
Image – Marianne Mackay, www.socialistallianceperth.blogspot.com – by Zeb Parkes
The South West Aboriginal Land and Sea Council (SWALSC) have agreed to face off with its most ardent critics – Noongar Tent Embassy. The Embassy’s delegates said this is both a coup and an opportunity “for a sliver of real consultation.” The SWALSC has argued that for the last year it has conducted community consultations in Perth and throughout the south west of Western Australia – Noongar Country. But according to Noongar Tent Embassy barely anyone has turned up to the community consultations, with some of these gatherings registering zero attendance.
Despite the criticism of the State Government’s $1.3 billion Native Title package to Noongars, SWALSC CEO Glen Kelly said that ultimately “…the Noongar community will decide whether to accept or reject the Native Title settlement package negotiated with the WA Government.”
Mr Kelly said the negotiations between SWALSC and the State Government have taken three years.
“SWALSC’s consultations with the Noongar community have been extensive with more than 300 meetings being held over the past few years.” Noongar Tent Embassy’s Maureen Culbong said she did not believe these were community meetings and maybe rather meetings with individuals, nor that they were well advertised nor that the community ones were well attended.
On October 15, at Perth’s Murdoch University Kulbardi Aboriginal Centre, there will be a panel chaired by Noongar academic Braden Hill. It has been widely advertised and it is believed the Noongar community will swell the audience – they will have the opportunity to ask questions of the panelists. The panel will comprise three members from the SWALSC – Noongars Gail Beck, Margaret Drayton and Nick Abraham, and from Noongar Tent Embassy it will be Helen Corbett, Marianne Mackay and Preston Culbong.
Marianne Mackay said the SWALSC land deal is a sell-out of her peoples rights and that it should not happen because a fairer deal that does not wipe away sovereignty might be within the grasp of the next generation.
“The Government’s SWALSC deal is not a land rights deal, it is not sovereignty, it is not Treaty, it not anything that will return anything to most of our people, it is a deal for the few,” said Ms Mackay.
“I have respect for the panelists from SWALSC, Nick Abraham is a deadly person, my dad’s mate, and I respect Gail and Margaret but this is an opportunity for all sides to be heard, for Noongars to turn up and believe they can make a difference.”
Ms Corbett said, “If this deal goes through we will have no land for the soles of our feet. Our culture comes from the land. Without it we are nothing. This offer is the equivalent to genocide, to cultural genocide.”
Mr Kelly said, “The package will not resolve the injustices of the past, nor does it pay for the land – no amount could do that. What the package does provide is a platform to build a better future.”
He said there are only two choices, accept the package or return to litigation.
He criticised the critics of the package. “It’s common for non-practitioners of Native Title to have unrealistic expectations and to presume that a positive outcome from the Federal Court is virtually automatic. This is not so.”
Mr Kelly said the Native Title regime has been watered down, damaged by the John Howard years, and that “…the worst part (of the regime) which is extinguishment” where the Native Title rights “of Traditional Owners “…are erased forever, irrespective of how strong the connection to Country might be.”
He said that “…the prospect of a compensation claim” has only effect for “…extinguishment which occurred after 1975 when the Racial Discrimination Act came into force is compensable.”
He said the important question should be “…what will it take to build a strong Noongar future?”
“First and foremost, Noongar people deserve to be recognised as Traditional Owners of the land. This is secured by a historic Act of Parliament.”
“The second thing that is needed is access to Country for cultural and customary purposes, secured on Crown lands under the land access provisions of the settlement.”
“Thirdly, there needs to be major investment in Noongar culture, custom and connection to Country, and Elders need to be restored to their rightful place.”
“Next, a Noongar land estate needs to be established along with a joint management process that under settlement would allow Traditional Owners a say on Crown lands outside the Noongar land estate.”
Mr Kelly said sustainable income sources need to be generated independent of Government.
He said that if the package is knocked back by Noongars then up two decades of litigation may result, and with no promise of positive outcomes.
“The package provides a nation-building opportunity while delivering an unparalleled opportunity for genuine Noongar self-determination,” said Mr Kelly.
“Haven’t the Noongar people waited long enough?”
However Noongar historian and University of Western Australia Professor Len Collard questions whether the SWALSC deal is “a genuine native title offer or a politicised move to coerce a proposition that native title rights have been settled for all Noongars and that all future rights are extinguished?”
“SWALSC had been the entity built up over years that often supported the native title claims of holders through the courts. But 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.”
Professor Collard said that the State Government and SWALSC are “having a dialogue among themselves” and if they are “serious about democracy, they should ensure a postal ballot of all Noongars on whether the deal should be upheld.”
“More needs to be done for Noongar people than this deal,” said Professor Collard.
“No taxation without representation: No laws taking away Aboriginal proprietary rights without Aboriginal representation in the Legislature that passes such laws.”
The Imperial policy of the 1763 Royal Proclamation as upgraded by the Imperial policy of the 1836 Letters Patent for South Australia and applied in the Treaty of Waitangi on 6 February 1840 was expressly made applicable to the colonies and particularly to the colony of South Australia to all pastoral leases within the borders of South Australia on from 1 July 1851 – in fulfilment of Lord Grey’s Act (Imp) 1850:
The Imperial policy of the 1763 Royal Proclamation as upgraded by the Imperial policy of the 1836 Letters Patent for South Australia and applied in the Treaty of Waitangi on 6 February 1840 was subsequently implemented within the borders of South Australia by the South Australian Parliament in the Aboriginal Lands Trust Act (1966) as intended from its 2nd Reading on 13 July 1966 -and in further fulfilment of Lord Grey’s Act (Imp) 1850:
http://worldlii.austlii.edu.au/au/journals/UNSWLJ/1999/4.html
THE ABORIGINAL LANDS TRUST ACT (SA) 1966 WAS THE FIRST EVER STATE ACT THAT IMPLEMENTED THE IMPERIAL POLICY OF THESE 1836 LETTERS PATENT FOR SOUTH AUSTRALIA & IN 1966 COMMENCED NATIONALLY THE COURSE OF LEGISLATED LAND RIGHTS
This is contained in the SA Minister for Aboriginal Affairs, Don Dunstan’s, 13 July 1966 2nd reading speech on the original Aboriginal Lands Trust Bill, whose exact words on the legal import of the 1836 Letters Patent need to be continued forever:
http://www.samemory.sa.gov.au/site/page.cfm?u=656
The Hon. D.A. Dunstan (Minister for Aboriginal Affairs) introduced an historically just bill into [the] house on 13 July 1966 for an act to establish an Aboriginal Lands Trust that [the] house justly passed.
In doing so for [Aboriginal land] rights, the Hon. D.A. Dunstan justified the creation of [the] Aboriginal Lands Trust Act upon the basis of the unfulfilled Letters Patent of 1836.
He said: “I intend to trace the history of Aboriginal lands rights in South Australia, because on examination it is clear that Aborigines were wrongfully deprived of their just dues. We must, as far as we can, right the wrongs done by our forefathers. The Letters Patent Under the Great Seal of the United Kingdom erecting and establishing the province of South Australia and fixing the boundaries thereof, dated February 19, 1836, contained the following proviso: provided always that nothing in these our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal natives of the said province to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any lands therein now actually occupied or enjoyed by such natives.”
What the Hon. D.A. Dunstan acknowledged in this statement to [the] house was the wrong that was committed in the ongoing colonisation of the original British Province of South Australia as that specifically was continued in the Constitution of this state of South Australia by the establishment of [the Parliament] house, and which created so very much pain, suffering, confusion, anger and segregation, and is why he also said on the record of the house: “It is clear that Aborigines were wrongfully deprived of their just dues. We must right the wrongs.”
… The Hon. Jay Weatherill, [the] Minister for Aboriginal Affairs, made a like acknowledgment of the Letters Patent of 1836 on Proclamation Day at Glenelg on 28 December [2006]. Minister Weatherill publicly recognised that the failure of South Australia to have met and to continue to meet the promise in the Letters Patent has `been the cause of much loss and suffering for Aboriginal people’.
Like the former minister for Aboriginal affairs the Hon. D.A. Dunstan, he said on behalf of [the] constitutional state to us all: “we must also recommit ourselves to the promise made to Aboriginal South Australians. . . 170 years ago.
The full constitutional rights of the South Australian Aboriginal Descendants under the Imperial Policy of the Foundation Letters Patent of 1836, including those rights of all the Australia wide Aboriginal Inhabitants from 19 February 1836, may still be asserted by legislative action by each Australian Parliament. In SA these 1836 Instructions that are required to be implemented have been overridden from 1857 until 1966 without justification or compensation:
The Colonial Office recognized the existence of Aboriginal proprietary rights. It intended to provide for their continuance. The rights didn’t derive from statute law; they were embodied in common law and stemmed from Aboriginal prior occupation of the continent:
GORDON GAIRDNER COLONIAL OFFICE 1840
The native inhabitants of any land have an incontrovertible right to their own soil; a plain and sacred right which seems not to have been understood – COLONIAL OFFICE, 1840 “………these tribes had proprietary in the soil… particular sections of it were clearly defined and well understood before occupation of their country”. SEE: H. REYNOLDS: ‘THE LAW OF THE LAND’
The original 1915 River Murray Waters Agreement on the management and sharing of waters of the River Murray that was signed by the governments of Australia, NSW, Victoria and SA, providing for the construction of a number of storages, weirs and locks was based on the legal fiction of terra nullius that has been exploded by the High Court in the Mabo case. There is serious and substantial concern in the community that ineffective piece-meal solutions as much part of the problem as over usage.
“The failings of the ‘historic’ River Murray handover deal have now been demonstrated, and the deal needs to be scrapped and State and Federal Governments forced back to the drawing board to fix the system once and for all” – THE COALITION OF CONCERNED MURRAY COMMUNITIES (CCR)
In order to “fix the system once and for all” the terms of this Four Parliaments Agreement need to be renegotiated with the inclusion at the negotiating table of the Ngarrindjeri and Traditional Owners in South Australia to account for the RECOGNITION and IMPLEMENTATION of the full rights of the Traditional Owners along the river in South Australia in fulfilment of the British Founding Letters Patent of 19th February 1836 establishing South Australia.
(For the Letters Patent of 19th February 1836 see: http://www.foundingdocs.gov.au/resources/transcripts/sa2_doc_1836.pdf )
WITHOUT THE FULL RECOGNITION and IMPLEMENTATION of the British Founding Letters Patent of 19th February 1836 establishing South Australia and reserving to all the Aboriginal descendants FOR ALWAYS their traditional birthright to occupy and enjoy their own lands, including Murrundi (the river), the lakes and Kurangk (the Coorong), the South Australian Aboriginal Descendants will be left without all the necessary and AVAILABLE means to ensure their Murray River Communities get access to all the water that Murrundi (the river), the lakes and Kurangk (the Coorong) need to survive as a living system and the parlous current state, and management, of the River Murray will continue unabated by united community action.
In 1914 the Privy Council held that the Letters Patent “have the authority and force of an Imperial statute”
See: TREATMENT OF ABORIGINES – Excerpts from The Advertiser inc. Tuesday 21 October 1930
Every and each supporter of the proprietary rights of Aboriginal Descendants across Australia should read and consider the views below of the Privy Council from 1914 on the 1836 Letters Patent establishing the colony of South Australia in the territory of the Aboriginal inhabitants and assess how these 1836 Letters Patent have been adjudged to “have the authority and force of an Imperial statute” and thereby “the legislation carries with it an implied power to the executive to do such acts as are and are known to be necessary to translate the direction of the Letters Patent into an actual boundary in the prac-tical sense of the word”.
The Letters Patent “therefore implicitly gave to the Executives of the two colo-nies [of SA & NSW] power to do such acts as were neces-sary for permanently fixing such boundary [between them]” … “pro-vided always that nothing in these our Letters Patent-contained shall affect or be ‘construed to affect the rights of any aboriginal native of the said province to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any lands therein now actually occupied or enjoyed by such natives.”
The Advertiser (Adelaide, SA : 1889 – 1931
Monday 2 March 1914
Page of 20
THE BOUNDARY DISPUTE [PRIVY COUNCIL – UK – 1914]
VERDICT AGAINST SOUTH AUSTRALIA.
The “Times,” just to hand, contains a full report of the judgment of the Committee, as delivered by Lord Moulton, …
The Act of 1834 (4 and 5 William IV., c.95} under which South Australia was created a colony, enacted that his Majesty. with the advice of his Privy Council, might erect within a defined part of -Aus- tralia (which includes the present colony of ‘South Australia) one or more pro- vinces and fix the respective boundaries of such provinces, and that the inhabi- tants of such provinces should be free from the laws, orders, statutes, And con- stitutions of other parts of Australia, but should be subject to and bound to obey such as were from time to time made for such province or provinces. …
The Appellants’ Arguments.
It remains to consider the argument based thereon by the appellants. …
by the Order in Council of Feb- ruary 19, 1836, the Crown, acting under the powers given by that Act, created the colony of South ‘ Australia, and fixed its eastern boundary at the merjdian of 141 deg. east longitude; that the boundary so fixed has the same legal status as if it had been fixed in and by the Imperal Statute, “and that therefore nothing less than an Imperial Statute can alter it. Finally, … no Imperial Act has been passed which ‘ either specifically alters it or gives powers of alteration to any other individual or Légíslature which have been exercised in that behalf, and that therefore the boundary between the two States remains as it was fixed by the Order in Council. …
With much, if not all, the legal argu- ment for the appellants stated as above their lordships find themselves in agree-ment. They are of opinion that, so far as fixing the boundary of South Australia is concerned, the Letters Patent of Feb- ruary 19, 1836, have the authority and force of an Imperial statute, and that no subsequent legislation has modified them so far as is relevant …
The interpretation and validity of the provisions of these Letters Patent stated to-day just as they stood at the time when they were issued. … the provi-sions of the Letters Patent taken in con- nection with the statute under which they were issued, which is expressly directed to the defining of a province or provinces the inhabitants of which “shall be free and shall not be subject to or bound by any laws, orders, statutes, or Constitutions” of any other part of Australia, but shall be subject to and bound by their own only.
To define a boundary for such purposes it is necessary that the boundary line should be described or ascertainable on the actual surface of the earth.
In the case of such a boundary as that defined by the Letters Patent it was necessary in order to accom- plish this that there should be an executive Act so defining and representing the en- acted boundary; and seeing that such an executive Act was, and must have been known to be, essential to render the pro- vision in the Letters Patent a boundary such as was needful for the purposes of the Act, their Lordships have no doubt that on well-known principles of the interpreta- tion of statutes the Letters Patent must be taken to have implied and authorised the delineation and determination of the effective boundary by such an executive Act. …
… the legislation carries with it an implied power to the executive to do such acts as are and are known to be necessary to translate the direction of the Letters Patent into an actual boundary in the prac-tical sense of the word.
Their Lordships therefore hold that on the true construction of the Letters Patent it was contemplated that the boun-dary line of the 141st meridian of east longitude should be ascertained and represented on the surface of the earth so as to form a boundary line dividing the two colonies, and that it therefore implicitly gave to the Executives of the two colo-nies power to do such acts as were neces-sary for permanently fixing such boundary.
THIS AUTHORITY OF THE PRIVY COUNCIL WAS NOT CONSIDERED, ARGUED OR SUBMITTED IN THE RECENT JUDGMENT OF THE FEDERAL COURT BY MANSFIELD J. in Walker v State of SA [No 2] 2013 FCA 700 – a Native Title decision referring to the Letters Patent
Here SWALSC a group elected by themselves and Nyoongar tent embassy another group self elected: no difference there amoung the 2 opposing groups. Nyoongars’ have a ancient bloodline hierarchy that no one is following. Yet they talk about “cultural and hierarchical protocols” yet none of these 2 groups follow this TRADITIONAL Lore…
http://nirs.org.au/blog/NEWS/article/30599/Forum+on+Noongar+Mining+offer.html – Helen Corbett speaking to the National Indigenous Radio Service on the Land Deal Forum at Murdoch University
People helping these people pass on FRAUDULENT information regarding Nyoongar people should be held accountable as well. They will listen to these self elected people without a blink of the eye.
http://nirs.org.au/blog/NEWS/article/30749/WA-public-debate-on-Govt-offer-of-Noongar-Native-Title.html
NIRS news interview with Marianne Mackay
http://nirs.org.au/blog/NEWS/article/31840/Noongar+forum.html
On January 7, 2014, Marianne Mackay said to NIRS news that SWALSC failed to keep its promise of a bipartisan public forum just before January 26, 2014.