FREQUENTLY ASKED QUESTIONS
The Single Noongar Claim has raised a number of questions amongst Noongar People and the wider community. SWALSC has provided some answers to the most common questions below. If you'd like more information please feel free to contact us at SWALSC.
Q1 | Did the Federal Court determine whether or not native title exists over the South West?
Q2 | What did the Federal Court actually decide in relation to the Single Noongar Claim?
Q3 |What is meant by ‘extinguished’?
Q4 |What new rights do Noongar People have following this decision?
Q5 |Is compensation payable for the loss of native title?
Q6 |Who gets the land or money for the Perth Metropolitan area?
Q7 |How long will the appeals take?
Q8 |What would happen if the Single Noongar Claim applicants won on appeal?
Q9 |What would it mean if the Single Noongar Claim lost on appeal?
Q10 |If determinations of native title are made throughout Noongar country, what effect will this have on mining, development and land-use?
Q11 |Can native title holders prevent or control access to public beaches?
Did the Federal Court determine whether or not native title exists over the South West?
No. In his ruling Justice Wilcox determined that the Noongar people had maintained a continuous connection with the land and the customs, traditions and laws of their ancestors. Whilst this is a major precedent for Noongar people, it is not a final decision.
What did the Federal Court actually decide in relation to the Single Noongar Claim?
The Court decided that the Noongar people hold native title in the Perth Metropolitan Area. This title is only on parcels of land where native title has not been ‘extinguished’. Land such as housing developments, public roads, and other privately owned property will not be covered by native title, because these developments have extinguished native title.
What is meant by ‘extinguished’?
Native Title is extinguished, or no longer exists, when an action by the government provides the land to another party. This could include housing developments, public works, freehold land titles and some leases.
What new rights do Noongar People have following this decision?
The decision by the High Court does not remove any rights from the rest of the community. It does however confirm the rights of Noongar people over unallocated crown land within the Perth Metropolitan Area. These include the right:
to access and camp on the area;
to conserve and use the natural resources of the area for the benefit of the Noongar people;
to maintain and protect sites, within the area that are significant to the Noongar people and other Aboriginal people;
to carry out activities on the area, such as hunting, fishing and food-gathering;
to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;
to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it;
However, where native title still exists, some of these rights will have been extinguished or suppressed by government land dealings. None of these rights can be enforced, until a final determination of native title has been made.
Is compensation payable for the loss of native title?
Compensation can only be claimed for the loss of native title from after 31 October 1975, this is after the commencement of the Racial Discrimination Act. If native title over a parcel of land had already been lost before 31 October 1975, no compensation will be payable.
Who gets the land or money for the Perth Metropolitan area?
The Single Noongar Claim is currently being appealed by the Commonwealth and State Governments, so no one will get anything until the appeal decision is handed down. If the Single Noongar Claim is successful it is up to the Noongar people to distribute the land and money according to Noongar law.
How long will the appeals take?
The current appeal to the Full Federal Court will take at least six months to be heard and decided. Whichever way these appeals are decided, the unsuccessful team could try to appeal to the High Court of Australia. The High Court has the choice to hear further appeals or not. If the High Court did choose to hear further appeals, it would take another year or more for a final decision to be made.
What would happen if the Single Noongar Claim applicants won on appeal?
The basis for Justice Wilcox's decision of 19 September 2006 is that the Noongar people as a whole have maintained a connection to the entire Single Noongar Claim area under traditional laws and customs. If that finding was directly applied to the areas covered by the other overlapping Noongar claims, this would lead to native title being determined throughout the south-west, but only in relation to any land over which native title had not been extinguished.
What would it mean if the Single Noongar Claim lost on appeal?
That would depend on what the Court said when deciding the appeal, but it could lead to a determination that there was no native title in the Perth Metropolitan Area. It could also result in a finding that native title did not exist in other parts of the south-west.
If determinations of native title are made throughout Noongar country, what effect will this have on mining, development and land-use?
There should not be any noticeable changes, because recognised native title holders don't have any greater rights in relation to mining, development or changes in land-use than the applicants on registered native title claims. Most of the south-west has had a registered native title claim over it since 1999. Existing land-use legislation overrides native title, so there will be little to no change.
Over the past few years the Noongar people have worked closely and effectively with a range of land users, including major mining firms, land developers and government agencies.
Can native title holders prevent or control access to public beaches?
The simple answer to this is no. In 1995 the Western Australian Government passed legislation which confirmed the existing rights of public access to waterways, the beds and banks or foreshores of waterways, coastal waters, beaches, stock routes and any areas that were public places at the end of 31 December 1993.