The Law Handbook 2024

Chapter 1.1: Where our laws come from 9 their traditional land and waters near Echuca and Shepparton. The Federal Court found that native title had been washed away by the ‘tide of history’. On appeal, the High Court (in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58) held that the Federal Court was entitled to make that decision. This High Court decision has had substantial implications for the recognition of native title generally, and in Victoria in particular as it has set a high threshold for proving native title for Traditional Owners who have been displaced from their land. This has made native title claims in more settled areas very difficult. However, in December 2005 the Federal Court, with the consent of all parties, made the first Victorian determination that native title exists, in favour of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk peoples. Native title determinations have since been made in favour of the Gunditjmara people in south-west Victoria ( Lovett on behalf of the Gunditjmara People vVictoria [2007] FCA474), including a shared native title determination with the Eastern Maar people ( Lovett on behalf of the Gunditjmara People v Victoria (No 5) [2011] FCA 932) and in favour of the Gunaikurnai people in Gippsland ( Mullett on behalf of the Gunai/Kurnai People v Victoria [2010] FCA 1144). Traditional Owner Settlement Act The Traditional Owner Settlement Act 2010 (Vic) (‘ Settlement Act ’) provides an alternative form of resolving native title in Victoria through a process of negotiations between the Victorian Government and a Traditional Owner group with the aim of reaching a comprehensive settlement package. The Settlement Act was enacted as a way to assist Traditional Owner groups to overcome barriers to having native title recognised in Victoria. The Settlement Act was also intended to bring about better outcomes for Traditional Owners, and improved management of Crown land. By committing to this process, the Victorian Government aims to address the land justice aspirations of Victorian Traditional Owners and to provide finality and certainty for all parties involved. The Settlement Act creates a system for settling native title claims out of court through interest- based negotiations. Compared with native title, the Settlement Act system is more focused on mechanisms to establishing sustainable Traditional Owner corporations to act on behalf of Traditional Owner groups into the future. The current Victorian Government policy is that Traditional Owner groups that wish to negotiate a settlement need to prepare and lodge a threshold statement with the state. Guidelines provide detail about the information that must be included to satisfy the state that negotiations can commence. This threshold process is similar to the initial process of a group applying to have a native title claim registered. One possible outcome of negotiations under the Settlement Act is the joint management of national parks and reserves by Traditional Owners and state agencies. This involves the establishment of joint management boards. It can also involve the transfer of ownership of national parks under Aboriginal title, with certain restrictions, to Traditional Owners. Another possibility is that certain Crown land can be transferred to Traditional Owners for economic and social purposes; for example, as ordinary freehold for housing or commercial purposes. Settlements may also include an agreement that implements a land-use activity regime (in place of the native title future acts regime). This agreement provides a set of procedural rights to Traditional Owners for certain activities to proceed on Crown land. The agreement can also include a natural resources agreement to accommodate the Traditional Owners’ need to access the land and use its natural resources, such as flora and fauna. Opportunities for the commercial use of natural resources may also be available. Settlement Act agreements also address the recognition and strengthening of Aboriginal culture in Victoria. The first agreement under the Settlement Act was made by the Gunaikurnai people on 22 October 2010 following their native title determination. An agreement with the Dja Dja Wurrung people commenced on 25 October 2013. The current Victorian Government continues to negotiate agreements under the Settlement Act. More information about the Settlement Act and the Dja Dja Wurrung Land Use Activity Agreement is available from the Victorian Government Department of Justice and Community Safety (www.justice.vic.gov.au) . Further information about native title is available from the National Native Title Tribunal (www.nntt.gov.au ) or from First Nations Legal and Research Services (www.fnlrs. com.au) , which provides legal and other services to