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Focus: Native Title – September 2006

Perth native title claim determination

In brief: On 19 September 2006 Justice Wilcox of the Federal Court handed down the first determination of native title in a major capital city. Senior Associates Robyn Glindemann and Kate Barrett examine the key findings.

The Single Noongar Claim

The decision handed down by Justice Wilcox in Bennell v State of Western Australia [2006] FCA 1243 (19 September 2006) about whether native title exists represents the full or partial resolution of six native title claims affecting metropolitan Perth. Five of the claims were made in 1998 by Christopher Robert Bodney. Four of Mr Bodney's claims related to small areas of land in metropolitan Perth. The fifth claim concerned a larger part of the Perth area and included coastal waters out to the 12 nautical mile limit.

The sixth claim included in the decision was one brought by 80 Aboriginal people in 2003 as the 'Single Noongar Claim'. The claimants alleged that when Western Australia was settled by Europeans in 1829, there was a 'Single Noongar community' that inhabited the whole of the south-west of Western Australia (including Bunbury, Margaret River and Albany to the south; York and Toodyay to the east; and Merredin to the south-east).1

Due to the extent of the Single Noongar Claim area and the Western Australian Government's desire to determine whether native title existed in the Perth metropolitan region, the Single Noongar Claim was divided into parts with the question of the existence of native title in Perth being determined separately. It is that question that is addressed in Justice Wilcox's decision. The remainder of the Single Noongar Claim (ie in relation to areas outside the metropolitan Perth area) remains to be determined.

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Native title continues to exist

Justice Wilcox accepted the position put forward in the Single Noongar Claim that at European settlement in Western Australia in 1829, the laws and customs governing the land throughout the claim area were those of a single community – the Noongar community. Justice Wilcox based his conclusion principally on the evidence of Aboriginal occupation that was documented extensively by the early settlers and the evidence of an Aboriginal language expert who determined that there was a single language group throughout the area, albeit with different dialects being used in different areas.

Significantly, Justice Wilcox found that the laws and customs held by the Noongar community did not extend to the islands off Perth (including Rottnest Island), nor did they exist below the low watermark.

Justice Wilcox went on to find that notwithstanding the 'devastating effect' on the Noongar community of dispossession, the contemporary Noongar community observed the laws and customs that are a recognisable adaptation to those observed by the Noongar community in 1829. Therefore, native title can continue to exist in the Perth metropolitan area.

As a result of Justice Wilcox findings regard the Noongar, all of the native title claims made by Mr Bodney have been dismissed.2

While a final determination of the native title rights held by the Noongar is still to be made, Justice Wilcox has determined that the native title rights and interests include the following non-exclusive rights:

  • to access and live on the area;
  • to maintain and protect sites within the area that are significant to 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 laws and customs; and
  • to use the area for the purposes of teaching and passing on knowledge about it and the traditional laws and customs pertaining to it.

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Connection to the Perth metropolitan area

An interesting aspect of Justice Wilcox's decision is his conclusion about the connection of the Noongar community to the Perth metropolitan area.

While the judge accepted the submission of the State that the native title claimants must establish a connection with the Perth metropolitan area, he did not accept that the connection must be made in a manner that was specific to the Perth area and divorced from the asserted connection to the whole of the claim area. Justice Wilcox stated that if the claimants succeeded in demonstrating a connection between themselves and the whole claim area (which included metropolitan Perth) then the required connection to the metropolitan Perth area was also established.

In finding that Aboriginal people did inhabit the Perth metropolitan area at European settlement and that members of the present day Noongar community acknowledged and observed traditional laws and customs (in a modified form), present day members of the community could obtain recognition of the community's rights in relation to the Perth metropolitan area regardless of whether any members of the community could actually trace their ancestry back to Aboriginal people living in the Perth area at sovereignty.

Further, Justice Wilcox said it was not a matter for the court to determine how individual members of the community could exercise their rights within the Perth metropolitan area. Instead, his Honour said that such matters are to be left for the community to determine.

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Next steps

It must be emphasised that this is not a final determination of native title in the Perth metropolitan region and, significantly, no findings have been made about the extinguishment of native title where it has not already been extinguished in accordance with previously established principles. In particular, Justice Wilcox stated that a 'Native Title Determination does not affect freehold land or most leasehold land; it cannot take away peoples' back yards. The vast majority of private landholders in the Perth region will be unaffected by this case'.

In his concluding remarks, Justice Wilcox observed that it would be 'enormously costly and time consuming' to determine extinguishment within the Perth metropolitan area on a parcel by parcel basis.  He has encouraged all parties to resolve these extinguishment issues by negotiation.

The next step for all parties, subject to any appeal that may be lodged, is to determine the precise formulation of the native title rights held based on Justice Wilcox's judgment.

Footnotes
  1. The Single Noongar Claim replaces a number of separate native title claims that had been lodged previously by separate claimant groups .
  2. Mr Bodney had asserted in his claims that the Perth metropolitan area was occupied by a number of discrete groups, rather than a single community.

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