Views from Western Australia

During April the Federal Court upheld an appeal against native title over Perth; but it did not rule out the possibility that native title continues to exist over Perth. 

I have written previously that this shows how difficult it is for Aboriginal people to prove their continuing connection to country.

The Federal Court ruled that Willcox had erred on two elements of his 2006 decision over Perth; one of these being whether claimants have a connection with the Perth metropolitan area.

In my view the Appeal judges have erred on this point. 

The Single Noongar application was commenced on 10 September 2003 by 80 named applicants on behalf of the Noongar community. This claim covers the whole of the south-west of Western Australia. The boundary of the claim area commences at a point north of Jurien Bay on the west coast, proceeds in an easterly direction to a point north of Moora, and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance.  The claim excludes all land and waters over which native title had been extinguished by a past act of the Commonwealth or state governments. On 9 October 2003, the court made orders that the Combined Metro application be combined with the Single Noongar application, with the Single Noongar application being the lead application.

The 80 claimants were not making a specific claim over Perth.  The reason for the ’separate question’ over Perth, was that the WA government wanted the metropolitan area heard first. 

That is to say the Perth part of the ‘Single Noongar Claim’ was heard first (and separately) at the request of the State Government, not the claimants. 

The claimants were never making a specific claim over Perth. 

The 2006 findings of fact regarding the Noongar community and the native title rights were likely to extend to the greater Single Noongar Claim area increasing the likelihood that native title will be held to exist in that area. This decision smacks of conservative judicial politics.