Gunaikurnai Native Title Agreement

What is Native Title?

Native title is the recognition in Australian law that some Indigenous people continue to hold rights to their lands and waters that come from their traditional laws and customs.

Native title has its source in the laws and customs observed by Indigenous people when Australia was colonised by Europeans. Those laws and customs must have been acknowledged and observed in a ‘substantially uninterrupted’ way from the time of settlement until now. Native title:

  • is administered through the Commonwealth Native Title Act 1993.
  • is not granted by governments but recognised through a determination made by the Federal Court.
  • will vary for each group because it comes from traditional laws and customs of the group.
  • exists alongside and is subject to, the rights of other people in the same area.
  • can be extinguished because of things the government has done, or allowed others to do, over a particular area that are inconsistent with native title.

What was the Mabo Decision?

Native title was recognised for the first time in the High Court’s decision of Mabo v Queensland (No 2). The majority of the court in Mabo found the doctrine of ‘terra nullius’ (that nobody owned the lands before European Settlement) should not have been applied to Australia.

Eddie Koiki Mabo took his claim to the High Court of Australia and was the first to have his native title rights recognised, on behalf of all of his people, the Meriam people of the Torres Strait. This landmark decision paved the way for the recognition and protection of native title across Australia and led to the passing of the Native Title Act 1993.

What is the Native Title Act?

The Native Title Act 1993 is a Commonwealth law which provides a process by which Indigenous Australians can lodge applications in the Federal Court of Australia seeking a determination of native title.

The Native Title Act 1993 also provides a process for applicants and native title holders to negotiate and enter into agreements relating to actions that affect native title interests. These actions are known as future acts.

Consultation and consent under the Native Title (Prescribed Body Corporate) Regulations 1999

As a prescribed body corporate, GLaWAC is empowered to make native title decisions and negotiate agreements on behalf of the Gunaikurnai native title holders. The Board does so in accordance with the GLaWAC Delegations Policy and with the support and on the recommendation of the Native Title and Cultural Heritage Subcommittee.

In addition and in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations), the Board must undertake a process of consultation and consent with native title holders as part of that agreement-making process.

The process for consulting with native title holders and deciding whether consent has been received was agreed at a Gunaikurnai native title meeting on 30 November 2012, and incorporated into the GLaWAC Rule Book (see Rule 8).

Once an agreement has been negotiated, the terms of the agreement and supporting information will be provided to both member and non-member native title holders and made available on the GLaWAC website as part of the consultation and consent process. Comments and feedback will be invited within 4 weeks of the mail out date.

Following the consultation and consent process, Rule 8.1 provides that GLaWAC Directors will agree by majority vote whether the consultation and consent requirements for a particular native title decision have been met.

Standing authorisations for future act notifications inviting comment

The common law holders have also been consulted and have previously consented to the Board making decisions about whether to comment and whether to oppose, agree to or seek conditions in relation to certain future acts notifications inviting comment (see Rule 8.2).

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What is the Victorian Traditional Owner Settlement Act?

The Traditional Owner Settlement Act 2010 is a Victorian law which provides for an out-of-court settlement of native title and resolution of land justice.

The Act allows the Victorian Government to make agreements with Traditional Owners to recognise their relationship to land, and provide for certain rights on Crown land and other benefits. In return for entering into a settlement Traditional Owners must agree to withdraw any native title claim they have pursuant to the Commonwealth Native Title Act 1993, and to not make a claim in the future.

Traditional Owner groups may still pursue a formal determination of native title under the Native Title Act 1993, through the Federal Court process if they wish.

Agreement between the State and the Gunaikurnai

On 22 October 2010 the Federal Court recognised that the Gunaikurnai holds native title over much of Gippsland.

On the same day, the State entered into an agreement with the Gunaikurnai under the Traditional Owner Settlement Act 2010. The agreement between the State and the Gunaikurnai is the first under the Traditional Owner Settlement Act 2010.

The agreement area extends from west Gippsland near Warragul, east to the Snowy River and north to the Great Dividing Range. It also includes 200m of sea country offshore. The determination of native title under the Native Title Act 1993 covers the same area.

Native title is taken to be extinguished on grants of freehold land (private land) and by crown land subject to public works (roads, public development etc). Therefore the agreement and the native title determination only affect undeveloped Crown land within the Gippsland region.

What does the agreement include?

  • Transfer of the following 10 parks and reserves to the Gunaikurnai as ‘Aboriginal Title’ to be jointly managed by the Gunaikurnai and the State.
    – The Knob Reserve, Stratford
    – Tarra Bulga National Park
    – Mitchell River National Parks
    – Lakes National Park
    – Gippsland Lakes Coastal Park
    – New Guinea Cave (within the Snowy River National Park)
    – Lake Tyers Catchment Area
    – Buchan Caves Reserve
    – Gippsland Lakes Reserve at Raymond Island
    – Corringle Foreshore Reserve.
  • Rights for Gunaikurnai people to access and use Crown land for traditional purposes, including hunting, fishing, camping and gathering in accordance with existing laws.
  • Funding for the Gunaikurnai to invest in economic development and cultural strengthening opportunities and to meet their obligations under the settlement.

What changes will there be to national parks and reserves?

All land subject to Aboriginal Title will continue to be managed consistent with the applicable public land legislation. Existing access and use rights (including existing licences, leases or permits on Crown land) will not be affected.

A Traditional Owner Land Management Board will be established including Gunaikurnai and other representatives. The Board will manage all the jointly managed parks and reserves within the agreement area. The Board will develop a management plan with the Department of Land, Water and Planning that will set the strategic direction for the land. A Management Plan will be subject to public consultation and final approval from the Minister for Environment and Climate Change. It must also be consistent with legislation and policies applicable to that public land reservation.