It seems certain that Attorney General, Philip Ruddock has made a serious error in law over public comments he has made following Justice Murray Wilcox’s findings in the Noongar native title case in Perth.

Mr Ruddock has been widely reported as making the following statement:

In a major capital city we do have very extensive areas of parklands, water foreshores, beaches. You could well find that if a native title claim were found to be a bona fide claim and lawful, that means that native title owners would be able to exclude other people from access to those areas.

In fact, this possibility is quite specifically precluded by 1995 Western Australian government legislation enacted in accordance with the provisions of the federal government’s Native Title Act.

Section 212(2) of the Native Title Act 1993 Act states that A law of the Commonwealth, a State or a Territory may confirm any existing public access to and enjoyment of:
(a) waterways; or
(b) beds and banks or foreshores of waterways; or
(c) coastal waters; or
(d) beaches; or
(da) stock routes; or
(e) areas that were public places at the end of 31 December 1993.

In 1995, the Western Australian State Government passed the Titles (Validation) and Native Title (Effect of Past Acts) Act (WA), which specifically confirms the right of any existing public access to, and enjoyment of, the above land and waters. The Victorian and Queensland state governments have also enacted similar legislation.

The ill-informed observations of the country’s first law officer have far reaching implications at a time when parties to the decision are considering their appeal rights. Mr Ruddock’s comments will serve only to further prejudice public opinion against native title claims.

If the Prime Minister is satisfied that his Attorney General has grievously mislead the public over a crucial legal matter that falls squarely within his portfolio, he must surely seek Mr Ruddock’s resignation.

Peter Fray

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