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Aboriginal claim for Australian city changes thinking 4-07

By ROD McGUIRK
Associated Press Writer
CANBERRA, Australia (AP) - A decision that gives legal recognition to the rights of Aborigines to observe their customs and culture on the fringes of one of Australia's largest cities has left an unmistakable feeling among non-indigenous people that life won't always be as it was.

The Noongar, at 35,000 the largest indigenous group in Western Australia state, hope the landmark ruling will eventually bring such modern benefits as jobs and educational scholarships to their impoverished people. Those who are not Aborigines worry about a massive land grab and mining rights and whether they could be denied access to Perth's expansive ocean beaches, which are famous for their blond sand and Mediterranean climate.

 

In the decision last September, the Federal Court recognized the right of the Noongar to hunt and fish as the native owners of the west coast city of Perth, home to 1.7 million people. It was the first time native title rights were granted over parts of a major city.

Western Australia Sen. Alan Eggleston described the decision as ``regrettable'' because it could restrict the release of government land for housing. Perth real estate prices are already the fastest growing in the nation because of a west coast mineral boom.

The state and federal governments will appeal the ruling before three Federal Court judges on April 16, arguing that British settlement since 1829 has obliterated the culture and customs that anchored the Noongar to the Swan River valley where Perth took root.

The uncertainty created by the decision has had no immediate economic impact on Perth. Investors will be eager to see how the appeal unfolds and how governments react.

If the ruling is upheld, neither side is likely to walk away claiming total victory.

When Australia's highest court ruled 15 years ago that Aborigines were the original legal owners of the land before white settlers from Britain arrived, it rocked to their foundations concepts of land ownership that had existed for 200 years.

Though court rulings and legislation that followed ensured that native title rights continued to exist only over government land that had not been assigned for some other purpose, an often bitter debate ensued about whether the small minority of Aborigines could hold rights over mining, ranching and other lands - even back yards.

Many legal questions were left unanswered, and a bureaucracy was set up to decide the stringent requirements set by the government to establish native title, such as a continuous tribal link to the land being claimed by an indigenous group.

Ciaran O'Faircheallaigh, a Griffith University political scientist who has also worked as a negotiator on land rights contracts, has studied 45 such agreements.

``In some cases, indigenous people are actually worse off,'' he said. ``They sign away rights that they already had and get virtually nothing in return.''

Aboriginal leader Glen Kelly acknowledges that his rights as a traditional owner are limited and largely symbolic. But last year's ruling gave his Noongar official recognition that their opinions on future Perth public land developments cannot be ignored.

Native title rights ``don't give the right of veto over anything or a huge amount of power, but they do give us a legal right to a seat at the table, and once you're at the table you can commence negotiation,'' Kelly said.

Such negotiations could lead to changes to development plans to protect such culturally significant sites as burial grounds or meeting places where ceremonies called corroborees were traditionally conducted.

Where new developments encroach on land where native title exists, the Noongar could negotiate compensation - an issue that was not finalized - perhaps even scholarships for young Aborigines.

While native title has survived in only a few scraps of woodland in Perth, the Noongar hope that more benefits could arise from the mineral-rich hills east of Perth that are covered by the same claim.

A trade-off for agreeing to gold or bauxite mining in the hills could involve mining companies employing and training young Noongar who are more likely to be unemployed than non-indigenous Australians.

Federal government lawmaker Wilson Tuckey said he was in favor of mining deals in which Aborigines were given jobs, allowing them to share in a mineral boom based largely on burgeoning iron ore and gas exports to China.

Since Australia was settled at Sydney Cove on Jan. 26, 1788, the taking of the land without a treaty with its indigenous inhabitants has been a thorn in relations between black and white Australians.

The High Court first recognized that native title existed on the remote Murray Island in 1992. Since then, about 1,400 native title claims have been lodged with the federally funded National Native Title Tribunal which processes all land right claims before they reach court. More than 540 claims are still to be decided.

Most major cities in Australia are subject to native title claim and the Perth decision surprised many observers. Freehold title and various types of land leases extinguish native title forever, and native title cannot be sold or mortgaged.

Graeme Neate, the tribunal's president, said most claimants want recognition as the original owners of the land rather than any financial gain. The latest trend is for claimants to enter into land use contracts rather than engage in expensive court battles.

``Native title ... is not title in the proper sense - you can't trade it or sell or mortgage these rights,'' he said. ``The potential value economically is that if anyone else wants to establish themselves on the land, they have to negotiate with traditional owners.''

Where mining companies are involved, the terms of these agreements are often kept secret for commercial reasons.

In his ruling on the Perth case, Justice Murray Wilcox summed up broader feelings about native title, saying it was ``neither the pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted.''

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