Guest post on Noongar native title claim
Another guest post, this time on the Noongar native title claim from reader Bree Blakeman. Comments appreciated, with particular emphasis on the requirements for civilised discussion.
Populist reaction to Noongar Native Title claim.
By Bree Blakeman (21/09/2006)
On Tuesday the 19th of September the Noongar people of Western Australia became the first Aboriginal group to successfully claim Native Title over a capital city. The claim is one of the nation’s largest and covers 193,956 square kilometres, from Hopetoun in the south to north of Jurien Bay. It is thus historically significant, and the first shuffle forward in what has been a painful, slow and largely fruitless struggle for Indigenous Australians through the native title process. However, the reaction from both Prime Minister John Howard and Opposition Leader Kim Beazley has been less than jubilant.
John Howard immediately announced that Federal Government would consider an appeal, expressing ‘considerable concern’ at the ruling (http://www.abc.net.au/news/newsitems/200609/s1745653.htm), while huff-and-puff Beazley also questioned the decision, declaring his support for an appeal against the grant. (http://www.abc.net.au/news/newsitems/200609/s1745527.htm). Not one to be coy on matters of race and minority groups, Attorney General Phillip Ruddock also joined the fray, initiating what is either a display of remarkable ignorance regarding the very basics of native title legislation, or a calculated, racist scare campaign.
Following his heartfelt speech of congratulation, Prime Minister John Howard commenced mumbling about the potential negative effect of ‘residual native title claim in major settled metropolitan areas’. Taking the batten and running oh so fast, Phillip Ruddock has warned that Noongar people could very well exclude the public from access to public places: “In a major capital city, where you do have very extensive areas of parklands, water, foreshores, beaches, matters of that sort, 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 form access to those areas” he said. (http://www.abc.net.au/news/newsitems/200609/s1745831.htm).
I find it near impossible to believe that both the Prime Minister of Australia and the Attorney General (and the opposition leader, though that is more believable) have not been educated in the basics of Native Title legislation which assures, beyond any hair of doubt, that Native title rights will not infringe in any way on the rights of other Australians to use and enjoy the land and waters as they have done up to the present day. Back in 2002 President of the National Native Title Tribunal, Graeme Neate claimed that ‘much of the fear and apprehension that was evident […] in the early days of native title has gone as people realise that the recognition of native title occurs alongside the ongoing recognition of their rights and interests”. (http://www.nntt.gov.au/metacard/1021882247_17495.html) People, what people? Perhaps he needs to have a word with our PM and Attorney General and, if he can be bothered, with the Opposition Leader too.
For those readers who are also unfamiliar with Native Title matters, Section 23A of the Native Title Act 1993 states that freehold estates, commercial leases, exclusive agricultural leases (though this has been partially amended), residential leases, community purpose leases, and any lease that confers a right of exclusive possession over particular land and waters, extinguishes native title.
Further, precedent cases have determined that mining or general purpose leases (in WA) as well as public roads, and fencing or improvement on pastoral leases also extinguish native title. What is left is vacant crown land, however even these urban off-cuts and rural pockets are not subject to potential claims of exclusivity as our politicians seem to believe – This is not Land Rights – it is Native Title. Legislation prescribes that native title rights can only be recognised if they are proven to be compatible with the rights and interests of all other parties. In any case where native title rights are inconsistent with those of other parties, the rights or the latter prevails, which means that there is no way – absolutely no way – that Noongar people could (even if they wanted to) exclude anyone from beaches, parklands and other public areas, for this would demonstrate an incompatibility of rights, which would thus not have been recognised or granted in the first place. Again, the native title rights recognised by the Federal Court are only those that are proven to be compatible with all parties.
So what does the ruling actually mean for Noongar people? It means that, eventually they may have the right, for instance, to visit certain sacred sites in a manner negotiated with other parties so as not to infringe on their use and enjoyment of the area….they may eventually be permitted to throw a line, at certain times in a manner negotiated with other parties so as not to infringe on their use and enjoyment of the waterway……they may be permitted to gather for ceremonial purposes on a beach somewhere, at a time and in a manner negotiated with other parties so as not to infringe on their use and enjoyment of the area…….and so on. They may even attract the right to be consulted if a future act is proposed on the little crown land left (n.b. they do not have the right to veto future acts or anything of the sort). Thus, the reality is a far cry from the scenario being whipped up in the public imagination by the media and our ever conciliatory politicians.
Perhaps if Prime Minister John Howard, Phillip Ruddock and Kim Beazley took half an hour to read a Primary school information kit on native title in Australia they would realise that the Noongar claim is largely symbolic, or perhaps it is the symbolic win they fear the most?