One of the biggest native title deals in Australian history has been struck a blow by a shock decision in the Federal Court, which found the agreement could not be registered because some Aboriginal representatives refused to sign off on it.
- The Federal Court has found a $1.3b native title deal with the Noongar people cannot be registered
- Five of the group selected to represent more than 20,000 people affected by the deal refused to sign
- Court found the Native Title Act requires their signatures, but Premier has vowed it will go ahead
The $1.3 billion Western Australian land use agreement with the Noongar people covers vast swathes of the state's South West, and included a benefits package with annual payments of $50 million into a Noongar Future Fund over 12 years, and 320,000 hectares of land handed over to Noongar ownership.
However, four of the selected representatives of the different language groups involved with the deal, known legally as "named applicants", have challenged its lodgement with the Native Title Registrar, because they did not sign the agreement.
The Federal Court found five of the land use agreements making up the deal were not able to be registered because claimants Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong refused to put their names to it.
A lawyer representing the complainants, Kevin Morgan, said his clients feared the agreements would have permanently stripped the Noongar people of their native title rights.
"What we managed to do was have the full court of the Federal Court agree with our interpretation that where the legislation says that 'all parties must sign' it means all parties, not some," he said.
"We have run this case and succeeded in at least ensuring for the time being that native title is not stripped from our clients."
The ABC understands the decision could have implications for other agreements worth millions of dollars to Aboriginal groups across the nation, where if one of the named applicants has not signed, they could be open to challenge.
Mr Morgan said the decision was important.
"It should ensure that numerically stronger groups of claimants cannot have their way at the expense of a smaller number of claimants," he said.
Claimants say land council failed to represent all
Complainant and Aboriginal activist Mr Eades slammed the South West Land and Sea Council (SWLSC), who inked the deal with the state government in 2015, saying they had failed to represent all Noongar people.
"Our sovereignty cannot be bought for no amount of money," Mr Eades said.
"We live in a democratic society and it wasn't a democratic process.
"They were destined to extinguish our native title rights and all rights to country.
"We will discuss on other terms now and we will be part of the negotiations and not have a deal dictated to us by the state."
Ms Smith, who also challenged the settlement, said it was an emotional day.
"As we were going along we started to realise this package was not what it seemed to be," she said.
"It's significant in regards to justice for our old people — past, present and future — and also for our children and grandchildren."
The SWLSC declined to comment before it had received legal advice on the decision.
Premier adamant deal will stand
WA Premier Colin Barnett has vowed the deal, which will affect more than 20,000 Aboriginal people, will proceed, despite the attempts of the activists to "frustrate it through the courts".
"[The deal] includes money, includes land, includes employment opportunities, and gives Aboriginal people a real opportunity for self determination, and future opportunities in terms of jobs and the like," he said.
"But there is a very small number of Aboriginal people in that area who object to any settlement of native title, and they are frustrating it through the courts, but the settlement has been agreed, it has been signed, it will go ahead."
The ABC understands the decision could be appealed in the High Court.
The named applicants could also be replaced by the various language groups involved in the deal, but it would require new meetings of eligible claimants.
The Noongar deal attracted much controversy while it was being negotiated, with a tent embassy established on Perth's Heirisson Island to protest its progress subject to repeated raids by police and the local council, seeking to dismantle it.