BY HARRY HOBBS

On 17 October 2018, Australia’s largest native title settlement moved a step towards implementation, when the Native Title Registrar accepted the Noongar Settlement for registration in the Native Title Register. The culmination of many years of negotiation, proponents have argued that the Settlement will empower communities and ‘have a massive and revitalising effect on Noongar people and culture’.

The Noongar Settlement was not conducted under an explicit treaty framework. As the largest and most comprehensive agreement to settle Aboriginal interests in land in Australian history, however, the Settlement offers valuable insight for the emerging treaty processes across the country. In this short post, I will set out and provide background on the agreement, before reflecting on the Noongar Settlement’s lessons for treaty making in Australia. As to what makes an agreement a treaty, please see here.

What is the Noongar Settlement?

The Noongar Settlement involves about 30,000 Noongar people and covers around 200,000 km² from Jurien to Ravensthorpe in South West Western Australia (map). Its total value is approximately $1.3 billion, and it includes agreement on rights, obligations and opportunities relating to land, resources, governance, finance, and cultural heritage. In exchange for this package, the Noongar people have agreed to surrender all current and future claims relating to historical and contemporary dispossession.

Several elements of the Settlement are particularly important. First, as part of the Agreement, the Western Australian Parliament recognised the Noongar people as the traditional owners and occupiers of South West Western Australia, and their continuing relationship with country. The Agreement also entails the transfer of a significant land base. Around 320,000 hectares of Crown land will be transferred into the Noongar Boodja Trust (NBT) over five years. The NBT will function as a perpetual trust, upon which the Western Australia Government will make funding instalments of $50 million (indexed) yearly for 12 years.

The Agreement also encompasses the establishment and financing of Noongar governance institutions. Six Noongar Regional Corporations and one Central Services Corporation will be created, and will receive $10 million in funding support each year for 12 years. The Central Services Corporation will be responsible for assisting and providing services to the Regional Corporations. As a centralised administrative body, it will act to maintain, protect and promote the culture, customs, traditions and language of the Noongar people. The Regional Corporations will have a similar role, but will also be responsible for managing the traditional land and waters within their regions, developing regional priorities and engaging with government and third-party stakeholders to further community interests and priorities.

The Native Title Registrar’s decision allowing the Settlement to proceed opens a new era in Noongar-State relations. The Settlement—and that new era—has been a long time coming. The Agreement itself has its origins in a native title claim. During the 1990s and early 2000s, the South West Aboriginal Land and Sea Council (‘SWALSC’) oversaw the amalgamation of six native title claims into a single claim encompassing the entirety of Noongar country.

The Federal Court of Australia divided this claim into two claim areas: Part A encompassing Perth and the surrounding non-urban areas; and Part B covering the rest of the claim. In 2006, Wilcox J of the Federal Court examined Part A, and determined that the Noongar people held native title rights to occupy, use and enjoy lands and waters (at [832]-[841]). Justice Wilcox’s decision was hailed as the first decision recognising native title over a capital city (at 146), but it was subsequently overturned by the Full Federal Court in the 2008 decision of Bodney v Bennell. At this stage, the Noongar could have determined to appeal to the High Court. Instead of continuing litigation, however, the SWALSC and the Western Australian Government agreed to pursue a negotiated outcome. Four years later, in July 2013, the Government released the terms of its settlement offer. In October 2014, the SWALSC Noongar Nation Negotiation Team, and the Western Australia Government reached an agreement-in-principle on the text of the settlement.

The Settlement legally takes the form of six Indigenous Land Use Agreements (ILUAs) for the original six specific claim areas. Despite some opposition, the Noongar people approved the Settlement at a series of authorisation meetings held between January and March 2015. This was not the end, however. On 2 February 2017, those opposing the deal were successful in preventing four of the ILUAs from being registered, with the Federal Court holding in McGlade v Native Title Registrar that the Native Title Act requires all native title claimants to agree before an ILUA can be registered (at [242]-[244]). This decision threatened the viability of the Noongar Settlement—as well as the Adani coal mine in Queensland—forcing the government into action. Indeed, illustrating the political nature of agreements with Indigenous peoples, the Federal Government swiftly introduced legislation to amend the Native Title Act in order to permit the settlement to proceed. A Senate Committee Report recommended the Bill be passed, and the legislation received Royal Assent in June 2017 (for critical comments on the Settlement and the amendments that allowed it to proceed see Hannah McGlade’s recent article in the Feminist Law Journal). Applications to register the ILUAs were lodged. On 17 October, the Native Title Registrar determined to register those ILUAs. The Settlement will commence 60 business days thereafter.

Two Lessons for Treaty Making in Australia

The Noongar Settlement was not reached under a specific treaty process. However, in an article for the Sydney Law Review and a previous AusPubLaw post, George Williams and I have argued that the size and scope of the Settlement signify that it is Australia’s first treaty. This is significant because no treaties were signed at first contact between Aboriginal and Torres Strait Islander peoples and the British Crown, leaving the moral and political legitimacy of the Australian state’s claim to authority over Indigenous peoples subject to question.

That the Noongar Settlement is Australia’s first treaty was recognised by several parliamentarians at the time. Upon notification that the Noongar people had voted to accept the Settlement, Premier Colin Barnett issued a press release, noting that the ‘break-through agreement’ was ‘a historic achievement in reconciliation’ and an ‘extraordinary act of self-determination by Aboriginal people…provid[ing] them with a real opportunity for independence’. Later that year, Deputy Western Australian Opposition Leader Roger Cook agreed, explaining in Parliament that, ‘by its very nature, the Noongar agreement is in fact a classic treaty’ (19 November 2015 at 8688). In contrast, Glen Kelly, the CEO of the SWALSC during the negotiations, has characterised the Settlement as a ‘small t treaty’. In doing so, Kelly emphasises that although the settlement bears many similarities to a treaty in its outcomes, it was reached outside of an explicit treaty process.

In recent years, several Australian governments have signaled their intention to embark on, or commenced, Capital T treaty processes with Aboriginal and Torres Strait Islanders whose traditional lands fall within their borders. These processes belatedly recognise Indigenous Australians’ long-held aspirations for a political settlement that acknowledges their status as prior self-governing communities who have never ceded sovereignty entitles them to a distinctive relationship with the state. Currently, processes are moving along in Victoria and the Northern Territory, though several other states have intimated that they may soon follow.

In June 2018, the Victorian Parliament enacted the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic). The Act affirms the government’s commitment to treaty consultations by requiring the state to recognise an Aboriginal Representative Body through which a treaty negotiation framework will be established. That same month, the Northern Territory Government and the four Aboriginal Land Councils entered into the Barunga Agreement, a memorandum of understanding committing the parties to consult with Aboriginal Territorians in order to discern their aspirations for treaty. These are important steps. If these processes are to be effective, however, two lessons from the Noongar Settlement should be borne in mind.

First, Noongar people did not adopt the Settlement unanimously and internal opposition almost led to its abandonment. As this suggests, treaty processes are no different from any other negotiation. Like all political agreements, they are fragile and vulnerable to political fluctuations. Effort must be made to ensure the ongoing support of both sides.

We have already seen this fact play out in South Australia. Although the South Australian Labor Government formally commenced treaty negotiations in September 2017, a newly-elected Government stepped away from this commitment in June 2018. As the Victorian Opposition voted against the Advancing the Treaty Process Act, the state election in November 2018 shapes as a pivotal moment in the nascent treaty process.

Second, the Noongar Settlement also reflects and reveals some of the legal complications of treaty making in Australia. Negotiations were held between the Noongar people and the Western Australian Government. The Settlement was then approved by the Noongar and enacted in state legislation. However, the process was conducted under the framework of the federal Native Title Act, and derives its force from registration on the federal Native Title Register.

At present, the Commonwealth is not involved in the Victorian or Northern Territory processes. As each government has the legal authority to enter into and enact legislation to give effect to a treaty with Indigenous Australians, federal government involvement is not legally necessary. However, although the Commonwealth Parliament enjoys only a concurrent power to legislate with respect to Indigenous affairs, it retains the capacity to abrogate any state or territory settlement. The federal Parliament could overrule any Victorian treaty under s 51(xxvi), or Northern Territory agreement under s 122 of the Constitution. For this reason, it is preferable that the Commonwealth play a role in these processes.

Conclusion

The Noongar Settlement reveals a political and legal challenge that must be resolved in the emerging treaty processes around the country. First, these processes are only viable with political support. Negotiations in Victoria and the Northern Territory, and potentially elsewhere, will only lead to fruitful and productive settlements if both sides can ensure that the process and outcome is beneficial for all. Second, although all treaties reflect the priorities and aspirations of the particular parties, any outcome must be legally sound. This is not particularly arduous in a federation where legislative authority over Indigenous affairs is shared between the state and federal governments. However, as the Commonwealth enjoys the permanent possibility of overriding any treaty settlement, it should be part of any negotiation.

The Uluru Statement from the Heart recognises these two political and legal challenges. In this Statement, Aboriginal and Torres Strait Islander peoples called for:

  1. A constitutionally-enshrined national representative body to advise the federal Parliament; and
  2. A Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about Australia’s history.

In calling for a Makarrata Commission, Aboriginal and Torres Strait Islander peoples demand a body that could maintain political momentum for treaty and resolve legal complications that arise within a federation. In prioritising a constitutionally-enshrined Voice to the Federal Parliament, however, Aboriginal and Torres Strait Islander peoples reveal their concerns that the design of a Makarrata Commission may not reflect their aspirations.

Treaty processes are moving forward at the state and territory level. The federal government should commit to establish a Makarrata Commission. The design of that Commission should be driven by Aboriginal and Torres Strait Islander representatives serving on a constitutionally-enshrined First Nations Voice.

 

Harry Hobbs is a PhD Candidate at the UNSW Faculty of Law.

Suggested citation:  Harry Hobbs, ‘The Noongar Settlement: Two Lessons for Treaty Making in Australia’ on AUSPUBLAW (24 October 2018) <https://auspublaw.org/2018/10/the-noongar-settlement-two-lessons-for-treaty-making-in-australia/>.