Commencement of the Settlement and resolution of native title
22 February 2021
On 27 January 2021 the six Indigenous Land Use Agreements (ILUAs), comprising the South West Native Title Settlement (Settlement) were conclusively registered on the National Register of ILUAs, completing the final condition necessary for the start of the Settlement.
Commencement of the Settlement will occur on 25 February 2021 and it is this date, the ‘Settlement Effective Date’, which sets in motion certain provisions in the ILUAs, including the timing for the:
- appointment of the initial Noongar Boodja Trustee;
- first State payment into the Noongar Boodja Trust; and
- resolution of native title in the Settlement area.
The six Noongar Regional Corporations and a supporting Central Services Corporation are the major beneficiaries of the Noongar Boodja Trust and will be established in consultation with Traditional Owners later in 2021. The South West Aboriginal Land and Sea Council (SWALSC) is facilitating the establishment of these Noongar corporations. To get involved or learn more about the Noongar corporations visit the SWALSC website. The Settlement timeline can also be found on the SWALSC website.
Native title resolution date
On 13 April 2021, the notification of future act processes will no longer occur within the Settlement area, as native title will be resolved—see a map of the Settlement area
What does this mean for current future act negotiations and existing agreements?
Current future act negotiations
SWALSC is making contact with land users with future act matters that are currently underway to discuss their specific circumstances. Land users can also seek independent advice about their matters, including general guidance from the National Native Title Tribunal prior to 13 April 2021.
The WA Government is supportive of agreements in the Settlement area being finalised even if that occurs after the native title resolution date of 13 April 2020.
Land users are encouraged to finalise agreements or continue agreement making and engagement with the Noongar community and the Noongar regional corporations, once established, to ensure activities benefit the recognised Traditional Owners.
Existing native title agreements
It is important for the parties to existing native title agreements to consider what is required under those agreements, including any mutually desired alternative arrangements, following the resolution of native title. This may require proponents to obtain legal advice on their agreements and the circumstances in which the agreements were made, while considering their objectives in developing and maintaining ongoing relationships with the future Noongar corporations.
The resolution of native title may not affect the enforceability of land access and native title compensation agreements between proponents and native title claim groups, particularly where the parties intended for these agreements to continue beyond the commencement of the Settlement. SWALSC is currently in the process of preparing legal instruments designed to allow for the future transfer of agreements that do continue beyond the Settlement Effective Date from the various claim groups to the Noongar Regional Corporations, once established. Proponents should seek legal advice regarding their particular agreement and this transfer process.
Aboriginal heritage protection
Existing obligations linked to the protection of Aboriginal heritage in the Settlement area will not cease as a result of native title being resolved. Since June 2015, the Noongar Standard Heritage Agreement (NSHA) has been operating for the WA Government and proponents. Further details and NSHA resources can be found on the Department of Planning, Lands and Heritage website.
The Aboriginal Heritage Act 1972 also continues to apply across the Settlement area.
Grant of mining and petroleum tenure
The Department of Mines, Industry and Regulation will continue to apply the heritage condition (ILUAs Schedule 10 cl. 18) upon the grant of mining or petroleum titles within the Settlement area.
The condition requires that title holders must enter into an Aboriginal heritage agreement or a NSHA with the relevant ILUA group before any rights can be exercised. For further information visit the Department of Mines, Industry Regulation and Safety website.
Receive Settlement updates
To receive updates about the Settlement, simply send an email to the SWS implementation team with the word 'subscribe' in the subject line.
Learn more about the Noongar Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 and the future Noongar corporations.
Search the Register of Indigenous Land Use Agreements
South West Native Title Settlement to begin
26 November 2020
Today’s decision by the High Court of Australia to dismiss all special leave applications paves the way for the South West Native Title Settlement to begin. The Court’s decision upholds the previous decisions by the Federal Court and Native Title Registrar and confirms that the six Indigenous Land Use Agreements (ILUAs) can now be ‘conclusively registered’ and no further legal proceedings can delay the commencement of the Settlement.
The Settlement will begin within 40 business days of conclusive registration, with assets beginning to flow to the Noongar Boodja Trust within 60 business days of its establishment following the Settlement commencement date. In 2021 six Noongar Regional Corporations representing the rights and interests of the six ILUA groups can be established.
The WA Government looks forward to working in partnership with the Noongar traditional owners of the south-west to achieve long-term positive social, cultural and economic outcomes, as determined by the Noongar people.
Read the flowchart detailing the timing and activities for the commencement of the Settlement.
Read the media statements from Aboriginal Affairs Minister, Ben Wyatt – High Court clears the way for historic South West Native Title Settlement to proceed, and South West Aboriginal Land and Sea Council Chairperson, Ms Vanessa Kickett – SWALSC Welcomes High Court Decision to Clear the Path to Implement the South West Native Title Settlement.
Questions about the Settlement can be sent by email to: SouthWestSettlement@dpc.wa.gov.au
Listen to the Radio National AM Report aired on 27 November 2020 regarding the Settlement.
Special Leave Applications – update on timing
27 July 2020
The High Court of Australia has now received all relevant documents (application books) for the six special leave applications related to the registration of the six Indigenous Land Use Agreements. An additional special leave application was also filed by a self-represented objector who received a further time extension because of COVID-19 impacts. The WA Government has responded to all special leave applications in accordance with the rules of the Court.
The earliest possible date for a decision in response to all special leave applications is now August 2020. If the High Court does not allow the special leave applications this would complete all available legal appeal processes. The Settlement could commence late in 2020 providing for the establishment of the Noongar Boodja Trust and the removal of future act obligations in the Settlement area at a later time.
Learn more about the Noongar Boodja Trust and the future Noongar governance structures.
Special Leave Applications lodged with the High Court of Australia
16 January 2020
On 16 January 2020 six special leave applications, one for each of the six the Indigenous Land Use Agreements that form the Settlement, were lodged with the High Court of Australia.
The WA Government alongside the South West Land and Sea Council, the representatives of the Noongar Agreements groups, will consider its response to those applications.
In the coming weeks the High Court will decide whether to accept or refuse the six special leave applications.
The Settlement cannot proceed until all legal proceedings are resolved. The special leave applications will further delay the Settlement’s commencement, at this stage until mid-2020.
Federal Court upholds Registration of South West Native Title Settlement
19 December 2019
The Full Court of the Federal Court unanimously confirmed on 19 December 2019 that the Native Title Registrar was correct in registering all six Indigenous Land Use Agreements (ILUAs) that form the South West Native Title Settlement (Settlement).
The Court’s decision is a major step towards commencement of the Settlement.
The Settlement will establish a strong Noongar governance structure through the creation of Noongar Corporations that represent the interests of the Noongar people. The WA Government and other stakeholders will work in partnership with the Noongar community, through the Noongar Corporations, to realise these goals.
Since the signing of the ILUAs more than four years ago, the South West Aboriginal Land and Sea Council (SWALSC), the WA Government and the future Noongar Boodja Trustee have been busy preparing for the Settlement.
There is a possibility that some parties may seek special leave to the High Court of Australia to appeal the decision and they now have 28 days to do so. The Settlement cannot proceed until all Court matters relating to the registration of the ILUAs are resolved.
Aboriginal Affairs Minister Ben Wyatt has urged everyone to now get behind the Settlement to ensure that the flow of benefits can start as soon as possible.
Read the Media Release from the Minister.
ILUA Registration Decisions – Progress of Judicial Review Applications
21 June 2019
On 30 and 31 May 2019 the Full Federal Court heard the applications for judicial review of the Native Title Registrar's decisions to register the six South West Settlement Indigenous Land Use Agreements.
At the hearing the applicants also sought leave to raise an additional ground for review arising from a recent decision in Northern Land Council v Quall. The Full Court agreed to hear this additional ground on 25 November 2019. As a result, the Full Federal Court is unlikely to make a decision on the applications for judicial review before early 2020.
ILUA registration decisions – Judicial review applications filed
12 December 2018
Following the Native Title Registrar's decisions to register each of the six South West Native Title Settlement Indigenous Land Use Agreements (ILUAs) on 17 October 2018, applications seeking judicial review of the decisions were lodged with the Federal Court. The applications will be heard late in the last half of 2019.
The South West Aboriginal Land and Sea Council and the WA Government will respond to the applications, and continue to work together to ensure the successful implementation of all six Agreements for the Noongar community and the State of Western Australia as a whole. As a result of the applications for judicial review, the Settlement is not expected to commence before 2020.
All six ILUAs registered
26 October 2018
See the news bulletin about the successful registration of all six South West Native Title Settlement Indigenous Land Use Agreements (ILUAs) and the next steps towards Settlement commencement.
ILUA Registration Decisions released by Native Title Registrar
17 October 2018
The Native Title Registrar has today registered all six South West Native Title Settlement Indigenous Land Use Agreements.
See the National Native Title Tribunal's media statement, Minister Wyatt's media release, and the South West Aboriginal Land and Sea Council's Latest News.
ILUA Registration – Registration Decision Date Confirmed
18 July 2018
The National Native Title Tribunal has advised the State and the South West Aboriginal Land and Sea Council that the Native Title Registrar expects to make a decision in relation to the registration of each of the six South West Native Title Settlement Indigenous Land Use Agreements (ILUAs) on or about 17 October 2018. The Registrar is now satisfied that a fair opportunity has been provided for all relevant persons to comment on all the objections received in relation to the registration of the ILUAs. Subject to any legal proceedings, the Settlement is expected to commence in early 2019.
Aboriginal Affairs Minister meets the SWALSC Board Members
15 May 2018
Aboriginal Affairs Minister Ben Wyatt met with the South West Aboriginal Land and Sea Council Board to reaffirm the WA Government’s ongoing commitment to the South West Native Title Settlement. All pre-conditions for the commencement of the Settlement have been successfully met and the Minister and the SWALSC Board reflected upon how disappointed they are by further delays to the registration of the Indigenous Land Use Agreements (ILUAs).
The SWALSC Board members and the Minister also discussed SWALSC’s intention to transition to the Central Services Corporation as a part of the future Noongar Governance Structure.
ILUA Registration – Procedural Fairness – timeframe extended
2 May 2018
The National Native Title Tribunal has confirmed that the Native Title Registrar continues to consider the objections to the Indigenous Land Use Agreements as a part of the procedural fairness process. Procedural fairness is about giving people who may be affected by a decision the chance to have their say. The ongoing procedural fairness process further delays the registration of the Indigenous Land Use Agreements and means the Settlement is now expected to commence in 2020.
SWALSC Cultural Advice Workshops
1 May 2018
The South West Aboriginal Land and Sea Council (SWALSC) has appointed Tony Walley as the Cultural Governance Manager to consult with Noongar Elders about the development and ongoing management of the Cultural Advice Policies. The Cultural Advice Policies will set out how each of the six Regional Corporations will make cultural decisions, and how the individual Regional Corporations will support their Noongar Elders involvement in cultural governance decisions. Cultural advice workshops are being conducted across the south west region.
If you would like to know more or get involved please visit the SWALSC website.
Aboriginal Heritage Act Review – Have Your Say
13 March 2018
Aboriginal Affairs Minister Ben Wyatt has announced a review of the Aboriginal Heritage Act 1972, the legislation responsible for preserving and protecting Aboriginal Heritage in Western Australia. The release of the Consultation Paper marks the commencement of a three-phase public consultation process that will ultimately lead to the introduction of a new Aboriginal heritage legislation into the Western Australian Parliament.
Get involved and learn more by visiting the Department of Planning, Lands and Heritage website.
Objections to the 4 ILUAs lodged for registration with the National Native Title Tribunal
8 February 2018
The three month objection period to the registration of the 4 ILUAs, the subject of the McGlade judgment, closed on 11 January 2018. In total 31 objections from 16 objectors were received.
The WA Government and the South West Aboriginal Land and Sea Council (SWALSC) will respond to the objections as appropriate. The Registrar will then decide if the 6 ILUAs are to be registered. The Registrar's decision may be subject to Judicial review and 'conclusive registration' of the ILUAs can only occur once all legal proceedings are completed.
Once the 6 ILUAs are conclusively registered the Settlement will commence - the 'Settlement Effective Date'. After that date the Noongar Boodja Trust (NBT) can be established and will be able to receive, hold and manage all the funds and assets arising from the Settlement. It is anticipated that the Settlement will commence in 2020. The legal surrender of native title will occur 30 business days after the Settlement Effective Date, which is when the future act regime will cease to apply to the land within the Settlement Area.
Notification period closes for the 4 Indigenous Land Use Agreements (ILUAs)
11 January 2018
The notification period for the four ILUAs, the subject of the McGlade decision, has closed. The notification period ran from 11 October 2017 to the 11 January 2018. Any queries about this process should be directed to the National Native Title Tribunal.
Visit the National Native Title Tribunal website or Freecall on 1800 640 501.
Notification Period – the four Indigenous Land Use Agreements the subject of the McGlade judgment
4 October 2017
On 4 October 2017 the National Native Title Tribunal published notices in the Koori Mail and West Australian announcing the Notice of Applications to register the SWNTS area agreements on the Register of Indigenous Land Use Agreements.
The notice applies to the following Settlement ILUAs:
- Ballardong People ILUA;
- South West Boojarah #2 ILUA;
- Wagyl Kaip & Southern Noongar ILUA: and
- Whadjuk People ILUA.
The other 2 Settlement ILUAs, the Yued ILUA and the Gnaala Karla Booja ILUA, not the subject of the McGlade judgment, are taken to be and to always have been ILUAs and are awaiting a registration decision by the Native Title Registrar.
The notification period for the four ILUAs will run from 11 October 2017 to the 11 January 2018.
Any person claiming to hold native title to any part of the area covered by the agreements may object in writing, if they think the application to register was not properly certified – please see the NNTT website or the public notice for more details.
New versions of the Noongar Standard Heritage Agreement Templates – Now Available
3 October 2017
The 1 July 2017 Machinery of Government (MOG) changes generally involve the amalgamation and reduction in the number of existing government departments and agencies.
Aboriginal heritage functions from the previous Department of Aboriginal Affairs are now a part of the newly formed Department of Planning, Lands and Heritage. The NSHA templates have been updated to include reference to the new Department, this minor change has been endorsed by the South West Aboriginal Land and Sea Council and will not affect any pre-existing NSHAs.
Access the new NSHA templates.
ILUA Registration Decisions - final ground for judicial review to be heard in November 2019
On the 25 November 2019, the Full Federal Court will hear the final ground for judicial review of the Native Title Registrar's decisions to register the six South West Settlement Indigenous Land Use Agreements (ILUAs). The Settlement cannot proceed until the judicial review applications have been concluded and the ILUAs are conclusively registered. Therefore the earliest likely date for the conclusion of these processes and the commencement of the Settlement is now by 2020. The November 25 hearing will deal with the matter raised in the recent Full Federal Court finding in the Quall decision (Northern Land Council v Quall FCA 989). In the meantime, the WA Government and the South West Aboriginal Land and Sea Council continue to work in partnership in readiness for the Settlement.