LAND DEAL FAILS IMPORTANT TESTS

 

 

Doubts surround the State Government’s native title deal, say Len Collard and Gerry Georgatos.

Land deal fails tests

Much has been made of the State Government’s billion-dollar-plus offer to the Noongar people via the South West Aboriginal Land and Sea Council.

But is it a genuine native title offer or a politicised move to coerce a proposition that native title rights have been settled for all those considered Noongars and that all future rights are extinguished?

Noongar is a generic term and not representative of all the different cultural clans across Perth and southern WA — others include Whadjuk, Yuet, Mineng, Koreng, Ballardong, Bibbelmun and so on.

Legally, these Aboriginal clans and families will maintain connection to country that are exclusive domains and do not overlap one another.

SWALSC   had been the entity built up over the years that often supported the native title claims of holders through the courts. But what will eventuate if the $1.3 billion time-limited deal is sealed is that SWALSC will no longer support native title holders and claimants through the courts.

If this happens, the majority of the native title holders will be marginalised, with inadequate access to their legal rights. When the State Government and the SWALSC agreed four years ago to work towards a deal, there were six native title claims in the courts.

This deal will do away with these claims and, effectively, any future claims. Is this right? No. Before these six claims there were a score of predominately family-based geopolitical land claims. But what is needed are clan-based claims to provide culturally specific outcomes.

In 2006, Justice Wilcox found in favour of Noongar rights over the south-west of WA despite the State counting on the “genocide”
argument — that the Noongar peoples had been “wiped out” by colonialism and no longer effectively existed as a real cultural people, other than as “removed” descendants or as a broken minority.

Most Noongar clans justifiably celebrated the ruling — it was their victory over a form of arguable “terra nullius”. But such was the politicised nature of the State, it appealed against the Wilcox ruling. The Wilcox decision was overturned by the Federal Court
in 2008 but the Full Bench could not agree with the State’s proposition that there are no longer Noongar societies.

Therefore, more claims could ensue but against a defiant Government that refused to cave in to the suite of rights of peoples that, at best, they considered remnants of former clans.

So, they offered SWALSC a heads-of-agreement opportunity to settle native title claims to all Noongar country. But does SWALSC have this legal authority? SWALSC’s membership is more than 4000 but there are, according to the Australian Bureau of Statistics, 40,000 Noongars.

And the Noongar Tent Embassy claims to have a petition — calling for the $1.3 billion deal to be torpedoed — with more Noongar
signatures than SWALSC members. The Government and SWALSC are having a dialogue among themselves.

But if they are serious about democracy, they should ensure a postal ballot of all Noongars on whether the deal should be upheld.

The package has a $600 million component disbursed over 12 years, with future revenue arising from various investment within
these monies.

But what happens if these funds do not return a dividend?

They are a simplistic step to address a myriad of cultural, economic, legal and social problems and the intergenerational poverty —
acute, abject, endemic and pernicious — imposed on most Noongars.

No native title settlement has provided the capacity to remedy the social problems in Aboriginal communities that are plagued by
problems imposed by more than a century of disenfranchisement, neglect and the pain of poor policies.

Native title is so watered down and so easily circumvented by politicisation that those within the native title community argue
that settlements are about getting what one can — finite outcomes while dismissing panacea and sustainable systems.

Well, they are wrong.

It will be a mistake for Noongars and taxpayers to let this deal go through and allow the argument that all future claims have been extinguished.

The Australian political and ideological landscape is changing and it may well be that in a couple of decades the Noongar clans will
be able to secure what has been denied today — a win-win circumstance.

If the deal goes through, future Noongars will have courts telling them that their ancestors signed their rights away.

The deal should not be signed because there are no questions of sovereignty to solve, only rights issues per se, entitlements and
reparations, remedies, customary and traditional ties. These don’t threaten current land use, but are pivotal to generating the type of rights that will raise people out of intergenerational poverty.

In the meantime, if the Government has $600 million to spend over 12 years, it should do so. And these funds should be
spent on remedying the ills that plague far too many clans of Noongar people — whose children are dying at the world’s highest
suicide rates, who are being incarcerated at among the world’s highest imprisonment rates and  who are living in overcrowded
private and public housing.

More needs to be done for disadvantaged people than a modicum of social employment programs for Aboriginal workers in natural parks in joint ventures with the Department of Environment or 120 extra houses to be built near Perth. This is piecemeal and insulting.

Native title has short-changed Aboriginal people nationwide and it should cease. But when governments stand so ferociously in the way of a bona fide native title agreement and social, economic, cultural and compensatory rights, what hope is there to get native title right?

The funds that are being offered are the equivalent of a sports stadium or a couple of tall city buildings. Does any right-minded
citizen believe this is what native title is about? Native title was supposed to be compensatory, remedial, humane and to bring
about reconciliation.

Professor Len Collard is a Noongar from the Whadjuk people. Gerry Georgatos is a PhD researcher and writer on Aboriginal issues.

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2 thoughts on “LAND DEAL FAILS IMPORTANT TESTS

  1. “No taxation without representation: No laws taking away Aboriginal proprietary rights without Aboriginal representation in the Legislature that passes such laws.”

    The $1.3 billion Native Title deal to settle native title over Noongar Country is a clear taxation measure being levied on the dissenting Nyungar Traditional Owners.

    There can be no legitimate taxation over Nyungar Traditional Owners except by a Parliament in which the Nyungar have freely elected representatives. No Nyungar Parliament has been established to pass such a tax on the Nyungar peoples and the Western Australian Parliament has no designated seats for freely elected Nyungar representatives of the Nyungar peoples. Therefore the WA Parliament without a single Nyungar representative in it has no legitimate authority to impose such a tax on the Nyungar peoples no matter how much it is characterized as a native title matter.

    The 1763 Imperial Policy of the Native Title of George III imposed in Mer Island of the Torres Strait Islands by the Australian High Court in the Mabo case on June 3 1992 previously had been upgraded by the new Imperial Policy of the 1836 Letters Patent for South Australia on 19 February 1836, and in part owing to the 1834 Pinjarra massacre of the Nyungar peoples at Pindjarup by the WA Governor under the 1763 Imperial Policy of Native Title of George III that first applied in WA from the commencement of the original Swan River Settlement from 1824; in part also in the application by the Crown in New South Wales of the 1763 Imperial Policy of Native Title of George III to invalidate the 1835 Batman private Treaty at Merri Creek with the Wurundjeri people.

    The High Court of Australia effectively recognized the inherent genocidal aspects of the 1763 Imperial Policy of Native Title of George III in 1996 in the Ngarrindjeri Kumarangk case over the Hindmarsh Island Bridge of Kartinyeri v Commonwealth.

    The court held that the legislative power of the Commonwealth of Australia was legitimately extended by the 1967 Referendum within Section 51 (xxvi) of the Constitution validly to extend to the making of laws for Aboriginal people that had an extremely adverse impact or effect on or for the Aboriginal people.

    Such laws were constitutional and able to be made after the passage of the successful 1967 Referendum empowering the Commonwealth Parliament to make laws for Aboriginal people of both adverse and beneficial effect. The ambit of the laws capable of being made adversely against Aboriginal peoples under the 1967 amended provision of Section 51 (xxvi) was limited in their domestic effect by the international instruments that Australia subjected itself to by international treaty, which in part extended to the Genocide Convention, the Convention Against Torture (CAT), the ICCPR, the CERD, the CEDAW, the Convention on the Rights of the Child, and all other such UN or international convention or covenants, and also by the other applicable provisions of the Commonwealth Constitution.

    However, the case of Kartinyeri v Commonwealth did not consider the limitations that arose and continue to apply with the displacement of the 1763 Imperial Policy of Native Title of George III by the new Imperial Policy for perpetual Aboriginal land rights of the Letters Patent of 1836, which were first applied inside South Australia on 28 December 1836 by Governor Hindmarsh in establishing English government for all South Australians and that made all Aboriginal people in the Colony and their descendants British subjects with the full benefits of Magna Carta and the full benefit of all English proprietary rights in law to protect their title.

    This provision for proprietary rights was recognized and upheld by the Crown in South Australia from the commencement of the colony and was applied in Crown leaseholds to immigrant colonists of Aboriginal lands and territories across South Australia. From the commencement of the colony the government took special measures to implement this new Imperial Policy for full Aboriginal property rights.

    The new Imperial Policy was first applied in full outside a colony in Australia in the southern hemisphere in 1840 by Treaty of Waitangi and subsequently reinforced in South Australia in pastoral leases by the 1850’s Imperial legislation of Lord Grey’s Act. The Privy Council in March 1914 also upheld the import of the New Imperial Policy of the Letters Patent of 1836 when it recognized the 1836 Letters Patent and its provision for perpetual Aboriginal land rights to have the force and authority of Imperial legislation. This case was not considered in the 1996 Kartinyeri case.

    This decision however followed the Mabo case decision by implementing the 1763 Imperial Policy of Native Title of George III, without considering its displacement under the 1836 Letters Patent for South Australia and the perpetual reservation by the new Imperial Policy of 19 February 1836 under the Letters Patent of the prior proprietary rights of all the original native inhabitants of the colony and all their Aboriginal Descendants for always.

    The Imperial policy of the 1763 Royal Proclamation as upgraded by the Imperial policy of the 1836 Letters Patent for South Australia and applied in the Treaty of Waitangi on 6 February 1840 was made applicable to pastoral leases within the borders of South Australia on and from 1 July 1851 – in fulfilment of Lord Grey’s Act (Imp) 1850.

    The Imperial policy of the 1763 Royal Proclamation as upgraded by the Imperial policy of the 1836 Letters Patent for South Australia and applied in the Treaty of Waitangi on 6 February 1840 was first fully implemented within the full borders of South Australia by legislation more recently by the South Australian Parliament in the Aboriginal Lands Trust Act (1966) as can be seen to have been intended from its 2nd Reading on 13 July 1966 – and in further fulfilment of Lord Grey’s Act (Imp) 1850: http://worldlii.austlii.edu.au/au/journals/UNSWLJ/1999/4.html

    This initial legislation of Aboriginal proprietary land rights upgrading the Native Title of the 1763 Imperial Policy of George III by upholding the new Imperial Policy of the 1836 Letters Patent, in the Aboriginal Lands Trust Act, 1966 (SA), was extended in South Australia by the Pitjantjatjara Land Rights Act, 1981, the Maralinga Tjaratja Land Rights Act 1984, and the legislation by the SA Parliament for the inclusion of “K” Park in the return of lands to the Anangu traditional owners.

    No taxation without representation: No laws taking away Aboriginal proprietary rights without Aboriginal representation in the Legislature that passes such laws.

    http://thestringer.com.au/leadership-spill-looming/#.Ub7ZNZxaZ14

    Democracy needs proportional representation to erode monopoly politics – it needs for instance 75 female members and 75 male members in the House of Representatives.

    A similar divide in the Senate, and in all State and Territory Government jurisdictions, and at the local Government level. In Federal, State and Territory Government levels proportional representation should ensure Aboriginal parliamentarians at all times.

    Gerry Georgatos
    June 17th, 2013

    What persuasive justification is there for making the case of equality of the sexes by gender-based parity in representation in the Australian legislatures, when the original proprietary owners and traditional inhabitants and their descendants today are without any prior parity of representation in the Australian legislatures that purport to have the power to strip, or have purported to have stripped, them of the priority of their proprietary rights and interests, and their property rights WITHOUT REPRESENTATION ?

    The 1763 Royal Proclamation of George III was the Imperial law that applied within the international act of territorial possession of Captain Cook on Possession Island of New South Wales on 22 August 1770.

    The 1763 Royal Proclamation applied to Governor Stirling and the colonists of Swan River before and at the massacre of Pinjarra and for the protection of the Pindjarup of the Nyungah in the Murray River region on 28th of October, 1834:

    The 1763 Royal Proclamation applied in the colony of New South Wales on 6 June 1835 at Merri Creek to the Crown and against John Batman to invalidate his and the Wurundjeri’s signing of his “treaty” with the Wurundjeri and for the protection of the Wurundjeri:

    The 1763 Royal Proclamation and the 1215 Magna Carta applied to and in all of Western Australia on and from Proclamation Day October 21, 1836:

    The 1763 Royal Proclamation was upgraded as the new Imperial Policy to provide inextinguishable native title under the Letters Patent establishing South Australia and excising it from the colony of New South Wales on 19 February 1836.

    The upgrading of the Imperial Policy of the 1763 Royal Proclamation by these 1836 Letters Patent for South Australia implemented the Royal Proclamation of 1763 for always in all the Descendants of the original inhabitants in South Australia on 19 February 1836 and applied with the 1215 Magna Carta to and in all of South Australia on and from Proclamation Day December 28, 1836:

    The 1763 Royal Proclamation applied to the colony of New South Wales at Myall Creek on and before 10 June 1838:

    The Imperial Policy of the 1763 Royal Proclamation as upgraded by the new Imperial Policy of the 1836 Letters Patent for South Australia was applied in New Zealand in the Treaty of Waitangi on 6 February 1840:

    The Imperial Policy of the 1763 Royal Proclamation as upgraded by the new Imperial Policy of the 1836 Letters Patent for South Australia and applied in the Treaty of Waitangi on 6 February 1840 was applicable in South Australia at the border of South Australia with New South Wales on the Murray River on 18 December 1850:

    The Imperial Policy of the 1763 Royal Proclamation applied to the new colony of Victoria because it was necessarily applied by the Act of Parliament that was signed by Queen Victoria on 5 August 1850 to separate Victoria from New South Wales, and naming and providing for Victoria under its own Constitution as a new Colony, that Victoria was to be separated out from New South Wales whereby the Imperial Policy of the Royal Proclamation of 1763 that already applied to the colony of New South Wales would be continued in Victoria.

    Furthermore, the Imperial Policy of the Royal Proclamation of 1763 as upgraded by the new Imperial Policy of the 1836 Letters Patent for South Australia that had been applied in the Treaty of Waitangi on 6 February 1840, was intended to continue as applicable in South Australia when the border under the Letters Patent between Victoria and South Australia was intended thereby to be the border of Victoria with South Australia.

    Accordingly, and since the recognition of the application to Australia of the Imperial Policy of the Royal Proclamation of 1763 in the decision of the High Court of Australia in Mabo v The Queen on 3 June 1992, it is the Imperial Policy of the Royal Proclamation of 1763 as upgraded by the new Imperial Policy of the 1836 Letters Patent for South Australia and which had been applied in the Treaty of Waitangi on 6 February 1840, that continues today as applicable in that part of South Australia obtained by Victoria in the 500 square miles obtained from South Australia by mistaken survey finalising the boundary of South Australia incorrectly under the 1836 Letters Patent at the Murray River on 18 December 1850.

    On those grounds above, and on the further compelling democratic basis that under lawful responsible government no taxation may legitimately be imposed by legislation on any denizen of a state without representation first being obtained in the taxing legislature, no laws legitimately may have been made taking away Aboriginal proprietary rights, and especially those preserved since 1763 by the Imperial Policy as modified and referred to above, without Aboriginal representation in the Legislature that purports or has purported to pass such laws.

    Therefore in relation to the clear taxation measure being levied on the dissenting Nyungar Traditional Owners by the $1.3 billion Native Title deal to settle native title over Noongar Country, there can be no such legitimate taxation over Nyungar Traditional Owners except by a Parliament in which the Nyungar have freely elected representatives.

    As there is no Nyungar Parliament that has been established to pass such a tax on the Nyungar peoples in the absence of the Western Australian Parliament having any designated seats for freely elected Nyungar representatives of the Nyungar peoples, the WA Parliament, without as much as a single Nyungar representative elected by the Nyungar to it and sitting in it, has no legitimate authority to impose such a tax on the Nyungar peoples no matter how much it is characterized as a native title matter.

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