The Law Handbook 2024

Chapter 1.1: Where our laws come from 7 was written in consultation with more than 7500 Aboriginal Victorians. The ATPAV Act establishes guiding principles for a treaty negotiation process between the state of Victoria and an Aboriginal representative body. Aboriginal Victorians have elected a First People’s Assembly to be the representative body to guide treaty negotiations. The assembly is comprised of 33 Victorian Traditional Owners. Of these Traditional Owners, 12 were nominated by the Traditional Owner groups and the remaining 21 were elected from five regions. A quota ensured that female members were included in the assembly. All Traditional Owners aged 16 or more in Victoria were eligible to vote for the members of the assembly. Aboriginal people whose traditional country is outside of Victoria, but who have lived in Victoria for three of the past five years were also eligible to vote. The purpose of the ATPAV Act is to establish a framework for the negotiation of a treaty between the state of Victoria and Aboriginal Victorians that: • recognises historic wrongs; • addresses ongoing injustices; • helps heal wounds; • supports reconciliation; • brings pride to Victorians; • has a positive impact for Victoria; • promotes the fundamental human rights of Aboriginal people, including the right to self- determination; • acknowledges the importance of culture to Aboriginal identity; • enhances the laws of Victoria. The guiding principles for treaty negotiations are: • self-determination and empowerment; • fairness and equality; • partnership and good faith; • mutual benefit and sustainability; • transparency and accountability. Aboriginal and Torres Strait Islander law The Mabo decision and the recognition of native title Aboriginal and Torres Strait Islander Australians have, since time immemorial, observed a variety of systems of law that were not recognised by Australian law until relatively recently. In June 1992, the High Court, in Mabo v Queensland (No 2) [1992] HCA 23 (‘ Mabo decision ’), held that other systems of law could co-exist with the Australian legal system. The court said that the common law recognised rights relating to land and waters that arise under a legal system created by Murray Islanders in the Torres Strait before British sovereignty that continue to the present day. Aboriginal and Torres Strait Islander legal systems were not necessarily extinguished by British sovereignty in 1788. Those legal systems may give rise to what is often called a ‘bundle of rights’ that include rights and interests in land and waters across Australia, which are called native title. Native title can only be determined over Crown land (i.e. land owned by the government). Governments must, in certain circumstances, take this into account when making decisions about how Crown land is used. Courts will recognise that native title exists if, among other things, the claimants can show they have rights and interests in the land under traditional laws and customs and that these laws and customs are currently acknowledged and observed, demonstrating a continuous connection since colonisation. Further to this, native title must not have been extinguished by any inconsistent government act. For example, a grant of a freehold title extinguishes native title. Native title gives those who hold it the right to use and access their land for traditional and communal purposes, such as to camp, hunt, use certain resources and/or use the land and waters for cultural purposes. Native title rights differ between communities. Also, rights over a particular place can be shared by two or more communities. Courts can also recognise exclusive possession native title, which recognises the right for the native title holders to exclude other people from their areas of land or water. Native Title Act The Native Title Act 1993 (Cth) (‘ Native Title Act ’) was introduced in 1993 to provide clarity after the Mabo decision by governing how native title rights are recognised and dealt with. The Native Title Act and associated regulations provide a scheme for, but not limited to: