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Ruling big setback for Noongar claimants

23 April 2008 - Perth's indigenous Noongar people have had a major setback in their native title claim over the city after a court upheld a West Australian and federal government appeal against their claim.

But the full bench of the Federal Court did not go so far as to rule native title no longer existed over Perth, opting instead to refer the question back to a Federal Court judge for another hearing.

Representatives for the Noongar claimants said the decision put them back at square one, possibly facing years of more litigation.

But WA Deputy Premier Eric Ripper said he believed a negotiated outcome could be achieved, while the federal government also reiterated its preference for negotiation.

In September 2006, Federal Court judge Murray Wilcox ruled native title existed over more than 6,000 square kilometres of the city and its surrounds.

The three appeal judges said Justice Wilcox had made two errors in law regarding continuous observance of traditional law and customs by Noongar people and their connection with the Perth metropolitan area since white settlement in 1829.

In their appeal, the WA and federal governments had asked the court to rule there was no native title over Perth.

But the judges said that was "not a course we are prepared to take".

They instead set Justice Wilcox's decision aside and referred the matter back to the Federal Court's native title provisional docket judge to be heard again.

Outside court, Glen Kelly, chief executive of the South West Aboriginal Land and Sea Council (SWALC), which brought the claim, said it was a disappointing decision.

"What this decision means is back to square one, absolutely back to the beginning of proceedings," Mr Kelly said.

But, he said, it was not a loss for the Noongar people.

"They didn't go so far as to make a ruling that native title does not exist."

SWALC chairman Ted Hart said the state's "very aggressive" appeal had been insulting to Noongar people.

"They're worried about what all other capital cities are thinking ... they look at it as devastation to all other capital cities," Mr Hart said.

He stressed Noongar people did not want to take people's backyards and said they were ready to negotiate with the governments.

Mr Ripper said the state government recognised the Noongar people's traditional connection to the south-west of WA, but it remained to be seen whether native title existed.

"I very much hope that all this will be settled through negotiations," he said.

One option was a non-native title agreement, the deputy premier said, involving land agreements and joint management of conservation areas.

"We are still prepared to negotiate where we think that native title law will not allow the claim to be proved."

Federal Attorney-General Robert McClelland said the government would give careful consideration to the detail of the decision, including the opportunities it might present for further negotiation, before responding.

Source: The Age

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