Fair Agreement or Ongoing Dispossession?: The Noongar Settlement in WA

In 2003, the Noongar people lodged a single native title claim over the south west of Western Australia.

In 2006, in Bennell v Western Australia (2006) 153 FCR 120, Wilcox J of the Federal Court found that Noongar people were, subject to any prior extinguishing acts, native title holders over the areas claimed. This decision was overturned on technical grounds by a Full Federal Court decision in 2008 (Bodney v Bennell 167 FCR 84) and the matter sent back for reconsideration.

With this litigation as a backdrop, the Noongar representative body, the South West Land and Sea Council and the Western Australian Government began discussing a settlement. This led to a Heads of Agreement between the two parties being signed in 2009, and in 2013 the WA Government released its settlement offer. Details of the background and elements of the offer are available here.

This offer has been discussed at a series of community consultation meetings across the south west region, and has been approved in principle by the majority of Noongar native title holders. However some 107 objections to the registration of the relevant ILUAs have been submitted to the National Native Title Tribunal and four applications have been made to the High Court seeking to prevent the NNTT from registering ILUAs. The bulk, if not all, of these objections are from within the Noongar community itself. This litigation is currently on foot and will presumably take some time to be resolved. In the meantime, the finalisation of the Settlement is in limbo.

Last week Sarah Bell, a Western Australian anthropologist who had worked for the South West Aboriginal Land And Sea Council (SWALC) gave a seminar at the ANU exploring the sources of the opposition to the proposed settlement of the Noongar native title claims in south west Western Australia within some elements of the Noongar community.

Bell’s research explores the roots of the opposition which appears to emanate from a small but vocal minority of Noongar people. It manifests itself in a focus on human rights, loss of sovereignty, the concessions implicit in the agreement including agreement to give up all claims to native title over the areas involved, and to future compensation.

While the rhetoric has a large emotional component, it is clear that the motivations of those expressing scepticism about the actions of government in seeking a negotiated settlement are based on a longstanding and more than justified sense of distrust of government. Government, as the formal representative of mainstream society, has been responsible for the dispossession and cultural devastation inflicted on Noongar people over almost two hundred years. And this leads them to the question: what has changed now?

For its part, SWALSC maintains that the benefits it has negotiated are substantial and comprehensive and justify the concessions being sought by the Western Australian Government. The SWALSC website lists the various benefits, which include annual allocations to a ‘Future Fund’ of $50m pa indexed over 12 years, the transfer of up to 320,000 hectares of various Crown Lands, and various other provisions. Glen Kelly (the CEO of SWALSC) and Stuart Bradfield make the case for the Settlement agreement in a recent book on native title developments, Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment (reviewed here).

As part of the process of informing Noongar people, SWALSC sought specific legal advice in relation to the merits of the settlement offer, and this is available on their web site (link here). The advice is very insightful in that it lays out the very substantial impediments to a successful native title claim, including such pragmatic factors as that the judge at first instance has now retired, the anthropologist whose research underpins the claim, and his informants, may no longer be available through to the significant legal risks arising from the substantial resources which will be devoted to disproving the claim by the WA Government.

The advice adds that to go a further step and seek to claim compensation for native title which has been extinguished since 1975 (when the Racial Discrimination Act was enacted) presents a further order of difficulty. Finally the advice confirms what has been clear since 1993, namely that the Mabo Decision is about property rights and not sovereignty. Australian law gives no joy to anyone claiming to have retained sovereign rights against the Crown.

I have laid all this out because Ms Bell’s seminar caused me to reconsider my own position that the Noongar Settlement is the way to go. To date my view has been that the Noongar are on the right track in seeking to negotiate a settlement. Litigation is always expensive, uncertain, and hence risky. Moreover the benefits negotiated appeared to be substantial, and they will be certain and flow much more quickly than anything derived from litigation. In addition, I had not seen any coherent argument to the contrary.

I am not persuaded by the rhetoric of the Noongar dissenters (while I acknowledge their history and absolute entitlement to the views they are expressing). In other words, it is not that I now believe that a settlement is inappropriate. However the question arises in my mind: what are the appropriate terms of such an agreement?

The answer to that question is one for SWALSC and the Noongar people as a whole. The dilemma they face, and which I wish to highlight, is that they are operating under two significant constraints: they face a considerable level of uncertainty as to the underlying position of the Western Australian Government, and the law on compensation for extinguishment of native title is still in a state of flux, with a number of current cases ongoing in relation to the extinguishment of native title.

The Western Australian Government has vast experience in managing native title issues, and the WA Premier has the advantage of having as his Departmental CEO Peter Conran, a highly professional and capable bureaucrat with deep experience of land rights and native title across a number of jurisdictions. This tells me that the WA Government would not have entered into this Settlement Agreement without good reason.

There are two potential reasons. The first is a desire for certainty, something on which governments (and corporations) place great store. Certainty is always desired, but I doubt that it would drive the negotiation of a billion dollar agreement such as we have on the table in WA at the moment.

The second would be that the WA Government knows that they have extinguished areas of potential native title since 1975, and while these extinguishments will have been validated by the Native Title Act (this was the core of the grand bargain entered into by the Indigenous Interests and the Keating Government in 1993) compensation will be payable. Where the (extinguished) native title involved is exclusive possession, then there is every chance that the values which will be applicable approach (or even exceed) freehold. When we bear in mind that areas involved include the Perth metropolitan area, and its surrounding suburbs and towns, and reflect on the expansion of urban development since 1975, we can see that the scope for significant compensation liabilities is significant. Just a single subdivision of 500 house blocks valued at say $500k each would total $25m, suggesting that the proposed $600m ‘Future Fund’ may not be particularly generous.

Of course, there may be no such areas of native title extinguished, and there may be no native title across the areas involved. However, given the deep scars arising from both dispossession of Aboriginal people, and the concomitant loss of their cultures, and as a consequence severely diminished life opportunities, there is in my view a strong case in social justice terms for Governments to be more transparent about their underlying legal positions in cases such as this.

I am certain that the Western Australian Government knows whether they have extinguished potential native title land since 1975, and probably has an estimate of the potential value of such land. The extent of the generosity of their offer in the proposed Settlement Agreement can only be judged with access to that information.

Governments will claim that there is a commercial imperative to retaining confidentiality regarding their worst case scenarios. While I don’t necessarily accept this (it is another way of saying that Indigenous citizens should wear the majority of the costs of settlement and dispossession), one approach would be for the WA Government to commit to releasing their internal advice five years after the agreement has been finalised.

In the absence of any such transparency, it seems to me that there would have been a strong case for the Noongar negotiators to insist on some sort of review process (say in forty years) or acknowledgement of government’s fiduciary responsibilities to Noongars which would open up the opportunity to revisit the agreement in the event that it becomes apparent that the agreement represents an unjust outcome.

The second substantial issue which arises from the Settlement Agreement (assuming it is implemented) is that all the risk of ensuring that the funds and benefits which transfer are effectively managed fall on SWALSC and the Noongar people. This is not a unique problem; many native title groups face similar challenges. It is not clear to me how well prepared Noongar people and their organisations are to meet this challenge. What I have learnt over thirty years in public policy is that strong governance, backed up by resolute corporate regulation will be a key component of successfully meeting these challenges. Governments, in both Canberra and Perth, have a role in ensuring that the corporate regulation framework governing the investment, distribution and allocation of funds from native title agreements are appropriately oversighted. This is an area where Governments could do significantly better.

My final observation is to note the length of time which is involved in resolving the Noongar claims and the proposed settlement agreement, and to make the obvious point that this necessarily exacts a huge toll on the participants involved. Notwithstanding the internal conflicts which have emerged, the Noongar people, and their leaders, appear to have handled the process in an exemplary fashion. The broader community rarely steps back to acknowledge the ongoing imposts on Indigenous people who are merely seeking to use the convoluted and arcane legal systems we have put in place to achieve just a modicum of justice.