I would like to start by acknowledging the traditional owners and my respect for the fact that I am speaking on Ngunawal land. On 19 September 2006 Justice Wilcox handed down his decision recognising Noongar native title over an area of 6,000 square kilometres including the Perth metropolitan area but excluding all freehold and most leasehold land. It is fair to say that this caused a great deal of excitement in the Noongar community in Perth. But I have been concerned by the reaction of both the state and federal governments and disappointed by a number of misleading public statements which seem to be aimed at creating a climate of fear around this claim.
Justice Wilcox's decision recognised that there was a single Noongar community occupying the Perth metropolitan region in 1829 that has maintained its connection to the land, its language, its law and its culture. The Noongar community has faced an uphill battle to maintain their law and culture in the face of European settlement. It is a tribute to their strength and determination that they have survived policies that removed their children and sought to wipe out their language and culture. It is particularly disappointing that, in the face of this brave struggle, the Commonwealth and state governments are challenging this claim on the grounds of the unity and continuity of Noongar culture. It is all the more shameful because, as Justice Wilcox said, this recognition is predominantly of 'symbolic and psychological importance'.
For many years Noongar language, culture and law were effectively pushed underground, but the fact that it continued out of sight of white authorities is well documented and clearly demonstrated by the extent of contemporary language and cultural knowledge. There is the example that when Noongar children were removed from their families under the 1905 act and placed in institutions, like Moore River or Sister Kate's, they were strictly forbidden from using their language and were subject to harsh punishments if caught. Despite this, the Noongar language and culture are strong and are experiencing a renewed resurgence. The community hopes that this native title recognition will give extra impetus to this resurgence.
Legal experts have debunked the claims that the decision is inconsistent with the findings of the Yorta Yorta case; that is, that native title claimants need to demonstrate that they have substantially continued to observe traditional laws and customs. There are two important facts about the situation of the Noongars in Perth that are different from the case of the Yorta Yorta and any other likely native title claim over a capital city. The settlement of Perth happened relatively late: the Crown declared sovereignty in 1829. There is a wealth of written, documented evidence from the time of settlement that reports Noongar traditions and documents responsibilities for areas of land. As Justice Wilcox wrote:
The cumulative effect of these writings is to provide an insight into Aboriginal life, including Aboriginal laws and customs, in and about the date of settlement, which is possibly not replicated elsewhere in Australia.
The Noongar people have clearly demonstrated the preservation and continued observance of their laws and customs since 1829.
I want to speak specifically to the misleading, scare-mongering comments made by the Attorney-General, Philip Ruddock. For example, he said on ABC Radio:
"In a major capital city where you do have very extensive areas of parklands, water foreshores, beaches, matters of that sort, you could well find that ... native title owners would be able to exclude other people from access to those areas ..."
You would think that the Attorney-General would know better. It seems inconceivable to me that he could make such a misleading public statement on one of his key portfolio areas. Justice Wilcox clearly spelt out the limitations of native title rights in delivering his judgement, indicating that the reservation of land for public purposes clearly extinguishes native title. He wrote specifically:
"Having regard to the extent of urban development and intensive farming in the claim area, the result is that a large proportion of the land within the claim area (the Perth metropolitan area) is unaffected ..."
Respected corporate law firms, such as Deacons and Freehills, agree with Justice Wilcox's analysis. Public access to beaches, foreshores and parklands subject to native title claims is specifically protected by enabling legislation in Western Australia, Queensland and Victoria. While this is the first time that native title has been granted over a capital city-Perth is our fourth largest city-this is not the first time it has been established over areas of highly settled land, including town sites and cities.
So, what then of the Attorney-General's claims? A threat to block public access to recreational areas is only theoretically possible if there are situations where there are recreational areas accessed by the public-such as beaches, parks or forests-and their recreational use has not technically been properly reserved or dedicated. Under these circumstances, the Noongar people would need to seek to be granted exclusive access to these areas and would have to actually be granted exclusive access by the courts, which is extremely unlikely.
The Noongar people have clearly stated that they are not interested in excluding anyone from any recreation areas. The only conclusion can be that this is a scare campaign with no real substance. To the credit of the wider community, it seems that they have not been scared by this scare campaign.
The approach taken by the federal government on this issue is disappointing but not entirely unpredictable. It is consistent with their wider approach to Indigenous affairs and fits in with their recent legislative and administrative changes which undermine Aboriginal communities and seek to replace any last vestige of self-determination with a new paternalism. It is disappointing that I have not heard many voices raised that are positive about the findings on native title for the Noongar community.
However, this is nothing compared with the disappointment and disillusionment of the Aboriginal community with the WA state Labor government. The gap between rhetoric and reality in this case is astounding. The state Attorney-General, Jim McGinty, has been tying himself into knots trying to claim that the Carpenter government does not want to defeat Noongar native title as such but rather wants to challenge the grounds for the judgment-that is, the coherence and continuity of Noongar society.
This is a double slap in the face for the Noongar, who have consistently stated that acknowledgement and recognition are their primary concern, that they want the opportunity to be recognised as custodians of the land and be able to play a greater part in decisions about how it is managed-in such areas, for example, as natural resource management. They want to be able to teach their children their law, culture and language. They feel abandoned and betrayed.
This challenge effectively means that the major beneficiaries of this case in the foreseeable future will be the lawyers rather than the Noongar community. Imagine if the millions that are to be spent on challenging this case in court were to be spent on the Noongar community. The process will be expensive, but this expense will fade into insignificance compared with the cost of continuing down this road.
There is a risk that the challenge to the notion of a 'single' Noongar society could lead to a situation in which we are instead forced to deal with a large number of overlapping native title claims for individual family groups, greatly increasing the legal complexity, and of course cost, without delivering any better result for the Noongar community, other communities in the future, the state or federal governments or the community. And if the Noongar are successful in defeating this challenge, they might choose to continue down the path of litigation.
To this end I urge the governments-particularly the state government-to withdraw their challenges to the native title claim and I urge the state government to return to its commitment to negotiation rather than litigation and to start talking in good faith with the Noongar community so that the outcomes of the native title case can genuinely start to have a positive effect for the Noongar community of Perth.