The State government has rejected today's ruling by a federal court judge that the Noongar indigenous people are the traditional owners of Perth and its surrounds and their native title continues to exist in the area.
The State government has rejected today's ruling by a federal court judge that the Noongar indigenous people are the traditional owners of Perth and its surrounds and their native title continues to exist in the area.
Justice Murray Wilcox found in favour of eighty Noongar applicants who, represented by the South-West Aboriginal Land and Sea Council, lodged the Single Noongar native title claim in the federal court in September 2003.
He ruled the Noongar people continue to have native title of more than 6000 square kilometres, covering the metropolitan area.
The claim was one of the nation's largest and covers land from north of Jurien Bay to north of Moora, and west of Esperance - a total of 193,956 kmsq.
Justice Wilcox found that Noongar people were the traditional land owners across the whole claim area, with the exceptions of Rottnest and Carnac Islands and land and waters below low-water mark.
Justice Wilcox found Noongar people would not have had access to these places before the arrival of Europeans, as historical evidence showed Noongar people did not use boats in 1829.
Native title is also extinguished by legislative and executive acts attributable to Commonwealth or State Governments, including the granting of freehold land.
More than 100 Noongar people and their supporters cheered as Justice Wilcox read out his decision in court.
Treasurer Eric Ripper said in an address to parliament that the government did not accept the findings as the Noongar community had experienced too much disruption for it to have maintained a continuous connection to the Metropolitan Area since sovereignty.
His full address is pasted below.
The Treasurer also said the Government was concerned that the Single Noongar Claim had not been properly authorised under the Native Title Act 1993.
In his judgement, Justice Wilcox said he had addressed the topic of authorisation in hearings taking place in 2005 at which State and Commonwealth counsel were present, saying that the topic was not before him, but that he was pleased to examine it if all parties agreed.
"Neither the State or the Commonwealth seems to have taken any action to obtain the agreement of other parties," he wrote.
South-West Aboriginal Land and Sea Council chief executive Glen Kelly called on the WA government to negotiate native title over the rest of the claim area with Noongar people, rather than continuing with litigation.
Native title lawyer Marcus Holmes, of Perth law firm Taylor Linfoot & Holmes, said the decision was the first to recognise native title to Crown lands and waters in a capital city.
"(The decision) recognises a group of Noongar people with a strong native title across the wider Perth area and hence arguably across the whole South West," he said
"The finding could give impetus to the negotiation of a settlement with the State, local governments and others that will accommodate and recognise native title to key Crown lands and waters such as the Swan and Canning Rivers and King's Park.
"However, it is likely that the State will appeal the decision."
Pasted below is the Treasurer's address to the Legislative Assembly
Mr Speaker,
Today the Federal Court handed down a decision recognising that (except for extinguishment) native title exists in the Perth Metropolitan Area, and that native title is held by the Noongar Society.
The Perth Metro claim has been before the Court since March 2003. It was combined with the much larger Single Noongar Claim later that year, but has continued to be heard as a separate proceeding.
Today's decision only addresses the question of whether native title exists in the Metro area and who holds the native title.
It does not address the extent of extinguishment, although it is certain that extinguishment will be widespread, particularly as grants of freehold, the construction of public works and the vesting of reserves wholly extinguish native title.
However, native title is likely to have survived in some areas, such as State Forests, unvested reserves, unallocated crown land and various other reserves and leases.
Determining the exact extent of native title will require an extensive search of the underlying tenure, as well as an analysis of the effect of local by-laws, management orders and other extinguishing factors.
The State Government does not accept today's finding. We argued at trial that the Noongar community has experienced too much disruption for it to have survived as a single society with a normative system of law and custom, and for it to have maintained a continuous connection to the Metropolitan Area since sovereignty. The evidence clearly supported this argument. The other respondents, including the Commonwealth and the Western Australian Fishing Industry Council also supported the position that the existence of native title over the Metropolitan Area was not sustainable at law.
In addition, the State Government has a number of procedural concerns in relation to this matter.
Firstly, it is usual practice in the Federal Court for a Judge to hear a matter in its entirety. In this case, Justice Wilcox is retiring at the end of the month, before the matter has concluded.
Secondly, the State Government is concerned that the Single Noongar Claim, of which Perth Metro is a part, has not been properly authorised. Under Section 61 of the Native Title Act 1993, a claim must be authorised before a determination of native title can be made. The State Government has filed a motion to this effect.
This finding also has much broader implications for the entire country and should not be taken lightly.
It is the first finding of native title in a capital city - the most settled part of the State - and undermines, entirely, the current understanding of the application of the Yorta Yorta High Court decision, which provides the fundamental principles that guide the recognition of native title.
The State Government has a strong commitment towards the recognition of native title. Our preferred approach is to resolve matters by negotiation and agreement, where possible. Our record clearly demonstrates this. However, it is only through legal clarity and certainty that the State Government can set clear policy directions to ensure the timely resolution of native title matters. Federal Court decisions that are inconsistent with the fundamental principles established by the High Court seriously impact on our ability to achieve this.
It is only by appealing these inconsistent Federal Court decisions that we can achieve the necessary clarity at law. The State Government now has 21 days to consider its options, one of which is to appeal the decision.
