Focus: Native Title – December 2005
Federal Court hands down first recognition of native title in Victoria
In brief: Native title has been recognised for the first time in Victoria, with a consent determination over parts of western Victoria made by the Federal Court on 13 December 2005. Senior Associate Julie Freeman reports.
The decision
The native title applicants in this case consisted of five groups: the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk peoples. Their claim, first lodged in 1995, related to land and waters in two areas in the Wimmera region of Western Victoria. The claim was mediated by the National Native Title Tribunal and took 10 years to resolve. There were more than 400 respondent parties.
In the consent determination, the parties to the claim (the applicants, the state and other respondents) agreed to the continued existence of native title in respect of part of the area originally claimed, mainly along the banks of the Wimmera River. The agreed determination of native title excludes any lands on which public works have been validly constructed and all waters within the determination area. The parties also agreed that native title does not exist in respect of an area comprising the majority of the original claim.
The native title rights and interests of the applicants consist of non-exclusive rights to hunt, fish, gather and camp for personal, domestic and non-commercial communal needs. They do not confer exclusive possession, occupation, use or enjoyment of the area. Rights of other parties may co-exist with these native title rights.
In conjunction with the consent determination, the state, the applicants and other respondents entered into an Access Agreement regarding the co-existence of their various rights over the area. The native title rights of the applicants are subject to, and exercisable in, accordance with this Access Agreement. The state and the applicants also entered into various other agreements, providing for a range of benefits to the applicants and establishing protocols for consultation in relation to future developments.
Justice Merkel hailed the consent determination as proof that, unlike in the Yorta Yorta case, the 'tide of history' had not 'washed away' acknowledgment of traditional laws and observance of traditional customs. He noted that traditional laws and customs may evolve over time in response to new or changing social and economic circumstances.
Although the area covered by the determination is less than 300 square kilometres and the native title rights in the land are limited, this determination has symbolic significance as the first recognition of native title in Victoria. Of course, whether native title exists over other land in the state, and, if so, its nature and extent, can only be determined on a case-by-case basis.
For further information, please contact:
- Chris SchulzPartner,
Melbourne
Ph: +61 3 9613 8772
Chris.Schulz@allens.com.au - Ben ZillmannPartner,
Brisbane
Ph: +61 7 3334 3538
Ben.Zillmann@allens.com.au - Robyn GlindemannSpecial Counsel,
Perth
Ph: +61 8 9488 3712
Robyn.Glindemann@allens.com.au