North J
This is the consent determination of Part B of the Gunditjmara people’s claim, which was amended to include the Eastern Maar people as applicants. The determination area in South Western Victoria is approximately 4000 hectares, all Crown land, in 172 parcels. By consent, the Court determined that native title exists on approximately 3000ha, and does not exist on the remaining 1000ha. The main issues were, first, that some of the Part B area required further anthropological assessment, and second, there was a dispute between the Gunditjmara people and the Framlingham Trust, which had cultural heritage responsibilities under the Aboriginal and Torres Strait Islander Protection Act 1984 (Cth).
North J dealt with the requirements of a consent determination, including that it is appropriate according to s.87(1A)(a) of the Native Title Act 1993 (Cth)(NTA). His Honour described the process of mediation by two Federal Court Registrars, which included a conference of the anthropological experts, and was supported by the detailed evidence of the earlier consent determination in Gunditjmara Part A. North J decided that ‘the process by which agreement was reached was thorough. It was focused on the legal requirements necessary to establish native title, but at the level of an arguable case. This is an appropriate approach to agreement making’. No ILUA was made with this consent determination for factors including the change of State government and the fact that a broader ILUA was made with the Gunditjmara Part A determination.
Two PBCs
North J noted that nomination of two PBCs for one determination area had not occurred in Victoria before, but that it was convenient in this case to allow the Gunditj Mirring Traditional Owners Aboriginal Corporation and the Eastern Maar Aboriginal Corporation both to become the PBCs for their respective members in this determination area. This is permitted by ss. 56(2)(a) and 57(2)(a) of the NTA and the Court followed Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 [376]-[386] in applying this provision. The two corporations have entered an agreement to manage heritage effectively. His Honour concluded that ‘the fact that these neighbours have been able to cooperate in the resolution of the shared rights and interests in the boundary area is testimony to the capacity of strong dynamic Indigenous peoples to administer their affairs efficiently, competently, and in a spirit of harmony which is an example to all Australians’.
Rights and interests
The nature and extent of the non-exclusive rights and interests in relation to land and waters is the right to:
access to or enter and remain;
camp landward of the high water mark of the sea;
use and enjoy;
take the resources; and
right to protect places and areas of importance.