The Noongar Single Claim native title determination is the most stunning ­and controversial ­in the nation’s history. It covers all vacant land in and around Perth spread over some 9,065 square kilometres.

Very few people ever believed that Aboriginal Australians would prove ­at least to the satisfaction of white law ­that they had retained their laws and customs since colonisation in an urban setting.

Yesterday, the Noongar people did and Indigenous Australia (and their non-Indigenous supporters) will be rejoicing the legal victory for a long, long time. Mabo was big, Wik was huge and Noongar is massive.

That’s the good news.

The bad news, unfortunately, comes on several fronts. Firstly, the native title determination is not, to quote Justice Murray Wilcox, a pot of gold for the Noongar people.

Native title, unlike freehold, is an inalienable title – native title land cannot be bought or sold. The determination gives the Noongar people the right to live or benefit from vacant land in and around Perth. But they won’t be building townhouses and flogging them to retirees.

In addition to this, it will take a long time to work out over which land the Noongar can exercise their rights ie. which land has not had its native title extinguished by freehold title or an act of the Crown. It’s likely to be small tracts of land, and it’s likely to take years to resolve.

The legal history of every parcel of land must be researched, unless of course the Noongar can convince the WA government to negotiate a fast-tracked solution. The early indications are not good.

A matter of hours after Justice Wilcox’s ruling was handed down, an emotional Deputy Premier of WA, Eric Ripper told parliament there had been too much disruption to Noongar society for it to have survived in any meaningful way, and therefore their native title claim was not valid. In other words, ‘I thought we killed the bastards off, so how can they still own land?’

So not only does it look highly unlikely that the Noongars will be able to bring the WA government to the negotiating table, but the ruling will almost certainly be appealed. It’s one thing to win native title over a plot of dirt in the middle of the desert which no-one else wants,­ it’s another thing altogether to win native title over a thriving, bustling Australian capital city.

Whether or not the decision survives an appeal remains to be seen. I hope it does, but governments have a way of moving the goalposts when they don’t get their way.

I also don’t think the ripples of this decision, at least in a legal sense, will be felt beyond Perth. It’s unlikely Justice Wilcox’s¹s decision will lead to new native title determinations in other capital cities.

The Noongar claim is an aberration, albeit a bloody great one. Colonisation came to WA quite late (1929) and there is a wealth of early written material about Noongar life which supports their modern-day native title claim. That is not the case in Sydney or Melbourne, for example. While the cultural connections of east coast blackfellas undoubtedly endures, the sort of evidence that can satisfy a law stacked against the interests of Aboriginal people, does not.

The legal test for proving connection to country and the survival of culture and law – the minimum legal standard for proving native title – was set in the Yorta Yorta case. And that legal standard ­- full of vitriol and vile intent – has made it virtually impossible for the vast majority of urban blackfellas to secure native title.

The federal and Victorian governments cherry-picked the Yorta Yorta case as a legal test case for good reason and I suspect governments will pull out all stops to ensure it remains the legal standard, despite its gross injustice.

All that said, I still think there is great cause for celebration. The Noongar people have helped to level the legal playing field a little. I worry it’s only temporary, but given the climate in Australia today, any relief, fleeting or otherwise, is a bloody wonderful thing. Wilcox deserves a medal, the Noongar deserve a drink and Eric Ripper has earned a bat and ball.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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