The Single Noongar Claim

On Tuesday, 19 September 2006 Federal Court Judge, Justice Wilcox handed down his decision in the Single Noongar Claim Anthony Bennell & Ors v the State of Western Australia & Ors (“SNC”). This was not a final determination of native title but was an answer to a “Preliminary Question”. The Preliminary Question had been formulated by the parties throughout the SNC proceedings.

The Preliminary Question basically asked whether or not native title exists in the Perth Metropolitan Area, and if so, what are the native title rights and interests, and who holds them? The Court was required to ignore questions of technical extinguishment of native title by the grant of freehold titles, for the purpose of answering these questions.

The Perth metropolitan area is the first area of the SNC to be addressed by the Federal Court. This was identified in the proceedings as the area of the “Separate Proceeding”. It includes the Perth metropolitan area and surrounds, including Fremantle.

Justice Wilcox found that the Noongar people have maintained their connection over this area. That decision involved findings that there is a Noongar community which has maintained its connection to the south-west under a body of laws and customs which have been observed and acknowledged by the Noongar People since before 1829, through to the present day.

Justice Wilcox’s judgment also included a response to a Notice of Motion lodged by the State of Western Australia. The State, among other things, had applied to have the Single Noongar Claim struck out. They were unsuccessful and had costs awarded against them which is extremely unusual in native title cases.

Applications to appeal against Justice Wilcox’s decision were filed by the State, the Commonwealth, the Western Australian Fishing Industry Council (“WAFIC”) and Mr Corrie Bodney.

The State' draft grounds for appeal include that Justice Wilcox applied the wrong test in regard to whether there was a Noongar society at sovereignty, whether there was continuity of traditional law and custom and whether there was a continuation of society and cited alleged errors of law and fact as reasons. The State is also saying connection to the Perth metropolitan area was not proved, that the Judge erred in relation to some of the expert evidence and made irrelevant considerations. The State has also queried the substance of some of the rights and interests which the Judge found.

The appeals were heard by the Full Federal Court, which is a panel of three Federal Court judges in April 2007. A decision is expected in early 2008.

Any party to the appeals who is unhappy with the outcome will be able to request that the decision be reviewed by the High Court of Australia. For the purpose of deciding whether or not to hear an appeal, the High Court would hold a brief hearing, and would most likely make a decision on the same day. If the High Court agreed to hear an appeal, the matter would take at least another twelve months to be resolved. If the High Court refused to hear an appeal, the Full Court’s decision would stand as the final decision.