Statement from the CEO
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.
Wayne Nannup
CEO