Massive WA Native Title Deal - and - The Man Who Walked Into Centrelink

Thursday 11 June 2015 @ 10.36 a.m. | Immigration | Trade & Commerce

Recently there has been news of two matters relating to indigenous people from Western Australia which show that while the law as it relates to indigenous people changes and evolves, it also has the quality of  ". . . the more things change the more they stay the same". The first matter is the reported massive $1.3 billion Western Australian native title deal, and the second is the recently reported case of the indigenous man who walked into Centrelink and found himself in detention as an illegal immigrant.

The South West Native Title Settlement - The Law Changes and Evolves

The South West Native Title Settlement is an agreement estimated to be worth $1.3 billion. The settlement relates to a native title deal covering a large part of Western Australia’s South West region. The settlement is reported to be close to being done after most of the members of the principal Noongar native title claim groups backed the agreement at meetings earlier this year and six indigenous land use agreements were signed on Monday (8 June 2015). The signed agreements are now to be filed with the National Native Title Tribunal, which will have the job of determining whether the agreements can be registered.

In a Hansard Statement of 21 April 2015, the Western Australian Premier, Mr Colin Barnett, indicated that the Noongar people had voted in favour of surrendering any native title rights they might hold in exchange for a series of benefits, including land.

It is understood that the total area that the agreement covers is 200,000 square kilometres and that there are more than 30,000 people of Noongar descent in Western Australia, making them the largest Indigenous group in Australia able to identify as one people, although individual Noongar families are linked to different areas within the total south west region.

In his statement on the agreement the Premier said that:

"The full agreement, the south west settlement, is the most comprehensive native title agreement since the Mabo decision by the High Court in 1992."

The Premier indicated that benefits said to be flowing from the agreement included:

  • a trust fund into which the government will pay $50 million, indexed annually, for 12 years;
  • up to 320 000 hectares of crown lands in multiple land parcels;
  • joint management of the conservation estate;
  • 121 housing properties;
  • the future Noongar recognition act, subject to the support of Parliament, which will recognise Noongar people as the traditional owners of the south west;
  • a Noongar governance structure made up of seven corporations, with state funding of $10 million indexed annually for 12 years; and
  • and a range of other benefits aimed at increasing Noongar cultural, social and economic capacity.

In his statement the Premier put the view that:

". . . the settlement had the capacity to deliver cost benefits to land users in the south west by, firstly, the permanent suspension of the operation of the Commonwealth Native Title Act 1993; and,secondly, the adoption of a standard cultural heritage management regime. It can also avoid years of costly and socially divisive native title litigation in the Federal Court."

While the deal shows Native Title being recognised and dealt with in a way that delivers clear and obvious benefits to indigenous people, it should not be brushed aside that not all Noongar people were happy with the settlement and that a petition opposed to the settlement was presented to Western Australian Parliament on 24 March 2015. A petition which included complaints such as the following:

"South West Aboriginal Land and Sea Council (SWALSC) has not consulted extensively with the Nyoongar community.  The Indigenous Land Use Agreement (ILUA) document is 850 pages and the legal terminology makes it impossible for Nyoongar people (eighteen years and over) to read and attain an informed decision on how to vote. It is unconscionable and manifestly unfair to expect Nyoongar people to agree to the content of the documents when they do not understand the legal contents. . . .

Independent legal advice offered by SWALSC is not independent because the barrister offered is already working with SWALSC and as such is not independent legal advice."

It will be interesting to see how the National Native Title Tribunal handles the registration of the agreements.

The Man Who Walked into Centre Link - The More Things Change

In a report reminiscent of the now infamous Cornelia Rau mistaken identity story, a 39 year old man Mr Eddie David has, it is reported, has been held at the Yongah Hill Detention Centre near Perth since immigration officials seized his passport on Friday (4 June 2015). He now faces deportation.

Apparently, Mr David walked into Centrelink for financial assistance and to undertake tuition but when his details were entered into the database, an alert was raised and the Department of Immigration contacted. They alleged Mr David was in breach of a visa and had overstayed. In response to the allegation, Mr David insisted there was a mistake and that he was Australian born and of Torres Strait Islander origin. However, his protests did not prevent his detention.

It is reported that the Department of Immigration allege Mr David was an Indian man they claim arrived in Australia over 30 years ago. He is being held under the last name of Singh. More incredible are claims by Mr David that this is the second time he has been so detained after attending a Centrelink office, having been previously confused by immigration with the same Indian man. On the previous occasion he was detained for several days and released with an apology.

The Guardian reports that the Department of Immigration says Mr David is a Fijian national claiming to be an Australian citizen, and that they used facial recognition and fingerprint analysis to be “ . . . fully satisfied that he is an unlawful non-citizen”.

Further, The Guardian reports that Mr David's identity as an indigenous man has the support of the SWALC, the Perth-based Noongar native title body, which says it has known Mr David for four years and believes his account of a childhood spent at various missions in New South Wales and South Australia.

The case is said to be similar to that of Cornelia Rau, an Australian permanent resident who was unlawfully detained in Baxter immigration detention centre for 10 months between 2004 and 2005. Ms Rau, who was a mentally ill person, was only released after her family recognised and identified her from a story published in the Age.

In Mr David's case, it is reported that efforts are being made to find his family, however, being a member of the "stolen generation", he has never met them. The hope is that they will affirm his identity as a Torres Strait islander.

His lawyer, Mr George Newhouse has written to the government to demand Mr David's release. While other advocates for Mr David are quoted as saying: "Do we need to do a DNA test? What will satisfy the government?”

This matter does raise questions like the ones asked by independent news site,  The Stringer, namely:

  • How robust is the Department of Immigration’s information gathering?
  • Given their past record (see the Rau case and Vivian Solon case for just two examples) why should it be possible to detain someone without substantive and qualified evidence, and without a court appearance?

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