Among the beneficiaries of Australia’s twelve-year-old native title process have been the cartographers. Indigenous claimants and their opponents must have their interests in land mapped. The colourful results, representing familiar empty spaces cluttered as the Balkans with Aboriginal claims spelled with noodling vowels and diphthongs, festooned, for a time, offices across Australia. These visual depictions of Australia’s efforts at sorting out the colonial legacy became, when native title was still a novelty, the affectation du jour in some circles.

A few bright claims maps communicated political fashion sense; authenticity combining with strategic savvy. An office worker, yes, but also a man (or woman) of the land with perhaps a bag marked by iconic red dust peeping out from under the desk; maybe a broad bush hat hanging from the door. Possibly the maps were even laminated.

But then the craze faded; native title became passé. Mabo, Wik and the Ten Point Plan were so nineties. Maps yellowed, were taken down and put away. The native title system became boringly procedural; no longer able to command interest at dinner parties.

In September 2006, Justice Wilcox of the Federal Court found that the Noongar people hold native title over the Perth metropolitan region in Western Australia. Native title was back and the relevant map suddenly much in demand. The land aspirations of Aborigines returned to the front page of the local daily. The ‘general public’ spoke in conveniently bifurcated dialogue, procured through ‘specially conducted’ opinion polling, with the larger camp calling for no negotiations and an appeal forthwith.

Underlying tenure is critical to native title. Exclusive land title like freehold and some leasehold wipes out traditional property rights of Aboriginal people forever, regardless of what you see on the surface of the country. Other types of land holding – like pastoral leases – are more forgiving, allowing a remnant of native title to coexist. The impact of individual tenure types has been incrementally determined by the courts over the last dozen years, sometimes with counterintuitive results. In lay terms, there seems no reason, for example, why national parks should wipe out Aboriginal title, but in Western Australia they often do.

Maps are a selective form of communication which obscure as much as they reveal. Cartographic representations of the Noongar claim vary. The plainest depiction shows little: the ambit of the claim with neat boundaries; a dot marking the centre of Perth and the coastline, with the most isolated capital in the world visibly netted by Aboriginal people in a confirmation of the Right’s most paranoid fears. But another version offers rather more clutter and complexity, showing other property interests: chunks of suburbia, the rural-urban fringe, parks and farms. Each of these polygons has a blunt legal consequence, most often the complete extinguishment of native title.

So, on the second map, what has survived? What are the dimensions of the Noongar win? We don’t really know. The pockets where native title might have escaped extinguishment are so small as to be barely detectible on the standard projection: hardly visible to the naked eye. To parse Suzanne Vega, the government respondents to the claim have fought a thing they cannot see.

What can’t be seen, however, can still be felt. The Noongars, the ‘winners’ of the case, carry a great burden. Under the Native Title Act, any Aboriginal group who achieves acknowledgement of some native title, no matter how flimsy or slight, must hold their property through what is inelegantly called a prescribed body corporate which must meet, vote, keep records and elect office bearers in accordance with a range of legislative and regulatory regimes. The Commonwealth, although making it mandatory for native title holders to operate through such corporations, provides no funding for them to do so. In mid 2006, that cuddly old joker Attorney-General Philip Ruddock explained that his department had been examining measures to improve the effectiveness of prescribed bodies corporate including “proposals to ensure their basic functions and resource needs are better aligned with existing funding sources”. He gets you every time, does Phil! Calling for prescribed body corporates to be “better aligned” with funding sources that do not exist: what a scream. Look out, Chaser – the old dog still has some tricks.

The encumbrances of the legal present are still lighter than the weight of the historical past and the imaginable tomorrow. Somehow, from their invisible native title, there is an oppressive expectation that the Noongars will craft a ‘sustainable future’. How, though, is anyone’s guess. In a comment which might well stand as a maxim for the native title system as a whole, Justice Wilcox emphasised that the result was neither “a pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted”. The Noongars face the reality that they have won their native title claim, but the world has not changed. For years, many campaigns for Aboriginal rights have been predicated on claims to country: so now what? How do the flimsy struts of a native title so slender carry the heft of such expectation?

Government, too, bears a load, though the weight falls unevenly. The Western Australian Labor government, probably the most effective at dealing with native title in Australian history, nevertheless decided to appeal the Noongar result. The state hollowly claimed that the challenge was ‘only’ concerned with doctrinal clarification. Negotiations were offered: we might be fighting you in court, but we can still sort this out. Perhaps, perhaps. But the expectation to come up with a negotiated political solution shifted to the state in a way that would perhaps not have occurred had no appeal been forthcoming. Political gravity exerts less pressure on the moral high ground.

Meanwhile, down in the putrid ethical flats, the Commonwealth may have actually gained in crude political terms. Like other earlier unexpected victories for Aboriginal people before the courts, the Noongar case has gifted the Coalition the political opportunity to attack native title as having “gone too far”. The Commonwealth Attorney-General expressed fears that he might be prohibited by traditional owners from going to the beach; a Liberal senator predicted tollgates on Perth’s iconic public reserve, Kings Park. Old drums sounding again. The vicious cliché of the rapacious land-grabbing Aborigine may again have become one of the backlash cards to be played at John Howard’s will. After all, Philip Ruddock just needs to point to the right map.

David Ritter is a lecturer in law at the University of Western Australia, completing a doctorate in history.
© David Ritter
Overland 188 – spring 2007, pp. 74-75

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