O'Dea, Daniel --- "Letter to the Editors: The Ngaanyatjarra 'State'" [1996] AboriginalLawB 95; (1996) 3(87) Aboriginal Law Bulletin 15

• Letter To The Editors: The Ngaanyatjarra 'State'

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Letter to the Editors:
The Ngaanyatjarra 'State'

from Daniel O’Dea, Ngaanyatjarra Council

On Saturday 16 November 1996, the Sydney Morning Herald ran a front page headline reading 'Historic "State" for Aborigines'. Since that moment the Ngaanyatjarra Council, and its Native Title Unit in particular, have been inundated with inquiries from the press and the public. A good deal of them congratulatory, but many expressing scepticism or hostility towards the Council for apparently undermining the Native Title Act 1993 (Cth) and selling out the Indigenous community. Fortunately (or unfortunately), neither the headlines nor the contents of the article are true, and nothing that any member or representative of the Ngaanyatjarra Council said to the reporter concerned could justify them.

What was truly astonishing about these events was the response of the Premier of Western Australia, Richard Court, who on national television news that Saturday. evening and in the West Australian Newspaper on Monday 23 November 1996 confirmed the contents of the article with enthusiasm. Mr Court embellished the Sydney Morning Herald story by adding that the Western Australian Government was 'very close' to handing over the lands. Mr Court's minders subsequently did their best to hose down the story, and attribute it to the 'misunderstandings' of journalists.

The facts of the matter are that the Ngaanyatjarra Council has been involved in a preliminary process of discussion with the Western Australian Government since November 1995.

In May 1996, the Western Australian Government provided the Ngaanyatjarra Council with a set of draft principles intended to form the basis of negotiation over the entire area covered by ten claims which the Ngaanyatjarra Council had made on behalf of traditional owners. The total area of the claims is approximately 25 million hectares. The land claimed is variously Aboriginal Reserve Land subject to fifty and ninety-nine year leases to the Council, nature reserves, and vacant Crown land.

In June 1996, after careful consideration of the set of draft principles, the Ngaanyatjarra Council advised the Western Australian Government that it was prepared to undertake negotiations on the basis of the draft principles. At that point, the Ngaanyatjarra Council was advised by the Western Australian Government that final approval of the draft principles would need to be obtained from Cabinet before negotiations could proceed.

Despite assurances from the Western Australian Government over the next five months that Cabinet approval of these draft principles was imminent, there has not been any approval to date. Indeed, at the plenary session of the Kiwirrkurra Claim on 7 November 1996, the Western Australian Government representative was unable to advise the claimants when, or if, the Western Australian Government would endorse the draft principles. In consequence, preparations are now being made to refer that claim to the Federal Court.

While, for the present, the draft principles remain confidential, they certainly do not amount to a 'state' or a 'state within a state'.

The Native Title Act is a legislative response to the Mabo decision, which always amounted to a compromise between Indigenous interests and those of Government and industry. It is a means to an end, and that end is the achievement of the greatest degree of control over traditional lands by their traditional owners. After due consideration, the Council has reached the conclusion that the draft principles represent an opportunity to obtain a greater degree of control over the land than is likely to result from a native title determination under the Native Title Act. In the circumstances, the Council makes no apology for adopting this course. Its conviction that the draft principles offer a greater opportunity than the Native Title Act has has only been strengthened in light of the proposed amendments to the Native Title Act.

If the statements made by Mr Court in response to the article that appeared in the Sydney Morning Herald are an indication that the Western Australian Government is now prepared to agree to negotiate with the Ngaanyatjarra Council on the basis of the draft principles, then that move is welcomed. The Ngaanyatjarra Council has now called on Mr Court to make a. public commitment to that process of negotiation. This call has so far gone unheeded.

As the matter stands, in the absence of any agreement with the Western Australian Government to proceed with negotiations based on the draft principles, the Ngaanyatjarra Council has resolved to pursue its claims within the framework of the Native Title Act. The Council can only hope that the passing of the electoral season in the West will resolve some of the more bewildering inconsistencies of the Western Australian Government's position in its favour.

Daniel O'Dea

Principal Legal Officer

Ngaanyatjarra Council

28 November 1996