Despite the existence of the 78 claims by Noongar over various sections of the southwest, limited capacity within the Noongar Land Council meant that they would only ever be able to fund a limited number of these claims. Because of this, the land council was forced to tell the various claimants that, as they would not be able to support all claims, they would need to choose certain claims to support over others. The distinction between which claims were to be supported was to be decided in terms of which would be seen as being most likely to achieve native title. This caused an outcry amongst many Noongar, who felt that their particular claims would thus be overlooked. A possible answer to this lack of capacity, so Noongar Land Council argued, was for these claims to be all folded into a single claim for the southwest as a whole.
Indeed, there had long been a desire amongst many in the Noongar leadership for the creation of a Single Noongar Claim In the course of my research, a number of Noongar individuals told me that the reason that there was a general consensus among Noongar in this period towards this, was the belief by many that Noongar constituted a single group—a Noongar Nation.[4] This desire, when coupled with the Noongar Land Council’s inability to fully support all 78 existing claims, meant that early in 1998 the Noongar Land Council began a process to consolidate the various claims. In order to confirm this though, the Noongar Land Council undertook a period of consultation, going out into the communities to ensure that Noongar actually wanted to consolidate the claims. And, while there were some individuals and families who for various reasons opposed the consolidation process, the general consensus was that it should go ahead. However, despite this, it was decided by the Noongar Land Council executive that the move from 78 claims to a single claim would, for pragmatic reasons, be too risky, with the possibility that it could fail registration. Therefore, it was decided to undergo an intermediate step whereby the 78 claims would be reduced to six, and from there the six remaining claims would then be consolidated into a single claim. And so, with this long-term goal in mind, in 1998 the 78 original claims were withdrawn and replaced by six larger claims covering the same total area (Noongar Land Council 1999: 3) (Fig. 10.1).
Source: SWALSC
In withdrawing their claims, the named applicants of the original claims were transferred over to become the named applicants on the six new claims. In addition, these individuals also became the initial members of the working parties for each of the claims. This process raised a number of issues about the governance and legitimacy of these new working parties. A number of Noongar families who had interests in various of the six new claims felt that their interests were not being either protected or served by the working parties as they were then constituted. With membership of the working parties restricted to those who had been named applicants of the initial 78 claims, or those individuals granted membership of the working parties by the aforementioned named applicants, a number of Noongar individuals and families felt that the native title process was being hijacked by certain other Noongar families and individuals who had managed to ‘get in first’.
After the initial working parties had been formed, a number of Noongar began to express interest in joining them. And, as working party meetings[5] began to be held, Noongar individuals would attend and be voted on to the working party. As would be expected, this process meant that working parties began to grow exponentially in size. This had a number of important ramifications, the most important being the negative effect it had on the achievement of quorums at any meeting, given that attendance by members was often sporadic. In addition, people felt as though power blocs, centred on certain families, were emerging within the working parties. People were concerned that meetings were being stacked by individuals and families to ensure advantageous results for either their families or for themselves. These issues led to the growth of a general feeling of dissatisfaction with the working party system, as it then existed, by the wider Noongar community. Many Noongar felt that the working parties were not representative of all Noongar interests within the community, and they were concerned that many families were not being consulted or informed about the ongoing processes of the claims.
Combined, these problems in the working parties and in the executive arm of the organisation, led to a rising feeling of discontent within the broader Noongar electorate in the southwest, which was to come to a head over issues to do with the registration of the Noongar Land Council as the NTRB for the southwest.
As new representative bodies came into being in WA, some, but not all of them, were granted NTRB status. But the ALSWA continued to overlap them all and act as the major NTRB in the state. This overlapping system worked well initially, as the nascent councils were generally small and possessed low levels of capacity to deal with their new role as NTRBs. As a result, the ALSWA acted in a tutelary role to help the new councils create appropriate procedures and structures. A simple division of labour also sprung up between these land councils during this period, with the new councils dealing primarily with future acts while the ALSWA dealt with the actual native title litigation. However, the ongoing scarcity of resources in the native title field in the 1990s meant that a rivalry began to develop between the various land councils, and particularly between the regional land councils and the ALSWA.
Things came to a head with the release of the Parker Report in 1995 (ATSIC 1995) and the native title amendments of 1998 under the Howard Government. One of the key recommendations of this report was that there should be only one representative body per region and that these bodies should be land councils. The Parker Report also recommended that the role of the ALSWA should be to act as a central agency through which land councils could contract native title services. The amendments to the Native Title Act 1993 (Cth) also meant, among other things, that all NTRBs would have to reapply to retain their status. In the southwest region, both the Noongar Land Council and the ALSWA applied for NTRB status. Both were declined. Both, nonetheless, continued to function despite not receiving official recognition as a NTRB. However, a lack of funds for the ALSWA in the native title area meant that by 2000 the Noongar Land Council was the only remaining de facto NTRB in the southwest.[6] Its status was de facto because while the Noongar Land Council failed its re-registration, it was granted provisional NTRB status by the Federal Government.
Problems of infighting within the executive and governance and administration issues within the organisation, due largely to problems with the constitution, meant that the Government threatened to withdraw the Noongar Land Council’s provisional NTRB status unless they amended their constitution. As a result of these processes, a new CEO was appointed in October 2000. Tasked with overhauling the governance structure of the organisation was the new CEO, Daryl Pearce, an Arrente man with extensive experience in the land rights field in the Northern Territory. One of the key points behind his appointment was that, as a non-Noongar Aboriginal man, he could bring cultural awareness to the position without himself being tied into Noongar family politics. One of the key tasks assigned to him was thus to restructure the organisation so as to make it more representative of as wide a range of Noongar interests as possible. However, changing the constitution of the council was, as the next few years were to show, going to be a mammoth task.
As explained above, from 2000 the Noongar Land Council was the sole NTRB for the southwest. However, the Wik decision and the 1998 amendments to the Native Title Act 1993 (Cth) meant, amongst other things, that the Noongar Land Council had to continue to reapply to maintain its status as a NTRB. As a result of these legislative changes, the Noongar Land Council executive began moves in 1999 to change the council’s constitution in order to pave the way for its reapplication for NTRB status; this appeared to be the major stumbling block to its recognition as the official NTRB for the southwest.
Over the next three years, the executive attempted to change the constitution seven times. Each attempt, however, was met by defeat.[7] Yet, as these attempts continued, albeit unsuccessfully, the Noongar Land Council nonetheless continued to attempt re-registration with the constitution as it stood. And, just as before, each attempt met with refusal. It should be noted again though, that even though the Noongar Land Council continued to fail the registration test, it nonetheless kept being granted provisional NTRB status and hence funding from the Federal Government, as the representative body for the southwest. This is an important point to make, as the only real income flow of sizable proportions available for the Noongar Land Council at this time was the money allocated to it as an NTRB.
The reason that the Noongar Land Council kept failing its re-registration was a perceived lack of good governance. This was in turn seen as flowing largely from a number of issues to do with a loosely defined constitution (Noongar Land Council 2000: 3). Poor management and ongoing Noongar factionalism also contributed to this deleterious state of affairs. However, as discussed above, these problems of governance were only the latest in a long line of governance and mismanagement issues for the Noongar Land Council.
Concerned that their provisional status would not continue to be granted indefinitely, the executive decided that the only way out of its predicament would be through the creation of a new peak body to act as a NTRB for Noongar. The SWALSC was thus created by the Noongar Land Council executive in an attempt to overcome the deadlock amongst Noongar that threatened to derail its re-registration yet again. In 2002, both the Noongar Land Council and SWALSC were submitted to the Minister for registration as the NTRB for the southwest. The only substantive difference between the two submissions, names aside, was the submission of a new constitution with the SWALSC bid. Once again, the Noongar Land Council failed the test but, with their new constitution, SWALSC passed, and so became the recognised NTRB for the southwest.[8]
SWALSC, the organisation, is made up of an executive and an elected arm. The executive arm operates under the CEO who controls the day-to-day running of the operation, while the elected arm operates through a council system. In the SWALSC system Noongar country was initially split into 14 wards (see Fig. 10.2).
Each ward elected four members to full council, with the full SWALSC council thus comprising 56 individuals. These four members were in turn elected to fill certain positions within their ward, these being: an executive committee member, a ward representative, a women’s representative and an older person. While all four sat on full council, they also sat on their respective sub-committees. The key task facing the newly recognised land council, as they came together for the first time in 2002, was the continued prosecution of their native title claims.
[4] In talking with various Noongar individuals it appeared that the term ‘Noongar Nation’ began to be used by the Noongar leadership more often in the 1990s. Its roots may be older, however, and might be traced back to the impact of North American forms of activism— especially the idea of Native Nations—on Indigenous activism in Australia in the 1960s and 1970s.
[5] This of course had other impacts, such as increased need for funding. The funding for this process came from the monies provided to SWALSC by the Federal Government as the NTRB for the southwest.
[6] Unfortunately, ALSWA’s lack of funding for native title work, as a result of its application being turned down, meant that the Parker Report’s recommendation that the ALSWA act as a resource for the land councils never came to fruition. It also meant that ALSWA had to either make redundant, or re-deploy to new positions within its organisation, those people with native title experience.
[7] Under the rules of the then Noongar Land Council there was a need for 75 per cent agreement amongst the full council for changes to the constitution to occur.
[8] The Noongar Land Council was never officially wound up and continues to exist to this day in a shadowy form of half-life. Certain families claim it is the ‘legitimate’ NTRB for the southwest, but it has no real legitimacy with either the majority of Noongar or government.