Western Australia Noongar Land Agreement

The attachment of the Noongar peoples to the country and the desire to improve and protect access to important places were key elements in the settlement negotiations. Two separate heritage agreements, the Noongar Standard Heritage Agreement and the Noongar Heritage Partnership Agreement, were negotiated. The Noongar Standard Heritage Agreement came into effect in June 2015. The Federal Court of Australia has divided this application into two areas: Part A, which includes Perth and the surrounding non-urban areas; and Part B for the rest of the claim. In 2006, Wilcox J. of the Federal Court of Justice reviewed Part A and found that the noongars had a national right to occupy, use and own land and water([832]-[841]). Justice Wilcox`s decision was hailed as the first decision to recognize the national title on a capital city (146), but was later overturned by the Federal Court of Justice in Bodney v Bennell`s 2008 decision. At this stage, the Noongar could have appealed to the High Court. However, instead of continuing the litigation, SWALSC and the Government of Western Australia agreed to follow the outcome of the negotiations. Four years later, in July 2013, the government published the terms of its transaction offer.

In October 2014, the SWALSC Noongar Nation Negotiation team and the Government of Western Australia agreed on the text of the comparison. The Department of Biodiversity Conservation and Attractions and the six Noongar Regional Corporations will enter into joint cooperative and management agreements for the maintenance and protection of the property. The comparison is made legally in the form of six indigestible land use agreements (ILUAs) for the six initially specific areas of law. Despite some resistance, the Noongar people accepted the comparison at a series of approval meetings between January and March 2015. But that wasn`t the end. On February 2, 2017, opponents succeeded in preventing four of the ILUAs from registering, with the Federal Court of Justice ruling in the McGlade/Native Title Registrar case that the Native Title Act requires all eligible title applicants to give their consent before an ILUA can be registered (under [242]-[244]). The move threatened the viability of the Noongar settlement – as well as the Adani coal mine in Queensland – and forced the government to act. Indeed, to illustrate the political nature of agreements with Aboriginal peoples, the federal government quickly introduced legislation to amend the Native Title Act to allow for settlement. A Senate committee report recommended passage of the legislation and the legislation received royal approval in June 2017 (for comments critical of the comparison and the changes that allowed it to continue, see Hannah McGlade`s latest article in the Feminist Law Journal).

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