Hysterical response to native title win

by Russell Pickering

Comment:In a landmark ruling the Federal Court on September 19 granted to the  Nyoongar people of Western Australia one of the nation’s largest native title claims. Covering more than 193,000 square kilometre from Hopetoun in the south to north of Jurien Bay, including metropolitan Perth, the decision has sparked a response reminiscent of the hysteria generated by the historic 1992 Mabo ruling.

In his deliberations Federal Court judge Justice Murray Wilcox found the  Nyoongar people had proven their ongoing link with the land through  traditional practices dating back to the time of first European settlement in 1829. Securing the right to gather food, fish and hunt on  land where native title has not been extinguished this is the first finding of native title granted to aboriginal people in a capital city. The case, spanning more than a decade, is seen as a significant victory by the South-West Aboriginal Land and Sea Council for the Nyoongar people despite the fact that the State Government has immediately indicated it would consider an appeal of the decision.

Prime Minister Howard has also attacked the ruling. He was quoted in the  September 21 West Australian as saying: “I know the judge has said that  grants of freehold, and almost certainly leasehold, will have extinguished native title claims, but many people will regard it as somewhat incongruous – there could still be some residual native title
claim in a major settled metropolitan area”.

Attorney General Phillip Ruddock has also attempted to generate fear over the ruling stating it could possibly stop people getting access to national parks and beaches. According to the September 21 Australian he said: "In a major capital city, where you do have very extensive areas  of parklands, water foreshores, beaches … you could well find that if a native title were found to be a bona fide claim and lawful that means that native title owners would be able to exclude other people from access to those areas."

Federal opposition leader Kim Beazley has echoed PM Howard’s views  expressing similar reservations to the ruling. Backing WA Labor’s plans for an appeal to the Federal Court decision he has tac itly supported WA deputy Premier Eric Ripper’s assertion that the Federal Court has handed down contradictory findings in the latest claim to those of the 2002 Yorta Yorta ruling. (Yorta Yorta covered claims over settled areas in southern NSW and northern Victoria).

Beazley’s remarks have drawn criticism from within the ALP, splitting its ranks. ALP National President and NSW Native Title member Warren  Mundine is at odds with his federal leader describing the ruling in the September 21 Australian as “a fantastic decision – it opens up a lot of help for a lot of indigenous people.”

Taking a swipe at Beazley, he said: “People should calm down and start  looking at the benefits that could come out of this. I have not seen anyone outside of this Aboriginal community who have lost.”

Indigenous leader and NSW Labor parliamentarian Linda Burney, who is  also running for presidency of the ALP, has expressed her surprise that the ALP had taken a position against the ruling.

In WA, Labor backbencher Carol Martin, Nyoongar and the only female  Aboriginal MP, told the September 22 West Australian that traditional owners had been forced into court by the government but now that same government refused to accept “the umpire’s decision”.

“It’s not really Australian is it?”, she added.

The only other Aboriginal MP in WA, Ben Wyatt, told the West “It gives  the Nyoongar a tiny toehold to enable discussions to at least take place.” and that “In the light of the negligible impact that this decision will have on people’s property rights in WA, I’d simply accept this decision and try to negotiate a better outcome.”

Ex-Prime Minister Paul Keating has expressed his concerns at WA Labor’s reaction to the Federal Court’s ruling telling the September 22 Australian “I should have thought that the speed of the decision of West Australia to announce its intention is relatively unseemly.”
 
Glen Kelly, Chief Executive Officer of the SWALSC, told Green Left Weekly: “Its unfortunate that Kim [Beazley] has come out and made that statement.”

“The Yorta Yorta decision,” he said, “has set the threshold of  connection evidence that is required for a native title case.” But he added, “there are some significant differences between that country there and this country here.”

“Yorta Yorta was very small in area and we’re talking about a couple of  hundred thousand square kilometers here in the overall claim area. Yorta Yorta people are fewer in number and we’re talking here about 30,000 Nyoongars. Yorta Yorta country was ostensibly cleared and in Nyoongar country there are vast tracts of land that are uncleared and that has given people more than ample opportunity over the last 100 to 150 years to continuing to practice law and customs.

“In contrast to the Yorta Yorta decision there is a huge amount of  information generated from the settlers and from the early colonists which has concurred with the evidence put forward by Nyoongar people when they were on the stand in the court and that was not the case in the Yorta Yorta decision.”

"Immediately after Justice Wilcox’s ruling was handed down, a concerted campaign decrying the decision began in the media. In WA, misinformation about possible outcomes to the ruling have been spread thick and fast promoting the notion that life under the ruling will create chaos. This decisison, we are told will lead to protracted delays in development and will hamstring the mining industry, resulting in increased cost of housing and threatening job opportunities. The City of Swan has even suggested there may be problems with access to river foreshores and jetties.

Kelly rejects these claims and says such misinformation is designed to damage the validity and significance of the decision to the Nyoongar people.

“The portion of land in Perth that is released from Crown land is absolutely miniscule and in these cases there is already a process in train through the native title act which negotiates through native title considerations very quickly and very simply and its faster than planning and environmental considerations.”

“What the main problem people have is that they (politicians) come to Perth and they look at the Perth and they can’t conceptualize that beyond the immediate CBD and right out through the broadest reaches of the hundreds of thousands of kilometers of Nyoongar country that there is an operational community and an operational Nyoongar society that has lived and it has survived and it continues to survive. It’s a conceptual issue that we think politicians have and they need to raise their eyes above the city limits.”

For Kelly the ruling is mainly "about recognition”.

“ Native title rights are a bundle of rights to things on land … things like camping, hunting, caring for sights, caring for country, passing information on to younger generations and that sort of thing. In a practical sense hopefully what it will also allow Nyoongar people to do " Immediately after Justice Wilcox’s ruling was handed down, a concerted  campaign decrying the decision began in the media. In WA, misinformation  about possible outcomes to the ruling have been spread thick and fast promoting the notion that life under the ruling will create chaos. This decision, we are told will lead to protracted delays in development and will hamstring the mining industry, resulting in increased cost of housing and threatening job opportunities. The City of Swan has even suggested there may be problems with access to river foreshores and jetties.

Kelly rejects these claims and says such misinformation is designed to damage the validity and significance of the decision to the Nyoongar people.

“The portion of land in Perth that is released from Crown land is absolutely miniscule and in these cases there is already a process in  train through the native title act which negotiates through native title considerations very quickly and very simply and its faster than planning and environmental considerations.”

“What the main problem people have is that they (politicians) come to  Perth and they look at the Perth and they can’t conceptualize that beyond the immediate CBD and right out through the broadest reaches of  the hundreds of thousands of kilometers of Nyoongar country that there is an operational community and an operational Nyoongar society that has lived and it has survived and it continues to survive. It’s a conceptual issue that we think politicians have and they need to raise their eyes above the city limits.”

For Kelly the ruling is mainly "about recognition”.

In the final analysis, Kelly believes decisions such as Wilcox’s ruling open a way forward for Aboriginal people “there is a lot of energy in the community saying we want to be employed but what we need to do is get over the prejudice that people have against us so that we can gain employment and one of the ways of doing that is to use the negotiation platform that native title gives to negotiate outcomes for jobs and better futures.”

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