In the Mabo decision of 3 June 1992, the High Court of Australia ruled that at the time of the British invasion, the Indigenous peoples of Australia owned the Australian continent and they were entitled to have their rights protected under British law. The court recognised the existence of native tile for Indigenous Australians who could demonstrate ongoing connection to their land and observance of their customs since 1788.
The Mabo decision changed the course of Australian history — it raised the morale of Indigenous peoples after 200 years of denial and today, successful native title determinations cover 20 per cent of the continent.
At present, the native title process is on the threshold of its most momentous outcome. This began in September 2003 when the South West Aboriginal Land and Sea Council (SWALSC) lodged a native title claim on behalf of 218 family groups of Noongar people with the Federal Court of Australia.
Noongar country covers the southwest corner of Western Australia stretching from below Geraldton on the west coast to halfway between Albany and Esperance on the south coast and includes the Perth metropolitan area. The Federal Court split the Noongar claim into two parts: Part A concerned native title rights over Perth; Part B covered the remainder, and was set aside for a separate proceeding.
In his decision, Justice Wilcox found in favour of the Noongar people. He ruled that the traditional norms the Noongar people follow today are to a large extent those that Noongar people observed at the time the British claimed sovereignty of WA in 1829.
He accepted that Noongar society continues largely as a group united by common observance of traditional laws and customs. Consequently, he ruled that Noongar people hold native title rights over Part A of their claim.
The WA Government and the Commonwealth appealed immediately. The full Federal Court of three judges heard the appeal. On 23 April 2008, the Federal Court upheld the appeal and referred the matter back to the court for hearing by another judge.
The appeal judges ruled that Noongar people had failed to prove continuous observance of their traditional laws and customs in each generation from 1829 to the present day. The ruling demonstrates the onerous burden of proof native title claimants have in proving their claim. Nonetheless, there was a twist in the tale of the case.
Following the appeal verdict, SWALSC and the WA Government acknowledged they could not afford protracted