kaip and Southern Noongar agreement, the Ballardong people agreement, the Whadjuk people agreement and the South West Boojarah agreement did not comply with section 24CA of the Native Title Act and cannot be registered.

The court action was taken by Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong.

Their lawyers successfully argued that a land use agreement cannot be registered if not all individuals who jointly comprise the relevant native title claimant or claimants have signed it. The four did not sign the agreements.

“The applicants say their case is straight forward; in order to be an indigenous land use agreement within the meaning of s 24CA, the agreement must, among other things, meet the requirements in s 24CD, which requires that “[a]ll persons in the native title group” be a party to the agreement,” the judgement said.

The judgement was delivered by Federal Court judges Justices North, Barker and Mortimer.

McGlade, Eades, Smith and Culbong had originally taken action in the High Court, but in February last year the case was passed to the Federal Court where it was decided by the three full court judges.

The ruling would come as a blow to the South-West Aboriginal Land and Sea Council which had hoped the agreement with the WA Government would breathe new life into Noongar communities in the region.

The agreement was reached between the Barnett government and the Noongar groups in June, 2015.

It provided for $50 million of funding each year for 12 years and the transfer of up to 320,000 hectares of Crown land.

It was expected to be up and running by as soon as early this year.

The Federal Court ruling is expected to have implications for other agreements across Australia.

WA Premier Colin Barnett has told the ABC the deal would affect 20,000 Aboriginal people and that it would proceed despite today’s court setback.

 By Wendy Caccetta

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