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Guest post on Noongar native title claim

September 21st, 2006

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?

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  1. September 21st, 2006 at 16:22 | #1

    Bree,
    Firstly, a little quibble with your wording – if it is yours. This is not a “grant” as in your comment on Beazley’s reaction, this is a legal recognition of pre-existing rights. This is big, important difference. On to a general comment.
    The ignorance on both sides, the fear on one and the hope on the other side of this issue all seem to be overdone. Given the abject poverty that welfare dependence has generated in the Nyoongar community in Perth this is understandable on all sides.
    Overall, I think this was a good win on several fronts. The decision itself, and the alarmism, may drive some to inform themselves better on the issues. The fear can be reduced during the inevitable appeal process as the press reporting gets better informed and the excessive hope in the Nyoongar people can be addressed by the saner heads out there and the length of the likely appeal process from here.
    I am reasonably sanguine as to the final outcome. Perhaps this will help address some self-respect issues out there and improve the overall standing of the Nyoogar in Perth. Let’s hope so.
    The really helpful thing would be to reduce or eliminate welfare dependency. That is where (IMHO) the effort should really be going.

  2. Bree
    September 21st, 2006 at 16:46 | #2

    Yes, you’re completely right – ‘grant’ was the wording used in the ABC article quoting Beazley, which I should not have repeated.

    Regarding ignorance on both sides, again, I have to agree. However, given the current socio-economic position of Indigenous Australians I think the claimants may be excused if they have not entirely comprehended the intricacies of white-fella law. Unfortuately I don’t think our Prime Minister et al. can be so excused, and if it is not ignorance then is it not scare-mongering?

    I also agree that serious discussion about welfare dependency should be had, but only after a firm congratulations to the Noongar mob for jumping through the innumerable and demoralising hoops of the Native Title process.

  3. September 21st, 2006 at 18:09 | #3

    I think it is fantastic that city people may have to inconvenience themselves, or even pay for some of the native title debacle.

    Why should pastoralists have to be the ones who are the bunnies for the guilt of a bunch of inner city guilt junkies?

  4. zoot
    September 21st, 2006 at 19:25 | #4

    Steve, are there any documented cases of inconvenience or expense caused by the recognition of native title in the bush?
    I live in Perth and I can assure you I will not be inconvenienced by this decision, nor will it put me out of pocket. Maybe you should read the post again.

  5. September 21st, 2006 at 23:26 | #5

    Zoot: I am well aware that with Native Title the natives have gained nothing, the landholders have lost nothing, and the lawyer class has picked up piles of work.

    However, that was not known at the time of the Wik decision, when the inner-city know-alls (people of the ilk of the editor of the Sydney Morning Herald) went on a mighty letter writing campaign about how pastoralists deserved what they got.

  6. kyangadac
    September 22nd, 2006 at 03:32 | #6

    Yes, it’s a great victory – although realpolitik and old age suggest that the labour Government in W.A. will almost certainly lodge an appeal within the next few weeks. Which is a pity because they will probably lose(see below) and waste lots of time and money. They could be instead negotiating a framework agreement within which a series of local agreements could be negotiated. That will have to happen eventually. But asinine political considerations demand that the wealthy and powerful are not disturbed so they will need another 3 or 5 years to digest this terrible shock to their provicinal equanimity.

    The good and great are in a dither because they thought that the Yorta Yorta decision put paid to any of this nonsense about their still being a traditional culture operating in the ‘civilized’ parts of Australia. The judges decision (it’s a ‘statement’ not a final decision) is worth a read – especially the bit where he puts the boot into the counsel for the Federal Government – who tried to pull the plug on proceedings at the last minute – presumably it was becoming clear that the decision was going against them!

    The problem is that the judge has made a finding in fact, that Noongar society continues to exist. Indeed, the judgements starts off with a discussion of the nature of society(would you recognize one if you fell over it etc.) The judge sidesteps the issue that hung the Yorta Yorta , namely specific relationship to a piece of land. This is entirely reasonable, because the Noongar have never been confined to a particular area and have maintained a variety of interests in numerous well documented locations throughout the south west.

    While the Crown and others might seek level to challenge on procedural issues – the High Court would be hard pressed to overturn a finding based on self evident facts.

  7. Razor
    September 22nd, 2006 at 12:14 | #7

    If there is no significant impact on other current users of land subject to this ruling – why do they need this ruling? Bree says that there is little to worry about that all that is required is negotiation to use the land in the manner they wish to. If this is truely the situation – why do they need this ruling? It doesn’t appear to infer any new rights, according to Bree.

    As a WA resident I can give a couple of very good reason why this decision needs to be appealed.

    Example 1 – the massive brake on mining activity that is caused by the Native title/Land Rights situation. It adds years to any significant project.

    Example 2 – a mate works for a property developer. They were doing some work on the foreshore of the Swan River in the Fremantle area. they had to pay a consultancy fee of a couple of thousand dollars to get a Nyoongar Elder to come down to Freo, look at the site and declare it OK with the Wagyl. What an absolute rort. Cash payment by the way – cheque or electronic transfer not acceptable.

    These are the very valid reasons why this current decision needs to be disputed.

    I was living in Darwin when the Larakeya decision was handed down. I will admit to not having read either decision, but my anecdotal observations of the Nyoongars situation versus the Larakeeya suggests the question that if the Larakeeya couldn’t win, how on earth could the Nyoongar?

    I note that this was basically the last decision by this Judge before retirement this week. Was he trying to make a name/leave a legacy?

  8. Bree
    September 22nd, 2006 at 13:25 | #8

    Yes, you are right. People deemed to be the Native Title holders for an area are notified with a ‘future act’ notice if development is proposed for areas where native title rights still exists. They are then paid a consultancy fee to ‘walk the line’ or ‘clear the site’ by the company proposing to undertake the works, so as to be sure they are not disturbing culturally sensitive areas etc.

    What is the ‘absolute rort’ here? These traditional owners are probably a) taking time of thier work/study etc., b) parting with cultural knowledge and c) permitting the company to carry out the works perhaps (perhaps to their detriment). Why should they not be paid for thier time, knowledge, cooperation and services?

    As regards the slowing down of mining – this is not an inevitable outcome at all. As with any future act, mining works on native title land will require a site clearance as described above, prior to commencement. In addition, mining companies may have to negotiate agreements with traditional owners regarding future projects so that the works proceed in a way in which both parties may benefit. These agreements usually take the form of a comittment from the mining company to train or employ X number of native title holders in the course of their project. In my experience such agreements are almost always amicable and mutually beneficial-aren’t us whities always complaining about indigneous ‘welfare dependency’? Are we to deny native title holders the chance to get some training, skill development and/or employment out of mining works, which inevitably proceed to the detriment of their native title rights and interests?

    If parties enter into ‘future acts’ negotions in good faith I see no reason why works should be held up indefinately. If however, individuals and companies enter into negotiations with the attitude expressed above – ‘what a bloody rort, they deserve diddly squat’ – then perhaps there may be more hold ups due to the lack of cooperative lubrication.

    Noongars are emerging out of a very long, dark and oppressive tunnel of white history – let us show some good will and encouragement.

  9. kyangadac
    September 22nd, 2006 at 13:40 | #9

    On the other hand, Razor, wadjela people already ask, all the time, about whether native title can be used to stop inapproriate development or vandalism by property developers. Sometimes to good effect. So what’s good for the goose is good for the gander eh?

  10. zoot
    September 22nd, 2006 at 14:34 | #10

    Example 1 – the massive brake on mining activity that is caused by the Native title/Land Rights situation. It adds years to any significant project.

    Which projects in particular Razor?

  11. Razor
    September 22nd, 2006 at 15:05 | #11

    Bree – I can asure you that the rather rotund elder who would only accept cash paymetn for his services was not taking time off from work or study. nor was there any risk of there being a ‘cultural site’ that hadn’t already been disturbed or disappeared within 3 kilometers of the mouth of the Swan River. The rort is in the fact that blind freddy could tell you that the aboriginals neither lived, visted or had any sites inthe vicinity of North Fremantle. No cultural knowledge was passed on, except to confirm what blind freddy already knew. Taking payment only in cash is a clear method of trying to avoid scrutiny from others such as their own community, the ATO and Centrelink.

    Also, your statement about “As regards the slowing down of mining – this is not an inevitable outcome at all.” is in stark contrast with the reality of the situation in WA.

    Zoot – an example – have a look at the problems faced for multi-billion dollar projects on the Burrup Peninsular. There are plenty of well publicised evidence of these hold ups and in fact loss of potential projects. And the problems of the Burrup are the public face of significant delays.

    Another anecdotal story – I have some friends who live in the Pilbara. Salt of the earth couple who had a few mining tenements. They had a close and good relationship with the aboriginals. They described to me the situation where they were able to sort out a deal with a local tribe in under a year for a small mining company. My friends was well rewarded for this because the mining company had been held up for three years by the tribe. The mining company got to start it’s mine purely based on my friends relatinship. Nothing else changed in the negotiation.

    And lastly, a real event – during a major ADF Exercise (Kangaroo 95), a Tank drove through a site that had been used for a funeral six months previously in the vincinity of Boraloola, NT. The reason this happened was that the ‘sacred site’ had not been marked on a map distributed to the Tank unit. This cost the Army $40,000 in compensation – for driving through a clearing in the scrub!! Now, that is a joke!

    All I ask for is a fair go for all – one law for all Australians.

  12. September 22nd, 2006 at 15:37 | #12

    Razor, the trouble with anecdotes is that they are just that. They do not represent a considered assessment of the situation. The Burrup Peninsula project is not being held up by traditional Australians but by the National Trust (no blackfellas there mate!).

    Traditional Australians have been living in North Fremantle for centuries and there are sites there registerd with the Department of Indigenous Affairs.

    Lastly Razor, your comments reek of racism – you’ve already made your mind up – nothing anybody can say will obviously shift your prejudice – you have the support of a majority of Australians.

    I’ve posted further comments on this issue at my blog.

  13. Razor
    September 22nd, 2006 at 16:17 | #13

    If exepecting all people to be treated equally is racist, then I am a racist.

    We have three tiers of government in this country. If someone wishes to use a piece of land then they apply to the relevant authority – there is no racism in that system. If individuals or groups think they will be impacted by a proposed use then they have a right of appeal. There is no racism in that system.

    Granting of land rights or native title based on race is racism.

    The same applies for all services and welfare supplied by government – there should be no racism in the delivery of these things, only an assessment of risk and need. All Australian citizens have the right to be treated equally.

    I applaud the Beattie Government decision not to have an Indigenous Affairs Minister.

  14. Joseph Clark
    September 22nd, 2006 at 16:19 | #14

    kyangadac I think you’re being unfair to Razor. This thread has claimed that Native Title had negligible impact on actual rights. This is plainly wrong and Razor has correctly pointed to examples where it has had an impact.

  15. Razor
    September 22nd, 2006 at 16:58 | #15

    Alas Joseph, the examples I point to are not taken in context or part of the bigger picture, therefore I am a racist.

  16. zoot
    September 22nd, 2006 at 19:32 | #16

    And lastly, a real event – during a major ADF Exercise (Kangaroo 95), a Tank drove through a site that had been used for a funeral six months previously in the vincinity of Boraloola, NT. The reason this happened was that the ’sacred site’ had not been marked on a map distributed to the Tank unit. This cost the Army $40,000 in compensation – for driving through a clearing in the scrub!! Now, that is a joke

    Says it all really, doesn’t it?

  17. September 22nd, 2006 at 20:05 | #17

    Razor,
    I do not believe this is a matter of one law for them and another for us. The Mabo decision’s consequences are, for better or worse, one law for us all. It clearly established that the declaration of Sovereignty over (what is now) Eastern Australia in 1788 and over WA in 1829 did not extinguish pre-existing rights to use the land. Although they were not termed land use rights at the time, any real attempt to incorporate the aboriginal (in both senses of the word) law into British and later Australian law comes to this conclusion.
    In fact, the situation until the 1975 Racial Discrimination Act was clear – there was one law for them and another for us – the government and anyone else could alienate land from the original rights holders without compensation and without recognition of the pre-existing rights. The Mabo decision was clear on this.
    In case you believe that this is all made up recently, I have a book published in (from memory) 1840 which makes just these points – that the implicit assumption of terra nullius was wrong and that there is no right of conquest.
    I believe strongly in property rights and am glad that the property rights of all Australians have finally been properly recognised in law. Yes, it is causing some problems; ones that have to be worked out. The example you give regarding the Army on manoeuvres is just plain silly, but the situation on the Burrup and in the Pilbara are examples of what we simply have to deal with – whether we like it or not dealing with people who have pre-existing property rights is a must – whether they are Whitefellas or Blackfellas.
    I was initially opposed to Mabo, but, over the years it has been there I have become increasingly convinced that it is good law. I see no reason to revise that opinion.

  18. September 22nd, 2006 at 21:53 | #18
  19. rog
    September 23rd, 2006 at 08:26 | #19

    The issue that Razor mentioned over developers paying aboriginal elders is common here in NSW. Payments range from a couple of slabs to new shirts for the footy team to many tens of thousands of $ depending on the individuals concerned and their requirements. I hear the same applies in NZ.

  20. rog
    September 23rd, 2006 at 08:27 | #20

    Thats “shirts”

  21. Katz
    September 23rd, 2006 at 11:43 | #21

    If shirts, slabs, thousands of dollars are required to pay the rent on any property, then so be it.

    Any primer on economics will inform the reader that the landlord sets the rent and the tenant decides whether the rent is worth paying.

    All of these complaints about alleged abuses of rentier rights refuse to address the prior questions:

    Are these rentiers exercising legitimate rights?

    Who has/have the right to exercise any legitimate rights consequent to beneficial possession of property?

  22. September 24th, 2006 at 01:46 | #22

    Thank you Katz and Andrew, Razor let me make it clear why I accuse you of racism. It’s not the validity of your argument – that is at issue. But that you can only sustain it by appealing to the lowest common denominator. as Katz says, the issue is whether the landowners have legitimate rights. How dare you object to someone charging rent on property that has been rightfully theirs for many years but which right has been denied. You claim this rent is disproportionate! You are seriously up your self, mate!

  23. matt byrne
    September 25th, 2006 at 12:17 | #23

    Calling someone a racist when they’re being naive and ignorant is probably not the best way to enter into a debate with someone.

    Using loaded terms like ‘rotund’ and ‘salt of the earth’ are obvious attempts at hiding a flawed argument.

    C’mon folks you can do better than this.

  24. September 25th, 2006 at 22:21 | #24

    Katz,
    I thought you were a left libertarian – don’t you believe in the abolition of private property and therefore that all land rights are theft? I know this sounds like a debating point, but I am genuinely interested in your view on this.

  25. Katz
    September 25th, 2006 at 23:21 | #25

    There’s no law against the Devil quoting scripture.

    One doesn’t have to believe in property rights to demonstrate the contradictions in others’ attitude to property rights.

    In fact, sometimes it helps.

    But seriously, there is no compulsion for a left libertarian to discredit all property rights.

  26. September 26th, 2006 at 00:30 | #26

    Fair enough. Which ones are fine, then?

  27. Ros
    September 26th, 2006 at 07:43 | #27

    “Who has/have the right to exercise any legitimate rights consequent to beneficial possession of property?�

    Good question. How is it that an individual, elder so called in Razor’s example, has been endowed with the legitimate right to extract “rentâ€? for the property in question. It seems safe to assume that the payment went no further than his pocket.

    Or would those who require acceptance of this particular variation on indigenous elite rorting expect that the honourable representative of the Nyoongar people passed the cash on to a domestic violence support group or like.

    According to the WA govt site on the Nyoongar theirs was a society which was not based on a hierarchical structure of chiefs. So who is this “elder� and what right is he imbued with that gives him the power to demand and get personal payment for any changes to land use in Perth.

    The argument in support of the right to extract, or extort, cash for a trip to Perth by individuals is a nonsense. If there are legitimate rights consequent to the native title possession of the property in question, then they belong to the Nyoongar people and the money should have been paid into an appropriate account. This is a standover and the rotund recipient is ripping off the Nyoongar, because he can, and it seems with the full approval of the human rights industry. Now that this judge has vastly expanded the opportunities to enjoy this age-old practice, the frequency and price can be expected to increase substantially.

    Unfortunately current Aboriginal structures, from Land Councils to Aboriginal Hostels are riddled with corrupt families rent-seeking at best, or obtaining money through theft or fraud at worst, and this warm and fuzzy fantasy from a judge who should have retired earlier has just grown the practice with no discernable gain for anybody. To claim that such judicially supported grubby practices will have a negligible impact on existing rights is to believe in fairies at the bottom of the garden. Aboriginal people won’t gain, others in West Australia will pay.

    Though to believe that certain players won’t take the opportunity to play this card against current West Australians enjoyment of both their own property and public spaces is also very naïve. Though as is the usual way, most of the deals and dollars will be kept from public knowledge and scrutiny.

  28. Katz
    September 26th, 2006 at 10:38 | #28

    “How is it that an individual, elder so called in Razor’s example, has been endowed with the legitimate right to extract “rentâ€? for the property in question. It seems safe to assume that the payment went no further than his pocket. ”

    Another good question Ros.

    In whose interests would it be for developers to jack up on these supposed elders?

    It is possible that there exists no effective body representing the Noongar. If so, who has encouraged the establishment of such a body?

    If such a body were instituted, would that increase or decrease the cost to Razor’s developers. An argument could be constructed to justify the conclusion that developers’ costs would increase.

    Therefore, pragmatically, developers may well prefer relatively cheap graft to relatively more expensive commercial negotiation.

    Governments and commercial interests should perhaps bear some responsibility for the vacuum in Aboriginal self-governance.

  29. September 26th, 2006 at 13:27 | #29

    Katz,
    Do not ignore the others with interests in ensuring it does not happen. I think it has been in everyones’ best interests not to have such a body – except for the bulk of the Nyoongar in Perth. The largely self-appointed spokesman (they are all men), the government and the developers have all been quite happy with things the way they are.
    I doubt it is the government’s role to set up such a body as the structure could then almost be almost guaranteed to suit the government, the self- appointed leaders will not do it, so it is difficult to see who will – unless the community itself does it.

  30. Katz
    September 26th, 2006 at 13:48 | #30

    Governments could make payments to native titles claimants tax deductible so long as they are paid to a properly incorporated body with an ABN number.

  31. September 26th, 2006 at 13:58 | #31

    Katz,
    Possession of an ABN does not render a body a legitimate representative – but it does give a bit more hope of some accountability.

  32. Katz
    September 26th, 2006 at 14:09 | #32

    But being a properly incorporated body does impose some structure.

    Here in Victoria, at least, the Secretary is compelled by law to make an annual report of the activities of the incorporated body.

    These measures establish a paper trail. Members of the Noongar tribe, and everyone else, would have access to information about the money flows.

    Then it might be worth the while of individuals to establish their bona fides as members of the tribe by seeking membership of the incorporated body. At least the choice would be theirs, and any attempt by vested interests to monopolise control of bank accounts, etc., would be a matter of public record.

  33. September 26th, 2006 at 16:24 | #33

    Katz,
    Working for a firm that works with quite a few non-profits I do not know how much weight I would put on their published accounts – but you are right , at least it forces some measure of transparency.

  34. Jlo
    September 26th, 2006 at 16:27 | #34

    It’s a shame that the basis of many of the negative comments in this discussion is hearsay and gross generalisation.
    Those who want the same laws for everyone now have them-Indigenous people of Perth now have the right to inherit property.

  35. Katz
    September 26th, 2006 at 17:52 | #35

    You’re right. It’s no panacea. But it may be a practial first step within the framework of general practice to encourage Aborigines to impose a bit of discipline and organisation upon themselves and each other.

    Consider the history of harassment, displacement, containment, marginalisation, discrimination, paternalism, clientage that has characterised Aboriginal/white relations hitherto.

  36. September 28th, 2006 at 15:08 | #36

    Jlo,
    Just a small correction – as individuals, they do not have the right to inherit property. They only have a right to use land and ocean resources in particular ways. As a community it is slightly different, but not in any material way. It is difficult to understand what they actually have gained as individuals.
    .
    Katz,
    Interesting to use whitefella law to “impose” discipline on themselves, but, point taken. I just would not want to be the auditor trying to get those accounts out.

  37. Katz
    September 28th, 2006 at 17:59 | #37

    AR, I have some argument with your comment to Jlo.

    If any significant cash-flows arise out of the Noongar decision, it would seem that it is in the best interests of the tribe to:

    1. Determine who is authorised to negotiate.
    2. Determine who is authorised to manage the funds.
    3. Probably most importantly, who is qualifed to be beneficiaries of the fund.

    In a sense, these early decisions will determine who will comprise the beneficiaries for generations to come. Thus, as Jlo implies, this will be an inherited right.

    A close parallel can be drawn with US Indian tribes. Many are now sitting on a bonanza because of their right to operate casinos on Indian land. These are often big businesses requiring considerable expertise to operate.

  38. September 28th, 2006 at 23:57 | #38

    Katz,
    A close parallel cannot be drawn with the US (and Canadian) tribes. Mabo and the related native title legislation covers only traditonal use. It would be hard to argue that a casino is a traditional use.If (and, possibly when) the Nyoongar cease to be a tribe as recognised under the legislation they cease to have the rights. As individuals they have not gained much.

  39. Katz
    September 29th, 2006 at 06:53 | #39

    AR,

    The issue isn’t about the source of the cashflow, whether “traditional” or “non-traditional”.

    The issue is about the management of said “traditional” or “non-traditional” source of cashflow.

    (I need hardly observe, though I shall, that cash doesn’t know whether it comes from “traditional” or “non-traditional” sources.)

    And because any cashflow the Noongar enjoy might well create a corporate interest in maintaining the integrity and continuity of the Noongar Tribe (however defined) the decision may serve to keep viable corporate tribal structures (however constituted).*

    Again, to use the US Indian example, those moneys are often used for tribal housing and other infrastructural projects on tribal lands. Individuals don’t benefit directly from these moneys, but the community of which these individuals are a part does.

    Now, “traditionally”, Indian tribes never had boards of management before they began to benefit from significant cashflows. Indians adapted their authority structures to cope with evolving financial oportunities.

    There is no reason why the Noongar people couldn’t do something similar.

    *However, I imagine that at some time in the future a dispute may arise as to who ould legitimately laim to be a member ofthe Noongar tribe.

  40. September 29th, 2006 at 16:48 | #40

    Katz,
    The greater the financial benefit of being a member of the tribe, the more likely it is that people will look for tribal descent in their lineage. I agree, though, that some form of structure needs to be in place to properly manage anything that may be theirs after the appeal process completes. The problem is how to constitute it.

  41. Katz
    September 29th, 2006 at 17:32 | #41

    No argument from me on that score.

    I believe that after decades of heavy-handed dirigisme and bureaucratic meddling, the time may have come for the government to insist upon only minimal conditions for Aboriginal self-management — to encourage rather than to dominate.

    The most efficient way to do this is, it seems to me, is to encourage productive channelling of the money flow. As I said above, moneys paid in respect of Native Titles claims could be tax-deductible so long as they are paid into approved accounts. But I’m repeating myself.

  42. Matt Linkus
    September 30th, 2006 at 11:17 | #42

    One potentially huge ramification of this legal decision which, as far as I can tell, has received virtually not media attention over the past two weeks is that of compensation.

    My understanding is that, according to Native Title law, successful native title applicants may seek compensation for any unallocated crown land which was sold off as freehold any time after 1975 (the date the Racial Discrimination Act was enacted). In the Perth metropolitan area, this includes entire suburbs which were built in the 1970s and 1980s (Hillary’s, Karrinyup etc).

    In fact, when the Single Noongar Claim first went to trial, the Noongars’ representatives, SWALSC, specifically stated that they would seek multi-million dollars in compensation if their claim was successful, which was reported at the time. See:

    http://news.sbs.com.au/livingblack/index.php?action=news&id=122833
    http://news.ninemsn.com.au/article.aspx?sectionid=1769&subsectionid=2984&sectionid=1769&subsectionid=2984&id=66899

    Strangely, though, we have heard virtually nothing of this since Wilcox handed down his judgment. This I find particularly surprising, because I believe that compensation is ordinarily worked out by assessing the market value of the land. If you’re talking about the market value of entire Perth suburbs, I suspect you’re looking at a compensation bill more in the vicinity of billions rather than millions (especially given the recent Perth property boom which has made suburban property prices skyrocket).

    I suspect that this is a major reason behind the state government’s decision to appeal Wilcox’s decision. But by the same token, the fact that they have not sought to highlight this to the public perhaps goes to show that they are not as hell-bent on “scaremongering� as many critics have charged.

  43. Emma Richards
    October 19th, 2006 at 12:22 | #43

    I am certainly glad that this ruling has happened, it gives the rest of Aboriginal traditional owners in Australia a big dose of confidence to keep fighting for the preservation and protection of Aboriginal land and places of significance. I am a Barngarla woman from South Australia and for too long Aboriginal people have been told and advised that you will never win, sign off on a petty deal for something now. I applaude the Noongars, well done. And don’t settle for less than anything as our land is priceless, those stories, songs, languages, mythologys and above all acknowldgement and respect etc are worth more than any money. Thank you for rekindling the rest of Aboriginal Australia’s fight for our country.

  44. Anna
    October 25th, 2006 at 16:25 | #44

    I am also pleased with the decision. Prior to my studies, I had such bias and prejusice views. However, now I view Aboriginal people and their rights in such a different light.
    Well done, congratulations and all the best for the future. John Howard should go back to YEAR 1 and learn how to spell, read and write. Only then he can undrestand the primary tooolkit to Native Title :)

  45. jenny
    November 15th, 2006 at 14:50 | #45

    could you plaese send me information or a document that refers to “spiritual connection to country” in the Noongar Native title claim please as I am wanting to pass it on to some elders over here

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