Wagyl Kaip & Southern Noongar Indigenous Land Use Agreement (ILUA)

Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 17 October 2018. This is an authorised area agreement under the Native Title Act 1993 (Cth).

The Wagyl Kaip & Southern Noongar Indigenous Land Use Agreement (ILUA) was agreed, under the provisions of the Native Title Act 1993 (Cth) (the NTA), between:

This ILUA is one of six negotiated between the State of Western Australia (WA) and six Noongar native title agreement groups represented by the South West Aboriginal Sea and Land Council (SWALSC). Together the ILUAs contain the full details of the South West Native Title Settlement Agreement (the Noongar Settlement) and resolve all Noongar native title claims over the southwest region of Western Australia. The Noongar Settlement affects approximately 30,000 Noongar people and covers about 200,000 sq km of Noongar traditional land and waters (SWALSC). The Government of Western Australia hails the noongar Settlement as a landmark native title agreement that recognises the Noongar people as traditional owners, creates a Noongar governance structure, includes sustainable assets, and is a significant step towards self-determination (Dept of Premier and Cabinet, Noongar Settlement). The SWALSC describes it as a 'great opportunity for our Noongar people to come together, to control our own destiny, and to build a solid future for generations to come' (SWALSC).

The full texts for each of the six ILUAs of the Noongar Settlement are available via the 'related agreements' below.

Background to the Agreement

This agreement, the Wagyl Kaip & Southern Noongar ILUA, is one of six ILUAs that comprise the Noongar Settlement. Prior to the Noongar Settlement, the Noongar people's native title claims over the southwest region of Western Australia were subject to lengthy litigation.

In 2003, the Noongar people made a single application to the Federal Court for a determination of native title over the southwest region of Western Australia. The court split the hearing of the application into two parts and dealt first with the area in and around Perth. Justice Wilcox then decided that the Noongar people were a single community holding communal native title rights to occupy, use, and enjoy the lands and waters of the Perth area (see Bennell v Western Australia [2006] FCA 1243). On appeal to the Full Court however, in 2008, Justice Wilcox's ruling was overturned on the basis that his Honour had not considered the question required under s 223 of the NTA. That is, whether the Noongar people had a continued connection under their traditional laws and customs to the specific Perth area, as opposed to whether they had a continued connection to the whole south-western region (see Bodney v Bennell [2008] FCAFC 63).

The following year, in 2009, the SWALSC and the Western Australian Government (WA) agreed to seek a negotiated settlement and by October 2014 had formed an agreement in principle.

Part of the agreement was the enactment of the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) which recognised the Noongar people as the traditional owners of the land of the southwest region with a continuing relationship to country. The act is a central component to the Noongar Settlement and is the first statute in Western Australia to incorporate an Aboriginal language (Dept of Premier and Cabinet, Noongar recognition through an act of Parliament). The Land Administration (South West Native Title Settlement) Act 2016 (WA) was enacted at the same time to provide for the conveyancing of land titles and licences for the benefit of the Noongar people.

In early 2015, the SWALSC conducted six formal authorisation meetings in which the eligible Noongar people in the six native title claim areas voted in favour of the Noongar Settlement and the registration process of the six ILUAs began.

Opposition to the Noongar Settlement

In December 2015, applications were made contesting four of the ILUAs asserting that they were not proper ILUAs within the meaning of the NTA. The Gnaala Karla Booja and the Yued ILUAs were not part of this dispute. These four applications were heard collectively and the challenge was successful (see McGlade v Native Title Registrar [2017] FCAFC 10). As a result of the McGlade decision, the Commonwealth amended the NTA through the passing of the Native Title Amendment (Indigenous Land Use Agreement) Act 2017 (Cth). The amendments enabled a native title claim group to decide whether an ILUA will be signed by a simple majority, or by one or more members of the registered native title applicant. The four improper ILUAs were replaced, and on 17 October 2018, the Registrar entered all six ILUAs into the Register of Indigenous Land Use Agreements.

In December 2018 the legality of all six ILUAs was challenged. The resulting judgment of the Full Federal Court in McGlade v South West Aboriginal Land and Sea Council (No 2) 2019 FCAFC 238 held that all had been correctly registered. One of the grounds on which the ILUAs were contested was based on the decision in Northern Land Council v Quall [2019] FCAFC 77, which held that the NTA does not give a representative body the power to delegate its responsibility to certify an ILUA.

In January 2020, six further applications were made to the High Court against the registrations. These challenges were dismissed on 26 November 2020 confirming the conclusive registration of the ILUAs. Under the terms of the ILUAs, the Noongar Settlement will come into effect within eighty days of the High Court decision (Flow Chart for commencement of settlement).

A timeline of the Noongar Settlement is available below under references.

Details of the Agreement

The full terms of the Noongar Settlement are contained in Schedule 10 of the Wagyl Kaip & Southern Noongar ILUA - see in documents below.

Agreement area

The Wagyl Kaip & Southern Noongar ILUA covers about 56,400 sq km along the south coast of WA.

The Extract from the Register of Indigenous Land Use Agreements describes the area subject to this ILUA, per Schedule 1 of the ILUA, as all the land and waters within the boundary of the Wagyl Kaip native title determination application (Federal Court file no.: WAD6286/1998; NNTT file no.: WC1998/070), including the area within the 3 nautical mile limit.

Commencement

The ILUA is binding from the date it was signed by all the parties. It becomes conclusively registered forty days after it is beyond litigation. 

Termination

The agreement will only terminate if any of the following events occur:

1. the Noongar (Koorah, Nitja, Boordahwan)(Past, Present, Future) Recognition Bill 2015 and the Land Administration (South West Native Title Settlement) Bill 2015, as enacted, are not announced in the Gazette (see clause 1.3 of the Noongar Settlement);
2. WA terminates it because the Noongar Settlement faces litigation or any of the related ILUAs are not registered (under clause 9.6 of the ILUA);
3. the SWALSC terminates it because the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Bill 2015 is amended (in a non-trivial way), or its enactment is repealed before the Noongar Settlement is effective. Similarly, the SWALSC may terminate it if they consider that the Land Administration (South West Native Title Settlement) Bill 2015, or its enactment, does not allow WA to comply with its obligations to establish the Noongar Land Estate or the licencing of the Noongar Regional Corporations (under clauses 6 or 7 of the Noongar Settlement);
4. all parties agree to terminate it in writing before the Noongar Settlement is effective or deemed effective;
5. the Native Title Registrar removes it from the ILUA Register and it remains deregistered for 60 days and providing no legal proceedings against the deregistering have been made. In the case that legal proceedings are made, then the agreement will terminate 40 days after those proceedings have been exhausted.

Native Title Provisions

Extinguishment

Under this ILUA, the Noongar native title party agrees to the surrender of native title rights and interests to WA. All parties agree that the surrender is intended to extinguish all native title that exists over the ILUA area at the time of the surrender.

The surrender will take effect 30 days after either the Noongar Settlement is effective or deemed effective. Otherwise, it will take effect immediately before WA and the SWALSC together file executed consent orders for a determination of native title with the federal court.

Future act provisions

The full terms of the compensation provided to the Noongar people in exchange for the extinguishment of their native title in the ILUA area are contained in Schedule 10 of the Wagyl Kaip & Southern Noongar ILUA - see in documents below. They include WA:

• working with the SWALSC to establish a Noongar Boodja Trust;
  
• making twelve annual $50 million payments into the Noongar Future Fund;
• making twelve annual $10 million payments for the operational funding of six Noongar Regional Corporations and one Central Services Corporation, and $6.5 million over a two year period to establish offices;
• recognising the Noongar traditional owners through an act of Parliament;
• transferring Crown Land into a Noongar Land Estate;
• establishing a Noongar Land Fund to distribute up to $46.850 million over ten years towards effecting the transfer of lands to the Noongar Land Estate, remediation of those lands, the development of Noongar land management capacity, assistance for joint Regional Corporation's and Department of Parks and Wildlife management partnerships, a program to identify and protect heritage sites, as well as other conservation, heritage, and land management activities;
• allowing for certain customary activities to occur in public drinking water source areas and seeking to abolish access restrictions and proclaimed water reserve areas;
• transferring and refurbishing 121 properties to the Noongar Boodja Trust for a housing program;
• contributing $5.3 million and up to two hectares of land in the Perth metropolitan area towards a Noongar Cultural Centre; and
  
• working through Noongar Economic Participation and Community Development Frameworks to assist Noongar businesses and improve Government service delivery.

Related Entries

References

Documents

Glossary