Noongar Native Title victory and the nature of society
The current decision with regard to Perth was part of a larger claim over the South West by the Noongar people. The Perth area was considered first at the request of State and Federal Government counsel, to expedite matters. (At least in their terms, by finding that native title doesnt exist). Of course, expedite is one of those nice legal terms that really means 'make a decision in my favour immediately'.
The decision follows on from a couple of negative decisions in regard to land, specifically the Yorta Yorta and Larrakia decisions. I haven't read the Larrakia decision so I'm not sure what it turned on. The Yorta Yorta decision turned on the 'tide of history' which, according to the judgement, swept away Yorta Yorta traditional laws when they sought refuge at Cumeraganga mission in the 1870's. The judgement found that enough of the Yorta Yorta's laws and traditions had been lost for there not be any residual native title.
Now, compared to the Noongar, the Yorta Yorta were a small nation in a relatively small area along the banks of the Murray River near Echuca. The Noongar, who today number in the 20,000's, are the traditional owners of an area larger than the State of Victoria.
In the current case, the Justice Wilcox, spent some time considering whether the Noongar people were and are a single society. He found that they were and are a single society for the purposes of the Court. This is, IMHO, historically correct and relatively indisputable. Once he had made this decision the issue becomes not that a small group of people has been dispossessed and put on a mission or reserve, which was indeed the fate of many Noongar people but that there was always a society being maintained outside of the concentration camps.
So, whilst Inspector Neville, attempted to emulate German efficiency in his own eugenic project during the 1930's, it didn't work. Australians, unlike Germans, are notoriously inefficient when it comes to bureaucracy, and he simply couldn't keep track of everybody. Besides many wadjela farmers had come to rely upon Noongar labour and knowledge, indeed Noongar people have been the mainstay of agriculture in the South West from its very beginnings. Noongar people like traditional Australian people elsewhere still live in the many small communities of their homeland. These people, in places like Gnowangerup, Tambellup, Beverley etc. etc. have not left with the move to the cities but stayed behind.
The consequence of segregation on reserves and the 1905 Native Welfare Act, meant that people had to maintain their close knit communities. The families that survived were those the strongest. They survived the forced removal of children en masse. Amongst the survivors, nearly 20% of Noongar people over 40 report being forcibly removed from their families. Stolen. (see the Report) As a result of this and the constant litany of abuse and racism the Noongar community exists almost invisibly within the broader wadjela community.
People often complain to me about 'feuding' and fighting within the Noongar community. Indeed, everyone has at least an opinon about everyone else and it's often difficult to get people to sit in the same room together. I point out, that in Albany, at least, your dealing with a 20,000 year old village with about 1000 people living in it. Of course, there are feuds and feelings that extend back into the mists of time - a difficult concept for many wadjela who've burnt their bridges behind them to settle here.
Realpolitik suggests that the State and Federal Governments will try to appeal this decision to the High Court. Indeed the Federal Government will probably want to bang the drum as it were. This is shameful and a waste of money. At some point the Crown, collectively, has to deal with Noongar Native Title and the State Government, in all likelihood, will end up negotiating Land Use Agreements with the SWLASC piecemeal. I don't think that this will be a good outcome.
The State could bite the bullet and set out to establish a framework for negotiations. Currently the SWLASC is the designated body for Noongar land claim negotiations but anyone familiar with it's recent history should be concerned about the on-going legitimacy of this organisation to represent Noongar people. The current claim is the result of a decade or more of fighting and negotiating between various factions and families. It is by no means clear that the so-called 218 families is in fact every Noongar family in the south west. Nor is their any mechanism for settling disputes which I think will inevitably arise under the current setup.
Whilst the SWLASC represents Noongar people in the Federal Court, there are local community groups and agreements with local councils that have already been negotiated. In effect, local councils may choose to negotiate with their local community rather than SWLASC. Indeed SWALSC will need to establish local bodies to negotiate native title issues in some local shires and cities.
The key issue that will arise are those surrounding democracy and openness of procedure. It will be very easy for people to claim 'commercial confidence' to restrict discussion surrounding future act negotiations. For this reason it would be much more sensible if the State Government was to initiate discussions to establish a Noongar representative body that was elected and representative of each community rather than running off to the High Court as Mr Howard's lapdog.
Noongar organisations are efactions or families to the detriment of the community and this is a source of continual frustration within the community. In my experience Noongar people are passionate about their community organisations, elections are hard fought, meetings far more well attended than most other community groups. But the community is continually wrong footed by arbitrary funding decisions, and a lack of legitimacy in the eyes of the wadjela community.
Indeed, in evidence to the Gordon enquiry, I submitted that we were in danger of creating an Aboriginal mafia - take strong families, weak governance and prejudice and mix well for a couple of hundred years. But the decision is not mine. It's Mr Carpenter's and his Cabinet. Renowned for their strength of character and vision.