Eighty thousand Aboriginal people make up Western Australia but half will soon be without any native title rights. The Australian Labor Party has got in the way of a rare opportunity to repair and improve native title rights and bargaining powers. The federal Labor mob will support the Coalition government’s move to amend the Native Title Act which will spite and undermine the Noongar applicants’ victory in February in the Federal Court that struck out a native title deal in Western Australia between the state government and ‘Noongar peoples’ which is ultimately aimed at leading to the extinguishing of Noongar native title rights.

The federal court – three judges – invalidated Indigenous Land Use agreements because they were not signed off by all the claimants. It’s like a house with multiple owners being sold without all the owners having agreed to sell it and some refusing to sign the settlement documents.

Four high profile Noongars challenged the settlement phase of the deal; the necessary follow-through steps required in registering the Noongars’ Indigenous Land Use agreements after the successful ‘yes’ vote – through the slimmest voter turnout – of Noongars in accepting a compensation package from the Western Australian government in exchange for the extinguishing of their native title rights after 12 years. If the deal does go through it will mean 40,000 Noongars will be thereafter without native title rights.

Who could have imagined this in 1993 when the Native Title Act was cobbled together? Native Title had been intended as a compensatory mechanism in perpetuity to help sponsor social remedies and reforms for generations of disadvantaged and marginalised Aboriginal and Torres Strait Islanders after all the crap they endured generation after generation since the arrival and spread of colonialists; generations of the cruellest apartheid.

The Aboriginal population of Western Australia totals 80,000 and the extinguishing of their rights will result in half the Aboriginal population of the state without native title rights.

What hope for future generations of Noongars if the paltry $600 million over 12 years to six regional entities is spent up with little dividend hitting the coalface? The rest of the compensation package is not worthy of mention, it’s all reductionist and minimalist goodwill stuff. The majority of Noongars live poor, marginalised, they endure among the nation’s highest homeless, arrest and jailing rates. In Perth, one in 9 Noongar children has been removed from families. The majority of Noongar families have someone in prison. The level of money that needs to be spent on the transformational is yet to appear. To date it’s all been crumbs and in the scheme of things the compensation package but at the price of extinguishing rights is indeed crumbs. It will go nowhere fast.

Federal Labor has three prominent Aboriginal individuals as parliamentarians and there are five federal parliamentarians who take pride in their Aboriginal heritage but they have let down the Noongars and they have missed the grab-a-go opportunity to repair native title. A rushed joint parliamentary inquiry into the native title federal court decision which effectively overturned the deal offered by the Western Australian government will soon be undermined once the amendments to native title pass both houses of parliament.

What should have occurred was the parliamentary inquiry should have instructed those who lobbied the government for the amendments that they move the matter to the High Court, that the federal court ruling that all the major claimants in being required to sign-off should be argued in the High Court. Just like Terra Nullius was settled in the High Court so too this needed be settled in the High Court. From there onward the legislators could then have considered what next and with the outcome guaranteed by the High Court findings that there would be repair to native title and an improved bargaining position for claimants. The improved bargaining position would be the best shot at ‘closing the gap’ – because governments alone will never close the gaps.

So Labor will support the government to give certainty to the authorisation of Indigenous Land Use agreements that for so long have failed to provide the type of dividend to impoverished people that was once long ago expected of native title negotiations. We’ve seen the two-decade native title debacle that has fractured communities, turned people against people, filled them with hate and left the most vulnerable and ‘voiceless’ people left out in the cold. The Australian Greens were just as bad, focused on stopping a coal mine going ahead – the Adani Carmichael coalmine – and failing to argue the case to prevent the extinguishing of Noongar native title rights. I’m all for the coalmine proposal being scrapped but that is not what this parliamentary inquiry should have been about; it was about native title but the Greens scurried biasedly and muddied the waters with their focus on the coalmine.

But government – with the support of Labor – do want the Adani Carmichael mine to go ahead and the Noongar federal court win did affect mining projects authorised by Indigenous Land Use agreements. The rushed amendments as soon as approved will provide the certainty that governments and miners want. But the Wangan and Jagalingou traditional owners arguing against the Adani coalmine have accused Labor of “lining up with the government” and in effect “winding back” their rights.

The battle may not end with the failed parliamentary inquiry effort which succumbed to a quick fix certainty for mining and development agreements. As did the late great Eddie Mabo, the Noongars may go to the High Court and test their authorisation rights in the High Court just as Mabo tested the lie of Terra Nullius. What there is today in terms of native title rights and negotiations for a quid is because of the near two decades long struggle and sacrifices by Eddie Mabo. What there maybe tomorrow in terms of improved bargaining powers and the capacity for more significant social reforms maybe because of four Noongar applicants – Mervyn Eades, Margaret Culbong, Naomi Smith and Mingli McGlade. If these four win in the High Court then the Legal and Constitutional Affairs Legislation Committee that missed the big picture opportunity, well then they’ll be convened again to think again.



Recommending background reading:

–          Simplistic offer will not end solve years of neglect – The West Australian, February 23, 2013

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

–          A deal without certainties, July 12, 2014


Let the High Court settle the native title dispute