$1.3 billion Native Title deal divides Noongar peoples

pdf Land deal fails important tests 'The West Australian' Monday, July 15, 2013

Richard Wilkes - Nyoongar Elder

Gerry Georgatos The Stringer 6 July 2013

Twenty months ago the Western Australian State Government offered the South West Aboriginal Land and Sea Council (SWALSC) a one billion dollar package to settle native title over Noongar Country. Last week, the Government upped the ante with another $300 million but it is the final offer according to Premier Colin Barnett.

This final offer of nearly $600 million in financial payments over 12 years, 320,000 hectares of land and an Indigenous housing project (120 houses near Perth), is intended to sort out native title over Noongar Country once and for all, and end any right to claims by other Noongars over Perth and the State's south west. But not all agree.

Highly respected Whadjuk Nyungar Traditional Owner Richard Wilkes said most Elders have not been included and consulted. He certainly has not. In the heart of Whadjuk Country, at Kings Park, one of the most senior Whadjuk Elders told The Stringer that SWALSC is not the body that should have been negotiating with the State Government.

"They are a compromised body of a small number of peoples. They have disavowed themselves from all cultural and hierarchical protocols. They have abused these," said Mr Wilkes.

"They are a body funded by Government departments and therefore working in the interests of Government departments, and have let down our peoples."

"SWALSC needs to understand that Nyungars (Noongars) are not just one set of peoples, there are Whadjuk, there are Yuet, there are Ballardong, and so on, and we have to be respected as such."

SWALSC CEO Glen Kelly has in past conversations said that they have registered as members more than 4,000 Noongars. There are 40,000 Noongars in Western Australia.

In one conversation he said, "We will also get the best deal for our people. We have a billion dollar offer on the table but we will negotiate an even better one, that's the purpose of negotiation."

Indeed, the SWALSC team secured another $300 million in value and a housing project.


Professor Len Collard -ARC Research Fellow

Noongar Traditional Owner Professor Len Collard said the deal is not worth much when it is measured against 40,000 Noongars.

"It's a package that claims to be worth more than a billion dollars, but half of it is in-kind value in reference to lands are mostly natural parks which will be jointly-managed between SWALSC and the Department of Environment and Conservation."

"This native title deal that will sell us out is neither compensation to our people nor is it land rights," said Professor Collard.

"If what monies this deal offers were made available to every Noongar there would only be a few thousand to each Noongar. As simplistic as this sounds it goes to the heart of compensation. How can this address the myriad traumas from dispossession and oppression against our peoples, and the damage left today for us still to address?" said Professor Collard.

Mr Kelly said that none of the funds would be made available to any individual Noongar and that instead the financial aspect to the package would fund a high governance protected body acquitting itself to State Government to oversee other regional Noongar bodies which will work to generate future revenue and at all times to engage with the State Government as the representatives of Noongar peoples.

The funds will be managed by an independent trustee overseen by the State Government for the first 12 years. The Government will limit itself to 12 annual payments of $50 million, indexed to inflation. A further $10 million will be provided for the administration of six regional corporations which in time will be intended to work towards approved social, cultural and economic programs.

Both Mr Wilkes and Professor Collard said such a structure will not address Noongar impoverishment, high imprisonment rates and suicide rates.

But Premier Barnett said that he believes a "real difference" will be made.

"Nothing happens overnight, but we expect this arrangement will help lift outcomes in Aboriginal health, education and over time," said Premier Barnett.

He said he believed that the deal will "produce a new generation of Noongar leaders to drive further change within the community."

SWALSC has claimed it negotiated with Noongar peoples extensively "with more than 300 community meetings since March last year." Reporting for The National Indigenous Times I attended one of these meetings but no-one turned up other than SWALSC and myself.


Marianne Headland Mackay leads a protest outside WA parliament in February 2012

Noongar Tent Embassy's Marianne Mackay called the SWALSC a sham. "They do not represent our people, they don't consult with us, they did not send a delegation to meet with Noongar Tent Embassy. They are a great disappointment and this is reflected in the fact that Noongar people did not turn up to many of their public meetings. Some of their meetings had only zero or a couple of Noongars turn up to them. I know, I went to several of them," said Ms Mackay.

"Tell me if that's a seal of approval by Noongars of SWALSC's billion dollar deal with the State Government, a deal that funds effectively an elite group and does not include the whole of our people?"

"Their claim that they've done 300 consultations is a crock, they need to define what is meant by consultations and they should produce records of how many attended."

"We have a petition with thousands of signatures from our people, more signatures than the membership of SWALSC, so how can they go about claiming our people want this? In fact we don't," said Ms Mackay.

There are more than 40,000 Noongars, comprising half of Western Australia's Aboriginal population. The State Government's deal will include Parliament recognising Noongar people as Traditional Owners of their lands. The Past, Present and Future Recognition Bill (Koorah, Nitjah, Boordahwan) will become the first of its kind in Australia.

"We don't need State Parliament to tell us we are the Traditional Owners," said Mr Wilkes.

"If they want to respect us and allow us our dignity then they should respect our hierarchy and consult and deal with the Elders not with people who have little understanding of our people and who do not speak with our people but go around as if representing our people."

The State Government spends $100 million a year in negotiating native title across the State but one in 14 Western Australian Aboriginal adult males are in prison, 43 per cent of the State's prison population is Aboriginal, in juvenile detention 70 per cent are Aboriginal, youth suicides in the South West are sky-high, in the Kimberley youth suicides have often reached 100 times the national average. Half of WA's homelessness is Aboriginal, and ill-health disproportionately plagues Aboriginal peoples, children and older endure horrific rates of otitis media, glaucoma, trachoma, diabetes, renal failure and so on. This in the mining boom State, Australia's richest State and in a State that claims to spend $100 million a year negotiating native title arrangements but where still Aboriginal statistics in health, education, well-being are among the world's worst.

One of SWALSC's lead negotiators Cherry Hayward did say that the $1.3 billion deal does not release the State Government from its duty to address Aboriginal health, education and housing commitments.


Premier Colin Barnett leaves WA parliament building in February 2012

Premier Barnett claimed the agreement had to be reached in order to settle once and for all native claim issues over Traditional Noongar Country which includes Perth. He said the implications of unresolved claims affected powerlines, utilities and housing developments.

"It has been a hassle for Government so I guess there's that frustration element." But he did say this was matched "by a desire to see a genuine step towards reconciliation that Aboriginal people are respected, have dignity and have control over some assets and can have a future," said Premier Barnett.

Professor Collard described this type of language as scaremongering. "It is the days of old when the now buggered Native Title Act first came about. The scaremongering was abominable, and racist, where the naysayers were running around with doom and gloom that Aboriginal peoples will overrun them and take over their property. This is not what Native Title is about and even today there is no place for this dumb language,"

SWALSC CEO Glen Kelly said that the deal is a "watershed moment."

"In terms of Australian native agreements, there is nothing bigger. It is not just about the money, it is about the cultural and societal elements. It is world class."

Mr Kelly said the deal is comparatively worth more than the Treaty settlements "that have happened in New Zealand."


Marianne Headland Mackay
40th Tent Embassy, Canberra

Ms Mackay was upset with this comment by Mr Kelly. "It is an insult to suggest that any deal is bigger or worth more than Treaty. Aboriginal peoples Australia-wide cry out for Treaty. What an insult to all of us, past and present and those to come, what an insult to Mr Yunupingu."

The negotiations between the State Government and the SWALSC had begun in 2009 and came to the public fore 20months ago. But the issue of native title claims involving Perth and the South West began in 1998 when the first of six claims was lodged.

In September of 2006, the Federal Court made a decision, now known as the Justice Wilcox ruling, that Noongar peoples are entitled to native title recognition in metropolitan Perth. It was the first such finding of an Australian capital city. The news media and scaremongers lapped it up at the time. An appeal by the then Alan Carpenter led Labor State Government was upheld in September 2008.

Subsequently, SWALSC and the State Government then agreed that the claims should be resolved by negotiation. In December 2009 the current State Government and the SWALSC signed a heads of agreement to settle native title in one hit, and if the deal is signed off all other native title claims will be extinguished.

Dumbartung Aboriginal Corporation CEO Robert Eggington has long argued that the deal will short-change Noongar peoples. He has proposed an alternative - "a pay the rent deal". He argues that Perth and the south west from its contribution to net revenue from resources and industry to the Gross State Product should "pay five per cent in rent" annually to Noongar peoples in perpetuity. Arguably, this will be worth annually what the Government has offered SWALSC over twelve years. Even if it was 0.5 per cent in perpetuity it would remain a better deal than the current deal.

"We have many problems to address, and what happens if SWALSC misspends the money in the twelve years, what happens if they have not invested wisely and there is no future revenue after twelve years? How then do we help our children who are committing suicide at the world's worst rates?" asked Mr Eggington.

Mr Wilkes and Ms Mackay said the moral and legal rights of the various Noongar clans will not be extinguished even if the deal is signed.

"The State Government should remind itself of its fiasco in the Kimberley with the Goolarabooloo and Jabirr Jabirr where the people were not united when the Government pushed an agreement on them and we all know how that came apart. If this package is pushed on all Noongar peoples when far too many Noongars are not behind this deal then remember my words, the future will be one of legal appeals and litigation and damages claims," said Ms Mackay.

* Noongar alternatively spelt Nyungar, Nyoongar, Nyoongah, Nyungah, or Noonga