Len Collard

Len Collard

This is the 3rd piece for The West Australian newspaper and The Stringer by Len Collard and Gerry Georgatos on the State Government’s native title deal and they question whether the deal is a deal.

Much has been made of the State Government’s billion dollar-plus offer to the Noongar people, that it is the most generous offer of its type – but is it? It is not, nowhere near and nor is it grounded in certainties.

Is it a genuine native title offer or a politicised move to coerce a proposition that native title rights have been settled for all those considered Noongars and that all future rights are extinguished?

The South West Aboriginal Land and Sea Council (SWALSC) had been the entity built up over the years that often supported the native title claims of holders through the Courts. If the deal goes through, what will eventuate if the $1.3 billion time-limited deal is sealed is that SWALSC will no longer support native title holders and claimants through the courts. If this happens, the majority of native title holders will be marginalised, with inadequate access to their legal rights.

But what if the deal does go through, what certainties will it deliver to the Noongar peoples?

Premier Colin Barnett has said that the deal’s centrepiece will be the Noongar Recognition Bill – that the Noongar peoples were the original custodians of the lands we live on. Noongar peoples do not need anyone to tell them what they already know. If this is the best on offer then we have a long way to go.

The Recognition Bill is token, conferring no substantive legal rights to the custodians.

In terms of the return of land to Noongar peoples, arguably up to 300,000 hectares of near wasteland and bushland may be identified for lease and management while another 10,000 to 20,000 hectares may be identified for freehold. But, this is all a Clayton’s style deal, because the freehold titles can be resumed by Government at any time, and similarly so land management agreements revoked at any time if the acquisition is argued in the public interest. So Noongar and Wedjela people, we ask you all where is the certainty?

Therefore it is highly probable that the State will not be obliged to compensate the Noongar people for the acquisition of our lands – freehold or management.

The negotiation process of which land parcels are to be transferred from the State to the Noongar Boodja Trust will be deliberated over five years but commencing only after the deal is voted through by what will be less than a few per cent of the Noongar people.Once again there is no certainty for anybody Noongar or Wedjela because in reference to the so called land negotiation agreement it is noted in Section 6(b)(ii), “Whilst the State will use its best endeavours to reach agreement with SWALSC or the Trustee, there is no guarantee that it will do so.” This ought to send a shiver down the spines of all Australians as it is a deal that may create animosity.

That State Government of Western Australia does not guarantee that approvals under these conditions will be given, whether over five years or over a further period of ten years, nor can it guarantee a minimum measure of land allocation. And according to Section 10 (b) once again any land transfer must have the further approval of the Minister for Mines and Petroleum.

And in the event that any land will be transferred there will be no exemptions from rates, taxes and any other associated levies or costs, Why?

Where is the certainty? Well there is not in any shape or form for anyone.

The packaged offer is tenuously at the very low end of the range in terms of per head of population. The Noongar population may exceed 40,000 and therefore the dividend notionally is bottom of the barrel.

A few years ago, SWALSC and the State Government combined in a heads-of-agreement opportunity to settle native title claims to all Noongar country. The Government and SWALSC are having a dialogue among themselves.

But if they are serious about democracy, the SWALSC should ensure a postal ballot conducted by the State or Federal bodies responsible for such a process so all Noongars can vote without fear or favour on whether the deal should be upheld or rejected. And if they were serious they would disagreggate Noongar demographics and authenticate claimant groups and connection to the land. They are working off the 80 odd year old Tindale map, which is still a subject of division amongst the SWALSC members.

Furthermore, what is being created in the SWALSC is a simplistic holistic bureaucracy of Noongars to liaise with Government but which will be disassociated from the real cultural, social and economic aspirations of Noongar and non-Noongar peoples alike. It may well arise that this bureaucracy will never deal culturally, socially and psychosocially with Noongar peoples and in turn never have the opportunity to raise people out of impoverishment.

The whole proposal is a simplistic step to address a myriad of cultural, economic, legal and social problems and the intergenerational poverty – acute, abject, endemic and pernicious – imposed on most Noongars.

No native title settlement has provided the capacity to remedy the problems in Aboriginal communities – plagued by problems imposed by more than a century of disenfranchisement, neglect and the pain of poor policies.

Native title is so watered down and so easily circumvented by politicisation that those within the native title community argue that settlements are about getting what one can – finite outcomes while dismissing panacea and sustainable systems.

Well, they are wrong.

The Australian political and ideological landscape is changing and it may well be that in a couple of years or even decades that the Noongar peoples will be able to secure what is being denied today under this system.

If the deal goes through, future Noongars will have courts telling them that their ancestors signed their rights away. The deal should not be signed because there are still questions of sovereignty to solve, only rights issues per se, entitlements and reparations, remedies, customary and traditional ties. These don’t threaten current land use, but are pivotal to generating the type of rights that will raise people out of intergenerational poverty.

The $600 million over 12 years being bandied around by the Government on offer if the deal is signed off should be spent nevertheless directly on remedying the ills that plague far too many clans of Noongar people – whose children are dying at the world’s highest suicide rates, who are being incarcerated at among the world’s highest imprisonment rates and who are living in overcrowded private and public housing.

The native title system has been a debacle, a missed opportunity but the disaster is compounded when Governments get in the way and further short-change the claimants of their social, economic, cultural and compensatory rights.

We were not put on this earth to watch our children die. We were not put on this earth to bury our children. We were not put on this earth to be betrayed by the trust expected of us in others, such as in Governments whom act in ways that threaten and destroy livelihoods and therefore our trust.

Native title was supposed to be remedial, humane and compensatory and not less than this, but the State Government’s offer is even much less than this, and the Western Australian Government has now offered probably the worst deal ever in native title history to 40,000 Noongars – certainties of a future road littered with ill will and intergenerational conflicts for all Australians.


–       UWA’s Professor Len Collard is a Noongar from the Whadjuk people. Gerry Georgatos is PhD researcher and writer on social justice issues.



Simplistic offer will not solve years of neglect – The West Australian, February 23, 2012

Land deal fails important tests – The West Australian, July 15, 2013