Gunaikurnai Native Title Matters
Crown Land Sales, Exploration Licence Applications, and all other notices concerning works on Native Title land.
The Gunaikurnai first lodged their native title claim in 1997 and in October 2010, Justice North of the Federal Court granted a native title determination which recognised the Gunaikurnai as the native title holders over approximately 13,390 sq km of Gippsland. GLaWAC was appointed the Prescribed Body Corporate (PBC) holding native title rights and interests on trust for the Gunaikurnai. Alongside the consent determination, the Gunaikurnai were the first Traditional Owner group to negotiate a package with the State under the Settlement Act.
Any native title-determined crown land is subject to the ‘Future Act regime’ under the Native Title Act. The Future Act regime establishes procedures to follow so that actions affecting native title are done properly and are legally valid. The processes vary depending on the type of ‘act’ that is proposed.
Crown Land Sales
The Victorian Government occasionally sells surplus crown land, including land that is subject to native title. The sale of crown land will extinguish native title. There is no explicit right of veto, however, the State of Victoria does not currently compulsorily acquire native title-determined land, which means if agreement is not reached the sale will not proceed. (Note: the State’s position could change). This activity requires GLaWAC to “consult with and obtain the consent of native title holders” and compensation for the sale of crown land is usually negotiated.
Exploration Licence Applications
GLaWAC receives numerous exploration licence applications every year for exploration on Gunaikurnai native title-determined land. Under the Native Title Act, GLaWAC has a right to negotiate agreement terms with a Proponent, but does not have the right to stop the exploration.
A cultural heritage desktop assessment is made on each application, which is in turn reviewed by the Native Title and Cultural Heritage Sub-Committee (NTCHSC). The NTCHSC then makes a recommendation to the GLaWAC Board. If the Board accepts the recommendation, and the Board and the Proponent have agreed on the terms, all details to be made available on the website and mailed out to members with 4 weeks for response. First Nations will mail details to non-member native title holders on its mailing list. If any responses are received, these will be reviewed by the Board who will then decide whether to proceed with the agreement.
All Other Notices Concerning Works On Native Title Lands
There are various activities on native title lands which will trigger different future act processes. Depending on the activity, native title holders have the following procedural rights:
- The right to be notified
- The opportunity to comment
- The right to be consulted
- The right to negotiate over particular aspects of the future act
- The right to object to the future act
GLaWAC will put up all notices concerning works on native title lands for native title holders to make comment if they wish. We will highlight where activities extinguish native title rights, although this is rarely the case.
Please see below current notices on land:
Proposed gravel carpark reconstruction – Manns Beach Foreshore Reserve
The attached future act notice relates to the proposed reconstruction of a gravel carpark at Manns Beach Foreshore Reserve, near Port Welshpool. The non-extinguishment principle applies to this future act and Gunaikurnai native title rights will continue to exist over this land parcel. This parcel of land is Unreserved Crown Land subject to a Land Conservation Council Recommendation, which permits the construction and maintenance of roads for management and protection purposes.
If you have any further comment regarding native title or cultural heritage, please contact Kylie Douglas (DELWP) (email@example.com) to discuss further. Please note Gunaikurnai native title holders and GLaWAC have the right to comment until Sunday, 21 March 2021.
Give your feedback about the current notices
RSA Negotiations Update
We have finished a report to help guide GLaWAC in our RSA re-negotiations, you can read it here.
The RSA Re-Negotiations give Gunaikurnai Traditional Owners opportunity to build on the Agreement put in place in 2010 after many years of hard work by our Elders. It’s not about starting out again– it’s about adding to what we have, making it better and getting improved outcomes as we build our own capacity and capability to manage.
We will be convening meetings both face to face and online, based on Covid-19 rules.
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).
Wilsons Promontory (Yiruk) Native Title Claim
The Gunaikurnai people lodged a native title determination application in the Federal Court on 9 December 2014 under the Native Title Act 1993 (Cth). The application included the land and waters west of the Gunaikurnai determination area to the Tarwin West River, including Wilsons Promontory and Cape Liptrap (the claim area).
In September 2019, the Gunaikurnai decided to withdraw from the current claim that was to be heard in the Federal Court in order to focus on discussion and mediation with Bunurong- Boon Wurrung communities to realise a joint vision and aspirations for Wilsons Promontory.
The determination application for Wilsons Promontory is a complex and ongoing matter, and GLaWAC will continue to work with other Traditional Owners to reach an agreement for this area of land.
What is Native Title?
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 is the Native Title Act?
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.
What is the Victorian Traditional Owner Settlement Act?
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 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?
- The joint management of 10 parks and reserves 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’s changed in the national parks and reserves?
All land subject to Aboriginal Title will continue to be managed in accordance with the applicable public land legislation. Existing access and use rights (including existing licences, leases or permits on Crown land) will not be affected.
The Gunaikurnai Traditional Owner Land Management Board was appointed by the Victorian Minister for Environment and Climate Change in 2012, giving effect to the 2010 Gunaikurnai Traditional Owner Land Management Agreement (TOLMA).
The Board guides the partnership for joint management of ten parks and reserves guided by the strategic direction of the Gunaikurnai and Victorian Government Joint Management Plan which was released in September 2018.