Native title can be used to achieve land justice: Kelly


Originally published on Tracker Magazine.  

South-West Aboriginal Land & Sea Council (SWALSC) chairman Ted Hart (left) and chief executive Glen Kelly shake hands outside the Federal Court in Perth in September 2006, after Justice Wilcox ruled the Noongar people continue to have native title in a more than 6000 square kilometre area covering Perth and its surrounds. (AAP Image/Adam Gartrell)

Going National is a three-part Tracker series which aims to reignite the debate surrounding a national land rights model.  In this second instalment, Tracker turns its attention to Western Australia.


WESTERN AUSTRALIA, May 10, 2011: Western Australia is the only state in Australia without a land rights regime. Despite that, it is home to several successful native title claims – including the first successful native title claim over a capital city.

But the closest it has come to a land rights scheme was the model debated in the Seaman Inquiry in the 1980s, according to prominent Noongar leader Glen Kelly.

“That was subject to a vicious campaign from the Chamber of Minerals and Energy and the Liberal party, and as a result of that campaign, in particular, it failed,” Mr Kelly told Tracker.

“There is a thing called the Aboriginal Lands Trust, which holds land in trust for Aboriginal people. There’s a lot of land in it – about 27 million hectares, which is roughly the size of Victoria or a bit bigger.

“But that’s a government instrumentality and a lot of the Aboriginal communities exist on that land. It’s not their land, it’s not land rights, it is the old native welfare land.”

Mr Kelly is the CEO of the South West Aboriginal Land and Sea Council, which lodged the first successful native title claim over a capital city – the Single Noongar Claim over Perth.

In 2006, Judge Murray Wilcox found that native title hadn’t been extinguished over certain areas of metropolitan Perth.

The then Federal Attorney General, Phillip Ruddock, claimed the ruling had the potential to limit public access to beaches and foreshores in all major capital cities, but the claim – widely condemned as scare-mongering – failed to ignite any tangible fear in the population.

According to Mr Kelly native title is not perfect, but it is all his people have got to fight for their land rights under existing laws.

“In the South West (WA) we’ve got bugger all,” he told Tracker. “The reason being is that, in terms of native title, there’s been such a vast amount of freehold land and historical land grabs that there’s been an extreme level of extinguishment,” Mr Kelly said.

“What native title does in the absence of any coherent land rights act, or regime, is that it really provides the only mechanism through which people can seek a dignified recognition of culture and country and traditional society.

“That is really very significant.

“What the Single Noongar Claim did was recognise the existence of a Noongar society, when the state was arguing that there was no Noongar society.

“That recognition, that cultural recognition as a people, is extremely significant and native title presents those in the south west of Western Australia with the only tool to get that dignified recognition.

“Native title has been a really interesting experience.

“It has delivered in a lot of ways, and yet it has had some epic failures.

“It has the potential to deliver to even the south west, but that’s more dependent on strategy rather than the Native Title Act.

“There are a number of areas which have succeeded in achieving a higher level of native title outcomes, mainly in remote areas.

“In Western Australia, I guess we have to operate responsibly.

“It’s about the best outcome that can be negotiated, because negotiated outcomes under native title come with resources.

“If you go through the court and succeed, you will have your native title rights recognised, but there are no resources attached to it, there is no ability to exercise those rights (to economic development), unless you have a mine on country

“The best native title outcomes in this state have been delivered through negotiation. They’ve delivered different sorts of compensation and trade offs for withdrawal of native title claims in particular areas.

“Some of them are worth considerable amounts of money, and some of them have good community outcomes as well.”

Mr Kelly said that the NSW land rights system is a subject of “envy” among Aboriginal groups in Western Australia but similar outcomes could be achieved through negotiation.

“Native title does allow you to achieve other outcomes through the negotiation process, and we’ve used that as a surrogate for the rights in places like NSW, through the land rights process.

“Although we know that NSW and NT have got its critics, they do take fairly decent strides towards the idea of internal self-determination.

“It provides a resource for people to work with, whether it’s a culture resource, social resource or commercial resource.

“As a result we do look at the NSW system with some envy because it looks to have provided people a land base, which is something we don’t have in south west WA.

“That is something we are trying to secure through native title negotiations.

“But this involves a whole series of trade-offs. We have to figure out what to prioritise.

“Native title is the only option available to us, it is the only option that provides people with a dignified recognition of culture, society, land and rights.

“It can be a hollow victory, but good negotiation can get the same types of outcomes as a land rights regime might get. But it’s very hard to do that. And the human cost along the way can really be quite extreme.”

Mr Kelly expressed support for a renewed debate on the issue of a national land rights scheme, but said any model would have to co-exist with native title.

“There have been too many native title determinations that have been made already. No one could contemplate these outcomes being undermined by a new system,” he said.


  • Land rights has delivered real benefits to Aboriginal people in NSW and continues to do so
  • The NSW Land Rights network is now worth more than $2.6 billion
  • Even so, less than 0.1 percent of the total NSW land mass has been returned to Aboriginal people
  • There have been numerous successful enterprises launched on Aboriginal land through the land rights act.

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