Fear and loathing on millionaires' row

In this well-heeled neighbourhood of tropical Broome, the great pearling town in the Kimberley, now booming with tourism and resources, the streets are alive with rumours about what's going to happen to the comfortable lifestyle of home owners.

The fear is that Aborigines are going to seize their houses or claim traditional rights of access and usage. The residents of the 140 blocks of land in a parcel known as Five A envisage Aborigines camping on their lawns, lighting fires, conducting traditional ceremonies, even hunting in their backyards.

It's not beyond the realms of possibility. The 2500 Yawuru people of Broome have their sights on Five A and its best address, Smirnoff Place.

Lawyers in the Kimberley Land Council, which acts for them, are drawing up a claim to take to the Federal Court that would seek native title over the 140 blocks, plus some other prime spots in Broome.

Next week, KLC executive director Wayne Bergmann will recommend to the Yawuru community that it lodge the claim. There is so much anger within the Aboriginal constituency in Broome over the state Government's handling of land rights that the claim will almost certainly go ahead.

And, since both the state Government and the Federal Court have found that native title exists over the blocks, government sources say there is no doubt the claim will succeed. That makes for trepidation on the streets of Five A and its Smirnoff Place dress circle, where residents thought they, like everyone, had unrestricted freehold.

While the Government has yet to inform the individual home owners who are affected, having tried to keep it quiet for years, the good citizens of Five A are one by one finding out they are on Aboriginal land.

The claim is designed to fortify a bid for compensation, which will be large. Real estate agents say most houses in Five A are worth more than $500,000 and many are worth more than $1 million. That suggests a total price tag heading towards $100 million.

The strange case of Five A dates back to 1993, when the Court government released the housing blocks under the West Australian Native Title Act and sold them throughout 1994. In 1995 the High Court found the act was invalid, meaning that native title still applied to the blocks.

The curious position of Five A was rediscovered by the Labor Government in 2003 in the course of dealing with the land rights claim known as Rubibi, which covers 5200sqkm in the Kimberley, including land in and around Broome.

The minister now responsible, Deputy Premier Eric Ripper, claims the Government has been trying to resolve the issue through confidential negotiations and for this reason did not reveal it to the residents of Five A.

"It was not appropriate for the state to publicly comment on matters that were the subject of these negotiations," a spokesman for Ripper says. Instead, the residents of Five A found out they lived on Aboriginal land on the news.

"I heard this item on the radio saying, 'If you are a resident of Broome, stay tuned, because you could lose your home,"' says architect Steve Kesich, who built an elegant two-storey house on a block in Five A that he and his wife, Pam Shipway, bought in the original 1994 release. "I thought to myself, this will be interesting."

The news came out as a side issue to a significant land rights determination on Rubibi by Federal Court judge Ronald Merkel in late April. In granting most of the Rubibi claim, Merkel pointed to the unique position of the 140 blocks which, he said, were a special case he could not rule on.

Merkel expressed outrage that he had been asked to decide the fate of Five A, saying it appeared the residents were not even aware their houses were on native title, let alone had had their say in court.

In a clear admonition, he said it was the state's job to pay compensation to the traditional owners to extinguish native title.

Nearly two months after Merkel's decision, the state Government has still not communicated with the Five A owners or even publicly revealed which blocks are involved. But in the intervening weeks, some savvy owners worked out their position according to the allotment numbers in Merkel's decision. Bit by bit, residents established that the area in question was around the famous, and expensive, Cable Beach.

Five A resident Fran Wilson said the Government had treated them abysmally by keeping them in the dark. Her husband, Martin, says: "I think they are going to have a hard time getting 180 people out of their homes. There will be a hell of an uproar if they (Aborigines) try to light a fire on my lawn."

"This is not a hunting ground," adds Fran.

Some residents are still in blissful ignorance that their homes are on Aboriginal land. The Australian tracked down the precise location of the biggest contiguous set of blocks, 118. One owner, plumber Steve Scott, learned his block was on Aboriginal land only when informed by The Australian. "This is the first real in-depth discussion where I have heard about it," he says.

Some residents think it's the end of their world. Iris and Geoff Peter came from Melbourne to Broome to retire and sunk their savings into a $720,000 house in Five A's Smirnoff Place. Iris fears her property is going to be "dragged out from under us".

"I wouldn't like it at all, having someone uninvited camping on our lawn," she says.

The reality is residents of Five A are not going to lose their homes. Merkel found that the owners' freehold title remains, but that native title has not been extinguished. Also, in this case the native title is non-exclusive, meaning the traditional owners cannot boot existing residents off the blocks, although they may be entitled to share land use.

The problem, however, is that by failing to inform the people of Five A of the situation, the Government has allowed the rumours to spiral out of control.

Town leaders are trying to downplay the problem but say the Government has a duty to sort it out. "If a government issues freehold title, it should mean just that, free of encumbrances, and the onus is on the Government to fix it," shire president Graeme Campbell says.

Campbell says race relations in the Broome community, which is 35 per cent indigenous, are generally good but admits the tangle over the Rubibi claim has meant "a significant amount of goodwill has been dented".

Until this week, government sources said there was no indication the traditional owners would mount a claim on the 140 blocks. What pushed them into playing hard ball was this month's decision by Ripper to challenge Merkel's decision in the Federal Court.

Ripper's spokesman says the appeal is aimed at sorting out issues of law that could affect all future native title claims. The state will argue that there are some areas in and around Broome where indigenous people have lost connection to the land.

The suggestion outrages Bergmann, a former boilermaker turned lawyer, who says it undermines the credibility of the Government. Although the Government says it wants to negotiate settlement of the 140 blocks and the broader Rubibi claim, Bergmann says the talks are "in never-never land". "I have no confidence we are going to resolve anything by agreement," he says.

Laying a claim to Five A is a tactic the KLC is using to raise the pressure on the Government to settle both that issue and Rubibi. Bergmann says traditional owners have no intention of seeking access to and usage of the blocks: the aim is compensation. But he none too subtly says the law would entitle traditional owners to access.

While this row about land rights continues, Broome will be hemmed in, preventing development. Although a new land release has just taken place and another is planned for later this year, almost all the land surrounding Broome is subject to the Rubibi claim.

Houses that sold for $220,000 eight years ago are worth $500,000, says the president of the Broome Chamber of Commerce, real estate agent Graham McGinn. And it's the shortage of land, due to native title, that has helped drive up prices. "Over the years, it has been the native title issue. Simple as that," McGinn says.

As a result, McGinn believes traditional owners are in a good bargaining position. They have the right to light a protest campfire on the neat lawns of Smirnoff Place.

Ean Higgins is a senior writer at The Australian.