The Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk consent determinations +

These consent determinations were the first recognition of native title in Victoria. Handed down by Justice Merkel on December 13, 2005, they ruled in favour of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk peoples—also known as the Wimmera Clans.

These native title claims were first lodged in 1995. Their history includes intense negotiations with the Victorian State Government over a number of years, along with mediation with the Commonwealth Government, which led to an in-principle agreement in 2003. Reaching the final consent determinations also involved discussions with neighbouring traditional owner groups along with subgroups within the Wimmera Clans.

‘Like all claims settled by agreement, the [Wimmera Clans] determination involved compromises, and it is the traditional owners who have borne the brunt of that compromise [...] However notwithstanding the compromises involved, this determination has shown that despite the devastating impact of the High Court decision in Yorta Yorta, there is still scope for native title to be recognised in Victoria.'

— Katie O’Bryan, 'The Tide Has Turned – The Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Consent Determination'

Just before the consent determinations were reached, an Indigenous Land Use Agreement was signed between the Wimmera Clans, the Barengi Gadjin Land Council, the Victorian State Government and the Commonwealth Government. In handing down his consent determination judgment, Justice Merkel noted the contribution of William (‘Uncle Jack’) Kennedy, who passed away only a few months before.

In 2013, the 2005 native title agreements were reviewed by the Government and Barengi Gadjin Land Council Aboriginal Corporation (BGLC) (the Prescribed Body Corporate that represents the Wotjobaluk Peoples for native title purposes). This lead to recommendations that the State and the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples consider further opportunities to enhance the 2005 agreements.

In August 2017, the State formally approved entering into negotiations with these Traditional Owners towards an RSA under the TOSA.

The Gunaikurnai consent determination +

The Gunaikurnai consent determination was reached in October 2010, signed alongside the Gunaikurnai Settlement Indigenous Land Use Agreement (ILUA). At this time, the Gunaikurnai’s native title claim was by far the largest in Victoria.

The Gunaikurnai native title claim was originally lodged in April 1997. The path to the consent determination was shaped by the native title landmarks that followed, including the Howard Government’s 1998 amendments to the Native Title Act 1993—its ‘10 Point Plan’—which significantly wound back the rights of Indigenous people under the NTA.

1998 also saw the Yorta Yorta native title claim decision, in which the Federal Court found that ‘[t]he tide of history has indeed washed away any real acknowledgement of [the Yorta Yorta’s] traditional laws and any real observance of their traditional customs’.

In light of this finding, it seemed unlikely the Gunaikurnai would be successful in their native title claim. However, a new emphasis on negotiation with traditional owners from the Victorian State Government meant that reaching consent determinations became easier. This led to the decision to grant native title to the Wimmera Clans in 2005 (see above), followed by the Gunditjmara consent determination in 2007.

The introduction of the Traditional Owner Settlement Act 2010 (Vic), was also important to this consent determination. This Act offered ‘Aboriginal title’—a new form a freehold title that allowed for the joint management of land.

When the Gunaikurnai consent determination was finally reached, it recognised the Gunaikurnai as native title holders of approximately 13,390 sq km of Gippsland. The rights recognised included:

• right of access and use
• the right to take resources for personal, domestic or communal needs
• the right to protect and maintain places of importance
• the right to camp
• the right to engage in cultural activities, meetings, rituals and ceremonies
• the right to teach about places of importance
• the right to take water for domestic and ordinary use.

Dja Dja Wurrung Recognition and Settlement Agreement +

The Dja Dja Wurrung RSA recognises the Dja Dja Wurrung people as the Traditional Owners of Country extending from north of the Great Dividing Range near Daylesford, including the catchments of the Richardson, Avon, Avoca, Loddon and Campaspe Rivers. This ‘landmark success for the Victorian community and the Indigenous land justice movement’ (Dhelkunya Dja Land Management Board) commenced on 24 October 2013, and is the first comprehensive RSA under the TOSA.

Following 18 months of negotiations, the Victorian Government and the Dja Dja Wurrung Clans Aboriginal Corporation entered into the RSA, which settled four outstanding native title claims dating back to 1998. This agreement also provides for a Land Use Activity Agreement, allowing for these Traditional Owners to comment on or consent to certain activities on public land.

The Recognition Statement was signed shortly after this agreement commenced. This provides context for the negotiations. It also acknowledges the Dja Dja Wurrung people’s continuing presence and ongoing cultural and spiritual connection to the land, in spite of the post-colonial history of oppression and dispossession.

Five years after the RSA was signed, Elder Graham Atkinson reflected:

‘We now have a fully operational Traditional Owner Group Entity employing staff in the cultural heritage management, economic development and natural resource management sectors across our RSA region.’

The relatively brief negotiation period of 18 months for this RSA highlights the value in non-native title mechanisms such as the TOSA. Representing the applicants in these negotiations, Adam McLean and Nick Testro contend that such a comprehensive and quickly reached result is ‘simply not possible if a strict native title determination model is followed’.

Taungurung Recognition and Settlement Agreement +

The Taungurung RSA was signed on 26 October 2018 and commenced on 11 August 2020. It covers 11% of Victoria and is the largest settlement between the State and Traditional Owners in the history of the Victorian land rights movement.

Importantly, this is the first native title settlement without the Federal Court’s involvement, as part of an RSA made under the TOSA. The Taungurung Clans Aboriginal Corporation (TCAC) agreed with the State to a collection of agreements within this ‘significant milestone’ (First Nations Legal & Research Services 2018), which include:

• a Recognition and Settlement Agreement
• a Traditional Owner Land Management Agreement
• a Natural Resource Agreement and Traditional Owner Land Natural Resource Agreement
• a Land Use Activity Agreement, and
• an Indigenous Land Use Agreement.

This agreement was reached following a 15-year campaign by the Traditional Owners and three years of settlement negotiations.

TCAC CEO Matt Burns has highlighted this RSA as an ‘opportunity to make a meaningful difference to the Taungurung community through employment, investments and allocating returns into community programs’.

The Taungurung people identify as comprising fifteen clans with similar dialects and are part of a broader Kulin alliance throughout Central Victoria. Through systems of lineage and kinship, these different clans within the Taungurung people have been known by various names, including ‘Dhaagung Wurrung’ and the ‘Goulburn Tribe’.

The legality of the Taungurung RSA has been challenged in the courts.

The Noongar Settlement +

The Noongar Settlement is the largest native title settlement to date, covering around 200,000 sq km and affecting about 30,000 Noongar people.

The Native Title Representative Body for the Noongar people, the South West Aboriginal Land and Sea Council, tells the story of the South West Native Title Settlement and describes 'the significant and unique contribution that Noongar people have made, are making, and will continue to make to the heritage, cultural identity, community, and prosperity of Western Australia and Noongar boodja (land)'.

The Noongar Settlement involved six native title claim groups each authorising an ILUA:

• the Yued
• Gnaala Karla Booja
• South West Boojarah #2
• Wagyl Kaip and Southern Noongar
• Ballardong People
• Whadjuk People.

Although the Full Court of the Federal Court in December 2019 held that the six ILUAs were validly registered, the Noongar Settlement could not come into effect until the ILUAs were beyond litigation.

The passage of the Noongar Settlement has not been smooth. The Noongar people did not unanimously accept the extinguishment of native title. Some objected that the internal process for reaching agreement was inconsistent with both traditional laws and customs, and also with the NTA.

A successful challenge was made in the Federal Court to the validity of four of the ILUAs on the grounds that not all members of the relevant native title applicant group had signed (see McGlade v Native Title Registrar [2017] FCAFC 10).

It then took the passing of the Native Title (Indigenous Land Use Agreement) Act 2017 to make the four ILUAs registrable. The amendments enable a native title claim group to decide whether an ILUA will be signed by a simple majority, or by a nominated member or members of the applicant group.

On 26 November 2020, the High Court dismissed further legal challenges to all six of the ILUAs and paved the way for them to be conclusively registered on 27 January 2021. The Noongar Settlement then formally commenced on 25 February 2021.

On 29 March 2021, the Noongar Boodja Trust deed was signed, marking the next step of the biggest land settlement in Australian history.

Lessons for treaty +

Harry Hobbs suggests that the Noongar Settlement offers two lessons for treaty making in Australia:

• First, any negotiated agreement is politically fragile and requires the ongoing internal support of both sides. On the one side, successful treaty making depends on consistent support from State and Territory governments beyond a political cycle. On the other, in this case, the Noongar people did not unanimously accept the surrender and extinguishment of their native title.
• Second, any treaty based on State or Territory legislation is vulnerable to the Commonwealth’s constitutional power to overrule it. The Noongar Settlement was agreed to under the framework of the Native Title Act 1993 (Cth) (the NTA) and derives legal force from its registration on the Native Title Register of ILUAs. Once registered, the agreements cannot be challenged.

The Yamatji Settlement +

The Yamatji Settlement covers almost 48,000 sq km in Western Australia's midwest. It involved four native title claim groups: the Mullawa Wadjuri, Southern Yamatji, Hutt River, and the Widi Mob combining to form the Yamatji Nation Claim.

The first of their prior claims was made in 1996. The Yamatji Nation Claim consent determination recognises the Yamatji Nation Claim Group’s surviving native title rights and interests and, together with the Yamatji Nation ILUA, was signed on 7 February 2020.

National Native Title Council Chief Executive Jamie Lowe congratulated the Yamatji Nation Traditional Owners, stating that the ILUA ‘will ensure Traditional Owners share in the benefits of economic development happening on their lands, and secure financial independence for their communities’.

Support for alternative settlement mechanisms +

ALRC Report 126 outlines support for the development of alternative settlement mechanisms in other states, like the TOSA in Victoria and the various mechanisms used for the Noongar and Yamatji settlements in Western Australian.

The National Native Title Council and Law Council of Australia both endorsed the development of non-native title frameworks for all states in their respective submissions to the ALRC Report 126. Gumbayyngirr man and former Senator Hon Aden Ridgeway has also called for ‘a complete rethinking of the way native title issues are resolved and managed’ (ALRC Report 126, p. 111).

The benefits of non-native title settlements include reducing transaction costs, improving working relationships between the government and Traditional Owners, and increased economic development and self-determination. Nonetheless, the Law Council of Australia has expressed reservations that these types of settlements should not persuade Traditional Owners to accept less than they would be entitled to in a native title determination.

Read more about developments in state and territory land rights legislation.

Read more +

• The ALRC Report 126 makes 30 recommendations for reforming the NTA, including developing alternative settlement mechanisms in all Australian jurisdictions.
• The ALRC Review of the Native Title Act 1993 (DP 82) briefly outlines various forms of alternative settlement.
• The University of Western Australia and Curtin University released a research report on the impact of major agreements associated with native title in Western Australia.