Native title found in metropolitan area

Native title returned to the public eye once again with the recent decision of the Single Noongar Claim No 1 [2006] FCA 1243 which recognised native title could continue to exist over parts of the metropolitan area of Perth. The case received considerable media coverage and it took less than two weeks before the West Australian Premier Alan Carpenter confirmed that his Government will be lodging an appeal to the Full Federal Court. Federal Attorney-General Philip Ruddock has also signalled that the Federal Government will be challenging the court decision. The importance of the case is that it demonstrates that native title can continue to exist in a metropolitan area.

Impact of the decision

Given that the Single Noongar Claim essentially followed and approved of previous key native title decisions, its impact on subsequent native title claims may not be significant. However, this case shows that metropolitan areas can be subject to successful native title claims and it is this point that has attracted significant interest.

What was the case about?

The Single Noongar application was made by 80 named applicants "on behalf of all Noongar people".

The external boundary of the claim area extends from a point on the western coast of Australia in the Shire of Coorow, just north of Jurien, roughly easterly to a point approximately north of Moora and then roughly south-easterly to intersect the southern coast of Australia at a point slightly west of Esperance. The claim area contained some off-shore islands, including Rottnest and Carnac Islands, and the sea abutting the entire coastal area to the three nautical mile limit. The claim area includes the Perth metropolitan area.

Connection with the Perth Metropolitan Area

The Applicants were required to demonstrate the necessary connection under section 223(1) of the Native Title Act between themselves and the whole claim area including the required connection to the Perth Metropolitan Area. Section 223(1) provides that the expressions "native title" or "native title rights and interests" means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

"Rights and interests" include hunting, gathering, or fishing, rights and interests.

Evidence provided

Justice Wilcox thought the Noongar case unusual with regard to the number of surviving writings in which European visitors and settlers recorded observations, before and soon after the time of settlement, of Aboriginal society and practices within the relevant geographical area. There were also writings based upon information provided by Aborigines alive at the time of settlement. The written material was supplemented by evidence given by Aboriginal witnesses as to oral traditions passed to them about the situation in earlier years.

Some findings of Justice Wilcox

• The oral tradition of south-west Aborigines is that there is, and always has been, only one indigenous language in the south-west, that language is called "Noongar" and is still spoken by many of them. Evidence about language in the claim area provides significant, although not decisive, support for the Applicants' claim that, in 1829, there existed a single community throughout the claim area.
• The lack of points of distinction between the laws and customs governing land use and occupation in different parts of the claim area, at date of settlement, is something that tends to support the view that the people within that area were then a single community, for the purposes of section 223 of the Act.
• There was a "circumcision line" whose location roughly corresponded with the northern and north-eastern boundaries of the claim area.
• The evidence of extensive "tribal" interaction within the claim area, over areas of land greater than particular dialect areas.
• Evidence of a continuity of a single Noongar society (the Aboriginal evidence indicating an unanimity about the existence of such a society). There was substantial agreement amongst the Aboriginal witnesses about the location of the Noongar land.

Conclusions on connection with the Perth Metropolitan Area

The applicants succeeded in demonstrating the necessary connection between themselves and the whole claim area (excluding the offshore islands and land and waters below low-water mark). They established a connection with the Perth Metropolitan Area, which is part of the claim area.

It is not necessary that all members of the Noongar community have identical rights over the Perth Metropolitan Area, or any special rights at all. It is sufficient they be members of a community of Aboriginal people who continue to acknowledge and observe the traditional laws and customs possessed by them at sovereignty, under which particular rights and interests in that area are enjoyed by some or all members of the community.

Some members of the present-day Noongar community are descended from one or more Noongars who lived in the Perth Metropolitan Area at sovereignty.

Noongar people have continued, since sovereignty, to occupy, use and enjoy those parts of the lands and waters of the claim area to which they have had legal access. Justice Wilcox found it is therefore appropriate to make a determination of a non-exclusive right (at least) to occupy, use and enjoy the claimed land and waters of the Perth Metropolitan Area.

Claim for exclusive possession

Justice Wilcox said the question of whether the Applicants are entitled to a determination of exclusive possession over lands and waters falling within:

• any areas affected by category C and D past and intermediate period acts (under the Act);
• Pastoral leases held by native title claimants;
• Reserves act covered by claimant applications; and/or
• Vacant Crown Land covered by claimant applications,

is a complex one.

Exclusive possession can be addressed only on a case-by-case basis, in which the tenure of the particular parcel of land is taken into account.

Land within the Perth Metropolitan Area must be examined parcel by parcel in order to determine to what extent the Applicants are entitled to exclusive possession over the particular parcels falling within (a) to (d) above. The matter was left open.

Overall conclusion by Justice Wilcox

It is the right of the Noongar people (subject to the application of the principle of extinguishment) to occupy, use and enjoy lands and waters in the Perth Metropolitan Area, excluding offshore islands and lands and waters below the low-water mark, ("the area") for the following purposes:

to live on and access the area;

• to use and conserve the natural resources of the area for the benefit of the native title holders;
• to maintain and protect sites within the area, that are significant to the native title holders and other Aboriginal people;
• to carry out economic activities on the area, such as hunting, fishing and food-gathering;
• to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
• to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
• to use the area for the purpose of teaching, and passing on knowledge about the area, and the traditional laws and customs pertaining to it;
• to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.

Conclusion

The Single Noongar Claim is an application of the laws as interpreted by existing High Court decisions such as Yorta Yorta[2002] HCA 58 and Ward(2002) 213 CLR 1. The practical implication of the decision for project development is that project developers should not assume that native title has been extinguished over all metropolitan areas and that it is possible for Aboriginal groups to demonstrate a continued connection with land in metropolitan areas. It appears the decision will be appealed by the State of Western Australia and the Commonwealth. So, it's a matter of watch this space!