Noongar native title land deal ‘could have ended badly’

The biggest native title deal in Australian history was struck after a ‘hail Mary’ bid by ­traditional owners who would have been awarded ‘almost ­nothing’ if they had won in court.

Former South West ­Aboriginal Land and Sea Council chief executive Glen Kelly. Picture: Facebook

The biggest native title deal in Australian history – a $1.3bn land and cash settlement between the West Australian government and the Noongar people – was struck after a “hail Mary” bid by ­traditional owners who would have been awarded “almost ­nothing” if they had won in court, the deal’s architect has revealed.

Radical elements of the Noongar land rights movement ­attacked Glen Kelly for years as a sellout for negotiating a settlement with the former Liberal Barnett government.

The deal ended all land claims across the lower third of Western Australia when it came into effect in February last year.

However Mr Kelly – a ­Noongar man who oversaw the deal in his former role as chief executive of the South West ­Aboriginal Land and Sea Council – has for the first time told how he pursued the deal because ­Noongar people faced the very real prospect of getting nothing at all.

The WA government won a crucial appeal against the Noongar people in Federal Court in 2008, and even if Noongar people had won the next round of litigation they would have been awarded native title over only tiny portions of the 200,000sq km claim area.

This was because white settlement had extinguished native title in even the furthest corners of Noongar land.

Mr Kelly said it was a similar story in other parts of Australia where traditional owners had litigated and won only to find that Native Title no longer existed for up to 99 per cent of the claim area.

“Should we have succeeded in court, which was a long shot, the determination would have said ‘You’re the traditional owners and you used to own the land’,” Mr Kelly said at a panel discussion hosted by the ­Piddington ­Society in Perth on Wednesday.

“And this I think shows the shortcomings of the native title system.

“My point of view was that we deserved better but because we had lost at appeal and it was looking quite grim, gaining a commitment to any negotiation was – and I guess I can ’fess up now that it’s all said and done – an end gameplay, a hail Mary.”

Mr Kelly now mediates complex disputes as a member of the National Native Title Tribunal. He sees the Noongar case as an example of what can be achieved even when a traditional owner group’s native title rights are limited or unlikely to be recognised.

“In the Noongar case, Native title was not the outcome. Native title was the mechanism,” he said.

“In the absence of anything else, native title was the only mechanism.

“That is quite significant.”

Former premier Colin Barnett’s government started negotiating out of court with the Noongar people in 2010 because it wanted to give certainty to farmers, business and for his own government’s ­activities in the most populated portion of the state. This included Perth.

The result is a deal for the benefit of about 30,000 Noongar people and includes a $350m perpetual trust for the benefit of Noongar people, paid in annual instalments of $50m, 320,000ha of land and the joint management of national parks with traditional owners.

Last year the Yamatji people in the state’s midwest modelled their native title talks on the Noongar deal and the result was even better, Mr Kelly said.

The Yamatji Nation Trust will receive $325m in cash over 12 years, commercial, industrial and residential property, revenue from mining and funding to ­develop business and water ­resources.

Mr Kelly said the scope and scale of the Yamatji deal had caught the attention of the First Peoples Assembly of Victoria as its elected members worked towards a treaty with the Andrews government.