THE FEDERAL Court’s decision to allow an appeal of the Noongar native title decision has provoked an outcry from indigenous rights advocates, forcing Federal Government officials to promise a re-examination of the case.
On 19 September 2006 the Federal Court brought down a judgment in favour of Noongar Native Title over the Perth metropolitan area in the case Bennell v State of Western Australia. But the Court’s recent ruling effectively overturns Justice Wilcox's decision in the Single Noongar native title application, that native title is capable of existing in the Perth metropolitan area.
“Yesterday’s decision by the Full Federal Court to overturn recognition of the Noongar people’s claim to native title over Perth is disappointing and takes us all back to square one,” Aboriginal and Torres Strait Islanders Social Justice Commissioner Tom Calma said. “This decision means that a strong, vibrant indigenous community must start their case again.”
Calma’s comments follow his earlier criticism of native title law in the Native Title Report 2007, in which he described the system as caught in a state of “gridlock”.
“By allowing this appeal, the Federal Court has effectively left the Noongar people and the people of Western Australia up in the air as to whether native title exists over the area,” Commissioner Calma said.
Following the Court’s decision, Attorney-General Robert McClelland said “the Government will give careful consideration to the detail of the decision, including the opportunities it might present for further negotiation, before responding. I have made clear the Government’s preference, wherever possible, for resolving these issues through negotiation rather than litigation.”
However, the Attorney-General has pledged to give his personal attention to the case: “I will be consulting with the government of Western Australia in relation to this matter,” he said.
Calma has called on the state government to negotiate a “just outcome” for the Noongar people: “I am concerned that the courts are denying how societies and cultures evolve and instead choosing to stick to narrow, unnecessarily legalistic interpretations and effectively restricting indigenous peoples’ exercise of their human rights.”
The claim area itself is part of a much larger area covered by the Single Noongar Claim, which covers the entire south-western corner of Western Australia. The remainder of the larger Single Noongar Claim is still outstanding and will hinge on the outcome of the appeal process.