Thursday, 24 April 2008
Noongar decision a blow to Native Title claimants
Yesterday’s decision by the Full Federal Court to overturn recognition of the Noongar people’s claim to native title over Perth is disappointing and takes us all back to square one, Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma said today.
“By allowing this appeal, the Federal Court has effectively left the Noongar people and the people of Western Australia up in the air as to whether native title exists over the area,” Commissioner Calma said.
The Court found there had been no continuous acknowledgment and observance of the traditional laws and customs by the Single Noongar Society from sovereignty until recent times. It also found the Noongar’s connection with the land or waters had not been proven.
“Of particular concern to me is the way the common law interprets the definition of native title outlined in section 223 of the Native Title Act, being the requirement for a ‘society’ and substantial continuity of traditional laws and customs,” Mr Calma said.
“The Native Title Act as currently interpreted and applied can only be used by Indigenous people in very limited circumstances to access very limited and specific rights,” Mr Calma said.
“This decision means that a strong, vibrant Indigenous community must start their case again.”
“I said in my Native Title Report 2007 that the system was in gridlock and that there was tension between the interpretation and application of the Act and the original intent and purpose underpinning the legislation. This case certainly highlights this,” he said.
“I am concerned that the courts are denying how societies and cultures evolve and instead choosing to stick to narrow, unnecessarily legalistic interpretations and effectively restricting Indigenous peoples’ exercise of their human rights.
“Although the future of native title in the South-West corner of Western Australia is now uncertain, the Noongar people should be congratulated for their commitment and strength in pursuing their rights to their land.
“I call on the Western Australian Government to negotiate a just outcome that recognises the Noongar people as the traditional owners of the land,” he said.
Media contact: Louise McDermott on (02) 9284 9851 or 0419 258 597
