South West settlement agreed to in principle

In brief

The West Australian Government and the South West Aboriginal Land and Sea Council have come to an in-principle agreement in relation to a collective native title claim of the Noongar people. The 'South West Settlement Agreement', which should provide greater clarity regarding aboriginal heritage surveys may also become an important template for future agreements. Partner Marshall McKenna, Associate Ranjani Sundar, Lawyer Dianna Barton and Research Assistant James Illich report.

Background

Between 1994 and 1998, various native title claims were commenced over land and waters across the south west region of Western Australia. Six registered claim areas, which were adjacent to each other, covered the whole of the region.

On 10 September 2003, eighty named applicants commenced an application for a determination of native title in relation to land and adjoining waters covering the south west region of Western Australia, including the area in and around Perth. This application was referred to as the ‘Single Noongar application’ as it covered the six underlying claim areas over the whole of the south west and was made ‘on behalf of all Noongar people’. This application could not be registered, because the native title claim group included members of the native title claim groups in each of the six underlying claims.

In 2005, a preliminary question as to the existence of native title was heard by the Federal Court. The trial judge found that there was relevant 'connection' to the Noongar area, and that native title could be recognised subject to extinguishment of rights by grants that had been made over time. That decision was overturned by the Full Court of the Federal Court on the basis of an incorrect approach by the trial judge, and the matter has been sent back to a judge of the Federal Court to (re)determine in due course.

Following that trial and appeal, the relevant Aboriginal and Torres Strait Islander representative body, the South West Aboriginal Land and Sea Council (SWALSC), facilitated a meeting of the named applicants in the Federal Court proceeding. At the meeting, a resolution was passed to authorise SWALSC to negotiate with the State of Western Australia (the State) with a view to reaching an agreement for settlement.

On 17 December 2009, SWALSC and the State signed a Heads of Agreement, under which they agreed to commence negotiations with a view to resolving native title claims in the south west of Western Australia (the settlement area) by means of a settlement.

On 5 July 2013, the State presented SWALSC with a final offer, set out in a 'template' indigenous land use agreement (ILUA), to resolve native title claims across the settlement area (the settlement). The intention is that each native title groups will execute a separate ILUA with similar terms but with specific provision to deal with that group. As prescribed by the Native Title Act, the six native title claim groups will have an opportunity to decide if they wish to enter into an agreement with the State through a series of authorisation meetings held between the six registered native title parties. Those meetings are scheduled to occur between the end of January 2015 and March 2015.

If each ILUA is authorised, the ILUAs will then need to be registered with the National Native Title Tribunal. This will trigger a one- to three-month notification period during which objections can be lodged. If an agreement is not reached, it is likely that each of the native title claims will be referred to trial in the Federal Court.

On 8 October 2014, SWALSC confirmed that all documents that comprise the settlement had been agreed to in-principle. The State's final offer is now ready to be considered by the Noongar community.

Key terms of the settlement

The settlement is significant.

The key terms of the settlement are:

• no recognition of native title, with the settlement intended to extinguish all native title rights and interests that may exist in relation to the settlement area;
• the introduction and sponsorship of a Noongar 'Recognition Bill' in the Parliament of Western Australia. The purpose of the proposed statute is to recognise the Noongar people as the traditional owners of the Noongar lands. The proposed statute does not:
  • create any right, title or interest;
  • give rise to or affect any civil claim, action or proceeding;
  • give rise to or affect any right of review of an administrative decision; or
  • carry with it any statutory rights that flow from recognition under the Native Title Act.
• the State providing financial support to the Noongar community;
• the establishment of seven Noongar corporations, being a central services corporation and six Noongar regional corporations representing each claim area;
• the establishment of the 'Noongar Boodja Trust' (the·Trust) to receive, hold and apply the benefits to be provided to the Noongar people under the settlement. The selection of the independent trustee of the Trust will require the approval of both the State and Noongar representatives; and
• a maximum of 320,000 hectares of Crown land will be transferred to the Trust.

The extinguishment of native title will be highly contentious for Noongar people in the settlement area (particularly those Noongar people who made the decision not to take part in the negotiations with the State).

Impact on mining, agriculture and other sectors

The settlement is expected to:

• extinguish the operation of the Future Acts regime in the settlement area;
• establish a uniform, minimum standard for heritage survey processes and procedures in the settlement area by reason of the introduction of a 'Noongar Standard Heritage Agreement' (NSHA).

The relevant Noongar regional corporation and proponents are, at least in theory, free to negotiate a bespoke Aboriginal heritage agreement. However, if an agreement cannot be reached, the NSHA will apply. The practical effect of the NSHA serving as a 'fallback' agreement means that bespoke Aboriginal heritage agreements are likely to adopt the NSHA as a benchmark of minimum standards. Agreement will be 'compulsory' for mining tenement holders as the Minister for Mines and Petroleum is required to impose a condition that the proponent execute an Aboriginal heritage agreement and, failing to do so, the proponent must enter into a NSHA. The NSHA will be administered by the relevant Noongar regional corporation, creating a single point of contact for the conduct of heritage surveys;

• resolve finally and permanently the native title litigation in the settlement area;
• provide greater certainty surrounding land management;
• not have an impact on 'private' land holders. No private land held by third parties is to be vested in the Noongar people under the settlement. 'Private' land in this sense includes freehold and leasehold, but not mining tenements and other interests.
• have no impact on water or fishing rights. No offshore or marine areas are involved (except to the extent that native title will be determined not to exist there). The settlement will be consistent with current laws for water and fishing;
• exclude from the land to be transferred to the Trust (with the exception of some Aboriginal Lands Trust properties), Crown land with a lease to a third party;
• honour leases held by those leasing Aboriginal Lands Trust properties; and
• establish for Noongar people and their children, land access arrangements for unallocated Crown land and unmanaged reserves.

The totality of the effect of this is that the bulk of interests in land in the south west will not be affected by the settlement. Freehold and leasehold are excluded.

The primary effects on the mining industry that might arise are:

• that it is possible that mining tenements holders whose tenements fall over areas of crown land to which the settlement applies, may have an additional stakeholder to deal with; and
• there will be greater clarity regarding rights and responsibilities in relation to aboriginal heritage surveys.

Next steps

From 31 January 2015 to 28 March 2015, the six native title groups will hold meetings throughout the South West to decide whether to authorise an agreement.·

Despite reports of opposition by parts of the Aboriginal community, SWALSC has stated that it is 'quietly confident the settlement will be accepted despite continuing opposition in some parts of the Aboriginal community'.

In light of the applicable procedures, it is likely that the ILUAs reflecting the settlement will be proceed for registration with a likely horizon (subject to objection) of the latter part of 2015, unless successfully challenged.