Biggest native title deal in danger of dissident defeat

Australia’s biggest land rights deal may be killed off by a group who opposed the $1.3bn deal.

Wirin, a nine metre high sculpture that embodies the spirit and culture of the Noongar people, is seen in Yagan Square in Perth. Picture: AAP

The biggest land rights deal in Australian history is in danger of being killed off, four years after the Noongar people of Western Australia voted for the $1.3 billion land-and-cash package to benefit 30,000 Aboriginal people.

A dissident Noongar group — among the minority who voted “no” in 2015 when the South West Native Title Settlement was put to the Noongar people at six ­regional meetings — have successfully stalled the deal in the Federal Court for years. Until now, their arguments were not widely regarded as likely to succeed and politicians from both sides have referred to the settlement as a fait accompli.

It has been described as Australia’s first treaty and has bipartisan support in WA.

A Federal Court decision about a small land deal in the Northern Territory in May has handed opponents of the Noon­gar settlement a fresh argument that reopened their case. The Cox Peninsula deal outside Darwin was thrown out by the court on May 20 because it was certified in 2017 by the Northern Land Council’s then chief executive, Joe Morrison, rather than by a full board. The Noongar deal was also signed by an employee of a land council, the South West Aboriginal Land and Sea Council’s then chief executive Glenn Kelly, so opponents of the $1.3bn deal rushed back to court.

Represented pro bono by one of Australia’s most respected nat­ive title lawyers, Greg McIntyre SC, the dissident group is arguing the Noongar deal was not signed off correctly and therefore incorrectly registered. The Federal Court is considering written arguments before deciding if more hearings are necessary. Opponents object to surrendering their native title. They are now hopeful they can kill off the Noongar settlement by the end of the year.

Mr McIntyre told The Australian the Federal Court’s decision about the Cox Peninsula land deal in May was important for many such deals across Australia that had been decided the same way.

“There could be hundreds of decisions affected by that ruling,” Mr McIntyre said. He said if a land deal was thrown out by a court, it was not always simple to start again. The deals were usually reached after large meetings of traditional owners and it cost tens of thousands of dollars to bring all the relevant people together.

Former Liberal premier Colin Barnett oversaw the South West Native Title Settlement after more than a decade of litigation.

In 2006, the Federal Court found the Noongar people held native title rights to occupy, use and enjoy lands and waters; it was hailed as the first decision recognising native title over a capital city, but it was overturned by the Full Federal Court two years later.

Instead of more court battles, the Barnett government and South West Aboriginal Land and Sea Council agreed to negotiate. In July 2013, the government released the terms of its settlement offer and these were approved by the Noongar people at a series of authorisation meetings between January and March 2015.

The settlement is considered the most comprehensive as well as the largest in Australia. Up to 320,000ha of southwest land will be transferred to the Noongar Boodja Trust for development and cultural purposes. The WA government will also contribute $50 million annually for 12 years to the Noongar Boodja Trust, and $10m annually for 12 years to the Noongar Regional Corporations.

Noongar people will jointly run the state’s national parks.