About the South West Settlement
The South West Settlement (the Settlement) is a landmark native title settlement for the State of Western Australia and will be the most wide-ranging native title proposal in Australia to date.
The WA Government and Noongar representatives have been negotiating since 2009 and the WA Government's offer, which has now been considered and accepted by all six Noongar claim groups, will provide the Noongar people with long-term benefits.
The Settlement package will provide an opportunity for the WA Government to work in partnership with the Noongar people to improve economic, social and cultural development of the Noongar community. In addition the Settlement will deliver long term cost benefits to the WA Government and land users through the surrender of native title rights and interests and the removal of all 'future act' obligations. Learn more about the benefits of the Settlement.
Yued (Jurien, Moora, Lancelin, Gingin)
Gnaala Karla Boodja (Mandurah, Bunbury, Donnybrook)
South West Boojarah (Busselton, Dunsborough, Margaret River, Pemberton, Nannup)
Wagyl Kaip (Katanning, Gnowangerup, Albany)
Ballardong (York, Northam, Hyden, Kondinin)
Whadjuk (Perth Metropolitan area)
Indigenous Land Use Agreements (ILUAs)
The full details of the South West Settlement is recorded in six Indigenous Land Use Agreements (ILUAs) made in compliance with the Commonwealth Native Title Act 1993. All six ILUAs are the same except each is made between the WA Government and a different group of Noongar people (the different native title claim groups) and refers to a different geographic part of the South West (the different native title claim areas).
Between 31 January and 28 March 2015 the South West Aboriginal Land and Sea Council (SWALSC) conducted six formal authorisation meetings to allow eligible Noongar people in each of the six native title claim areas to vote to either accept, or reject the agreement. All six claim groups voted in favour of the Settlement.
The WA Government’s execution of the ILUAs represents its commitment to the largest and most comprehensive agreement to settle Aboriginal interests over land in the history of Australia since colonisation. It honours:
the commitment Cabinet gave in 2009 to use best endeavours to reach an out-of- court settlement with Noongar people; and
subsequent Cabinet decisions in 2011 and 2013 ratifying the offers to the Noongar people.
NB: Government officers - the ILUA boundaries will also be referenced in the Department of Aboriginal Affairs 'Aboriginal Heritage Inquiry System'.
Table 1. Indigenous land use agreements, Noongar standard heritage agreements, ILUA boundary information and maps.
Lodgement of the ILUAs
The ILUAs will now be lodged with the National Native Title Tribunal (NNTT) and the NNTT will begin a formal registration process. Successful registration will allow the implementation of the full agreements. Once the ILUAs are entered onto the Register at the National Native Title Tribunal (NNTT), these ILUAs will lead to the resolution of all native title claims in the South West of Western Australia.
The WA Government’s execution of the ILUAs does not signal the commencement of the South West Settlement as there are other legal procedures that must still take place.
Some significant steps are still required before the South West Settlement can commence. The following timeline indicates necessary next steps, which will on a best case scenario lead to the commencement of the South West Native Title Settlement around mid-2016.
Upon execution of the ILUAs:
August 2015 - March 2016
Registration process for the six authorised ILUAs commences, with a three month notification period during which objections can be lodged. Any objections to registration of the ILUAs determined by the Registrar of the National Native Title Tribunal.
Earliest possible commencement of South West Settlement.
Noongar Boodja Trust will be established and six Noongar Regional Corporations will be appointed as beneficiaries under the Settlement.
Noongar Standard Heritage Agreement
Most components of the Settlement will not commence until after the successful registration of the ILUAs. However, one aspect of the Settlement, the Noongar Standard Heritage Agreement (NSHA) will operate from the ILUA execution date.
From the date of execution , WA Government parties (including 'the State', which encompasses all WA Government Departments and certain WA Government agencies) must enter into a Noongar Standard Heritage Agreement (NSHA) with the South West Aboriginal Land and Sea Council (SWALSC) on behalf of the relevant Agreement Group or, once established, the relevant Noongar Regional Corporation, when conducting Aboriginal Heritage Surveys in the ILUA areas, unless they have an existing heritage agreement.
It is also intended that other WA Government agencies and instrumentalities enter into the NSHA when conducting Aboriginal Heritage Surveys in the ILUA areas. It is recommended a NSHA is entered into, and an 'Activity Notice' issued under the NSHA, if there is a risk that an activity will 'impact' (i.e. by excavating, damaging, destroying or altering in any way) an Aboriginal heritage site. The Aboriginal Heritage Due Diligence Guidelines, which are referenced by the NSHA, provide guidance in how to assess potential risk.
Please Note: If a Government body has an existing Aboriginal heritage agreement in place for an area within an ILUA area which it would like to continue to operate it need not enter into a NSHA. If it wishes to replace an existing agreement with the NSHA (to the extent they cover the same subject matter) then the existing agreement would need to be listed in 'Schedule 2' of the NSHA.
Settlement Package - Benefits
Once the Settlement commences, native title rights and interests will be surrendered, Invalid Acts will be validated and the WA Government is released from any compensation liabilities. The WA Government's settlement package includes:
Recognition through an Act of Parliament - recognising the Noongar people as the Traditional Owners of the South West through the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future)Recognition Bill;
Noongar Boodja Trust (NBT) - the establishment of a perpetual trust into which the WA Government would make funding instalments of $50 million yearly for 12 years. A professional Trustee will be appointed and will manage the Government's financial contribution and the Noongar Land Estate;
Noongar Regional Corporations - the establishment of six Noongar Regional Corporations and one Central Services Corporation, with funding support of $10 million yearly for 12 years. The Regional Corporations are established and maintained principally for the purposes of benefiting, advancing and promoting the Agreement Groups and their communities within the Region and managing and caring for the Cultural Land in the Region;
Noongar Land Estate - the creation of a Noongar Land Estate through the transfer of a maximum of 320,000 hectares of Crown land into the Noongar Boodja Trust over five years (a maximum of 300,000 hectares as reserve land and a maximum of 20,000 hectares as freehold title). All transfers, coordinated by the Department of Lands (DoL), are subject to statutory clearances and consultation with any affected WA Government or local government interest;
Joint Management of the South West Conservation Estate - the establishment of joint management arrangements across the State's South West Conservation Estate between the DPAW and the Noongar community. Joint management plans will be initially developed for select parks with an option for joint management to extend to other areas of the Conservation Estate;
Land and Water Access - Regional Corporation Land Access Licence allowing access to Crown land for customary purposes and inclusions in the Metropolitan Water Supply Sewerage and
Drainage Amendments By-Laws 2014, and the Country Areas Water Supply Amendments By-Laws 2014 regarding Noongar customary activities in public drinking water source areas.
Noongar Standard Heritage Agreement - improved processes for the preservation of heritage and a standard Noongar heritage agreement applying to land development and related activities;
Noongar Heritage Partnership Agreement - provides a framework through which the Department of Aboriginal Affairs and the Regional Corporation can work in partnership in the areas of identifying, recording, protecting and managing Noongar Heritage values and sites within the agreement area;
Noongar Housing Program - transfer and refurbishment of 121 properties to the NBT by the Department of Housing;
Noongar Economic Participation Framework - A Noongar Economic Participation Steering Group will be established with the goal to improve economic participation outcomes for Noongar people in the South West. An agreed key deliverable is intensive capacity building in year one of the implementation of the Settlement, and ongoing support thereafter, in government tendering and contracting policies as well as the development and submission of tender documentation;
Community Development Framework - with the establishment of six Noongar Regional Corporations in different parts of the South West, one key objective is to provide WA Government human service agencies with greater scope for direct communication with the Noongar community. Initially the main interface will be via the Regional Managers Forums which already involve the Departments of Health, Education, Child Support and Family Support, local and regional government representatives, and other government and non-government interest holders. A number of priorities have been identified, with improved Noongar health and youth outcomes being one of those priorities;
Capital Works Program - Office Accommodation: The State has committed $6.5 million indexed for 2 years to establish offices for the Central Services Corporation and six Regional Corporations. This commitment will extend to fitting out or leasing of existing buildings for the administrative purposes of each corporation across the South West including two properties in the Metropolitan Area. Noongar Cultural Centre: The Settlement includes $5 million indexed for two years to support the development and construction of a Noongar Cultural Centre. This funding is contingent on the Noongar community obtaining the remaining funding from other sources (i.e. Commonwealth and private sector), as well as demonstration of a financially viable Cultural Centre management plan. Up to two hectares of Crown land is also to be provided in the Metropolitan Area as part of the WA Government's offer;
Land Fund - A WA Government-managed Land Fund will be established to achieve objectives related to land management, Noongar land ownership and Aboriginal heritage protection. The Fund will resource programs facilitated by partnerships between State land agencies including DRD, DEC, DAA, DAFWA and the Regional Noongar Corporations but which are beyond the existing remit of mainstream services. These programs will include enhancing Noongar land capacity, Noongar heritage site protection programs, targeted conservation programs, and remediation of certain Crown land parcels included in the land transfer process. The partnerships will also encourage Noongar employment and economic participation within the State's land agencies.
Registration of ILUAs - Process
Now that the ILUAs have been signed by the parties, all six ILUAS are to be submitted for registration to the Registrar of the NNTT together with certificates from SWALSC stating that in its opinion:
The Registrar will then publish notices in the newspapers and shortly after a three month notification period begins. In this period, objections to the registration of the ILUAs may be lodged with the Registrar.
SWALSC and the WA Government will have an opportunity to provide information to the Registrar in response to any objections.
After all information has been provided to the Registrar, the Registrar will make the decision whether to register the ILUAs. The effect of registration is that the ILUAs will then bind the parties to the ILUA, and all persons holding native title in relation to the area of the ILUAs.
The Settlement will be able to commence 60 business days (three months) after the registration date of all six ILUAs (unless there is an application for judicial review of one or more of the Registrar's decisions which delays commencement), provided that certain legislative conditions are satisfied.
If there is one or more judicial review proceeding or a related appeal, the Settlement will commence only 40 business days (two months) after those legal proceedings are finalised and only if the ILUAs remain registered.
In the period between execution and commencement, the WA Government must use all reasonable endeavours to enact and commence:
the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Bill 2014, and
a Bill to facilitate implementation of the Noongar land access licence and the allocation of land to the Trust.
The Minister for Water must also make by-laws to provide for certain customary activities to take place in public drinking water source areas.
Any questions please contact the South West Settlement team:
Email: South West Settlement Implementation Team
Postal Address: Land, Approvals and Native Title Unit, Locked Bag 3001, West Perth WA 6872
Phone: (08) 6552 6191
Fax: (08) 6552 5339