Noongar fight not black and white


 Originally published in Tracker Magazine.

Aboriginal protesters outside Fraser’s Restaurant in Perth, while West Australian Premier Colin Barnett waits inside for an opportunity to leave. Wednesday, Feb. 8, 2012. Mr Barnett addressed Noongar elders of WA’s southwest to outline a proposed $1 billion deal to settle native title claims in the region. (AAP Image/Lloyd Jones)

WESTERN AUSTRALIA: The Noongar Tent Embassy has created headlines across the country. But is Barnett’s billion dollar native title offer reason to protest, asks AMY McQUIRE.

To the South West Aboriginal Land and Sea Council (SWALSC), it is an opportunity that could deliver much-needed self-determination.

To the members of the newly formed Noongar Tent Embassy, it stands as an offence to their sovereignty.

The Barnett government’s estimated billion-dollar offer to settle native title claims in the southwest of the state may have caused division, but the issue is far from black and white.

Last month, images of Noongar protestors banging on glass outside a prominent restaurant in Perth’s west flashed on our television screens.

It immediately sparked comparisons to the recent Survival Day protests at the Aboriginal Tent Embassy in Canberra, where Prime Minister Julia Gillard and Opposition Leader Tony Abbott were ‘trapped’ in a glass-walled restaurant.

The protestors had surrounded the WA Premier Colin Barnett, delaying his exit from the restaurant, before security officers briskly escorted him into the car. No one was hurt, and no shoes were lost.

The cause of the discontent was this: A Barnett government offer to set aside $60 million a year over 10 years to be put into a future fund for the benefit of Noongars.

The deal would also include rights to land, a land base, joint management of national parks, and an improved heritage regime, amongst other measures.

Accepting the offer would mean the surrendering of any further native title claims in the south-west, a fact that has alarmed some, like elder Richard Wilkes, who likened it to being offered “peanuts”.

The protest quickly lead to the formation of the Noongar Tent Embassy, which despite public and police pressure, still stands strong on Heirisson Island, in the Swan River (at the time of press).

The Tent Embassy protestors have had several angry clashes with police, who have attempted to move them off the island.

But that’s largely a distraction from the real issue at hand.

Marianne McKay is a prominent Noongar activist who also was involved in the Survival Day protests at the Canberra embassy.

She is strongly opposed to the native title offer, and has been since she first read about it from her dad, who is a working member of SWALSC.

“I was going over dad’s paperwork and they said $1 billion dollars, but it doesn’t go into an account for the next 10 years,” Ms McKay told Tracker.

“It’s going to be put in the ANZ bank, and the ANZ says you will need to have an act of Parliament to be able to access that money.

“The government can decide to repeal the act of Parliament and we may never be able to access that money.

“But no amount of money would make me want to sign that dotted line. They could offer $1 trillion and I’d still tell them to stick it.”

To protestors at the Tent Embassy, the offer is pitiful because it does not acknowledge their sovereignty.

“We’re sovereign Aboriginal people,” Ms McKay said.

“These lands were never conquered or ceded. We don’t have to joint manage any piece of land. It’s up to us to manage every parcel of land… not tiny pockets of land.

“We have a doctrine to prove our sovereignty which goes all the way back to England in the 1800s.

“With that information we can override any native title deal that the government wants to push.”

Ms McKay does not believe Noongars should have to surrender any native title claims.

“We have family groups over here that have native title claims currently in the courts. Part of that agreement is that those native title claims will be dropped. That’s not good enough.

“That’s blackmail to say we’ll never be allowed to push that if we accept the offer.

“Shame on the government for even saying it.”

The land council, see it differently.

SWALSC has been in negotiation with the Barnett government for the past two years, after the state and federal governments appeal against Judge Murray Wilcox’s decision on the Single Noongar Claim was upheld in the federal court.

In 2006, Judge Wilcox had determined native title had survived in parts of Perth and that Noongar people could demonstrate a continuing connection with southwest WA.

CEO Glen Kelly told Tracker that in many ways, the offer goes much further than what would have been achieved through a successful court case.

“What’s happened since the appeal is that we’ve said to state governments – ‘we could beat each other forever and a day in the court, but it would be far better if we could sit down and negotiate a solution’,” Mr Kelly said.

“We got a commitment to negotiate in 2009 and we’ve been engaged in negotiations for the past two years.”

There has been a large amount of extinguishment in southwest WA, he argues. Even with a successful native title case, most Noongars wouldn’t have native title rights because of the extensive extinguishment across the southwest.

And because the majority of it occurred after the Racial Discrimination Act was passed, it is non-compensable.

The offer includes an Act of Parliament, which will formally recognise Noongar people as the Traditional Owners of southwest Perth, even over land where native title is extinguished.



South West Land and Sea Council CEO Glen Kelly. (AAP IMAGE)
Mr Kelly says that the $1 billion figure bandied around in the press does not fully explain the merits of the offer. 

“The mainstream press doesn’t talk about securing customary rights and land. They talk about a money figure and it gives people the false impression that we are settling native title for money.

“There is obviously a monetary component to it. But there are also some very strong outcomes about customary rights to land and a big land estate for Noongar people as well as joint management.” (SEE BREAKOUT FOR DETAILS OF THE OFFER)

He says the $1 billion figure takes into account the “entire package”, and is an estimate of what it will eventually cost the government.

Mr Kelly says that the current offer goes far and above what would be achieved if native title were recognised.

“For some reason, people have elevated these things called native title rights onto a level of importance that is something it’s not.

“People have for some reason equated native title rights with cultural identity.

“I’m very critical of the native title system, the Native Title Act and the court decision, and the reason I’m critical is because I’m fully aware of the limitations that it places on where rights and interests can be recognized.

“Native title rights aren’t your cultural identity. It’s the right to customary activity on land someone else owns.

“Our job is to overcome the serious flaws and limitations of the Native Title Act and the native title system to create more and better options for the Noongar people.”

There is also an opportunity the offer could deliver a system of land rights, similar to the NSW Land Rights system, through the money set aside in the future fund.

“The fund will mature at 10 years and then we’re on our own.

“We are looking at an exact parallel to the NSW Land Rights system.

“We’ve had people visit from the NSW Aboriginal Land Council.

“We’d have an elected body and the fund would then need to provide the resources for the corporations to operate.”

The Noongar will also be able to claim land to be transferred for use for social, cultural and economic purposes.

Currently, Noongar hold no land.

It could also deliver a level of self-determination.

But Ms McKay rejects the argument.

“Why would the government be offering this money,” Ms McKay said.

“They must have an ulterior motive. Governments don’t do stuff like this for people. This is a mining state…. He’ll be pushing through to start mining.

“… It’s not about the process of reconciliation or working with our people. It’s about (the government’s) own greed and selfish lifestyle.”

But SWALSC argues that mining has not delivered benefits to Noongar, because the majority of activity in the southwest is conducted on extinguished land.

Noongar native title groups only receive about $2 million per year from mining activities, which the land council says is vastly inferior to the offer.

SWALSC is currently in the process of distributing fact sheets throughout the Noongar community.

“We’ve got no problem with people voicing an opinion and contesting an idea. But what we want is for people to do that with the facts at hand, rather than forming an opinion without knowing the facts,” Mr Kelly says.

He says it’s difficult to gauge the level of support amongst the Noongar community for the offer, but that SWALSC has received a “very large number of messages of support”.

“There are a lot of Noongars out there who understand that native title as an act is a hollow promise. They understand if they can develop something that overcomes the hollowness of that promise, then that’s wonderful.”

But Ms McKay is concerned that SWALSC hasn’t visited the embassy.

“We need to have the whole process explained to us. We don’t want a fact sheet. We could put together a fact sheet, that’s not enough.

“They have the money and an obligation to disseminate that information.

“We need to get them out here to the people to tell us everything, not just a few little dot points.”

But she says the embassy’s supporters will not change their minds.

“We don’t want to sell out on our culture, on our land. We have to protect it for our future generations,” Ms McKay says.

Meanwhile, the debate does not look like it will die down soon.

And a deal is still a long way off.

It will take another six or seven months to analyse and consult with Noongars, Mr Kelly said.

A snapshot of Barnett’s offer:

• An act of Parliament, ratified in the Federal Court, that formally recognises Noongars as the Traditional Owners of the southwest, with a continuing culture and ongoing connection and responsibility to the land.

• Customary rights under native title recognized on Crown lands, even in areas where native title has been extinguished.

• A large parcel of land to be returned to Noongar people for cultural, social and economic reasons. Currently Noongar people hold no land.

•$60 million per year over 10 years to be put into a future fund. Prior to the fund reaching maturity, the state will fund operations of corporations (see below) with additional money.

• Every claim area will develop a body corporate with support from a central body. The bodies will oversee joint management of parks, heritage protection, customary access and use and the land base.

• Noongar people will be made joint managers of national parks, giving them the ability to protect and manage Noongar sites.

• A modified future acts regime.

• Strong protocols under the WA Aboriginal Heritage Act about the process of heritage consultation in a bid to strengthen heritage protection.

• The offer is just that – an offer – and consultation is ongoing.

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