Aus. Native Title Win Sparks Right-Wing Hysteria

In a landmark ruling, the Federal Court on September 19 granted Western Australia's Noongar people one of Australia's largest native title claims. Covering more than 193,000 square kilometres, from Hopetoun in the south to north of Jurien Bay and including metropolitan Perth, the successful claim sparked a hysterical response.

Justice Murray Wilcox found that the Noongar people had proven their ongoing link with the land through traditional practices dating back to the time of first European settlement in 1829. His ruling, which secures Indigenous people's right to gather food, fish and hunt on land where native title has not been extinguished, is the first to grant native title in a capital city. The case spanned more than a decade and is seen by the South-West Aboriginal Land and Sea Council (SWALSC) as a significant victory.

The state government immediately announced that it will consider appealing the decision. PM John Howard also attacked the decision. He is quoted in the September 21 West Australian as saying: "I know the judge has said that grants of freehold, and almost certainly leasehold, will have extinguished native title claims, but many people will regard it as somewhat incongruous - there could still be some residual native title claim in a major settled metropolitan area."

Attorney-general Philip Ruddock joined the fearmongering. According to the September 21 Australian, he said: "In a major capital city, where you do have very extensive areas of parklands, water foreshores, beaches, you could well find that if a native title were found to be a bona fide claim and lawful that means that native title owners would be able to exclude other people from access to those areas." But in the September 23 West Australian, WA native title expert David Ritter accused Ruddock of "resorting to the alarmist rhetoric of a decade ago". "Justice Wilcox confined his decision very clearly to Noongar people only being able to control access by other traditional Aboriginal people, in accordance with tribal law and custom", he said.

Federal ALP leader Kim Beazley echoed Howard's views, and is backing WA Labor's plans for an appeal. Beazley tacitly supported WA deputy premier Eric Ripper's assertion that the Federal Court's decision contradicts findings in the 2002 Yorta Yorta ruling, which covered claims over settled areas in southern NSW and northern Victoria.

Beazley's remarks have divided the ALP. Labor's national president Warren Mundine described the Federal Court ruling in the September 21 Australian as "a fantastic decision - it opens up a lot of help for a lot of indigenous people". Taking a swipe at Beazley, Mundine added: "People should calm down and start looking at the benefits that could come out of this. I have not seen anyone outside of this Aboriginal community who have lost."

Indigenous leader and NSW Labor MP Linda Burney, who is also running for the ALP presidency, expressed surprise that the ALP is opposing the ruling and, in WA, Labor backbencher Carol Martin, Australia's first female Indigenous MP, told the September 22 West Australian that traditional owners had been forced into court by the government, but now that same government refuses to accept "the umpire's decision".

The only other Indigenous MP in WA, Ben Wyatt, told the West Australian, "It gives the Noongar a tiny toehold to enable discussions to at least take place ... In the light of the negligible impact that this decision will have on people's property rights in WA, I'd simply accept this decision and try to negotiate a better outcome." Former PM Paul Keating also expressed concern at WA Labor's reaction to the ruling.

Glen Kelly, chief executive officer of the SWALSC, told Green Left Weekly, "It's unfortunate that Kim [Beazley] has come out and made that statement". He explained, "The Yorta Yorta decision has set the threshold of connection evidence that is required for a native title case [but] there are some significant differences between that country there and this country here.

"Yorta Yorta was a very small area and we're talking about a couple of hundred thousand square kilometres here in the overall claim area. Yorta Yorta people are fewer in number and we're talking about 30,000 Noongars.

"Yorta Yorta country was ostensibly cleared and in Noongar country there are vast tracts of land that are uncleared, which has given people more than ample opportunity to continue to practice law and customs. In contrast to the Yorta Yorta decision, there is a huge amount of information generated from the settlers and from the early colonists that has concurred with the evidence put forward by Noongar people in the court."

Immediately after Wilcox made his ruling, a concerted media campaign decrying it began. In WA, misinformation has been spread thick and fast promoting the notion that the ruling will create chaos, including protracted delays in development and the hamstringing of the mining industry, leading to increased housing costs and fewer jobs. The City of Swan suggested that there may be problems with access to river foreshores and jetties.

Kelly told GLW that such misinformation is designed to damage the validity and significance of the decision to the Noongar people. "The portion of land in Perth that is released from Crown land is absolutely minuscule and in those cases there is already a process in train through the Native Title Act that negotiates through native title considerations very quickly and simply. It's faster than planning and environmental considerations."

Kelly said that politicians "look at Perth and they can't conceptualise that beyond the immediate CBD and right out through the hundreds of thousands of kilometres of Noongar country there is an operational community and an operational Noongar society that continues to survive ... politicians need to raise their eyes above the city limits."

For Kelly, the ruling is mainly about recognition: "Native title rights are a bundle of rights to things on land - things like camping, hunting, caring for sites, caring for country, passing information on to younger generations and that sort of thing." But he also believes that it opens a way forward for Aboriginal people: "There is a lot of energy in the community saying we want to be employed but what we need to do is get over the prejudice that people have against us so that we can gain employment, and one of the ways of doing that is to use the negotiation platform that native title gives to negotiate outcomes for jobs and better futures."

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