Native title: beyond the backyards and beaches

The successful native title claim by the Noongar people of south-west Western Australia is the latest in a string of landmark native title cases, but has received more attention than other recent decisions.

Indigenous people across the country celebrated the fact that a Federal Judge was able to recognise the presence of living Aboriginal communities and cultures and their ongoing connection to the land in the urban and long-colonised rural areas of Australia. Instead of joining the celebration, or even taking some time to contemplate the implications of the outcome, politicians on both sides of the fence were quick to attack the decision.


Attorney-General Phillip Ruddock was at the forefront of this charge, quickly warning people that the decision meant that their access to reserves and coastal lands was at risk. It was an assertion straight out of the “your backyards are at risk” songbook, which rekindled memories of the days when the likes of former Deputy Prime Minister Tim Fischer claimed everyone's backyards were indeed under threat. This attempt to stir up discontent within the electorate is bad enough in itself, but the Attorney-General would have known that the Native Title Act actually has a specific clause — section 212(2) — that provides government with the power to confirm access to reserves and coastal areas. This means he would have known, when seeking to inflame the passions of the electorate, that his own legislation prevented the very acts he was trying to use as tools to invoke fear in the community.

The Federal government has always been antagonistic towards Aboriginal rights, especially native title. The election campaign that saw them first take power in 1996 ran on the back of electoral fear about the Wik decision. It is little surprise that they have continued to take the same obstinate approach by opposing every victory that Aboriginal people have won under the native title regime that is so stacked against them. And while not surprising, it is disappointing that they see this decision as something to disparage rather than as an opportunity to negotiate with the Noongar people for outcomes that are beneficial to everyone.

More disappointing than the Federal government's reaction was that of the Leader of the Opposition, Kim Beazley. Given that his electorate is in Perth, he had a vested interest in the outcome and encouraged the state Labor government to appeal the decision. Many within the Federal ALP were critical of the State ALP's move to appeal the decision, and Beazley's call for an appeal was in direct conflict with his colleagues who were supportive of the opportunities the Noongar decision created for negotiation.

Thanks to Bill Leak

The knee-jerk calls for an appeal also completely misunderstood the implications of the decision itself and Beazley, the Western Australian ALP government and the federal Coalition governments all made the same mistake. If they had considered the case more carefully, they would have realised that the decision is going to be very difficult to appeal. When cases are appealed, it is usually on an issue of law. Courts are reluctant to overturn an issue of fact because they take the approach that it is the trial judge who hears all the evidence and has the opportunity to observe the witnesses. It is very difficult to second-guess issues of fact in a higher court so there are very few instances in which questions of fact can be appealed. Rather, appeals are usually on issues of law, based on arguments that the law has been applied incorrectly.

The recent Federal Court's decision about the Perth area is not a groundbreaking legal precedent; it is the simple application of existing law to the facts that were presented during the case. Justice Wilcox seems to have understood how controversial his decision was going to be. In his judgment he deliberately makes clear that he is applying the same law that has been used in all native title cases and not making up anything new. And that law says that the Aboriginal people have to show that they have a continuing connection to land. What he says in his decision is that the facts — yes, the facts — showed that this connection does exist and is ongoing.

What was surprising about the judgment was not the law — the same law that is always used for native title claims — but the finding that this continuing connection with the land could be shown in an area where many Australians thought that no “real” Aboriginals lived. While the governments at both state and federal level have stated that they have found points to appeal on, many experts in the native title field believe that these will be tenuous.

It has always been assumed that there would be little success under the current legislation for Aboriginal people in the southern parts of Australia who have been the most dispossessed and the most colonised. The Keating Government negotiated the Native Title Act with Aboriginal representatives from the Northern Territory, northern Western Australia and Cape York. It was an outcome that never had a lot to offer for the people of the south and for those in urban areas — as the Yorta Yorta and Larrakia decisions illustrated — and it was a source of increasing frustration for those Aboriginal people who could not find recognition within the native title system.

While politicians were quick to condemn the Noongar decision, there were also indications that they had misread the reaction of the general public. It has often been asserted that people in the cities are more tolerant of the idea of native title than those living in the rural and remote areas. But it is also true that over the last decade, grass roots reconciliation movements across the country have engaged with local Aboriginal communities on a wide range of activities and initiatives and so are not surprised to hear a court ruling that Aboriginal people live in urban areas and maintain strong cultural ties to their land. There has also been a small but significant increase in the awareness of the presence of Aboriginal people in urban areas as more and more formal functions and meetings begin with an acknowledgement of the traditional owners of the land.

Perhaps the lack of community outrage about the decision, despite politicians seeking to fan the fires of fear, is also due to the fact that many Australians will remember the outrageous claim that their backyards were under threat from the Mabo decision and now, almost fifteen years later, there have been no massive land grabs of suburban homes and not one backyard lost to the Aboriginal custodians. Perhaps Australians are a little more cynical of the politicians' claims now that they have had a chance to see the native title regime in operation and have realised that they had nothing at stake when the system was implemented. This is as much a testament to how little land justice has been achieved for Aboriginal people through the native title regime as it is evidence of any softening of attitudes towards Aboriginal people and their rights.

Two positive things could come out of the Noongar decision.

The decision could and should provide an impetus for governments and industry to negotiate agreements and to explore opportunities to strengthen relationships with Aboriginal people more proactively in urban areas. For example, in the past, native title negotiations and determinations have provided a stepping stone and bargaining tool for Aboriginal people to negotiate agreements for a wide range of matters including co-management agreements, preservation of culture and heritage, Indigenous input in a range of decision making processes and, in some instances, employment and education opportunities for the community.

The decision should also provide an opportunity for Australians living in urban areas to better appreciate and understand that there are Indigenous people who live beside them who have living vibrant cultures, and that this discovery can be enriching.