Friday 7 December 2018
South West Native Title Settlement Further Delayed by Court Challenges
On 17 October 2018, more than three years after the Noongar People voted to accept theState government’s offer to settle the claims under the Native Title Act, the Registrar of the National Native Title Tribunal announced she had decided to registered the six South West Native Title Agreement Indigenous Land Use Agreements (ILUAs) that make up the South West Native Title Settlement.
In making her decision, the Registrar spent over a year considering the objections to the registration of the ILUAs and found that all of the objections were without merit.
Following the announcement by the Registrar that she had registered the six ILUAs, people were given 28 days to seek written reasons for the Registrar’s decision. There was then another 28 days for people to apply to the Federal Court for judicial review of the decision.
A total of eleven people applied to the Court for judicial review of the Registrar’s decision.Today, following a case management hearing held earlier this week, the Court has ordered that the eleven applications be combined into two applications, one with six applicants in a matter to be known as WAD525/2018, or McGlade v SWALSC, and the other with five applicants to be known as WAD519/2018, or Prior v SWALSC.
The Court has also ordered that SWALSC be joined with the State of Western Australia, the Commonwealth of Australia, and the Native Title Registrar as respondents in these reviewsof the Registrar’s decision.
In the McGlade v SWALSC case, the Court has ordered that parties provide all written submissions on or before 12 April 2019, and has referred the matter to the Chief Justice to decide whether that matter is to be heard by the Full Court.
In the Prior v SWALSC case, the Court has ordered that parties provide submissions on or before 22 February for a one-day hearing to be set by the court soon after 22 February.
Based on past experience, it is SWALSC’s best estimate that both matters will have been heard by the Court before June 2019, and it might take up to a further six months for the Court to hand down its decisions.
“While SWALSC respects the right of aggrieved parties to seek judicial review of theRegistrar’s decision to register the six ILUAs that make up the South West Native Title Settlement, we are disappointed that this will further delay the implementation of the Agreement for the benefit of all Noongar People,” said Jeanice Krakouer, Chairperson ofSWALSC.
“SWALSC will take all necessary steps to comply with the instructions of the majority of Noongar people who voted to accept and implement this agreement and will continue to focus our efforts on bringing the Noongar people together in healing and ensure that we build a solid future for generations to come.”
Next Round of Noongar Elder Cultural Advice Policy Meetings
31 October 2018
Once the South West Native Title Settlement becomes operational, the Regional Corporations must support a cultural governance and decision making model guided by Noongar Elders who are not only Traditional Owners, but are also custodians with historical connections to country, lore, and local custom. It is up to each community and Corporation to decide how this can be best achieved. This next round of Elders Meetings will inform the formation of these Cultural Advice Policies, give give Elders an opportunity to have a say on how cultural governance will happen. Make sure you come along and have you say.
SWALSC Annual General Meeting 2018
26 October 2018
The 2018 Annual General Meeting will be held 10:00am - 1:30pm, Monday, 26 November 2018, at the Cannington Exhibition Centre, Can Albany Highway and Station St, Cannington.
As per the SWALSC Rules, SWALSC Annual General Meetings are for members of SWALSC, and are not open to the general public.
Nominations are open for the South West Native Settlement - Pre-Trust Nominations Committee
25 October 2018
Expressions of interest are being called for from Noongar People to join the Pre-Trust Nominations Committee.
The expression of interest process is being conducted by the Forum for Directors of Indigenous Organisations (FDIO) and need to be made directly with FDIO, not SWALSC.
Applications close 5pm, Monday, 19 November 2018. For more information, please contact Tahnee Davies from FDIO via email at: email@example.com, or follow the link below:
SWALSC Welcomes Decision by NNTT to Register ILUAs
17 October 2018
Jeanice Krakouer, Chairperson of the South West Aboriginal Land and Sea Council (SWALSC), has welcomed today’s decision by the Registrar of the National Native Title Tribunal (NNTT) to register all six Indigenous Land Use Agreements (ILUAs) that were agreed between the Noongar People and the State of Western Australia in 2015.
This decision comes a year after the Registrar of the NNTT received the ILUAs for consideration, and is a significant milestone towards the implementation of the South West Native Title Settlement.
These six ILUAs are the binding legal documents that make the South West Native Title Settlement between the Noongar People and the State of Western Australia enforceable.
These six ILUAs set out the terms and conditions that the State of Western Australia has agreed to be bound by in exchange for the Noongar people agreeing to settle claims under the Native Title Act.
These conditions agreed to by the State of Western Australia, include:
An Act of the Western Australian Parliament recognising the Noongar People as the Traditional Owners of Noongar Boodja (Noongar lands).
The return, by the State Government, of up to 320,000 hectares of development and cultural land to the Noongar People, to be held by the Noongar Boodja Trust.
Twelve payments of $50 million a year into a perpetual Trust for the exclusive use and benefit of the Noongar People.
Twelve payments of $10 million a year for 12 years for the establishment and initial operation of the six Noongar Regional Corporations and one Central Services Corporation.
Agreement by the State to enter into joint management of National Parks and the South West Conservation Estate in Noongar Boodja; and
Access by Noongar people to Crown lands for Noongar People to undertake customary activities.
Quotes for attribution to SWALSC Chairperson, Jeanice Krakouer:
“We are delighted with the outcome of today’s decision.”
“This is a great opportunity for the Noongar People to come together, to control our own destiny, and to build a solid future for generations to come.”
Although the agreements have been registered, there is still the possibility that some objectors may seek judicial review in the Federal Court.
The settlement will commence only after all legal proceedings have been exhausted.
NNTT Decision on ILUAs due mid-October 2018
SWALSC has been advised that the Registrar of the National Native Title Tribunal (NNTT) will announce the decisions on whether or not she registers the six Indigenous Land Use Agreements (ILUAs) that form the South West Native Title Settlement on, or around, 17 October 2018.
By the time the Registrar announces these decisions, it will have been more than a year from relodging applications for registration of the ILUAs.
Following the relodging of the ILUAs, a 'notice period' began which allowed any person claiming to hold native title in relation to any area of land covered by the ILUAs with the opportunity to object in writing if they believed that the applications to register the six ILUAs were not properly certified.
SWALSC was advised by the Registrar several times that the notice period had been extended to provide more time and procedural fairness for people seeking to lodge objections to the registration of the ILUAs.
SWALSC was given the opportunity to provide comment on each of the objections that were lodged during the notice period, and provided these comments to the Registrar to consider.
SWALSC respects the right of people to lodge objections to the registration of the ILUAs and will continue to respect the confidentiality of the process by not disclosing any details about the objections SWALSC provided comments about to the Registrar.
SWALSC thanks the Noongar community for their continued patience and understanding while we wait for the Registrar’s decisions.
Expressions of Interest Called for Newmont Boddington Gold - Moorditj Booja Community Partnership Agreement (CPA) Relationship Committee
Newmont Boddington Gold - Moorditj Booja Community Partnership Agreement (CPA) Relationship Committee is seeking 7 GKB Representatives to inter alia monitor the progress of the implementation of the CPA against the principles and targets set out in the CPA.
Term and time commitment
The term of appointment will be for 3 years, beginning from the first meeting in 2018. During the three-year term the appointed representative will meet on a quarterly basis, usually at NBG premises in Boddington.
The appointed representatives will be entitled to sitting fees for the day they attend the meeting and eligible to claim travel allowance reimbursements for fuel. Lunch is usually provided by NBG.
To be eligible for this appointment you must:
1. Be a member of the GKB Claim Group and have:
2. Well-developed communication and interpersonal skills;
3. Advanced conceptual and problem-solving skills;
4. Awareness of and ability to identify areas of need in GKB community;
5. Ability to liaise with external stakeholders;
6. Good standing within the GKB community.
The selection process will be facilitated by an independent selection panel, administered by the South West Aboriginal Land and Sea Council (SWALSC) Successful applicants will then be appointed by the GKB Working Party.
How to apply
Applicants to provide evidence of their experience and knowledge that is relevant to the role and must address each of the above selection criteria.
Application forms can be obtained by phoning Angela on 9358 7400 or emailing firstname.lastname@example.org, and completed forms can be emailed to email@example.com handed in to SWALSC reception at 1490 Albany Hwy, Cannington.
Note: the ONLY applications considered will be the ones submitted on the official application form, no email, over the phone or other expressions of interest will be considered.
Applications close on 22/06/18.
Should you require any further information, please contact Peter Nettleton, firstname.lastname@example.org on 9358 7400.
Cultural Advice Policy Elder Workshops
When the South West Native Title Settlement is implemented, and the six Noongar Regional Corporations are being created, the rule book for each Regional Corporation requires each Corporation establish and regularly update a ‘Cultural Advice Policy’. This Cultural Advice Policy must be endorsed by the members of each Corporation at a General Meeting.
The purpose of the Cultural Advice Policy is to set out the way that each of the six Regional Corporations will make cultural decisions, and how the Corporations will provide support to the Noongar Elders who will advise the Corporations on cultural governance in accordance with the Policy.
SWALSC recently appointed Tony Walley as a Cultural Governance Manager to engage and consult with Elders across Noongar country about the Cultural Advice Policies, and to discuss ways the Policies can be developed, implemented and managed as part of each Regional Corporation’s business.
Tony has been conducting a series of initial workshops with Elders to discuss important questions like: ‘What is a Noongar Elder?’; ‘What should the roles and responsibilities for Elders be under the Cultural Advice Policy?’; ‘What sort of governance model would work best?’; and ‘How should our Elders be represented in this governance model?’ These workshops will inform later meetings that will prepare the draft Cultural Advice Policies for a General Meeting of the Regional Corporations to consider.
A further fifteen of these Elder workshops will be conducted across Noongar Country in April and May. If you would like to know more about these workshops or the work going into developing these Cultural Advice Policies, please contact Tony Walley by phone on (08) 9358 7400, or via email on: Tony.Walley@noongar.org.au
Review of the Aboriginal Heritage Act 1972
Ben Wyatt MLA, Minister for Aboriginal Affairs, has announced a review of the Aboriginal Heritage Act 1972, aimed at delivering modern legislation that operates in a way that meets the needs of all stakeholders. The review is a priority of the State Government and it aims to have amended legislation passed by both houses of Parliament by the end of 2020. The review will include three consultation phases:
Release of a Consultation Paper to seek public comment on aspects of the Act as it operates now.
Release of Discussion Paper outlining proposals for public comment.
The draft legislation, or ‘Green Bill’, will be published for stakeholder and community consultation. The outcome of this consultation will inform the final version of the new legislation, which will be introduced into Parliament.
The first phase commenced on 8 March 2018 with the release of the Consultation Paper. The Consultation Paper consists of questions on key aspects of the Act to help identify the main issues, any gaps in the legislation, and ideas on what modernised legislation should set out to do and how it should operate in the interests of all stakeholders.
It is essential that the views and ideas of all interested persons and organisations are heard through this review process, and there are a number of ways to get involved. The Department of Planning, Lands and Heritage will be holding a series of workshops designed for Aboriginal people in each region to provide them with a culturally appropriate forum to have their say in the review. All other stakeholders will be provided with opportunities through broader workshops to be held in key locations and in Perth. The dates and locations of the workshops can be found on the review’s web page (www.daa.wa.gov.au).
In addition to the workshops, submissions can be made by completing an online survey, writing a submission or sending an email. Details are included in the Consultation Paper or on the review’s web page (www.daa.wa.gov.au).
The closing date for submissions for this first phase of the consultation process is Friday 1 June 2018. Please follow the links above to find out how you can have your say.
second round of Elders workshops for cultural advice policy
Each of the six Noongar Regional Corporations that will be created as a part of the South West Native Title Settlement will be required to implement a Cultural Advice Policy to provide ongoing support to cultural governance and decision-making within the Corporations.
SWALSC is conducting a round of meetings with Elders across Noongar Boodja to discuss:
• Background (SWALSC and Rule Book)
• Establishment of the six Regional Corporations
• Cultural Advice Policy
• Elders (definition, understanding, culturally, historically)
• Elders in contemporary society
• Cultural Governance, Authority and Decision-making
• Administration and Support
• Open Discussion
• Feedback & Summary
• Next Steps
Kwinana / Rockingham, 10am, Wednesday 7 February 2018, Medina Aboriginal Corporation, 13 Leasham Way, Medina.
Busselton, 10am, Saturday 10 February 2018, Busselton Esplanade Hotel, 30 Marine Terrace, Busselton.
Katanning, 10am, Monday 19 February 2018, Katanning Leisure Centre, 4 Pemble Street, Katanning.
Gnowangerup, 10am, Tuesday 20 February 2018, Gnowangerup Sporting Complex, Strathaven Road, Gnowangerup.
Esperance, 10am, Wednesday 21 February 2018, Lotteries House, 3 Forrest Street, Esperance.
Kojonup, 10am, Wednesday 28 February 2018, Kodja Place, 143 Albany Highway, Kojonup.
Mt Barker, 10am, 1 March 2018, Community Resource Centre, 1 Lowood Road, Mt Barker.
Albany, 10am, 2 March 2018, Motel Le Grande, 479 Albany Highway, Albany.
If you are not able to attend the Elders Forums, but would like to know more about the formation of the cultural advice policies, please contact Tony Walley, Cultural Governance Manager at SWALSC, on (08) 9358 7423 or 0477 711 628, or by email at: email@example.com
Public Information Forums
SWALSC is holding six Community Information Forums about the progress of the South West Native Title Settlement since the Authorisation Meetings held in early 2015. The Forums will provide the Noongar community with the opportunity to ask questions about where we have been, and where we are going. The Forums are not Claim Group Meetings, so any Noongar person who lives nearby is welcome to attend. Light refreshments will be provided.
Albany Forum, 14 October 2017, 10:30am-12:30pm, Motel Le Grande.
Busselton Forum, 21 October 2017, 10:30am-12:30pm, Busselton Youth & Community Centre.
Bunbury Forum, 28 October 2017, 10:30am-12:30pm, Bunbury Regional Entertainment Centre.
Northam Forum, 4 November 2017, 10:30am-12:30pm, Northam Town Hall.
Moora Forum, 11 November 2017, 10:30am-12:30pm, Moora Recreation Centre.
Cannington Forum, 18 November 2017, 10:30am-12:30pm, Canning Town Hall.
Revitalising Working Party Meetings - 18 July 2017
SWALSC is undertaking a project to revitalise Working Party Meetings by contacting Working Party Family Representatives who are not attending Working Party Meetings regularly, so that we can understand why they are not able to attend and see if we can work together to increase the number of Representatives participating in the meetings.
Working Parties make important decisions about Native Title Future Acts and Culture and Heritage matters, and the new Standard Noongar Heritage Agreement has made their role in preserving Noongar heritage more important than ever.
As elected representatives of the Noongar families, Working Party Family Representatives play an important role in representing their family's voice in decision making, and sharing information about the decisions Working Parties make with their family and community networks. That is why it is important that Working Party Family Representatives attend Working Party meetings on a regular basis.
If you are a Working Party Family Representative who is finding it difficult to attend Working Party meetings, please phone SWALSC on 9358 7400 so we can work together to ensure your family is represented in the important work the Working Parties do on behalf of Noongar people.
NAIDOC Week Events
Naidoc Family Day - Town of Bassendean - Thursday 6 July
The Town of Bassendean will be hosting a NAIDOC Family day at Ashfield Reserve, 10:30am - 3pm, Thursday, 6 July 2017. Bring the family to one of Perth's biggest and best National NAIDOC Week events for a fantastic day of performance, cultural celebration, health and community information stalls, jobs expo, and more. Everything is FREE. Join up for ongoing event updates. Proudly presented by Town of Bassendean and Derbarl Yerrigan Health Services Inc.
Implementation of the Noongar Native Title Agreement Back on Track
Statement from the CEO - 16 June 20017
When I last wrote to you on 2 February 2017, I explained the outcome of the court case brought by Mingli McGlade, Margaret Culbong, Mervyn Eades and Naomi Smith (the McGlade applicants) to prevent the Registrar of the National Native Title Tribunal (NNTT) from considering the Whadjuk, Ballardong, South West Boojarah and Wagyl Kaip Indigenous Land Use Agreements (ILUAs) for registration.
I then promised you that SWALSC would take every step necessary to ensure that the decisions made by the Noongar community at the six authorisation meetings would be honoured, so that all six Noongar ILUAs could become registered.
Where have we been?
In 2015, all six Noongar claim groups approved the negotiated agreement with the State Government and authorised the registration of all six ILUAs with the NNTT.
Lawyers acting for the McGlade applicants argued in court that irrespective of the fact that all six authorisation meetings voted to approve the Agreement, and irrespective of the fact that the meetings directed the Noongar ‘Named Applicants’ to sign the ILUAs on behalf of the groups, every single Named Applicant should also have signed the ILUAs before they could be submitted to the NNTT for registration.
SWALSC opposed the McGlade applicants in court by arguing that the five out of 44 Named Applicants who did not sign the ILUAs should not be able to veto the decisions made at the authorisation meetings. SWALSC’s argument was supported by a ruling of the Federal Court in 2010 known as the ‘Bygrave’ decision, which held that if at least one of the Named Applicants signed an ILUA after it had been properly authorised, then the ILUA could be registered.
The Full Bench of the Federal Court decided in the McGlade decision that the way the Native Title Act was interpreted in the Bygrave decision was incorrect, and that all Named Applicants are required to sign an ILUA before it can be presented to the Registrar of the NNTT for registration.
What did we do?
Since February, all of us at SWALSC have been working hard to find a path forward to honour the decisions made by the Noongar community at the six authorisation meetings.
We sought legal advice, and formed a view on the best path forward. We decided that the Native Title Act should be amended to restore the way the Act was interpreted before the McGlade decision.
SWALSC worked with the other Native Title Representative Bodies across Australia to find agreement on this solution and to approach the Commonwealth government to amend the Native Title Act.
The Commonwealth government agreed that the Act should be amended. They understood that the McGlade decision invalidated over one hundred other operational ILUAs across Australia and had the effect of giving one Named Applicant the ability to veto a decision made by an entire Native Title Claim Group by refusing to sign an ILUA after it had been agreed to.
The Commonwealth government introduced a bill into the Australian Parliament to amend the Native Title Act. A round of Senate committee hearings were then held to examine the bill, and SWALSC made written and oral submissions to these hearings.
We also met with members of the Commonwealth government, the Opposition, and the State government to ensure that all parties understood the importance of the proposed changes to the Noongar people.
We explained that the amendments to the Native Title Act were necessary to restore the ability of Aboriginal people to decide for ourselves how we make decisions about native title matters.
We also made it clear that the negotiated agreement will deliver a solid base on which the Noongar community can come together to heal our families, heal our country, strengthen our culture, and build a strong future for all Noongar people.
On 14 June 2017, the bill to amend the Native Title Act passed through both Houses of Parliament with the support of the government and the opposition.
What is the path forward?
Once the bill is proclaimed by the Governor General and becomes law, then the four Noongar ILUAs that were the subject of the McGlade decision will be resubmitted to the Registrar for consideration for approval.
This means that the agreement between the Noongar people and the State is now back on track towards implementation.
There will still be some administrative and legal hurdles to overcome before the agreement and the ILUAs become fully operational, but this is an important step towards honouring the decisions made by the Noongar community at the 2015 authorisation meetings.
We will post a newsletter to all SWALSC members in the coming weeks with more detail on the next steps towards implementation.
Thank you for your ongoing patience and support while we work through these issues.
Message from the CEO
Thursday 2 February 2017
Federal Court Decision in McGlade v Native Title Registrar  FCAFC 10
Today, the Full bench of the Federal Court handed down its decision in the Court cases brought by Mingli Wanjurri McGlade, Margaret Culbong, Mervyn Eades and Naomi Smith to prevent the Registrar of the National Native Title Tribunal from considering the Whadjuk, Ballardong, South West Boojarah and Wagyl Kaip Indigenous Land Use Agreements (ILUAs) for registration.
Between January and March 2015, the six Noongar claim groups held authorisation meetings to consider the settlement of their claims for native title and decided whether to approve the benefits set out in six ILUAs negotiated with the State Government.
All six authorisation meetings voted to approve the negotiated settlement of their claims for native title; voted to approve the ILUA for each region; and voted to direct the Noongar ‘Named Applicants’ to sign the ILUAs on behalf of the group.
Of the 44 Named Applicants across the six groups, five Named Applicants refused to sign the ILUAs they were directed to sign.
Lawyers acting for two of these five Named Applicants, and two other Noongar people who were not Named Applicants, went to the High Court seeking an order to prevent the National Native Title Tribunal (NNTT) from registering the Whadjuk, Ballardong, South West Boojarah and Wagyl Kaip ILUAs. No applications were made to prevent the registration of the Yued or the Gnaala Karla Booja ILUAs. The matter was referred by the High Court to the Federal Court for trial in February 2016.
At the trial, lawyers for Mingli Wanjurri McGlade, Margaret Culbong, Mervyn Eades and Naomi Smith argued that it did not matter that the Noongar Authorisation meetings voted to approve the Agreements or that the meetings directed the Noongar ‘Named Applicants’ to sign the ILUAs on behalf of the groups. They argued that because some of the Named Applicants did not honour the direction of the meeting and refused to sign the ILUAs, the ILUAs could not be submitted to the NNTT for registration.
SWALSC’s position at trial was to support the decisions made at the six Noongar authorisation meetings by arguing that it is the decisions made by the groups that matter, not whether every single Named Applicant signed the ILUAs. SWALSC argued that five people should not be able to veto the decisions made at the meetings and ignore the group’s direction by refusing to sign the ILUAs.
SWALSC’s position was supported by a previous decision of the Court in a case known as QGC Pty Ltd v Bygrave (No 2). The legal principle arising from that case has been relied on to register hundreds of Agreements made by Aboriginal people across Australia where some of the Named Applicants have refused to sign Agreements approved by the members of the native title group.
Today, the Full Bench of the Federal Court decided that the way the Native Title Act was interpreted in the Bygrave (No 2) case was wrong, and that all Named Applicants must sign an Agreement before the Agreement can be presented to the Registrar of the National Native Title Tribunal for registration.
SWALSC will now take the time to read and understand the written decision, seek legal advice, and let the Board of Directors consider that legal advice before deciding on the best path forward.
The Court’s decision today will provide guidance and SWALSC remains committed to taking every step necessary to ensure that the decisions made by the Noongar community at the six authorisation meetings are honoured and that all six ILUAs become registered.
A further update will be provided on Facebook, the SWALSC web page and in writing to all SWALSC members advising where we go next once we have had time to read and understand the Court’s decision and decide on the best path forward.
Thank you for your strength and for your patience while we work through this.
Chief Executive Officer
SWALSC Calls on Premier to immediately halt clearing of land for Roe8
Noongar Youth Forum
town information sessions
Monday 26 September 2016
South West Settlement Agreement Groups' Pre-incorporation Director Nominations
Are you interested in nominating to become a Pre-incorporation Director for a Noongar Regional Corporation? The Forum for Directors of Indigenous Organisations (FDIO) is an independent organisation that is managing the nomination process for these important positions. You can learn more about how to nominate by following the link below to FDIO's web page.
Nominations will close on Friday, 25 November 2016, 12 noon.
Wednesday 9 March 2016
South West Native Title Settlement - Interim Pre-Qualification Committee - Call for Nominations – Committee Members
Nominations are open for the South West Native Settlement - Interim Pre-Qualification Committee
The Government of Western Australia (State ) and the South West Aboriginal Land and Sea Council (SWALSC) are calling for nominations for Noongar community members and independent persons to join the Interim Pre-Qualification Committee (Committee). The nomination process will be conducted by an independent organisation - the Forum for Directors of Indigenous Organisations (FDIO).
Applications Close: 5pm WST on Friday 18 March 2016.
Download: FDIO - IPQC - Call for Nominations
Monday 11 January 2016
Wagyl Kaip & Southern Noongar Charitable Trust Advisory Committee Member Nomination
Nominations are open for the Wagyl Kaip & Southern Noongar Charitable Trust Advisory Committee
The Wagyl Kaip & Southern Noongar Native Title Charitable Trust (the “Trust”) was established in April 2008 for the benefit of the Wagyl Kaip and Southern Noongar Native Title claimants. Under the Trust Deed, Equity Trustees is guided in the administration of the Trust by a group of Advisory Trustees (the Advisory Committee).
If you would like to nominate for a position on the Advisory Committee, please download and complete the Nomination Form, including any supporting documentation and submit it to MiWilson@eqt.com.au by29 January 2016.