The South West Native Title Settlement (Settlement) is a landmark native title agreement negotiated between the Noongar people and the Western Australian Government.
A partnership with community outcomes
The Settlement involves around 30,000 Noongar people and covers approximately 200,000 square kilometres of the south-west region. The agreement resolves native title in the Settlement area while recognising the Noongar people as the traditional owners of the area and establishing a Noongar governance structure to represent the rights and interests of the six Noongar Agreement groups.
A comprehensive settlement package will provide the Noongar people with sustainable assets and options for developing Noongar interests, including opportunities for the WA Government and other land users to work in partnership with the Noongar people to elevate economic, social and community outcomes.
The six Indigenous Land Use Agreements (ILUAs) comprising the Settlement were executed in June 2015 and subsequently registered on the Register of Indigenous Land Use Agreements; with the Settlement taking full effect on 25 February 2021. Native Title was resolved in the Settlement area on 13 April 2021 (Native Title Resolution Date).
The six ILUA Groups are:
- Whadjuk People
- Gnaala Karla Booja
- Ballardong People
- South West Boojarah #2
- Wagyl Kaip & Southern Noongar
Existing native title agreements and future tenement holders
What does the Resolution of Native Title mean for existing native title agreements and future title/tenement holders?
Upon the Native Title Resolution Date (13 April 2021), the future act regime of the (Cth) Native Title Act 1993 ceased to apply throughout the Settlement area.
The WA Government is supportive of agreements that were under negotiation as at 13 April 2021 in the Settlement area, being finalised after that date. The WA Government also encourages continued agreement making and engagement with the Noongar community and the six Noongar regional corporations (representing the six ILUA groups), once established, to ensure land use activities benefit the recognised Traditional Owners.
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 condition on title
Obligations to enter into Aboriginal heritage agreements will continue to operate in the Settlement area. Since 8 June 2015, DMIRS has applied the heritage condition prescribed at Clause 18 Schedule 10 of the relevant ILUA. This process continues.
The standard condition is imposed upon grant of mining tenements and titles under the Petroleum and Geothermal Energy Resources Act 1967 and pipelines licences under the Petroleum Pipelines Act 1969.
The purpose of the condition is to ensure tenement/title holders enter into an Aboriginal Heritage Agreement (as defined by the relevant ILUA) or a Noongar Standard Heritage Agreement (NSHA) before any rights can be exercised.
The NSHA is a specific kind of Aboriginal heritage agreement, as published here further details and NSHA resources.
Updated Noongar Standard Heritage Agreement arrangements from 9 December 2022
On 9 December 2022, following the signing of Regional Corporation Deeds of Novation, the six Noongar Regional Corporations (Regional Corporations) became parties to the six South West Settlement Indigenous Land Use Agreements (ILUAs). From this date, they assume the role of the Native Title Agreement Groups under these Agreements, including responsibility for entering into Noongar Standard Heritage Agreements (NSHAs) and other Aboriginal Heritage Agreements (as defined in the ILUAs). Prior to this date, NSHAs and other Aboriginal Heritage Agreements were with the South West Aboriginal Land and Sea Council (SWALSC) on behalf of the relevant ILUA Group.
The six Regional Corporations have authorised SWALSC officers to:
- coordinate advice to Proponents on existing NSHAs and other Aboriginal Heritage Agreements, and Proponent requests for new agreements;
- prepare NSHA documents on their behalf using the standard NSHA templates and arrange for signing. NB: SWALSC has advised it prefers to prepare NSHAs for Proponents direct from the templates, and is happy to do this for Proponents upon request;
- sign NSHAs and other Aboriginal Heritage Agreements on their behalf; and
- continue to accept and process Aboriginal Heritage Agreement (including NSHA) Activity Notices, in consultation with the Regional Corporations and their Cultural Advice Committees.
These arrangements will be in place until further notice.
Aboriginal Heritage requirements under the Settlement will be reviewed in due course to take account of the Aboriginal Cultural Heritage Act 2021 but they remain in place at the present time. Proponents will be notified of the review and any implications for existing heritage arrangements.
For requests for NSHAs and advice on Aboriginal Heritage Agreements in the Settlement area generally, please contact SWALSC at firstname.lastname@example.org. The Department for Planning, Lands and Heritage (South West Native Title Settlement Heritage) can also be contacted for guidance on Aboriginal heritage requirements in the Settlement area at: email@example.com. The Department of Mines, Industry Regulation and Safety can be contacted for information on the heritage condition on Industry titles on firstname.lastname@example.org.
To learn more about the Settlement visit the Department of Premier and Cabinet’s website.
The Aboriginal Heritage Act 1972 also continues to apply across the Settlement area.
Proponent Statutory Declaration
The registered title-holder must provide a Proponent Statutory Declaration (as per Annexure U to the ILUAs) as evidence of compliance of that condition.and provide it to DMIRS prior to exercising any rights, to confirm compliance with the condition.