The historic 1.3 billon Noongar legal victory became a precedent for other Native Title determinations around the country.
The agreement reached between the Barnett government and the Noongar groups in June 2015, allowed 320,000 hectares of land to be held for cultural development by the Noongar Boodja Trust.
The Noongar Recognition ACT of 2016 was meant to create a perpetual fund that would have made annual instalments of $50 million for 12 years, as well as establish six new regional corporations and one social services Corporation - all funded by an extra $10 million dollars each year for 12 years. It also included the refurbishment of 121 homes.
It was a milestone that set a precedent for other claims to follow.
But now, the Federal Court has decided to make changes to the understanding of the last 7 years, and the Native Title claims will go back to how they were dealt with before the Noongar case, requiring a simple majority to agree on an Indigenous Land Use Agreement.
Native Title senior barrister, Greg McIntyre SC, who successfully represented Eddie Mabo in the landmark Mabo v Queensland (1992) case, told NITV’s The Point that the Full Federal Court’s decision has great impact on current and future Native Title claims.
“The impact of that is that there are over 200 agreements that have been proceeding on the basis that they were valid with less than all of the registered claimants signing them, and the Full Court has now suggested that they are not validly registered,” he explained.
“Native Title claimants have been proceeding on the basis that if one member of the registered claimant group signed an Indigenous Land Use Agreement, then it was valid. That’s because a single judge said that in a decision seven years ago.
“The recent decision of the Full Federal Court said, ‘No, the Native Title Act makes it very clear that all of the people who comprise the Registered Native Title claimant must sign an Indigenous Land Use Agreement for it to be able to be registered’,” he added.
According to Mr McIntyre, the changes will have three major consequences.
First, it will retrospectively validate the 200 or so agreements which have been introduced in the last seven years without all registered claimants signing.
Secondly, “it purports to declare that the Noongar agreements will become valid once the legislation is enacted”.
Finally, it will “create a process for the future, which will allow Native Title groups to meet and to decide which of the registered claimants are to sign any Indigenous Land Use Agreements.”
Some critics of the changes have claimed the amended act has added conditions which may appear to facilitate projects, such as the Adani Carmichael mine project to go ahead.
Warren Mundine responded, saying people using the Noongar precedent are impeding mining development.
Deakin University’s Emeritus Professor Dr Jon Altman disagrees with Mr Mundine’s view, stating, “Warren Mundine is poorly informed about the workings of the Native Title Act. His views run contrary to three Federal Court Judges. He confuses correlation with causation, in other words, just because key Traditional Owners and some ‘greenies’ agree, doesn’t mean one caused the other. It just means they share a similar view on Adani’s Carmichael mine proposal.”
Mr McIntyre also believes the amended act would make it easier for such projects to get the green light.
“Yes, it would have that effect because, as I understand it, that project was a subject of a meeting that there was a majority in favour of it, but not all have signed the agreement. That would have to be re-run effectively.
“Essentially, the effect of the legislation would be to validate that agreement, despite the fact that not all registered claimants have signed it.”
As a senior barrister, Mr McIntyre has concerns about the changes to the Act.
“I do and I expressed them to the parliamentary committee which inquired into it … It effectively means that majority rules in all circumstances.
“My view is that there ought to at least be a dispute resolution process which takes into account minority views. There are various ways of taking into account minority views, but the current form of the legislation does not address that issue,” he concluded.