Billion dollar 'Native Title' offer to 37,000 Nyoongars

Kain wangka nyuny wangka nitja boodjar noonar nyinniny. The first thing I need to say, this is my family's land that you're sitting in - Len Collard. Kura, yeye, boordawan boolaya Nyoongar moort kaditj nitja. From the past, today and in the future, this is our country, so the people know this - Len Collard.

Much has been said and written about the state government's perceived billion dollar offer to the Nyoongar peoples via the South West Aboriginal Lands and Sea Council (SWALSC). The news media has predominately focused on the various personalities arguing with each other and the volatile divisions. Some folk have not helped with equally divisive derision and the casting of aspersions on one another. It does not assist when Ben Wyatt, himself with Yamatji heritage, marginalises some people as on the fringes and as ungrateful, though he may believe he means well enough, and nor when protestors trespass into screaming obscenities and racially vilifying language, moving outside the mandates of civil outrage.

The protestors at Kings Parks have achieved a positive in that they have highlighted the inadequacies of the government's Native Title Offer. A billion dollar package, of which only half a billion is the cash component, disbursed over ten years and limited to this, is a simplistic first step in the wishfulfilment to address the myriad of social problems and inter-generational poverty - acute, abject, endemic and pernicious - imposed upon the Nyoongar peoples - who number near 37,000 in the most developed and richest part of Western Australia; from Jurien Bay to Moora to Kalgoorlie to Hopetoun. The 37,000 figure is not from the Australian Bureau of Statistics however a bandied figure that requires someone to account for it.

We have studied Native Title Agreements and the settlements are so miniscule they are incapable of remedying the myriad social problems that predicate Aboriginal commmunities which are plagued by problems imposed by more than a century's worth disenfranchisement from the right to accumulate education, health, social wealth and equity.

We agree with SWALSC CEO Glen Kelly and shadow treasurer and Indigenous Affairs portfolio holder Ben Wyatt that the Native Title Tribunal process is 'buggered' and that the courts fail to live up to intentions of Native Title, reparations and adequate remedies. However, the Australian political landscape, in terms of the national consciousness and our unfolding human rights language, is changing and if the billion dollar offer is accepted with a contractual obligation requiring the further 'extinguishing' of Native Title rights well then future generations of Nyoongars will have little to work with, or leverage in pursuit of various assistance and rights - courts will point out to them 'your ancestors signed your rights away - here it is in black and white, on the dotted line.'

Nyoongars may be better off to wait another decade for more adequate outcomes unless SWALSC, alongside Elders in traditional ways, negotiate an improved outcome, and which does not require extinguishing ones rights. The horizon promises much more than the national consciousness understands at this time, and it is not a cogent rationale to argue that because the courts of today will let us down let us just give up and accept what we can get.

This article is limited by a word count however let us understand some of what is being said and written. It is contestable to argue that rights to lands have been extinguished by more than a century and a half of land development and land agreements - this is an assumption premised by simplistic logic and assumptions that courts are similarly predisposed to. It is not a question of sovereignty issues per se however rather of rights, entitlements, reparations, remedies, customary and traditional ties - these in no way threaten current land use. Nothing has been extinguished, it has only been assumed so or ruled as such. The argument of extinguishment in terms of reparations and conciliation requires it shall be ignored.

The terms of the agreement between SWALSC and the state government in working to negotiate the offer at hand are disturbing - limited to a two year period, and which exclude Nyoongar claimants and protocols from the table, and most disturbing is that within the agreement either party can terminate the negotiations with 14 days notice - it smacks of strings attached, hence the imputation of outcomes at near all cost.

Though race is a construct, with its undercurrent of eugenics, of previous Australian governments imposing Apartheid, and affecting all Australians, we must be on the alert to avoid divisive racisms in any agreement. It is token and insulting to claim that the proposal's achievements will include affirmative pro-social employment schedules for Aboriginal workers for instance with the Department of Environment and Conservation, as park rangers and in other human resource labour, or that gains include joint management of parks and other sites, or that there shall be Nyoongar language signs, or that customary rights will be achieved on crown lands ignoring extinguishment. This is nonsense because these are forever self evident, are unfolding and do not need, nor have anything to do with any bona fide Native Title proposal. The Native Title proposal needs to focus on preserving peoples' rights and entitlements, remedies and justice.

The Ord Final Agreement, as Elder Ben Ward who campaigned long and hard for its negotiation will tell you, has not alleviated the social problems that his peoples and the Kununurra Waringarri Aboriginal Corporation face. This point should not be lost because Native Title Agreements have short-changed peoples Australia-wide.

If SWALSC can negotiate billions of dollars long overdue from the state government without any extinguishing of any substantive rights this will be an achievement. Currently, the offer equates to a cash component of $3.70 a day for each Nyoongar limited to ten years - it is a simplistic equation however the offer at hand is simplistic if it is to be argued as helping Nyoongars move forward from inter-generational social problems and horrific incarceration rates. The funds on offer are the equivalent to a sports stadium and a building or two in Perth's metro - does any reasonably right minded citizen believe these piecemeal funds can address a century and a half of human carnage and damage?

Co-written by Professor Len Collard, Nyoongar Whadjuk Traditional Owner (of the Swan River lands) and academic, who has had senior appointments at four of Perth's five universities), and Gerry Georgatos, PhD Law researcher in Australian Deaths in Custody, Masters in Human Rights, Masters in Social Justice, and a journalist with The National Indigenous Times.

(This opinion piece is in The National Indigenous Times and The West Australian newspapers)- http://enewspaper.thewest.com.au/Repository/ml.asp?Ref=V0FOLzIwMTIvMDIvM...
(Full suite of stories on the issues and unfoldings in Wednesday's (15.2.2012) National Indigenous Times)- www.nit.com.au