Native title rhetoric

It is not apparent how WA will proceed but a comparison of Deputy Premier, Eric Ripper’s language and actions may be instructive. In a media statement in 2002, Mr Ripper described himself as “saddened” by the High Court’s decision that the Yorta Yorta had not been able to meet the elements of proof necessary to establish their native title claim. Mr Ripper said that it was a “tragic reality that many Western Australian claims, particularly in the south-west, were unlikely to meet the legal definition of native title”.

He added, “it adds insult to injury that the most dispossessed have the lowest probability of coming up with sufficient evidence to establish their native title rights”. Mr Ripper reaffirmed that WA’s preference was for mediated settlement of native title issues (emphasis added).

Despite his heartfelt reaction to the Yorta Yorta High Court decision, when faced with the reality of native title for the Noongar in his own backyard, Mr Ripper’s response was prompt rejection.

Justice Wilcox wrote comprehensive and detailed reasons in excess of 300 pages, yet within hours of its delivery, Mr Ripper said in Parliament that the state government did not accept the ruling.

He said, “The Noongar community has experienced too much disruption for it to have survived as a single society with a normative system of law and custom, and for it to have maintained a continuous connection to the metropolitan area since sovereignty”.

Mr Ripper stated that Justice Wilcox’s decision undermined entirely the current understanding of the application of the High Court Yorta Yorta decision, which provides the fundamental principles that guide the recognition of native title. However, this criticism from WA is not isolated to the Noongar decision.

WA has long been a critic of a number of Federal Court decisions, which it considers unorthodox in their interpretation of the applicable legal principles, including determinations in favour of the Yawuru, Bardi Jawi and Ngarluma Yindjibarndi peoples. It is clear that WA has a preference for a particular interpretation of the principles, which has led it to appeal four of the five litigated determinations of native title in WA since Yorta Yorta, with markedly similar grounds of appeal.

Mr Ripper justified appealing the Noongar decision saying that Federal Court decisions that are inconsistent with the fundamental principles seriously impact the ability to set policy directions. It was only by appealing these inconsistent Federal Court decisions that the necessary clarity at law could be achieved.

Of particular concern is how WA’s conservative legal analysis impacts on setting the policy agenda for negotiation. Eric Ripper has identified that WA’s policy and connection guidelines, take account of emerging case law and precedent but are ultimately based on the principles espoused by the High Court in Yorta Yorta. Presumably, Mr Ripper meant, principles as interpreted by WA and not those from the cases that it disapproves of.

In its approach, WA does not give sufficient weight to the fact that the cases which it has criticised as unorthodox represent the current state of the law. Full Court decisions have the weight of precedent and must be applied until overturned.

Ironically, policy and connection guidelines based on WA’s narrow interpretation may set a higher standard for proving connection in negotiations than the court requires. This may leave claimants in negotiations with WA with a major dilemma when they disagree as to the applicable legal principles. Do they bargain away possible rights to get an agreement over the line? Short of resources and mindful of the strain of native title applications, do they insist upon going to the Court to challenge WA’s interpretation?

WA’s conservative analysis of applicable legal principles not only affects its interpretation of what must be “proven” in negotiations but also to what standard. Yet, the process of mediating claims to reach a consent determination stands apart from litigation and requires a different approach.