FEDERAL COURT OF AUSTRALIA

Lovett on behalf of the Gunditjmara People v State of Victoria (No 3) [2011] FCA 867

THE COURT ORDERS THAT:

1.    Leave to the Applicant to amend the application so that it is in terms of the document attached to this Order and marked “A” (Amended Application).

2.    The Amended Application stand as the application in relation to the areas the subject of Part B of the proceeding from today’s date.

3.    In so far as the application relates to the area the subject of Part A of the proceeding, the application is not affected by orders 1 and 2.

4.    Any further filing and service of the Amended Application be dispensed with.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    Leave to the Applicant to amend the application so that it is in terms of the document attached to this Order and marked “A” (Amended Application).

2.    The Amended Application stand as the application in relation to the areas the subject of Part B of the proceeding from today’s date.

3.    In so far as the application relates to the area the subject of Part A of the proceeding, the application is not affected by orders 1 and 2.

4.    Any further filing and service of the Amended Application be dispensed with.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID6004 of 1998

BETWEEN:

JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA PEOPLE

Applicant

AND

THE STATE OF VICTORIA AND OTHERS

        Respondents

AMENDED GUNDITJMARA #1 NATIVE TITLE CLAIM (now PART B GUNDITJMARA AND EASTERN MAAR #1 NATIVE TITLE CLAIM) NATIVE TITLE DETERMINATION APPLICATION

“A”

Form 1

Paragraph 5(1)(a)

Native Title Act 1993

PROPOSED SECOND AMENDED GUNDITJMARA AND EASTERN MAAR #1 NATIVE TITLE CLAIM

Contents

STATUS AND EFFECT OF THIS AMENDED APPLICATION ………………………...3

Name of Applicant …………………………………………………………………………4

PART A        DETAILS OF THE CLAIM ………………………………………..4

SCHEDULE A    NATIVE TITLE CLAIM GROUP………………………………….4

SCHEDULE B    IDENTIFICATION OF BOUNDARIES…………………………...5

A. Area Covered by the Application………………………………………………………..5

B. Areas within the external boundaries that are not covered by the application…………..6

SCHEDULE C    MAPS    ………………………………………………………………7

SCHEDULE D    SEARCHES ………………………………………………………...7

SCHEDULE E    DESCRIPTION OF NATIVE TITLE RIGHTS AND INTERESTS 7

Native title where traditional rights are wholly recognisable ………………………………7

Native title where traditional rights are only partially recognisable ……………………….8

Area covered by the native title and who holds the rights …………………………………9

Activities currently carried on ……………………………………………………………...9

Definition …………………………………………………………………………………..9

SCHEDULE F    GENERAL DESCRIPTION OF NATIVE TITLE RIGHTS AND INTERESTS CLAIMED …………………………………………...9

Rights and Interests Claimed ……………………………………………………………..10

Gunditjmara and Eastern Maar association with the area ………………………………...10

Traditional laws and customs giving rise to claimed rights and interests ………………...11

Continued native title ……………………………………………………………………..13

SCHEDULE G    ACTIVITIES ……………………………………………………...14

SCHEDULE H    DETAILS OF ANY OTHER APPLICATIONS ………………….15

SCHEDULE I    DETAILS OF ANY SECTION 29 NOTICES ……………………………15

SCHEDULE J    DRAFT ORDER ………………………………………………………….15

SCHEDULE K    NATIVE TITLE REPRESENTATIVE BODIES ………………...15

SCHEDULE L    TENURE AND LAND USE ISSUES …………………………….15

SCHEDULE M    TRADITIONAL PHYSICAL CONNECTION…………………....16

SCHEDULE N    PREVENTION FROM GAINING ACCESS     …………………….16

SCHEDULE O    MEMBERSHIP OF ANY OTHER NATIVE TITLE GROUPS ….17

SCHEDULE P    CLAIMS FOR EXCLUSIVE POSSESSION OF OFFSHORE PLACES …………………………………………………………..17

SCHEDULE Q    CLAIMS TO ANY RESOURCES OWNED BY THE CROWN ...17

SCHEDULE R    CERTIFICATE OR AUTHORISATION ………………………...17

SCHEDULE S    AMENDED APPLICATIONS ……………………………………18

SCHEDULE T    ANY OTHER RELEVANT INFORMATION …………………...18

PART B        ……………………………………………………………………..19

ATTACHMENT B    LOCATION and AREAS …………………………………………21

ATTACHMENT C    MAPS ……………………………………………………………..25

ATTACHMENT J     DRAFT ORDER …………………………………………………...1

STATUS AND EFFECT OF THIS AMENDED APPLICATION

A.    This Amended Application is a further amendment to the second amended Gunditjmara native title determination application VID6004/1998 (the Application).

B.    On 18 January 2007, the Federal Court made orders splitting the proceeding in relation to the Application into two parts, each relating to a separate area (respectively, Part A and Part B).

C.    On 30 March 2007, the proceeding in relation to Part A was finalised, and a determination of native title was made on the application insofar as it relates to the areas within Part A . The determination was made under s 87 of the Act with the consent of all the parties to the Application: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (30 March 2007) (Part A determination).

D.    The amendments made in this Amended Application apply only on and from the date of the making of this Amended Application and do not affect the Application insofar as it relates to Part A or the Part A determination.

E.    The application on which the Part A determination was made is the Application as it stood prior to the making of the amendments in this Amended Application.

F.    Amendments made by this Amended Application cannot be and are not made in relation to Part A. The amendments are made, and have effect, only in relation to Part B.

Name of Applicant

1.    The applicant applies for a determination of native title under subsection 61(1) of the Native Title Act 1993.

2.    The applicant is entitled to make this application as persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed (the native title claim group).

3.    Each person comprising the applicant is a member of the native title claim group.

4.    The schedules to this amended application contain the following information:

The names (including Aboriginal names) of the persons (the native title claim group) on whose behalf the application is made or a sufficiently clear description of the persons so that it can be ascertained whether any particular person is one of those persons.

5.    The native title claim group consists of:

(a)    the Gunditjmara people, who are those descendants of the following persons who identify as Gunditjmara: Jenny Green (Alberts), Timothy James Arden, Barbara Winter, Mary (mother of James Egan), Billy Gorrie, Mary (wife of Billy Gorrie), Willing King, Hannah (wife of William King), James Lancaster, Susannah McDonald (Lovett), James McKinnon and Mary, Eliza Mitchell (Saunders), John Henry Rose, Lucy Sutton, James Sutton and Mary, Louisa (mother of Agnes and Alex Taylor), and Andrew Winter; and

(b)    the Eastern Maar peoples, who are those descendants, including by adoption, of the following persons, who identify as being from the eastern domain of the Maar speaking people and are recognized as being from the eastern domain by the Maar people: King of Port Fairy and Eliza; Old Jack (father of John Dawson); Charlie and Alice (parents of Albert Austin); Samuel Robinson and Mary Caramut; Lizzie (mother of Frank Clarke); Robert and Lucy (parents of Alice Dixon); Barney Minimalk; Nellie Whiturboin: Louisa (mother of William Rawlings).

5A.    A reference to adoption in relation to the Eastern Maar peoples is a reference to a person who was reared up by members of the Eastern Maar peoples, who identifies as being an Eastern Maar person, and is recognized by the Eastern Maar peoples as being an Eastern Maar person.

6    The ancestors referred to in paragraph (5) above (“founding ancestors”) are descended from the community of indigenous people occupying the claimed area at the time of proclamation of Sovereignty in 1788.

Information identifying the boundaries of:

(a)    the area covered by the application; and

(b)    any areas within those boundaries that are not covered by the application.

A. Area Covered by the Application

7    Without affecting the area covered by the Application or otherwise affecting the Application as it stood when the proceeding in relation to Part A was finalised and the Part A determination was made; the area now remaining for determination in relation to Part B of the proceeding and to be subject to the amendments made in this Amended Application (“the Claim Area”), subject to paragraphs 10 and 11, is:

(a)    the lands and waters comprised in so much of each of the portions or part of the portions referred to in paragraph [9] below as lie within “Part B” as referred to in Order 2 of the Orders of North J made 18 January 2007 (Orders) and marked as such on the map attached to those Orders (Part B); and

(b)    any other land and waters within the external boundaries described in Attachment B that were claimed in the original application.

8    A copy of the map attached to the Orders is attached in Attachment C.

9    The portions referred to in paragraph [7(a)] above are those listed in Attachment B1.

B. Areas within the external boundaries that are not covered by the application

10    Any area not covered by the original application is not covered by the application.

11    The other areas within the boundary that are not covered by the application are the following areas, except where any extinguishment by the acts mentioned is required by s47A or 47B of the Native Title Act 1993 to be disregarded:

(a)    any area that, when the amended application is made, is subject to any of the following kinds of acts as they are defined in either the Native Title Act 1993, as amended (where the act in question is attributable to the Commonwealth), or Land Titles Validation Act 1994 (Vic), as amended, (where the act in question is attributable to the State of Victoria):

(i)    Category A past acts;

(ii)    Category A intermediate period acts;

(iii)    Category B past acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests;

(iv)    Category B intermediate period acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests;

(v)     any area in relation to which a previous exclusive possession act under section 13H or 13I of the Land Titles Validation Act 1994 (Vic) was done and that act is attributable to the State of Victoria;

(vi)    any area in relation to which a previous exclusive possession act as defined by section 23B (including section 23B(7)) of the Native Title Act 1993 was done in relation to the area and the act was attributable to the Commonwealth; and

(vii)    any area where native title rights and interests have otherwise been wholly extinguished;

(vii)    specifically, any area where there has been:

(i)    an unqualified grant of an estate in fee simple;

(ii)    a public work as defined in section 253 of the Native Title Act 1993;

(iii)    an existing dedicated public road.

A map showing the boundaries of the area covered by the application.

12    See Attachment C.

Details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application.

13    No searches have been carried out by the Applicant to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application.

A description of the native title rights and interests in relation to particular land or waters (including any activities in exercise of those rights and interests).

Native title where traditional rights are wholly recognisable

14    Paragraph [15] applies to every part of the claim area, that:

(a)    has not been, and is not, covered by a valid or validated act that is inconsistent to any extent with the exclusive native title (in this Schedule E, “previous act”); or if it has been or is so covered, any of such part where the previous act is one whose extinguishment of native title rights and interests would be required by section 47A or 47B of the Native Title Act to be disregarded; and

(b)    is not subject to the public right to navigate or the public right to fish (in this Schedule E, collectively “public right”); or, if it is so subject, to any of such part where the public right is a prior interest whose extinguishment of native title rights and interests would be required by section 47B of the Native Title Act to be disregarded.

15    Where this paragraph applies the native title rights and interests possessed under traditional law and customs and recognised by the common law of Australia is the right and interest of possession, occupation, use and enjoyment of land and waters as against all others.

Native title where traditional rights are only partially recognisable

16    Paragraph [17] applies to every part of the claim area to which paragraph [15] does not apply.

17    Where this paragraph applies, the traditional rights possessed under traditional law and customs is the right referred to in paragraph [14] but the native title rights and interests recognised by the common law of Australia are the rights and interests that comprise the right referred to in paragraph [14] to the extent not inconsistent with any public right that exists in, or any previous act that has been done in relation to, that part; in particular the rights to:

(a)    have access to or enter and remain on the land and waters;

(b)    live on the land and waters;

(c)    use and enjoy the land and waters;

(d)    take the resources of the land and waters;

(d)    engage in trade of resources of the land and waters by exchange, barter, sale or otherwise;

(e)    protect places of importance on the land and waters; and

(f)    control the access to, and use and enjoyment of, the land and waters and the taking of resources by others except any person exercising:

(i)    a public right;

(ii)    a right comprised in or pursuant to a previous act or other interest; and

(iii)    any right accorded by a law of the Commonwealth or Victoria.

Area covered by the native title and who holds the rights

18    Each of the native title rights and interests referred to in each of paragraphs [15] and [17] exists in relation to the whole of the area referred to in each of those paragraphs respectively.

19    Members of the native title claim group hold the native title rights and interests referred to in paragraphs [15] and [17] variously collectively and for their respective entitlements according to the traditional laws acknowledged, and traditional customs observed, by them.

Activities currently carried on

20    Activities in exercise of the native title rights and interests referred to in Schedule E are all such activities as are contemplated by those rights and interests and include the activities identified in Schedule G.

Definition

“Resources” does not include minerals or petroleum wholly owned by the Crown.

A general description of the native title rights and interests and, in particular, the factual basis on which it is asserted that:

(a)    the native title claim group, and the predecessors of those persons, had an association with the area; and

(b)    there existed traditional laws and customs that give rise to the claimed native title; and

(c)    the native title claim group had continued to hold the native title in accordance with those traditional laws and customs.

Rights and Interests Claimed

21    A general description of the native title rights and interests claimed is provided in Schedule E.

Gunditjmara and Eastern Maar association with the area

22    The native title claim group and its predecessors have an association with the claim area by the traditional laws acknowledged and customs observed by them. Those traditional laws acknowledged and customs observed are identified at [24]-[28].

23    The factual basis for the assertion that the native title claim group have, and the predecessors of those persons had, an association with the claim area also includes:

    the founding ancestors are known to be from, or from the region that includes the claim area at the time of sustained European contact. ;

    the founding ancestors are descended from the community of indigenous people occupying the region that includes the claimed area at the time of proclamation of Sovereignty in 1788;

    many members of the native title claim group and their predecessors having been born in and living for all or much of their lives within the region that includes the claim area, and their continuing to do so;

    the relationship the native title claim group members and their predecessors respectively have and have had with the claim area as those who, according to those laws and customs, are the ‘proper’ people in relation to the area. Their very presence is defined by those laws and customs as proprietarily correct, as is their control and management, and use and enjoyment of the area and its resources;

    the continuous presence in the claim area of the members of the native title claim group and their predecessors’ and the continuous conduct by them and their predecessors on the claim area of the activities identified in Schedule G, including their utilising the resources of the land and waters of the claim area for sustenance and trade and otherwise to their benefit, in pursuance of their entitlements under the traditional laws acknowledged and customs observed;

    the ancestors of the members of the native title claim group are buried in the region that includes the claim area;

    Part B, which includes the claim area is regarded by the members of the native title claim group and their predecessors as an area having a sentience that requires them to behave appropriately toward country; and in which the Gunditjmara and the Eastern Maar both assert traditional rights and which they share, as did their respective predecessors.

Traditional laws and customs giving rise to claimed rights and interests

24    The factual basis on which it is asserted that traditional laws and customs exist that give rise to the claimed native title is set out in paragraphs [25] to [38] below.

25    The predecessors of the native title claim group at sovereignty were, and today the members of the native title group continue to be, a body of persons united in and by its member’s acknowledgement and observance of a body of laws and customs.

26A.    At the assertion of British sovereignty in 1788, Maar speaking peoples inhabited an area that can be approximated as extending from the Glenelg River in the west, north to and at least the Wannon River and at least to Cape Otway in the east.

26B. The Maar speaking peoples at sovereignty were a body of persons united in and by its acknowledgement and observance of a body of law and custom.

26C.    The ancestors of the Gunditjmara and the ancestors of the Eastern Maar were members of the society of Maar speaking peoples.Today, covering the same geographic region as the society of Maar speaking peoples, the Gunditjmara and the Eastern Maar are the descendants of the Maar speaking peoples.

26    The indigenous laws acknowledged and customs observed by the native title claim group include rules and principles for recognition of a person as holding rights and interests in relation to an area. Although the rights and interests claimed are possessed under the body of laws and customs as a whole, that body of laws and customs in particular includes that:

(a)    a person must be a descendant of one of the founding ancestors in order to hold rights and interests in relation to the claim area;

(b)    the members of the native title claim group collectively have an entitlement to exclude and an entitlement to impose sanctions for wrongful presence on or use of land or waters of the claim area by strangers;

(c)    the members of the native title claim group individually as families and as Gunditjmara and Eastern Maar have entitlements of the kind mentioned in paragraph 18 (a)-(f) in relation to the whole of the claim area;

27    Other elements of the body of laws acknowledged and customs observed by the members of the Gunditjmara and Eastern Maar include laws and customs in relation to:

(a)    membership of the group - through cognatic descent from a founding ancestor;

(b)    notions of kinship and the importance of consanguinity;

(c)    marriage;

(d)    maintaining connection to kin and country;

(d)    the boundedness of country with which they are associated;

(e)    caring for country;

(f)    country as inalienable communal property;

(g)    country as a spiritual, sentient homeland;

(h)    protection, use and sharing of resources;

(i)    the passing on of knowledge from generation to generation;

(j)    respect for elders;

(k)    making decisions of various kinds in various contexts;

(l)    recognition of, and mechanisms for dealing with, conflict.

28    The laws acknowledged and customs observed by members of the native title claim group, are given normative force:

(a)    through kinship and relationships;

(b)    by respect for the authority and guidance of elders;

(c)    by social pressure, a fear of being ostracised or otherwise by punishment for breach of laws or customs.

Continued native title

29    The factual basis on which it is asserted that the members of the native title claim group have continued to hold the native title in accordance with traditional laws and customs is set out in paragraphs [30] to [38] below.

30    The claim area was inhabited from at least several millenia before sovereignty.

31    British sovereignty was extended to the claim area in 1788.

32    The members of the native title claim group are biologically and socially recognised descendants of the predecessors of the founding ancestors at sovereignty.

33    The predecessors of the native title claim group were at sovereignty a body of persons united in and by their acknowledgement and observance of laws and customs.

34    The members of the native title claim group are today and they and their predecessors, at all times since sovereignty without interruption but subject to adaptive change, have been a body of persons united in and by their acknowledgement and observance of laws and customs and in particular have acknowledged the indigenous laws and have observed the indigenous customs referred to in paragraphs [26]-[28].

35    Adaptive change has involved progressive response to an increasing impact of non-indigenous settlement on the society of the predecessors of the founding ancestors. At sovereignty, the society of predecessors of the founding ancestors may have included, at a regional level that included the claim area - a collectivity of Maar-speaking people organized in a shared matrimoiety system; at a sub-regional level - recognised exogamous dialect groups; and, at a more localized level - localized exogamous patrifilial estate based groups. Today, at a regional level covering the same geographic region – Gunditjmara / Eastern Maar are the descendants of the Maar-speaking peoples; at a sub-regional level there are two interactional groups with some shared country – Gunditjmara (sometimes known as western Gunditjmara and the Eastern Maar (sometimes known as eastern Gunditjmara and include the Kirrae wurrung, Peek whurrong, Chap whurrong, Kuurn Kopan Noot and the Yarro waetch (Tooram tribe)). Within the claim group there are cognatic, exogamous, non-localised ‘Families’ with instances of localized territorial association or identification. At the regional level there is continuity of the people associated with the same geographic region, through descent. There is continuity in the laws and customs that require a descent link from ancestors originally connected with country, concerning the regulation of marriages - between the least inclusive groupings recognised by the society, concerning the concept of ‘ownership’ of country and its resources, caring for country, the use and enjoyment of country, the sharing of resources and respect for elders. The laws and customs referred to in paragraphs [26]-[28] as they are now acknowledged and observed, are rooted in and derived from those laws and customs as they were at sovereignty.

36    At all times since sovereignty the members of the native title claim group and their predecessors respectively according to their traditional laws and customs have enjoyed such access to the claim area as they have desired and by such means as they been able, including by continuing presence.

37    At all times since sovereignty the members of the native title claim group and their predecessors respectively under their traditional laws and customs have possessed the rights and interests referred to in Schedule E.

38    At all since sovereignty the members of the native title claim group and their predecessors respectively by those laws and customs have and have had an association with the claim area as referred to in paragraphs [22] to [23].

Details of activities in relation to the land or waters that are or were carried on by the native title claim group.

39    The native title claim group members carry on, and their predecessors carried on, on over the claim area, activities such as to fully exercise the rights and interests referred to in Schedule E.

40    Those activities include all such activities as are necessary for or incidental to the sustenance of human life and society.

Details of any other application to the High Court, Federal Court, or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title.

41    Some such applications had been made prior to the making of the original application but all have now been consolidated in this application or withdrawn.

Details of any notices under section 29 of the Act (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

42    The applicant is not aware of any notices under section 29 of the Native Title Act (or under a corresponding provision of a law of Victoria), that have been given and that relates to various parts of the area covered by the application.

A draft of the order to be sought if the application is unopposed.

43    See Attachment J.

The name of each representative Aboriginal/Torres Strait Islander body for the area covered by the application.

44    The body with the duties of the representative Aboriginal/Torres Strait Islander body for the claim area is the Native Title Services Victoria Ltd.

For the area covered by the application, details of:

(a)    any area for which a pastoral lease is held by or on behalf of the members of the native title claim group; and

(b)    any area leased, held or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders that is occupied by or on behalf of the members of the native title claim group; and

(c)    any vacant Crown land occupied by the members of the native title claim group; and

(d)    any area mentioned in paragraph (a), (b) or (c) over which the extinguishment of native title is required by section 47, 47A or 47B of the Act to be disregarded.

45    The whole of the area covered by the application was occupied by one or more members of the native title claim group when the application was made.

46    All areas covered by the application that when the application was made were not:

(a)    covered by a freehold estate or a lease; or

(b)    covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(c)    subject to a resumption process as defined in s47B(5)(b) of the Native Title Act 1993,

are areas over which any extinguishment of native title by the creation of any prior interest is required by section 47B of the Native Title Act to be disregarded

Details of any traditional physical connection with any of the land or waters covered by the application by any member of the native title native title claim group.

47    See paragraphs [22]-[23], [39] and [40] above.

Details of the circumstances in which any member of the native title native title claim group has been prevented from gaining access to any of the land or waters covered by the application.

48    As at sovereignty, access by the native title claim group’s predecessors was unlimited but for any restrictions derived from traditional law and custom. Since that time, the native title claim group’s antecedents and the native title claim group members have continued to have and to exercise unlimited access.

Details of the membership of the applicant or any member of the native title claim group in a native title claim group for any other application that has been made in relation to the whole or part of the area covered by this application.

49    No other application covers the whole or part of the area covered by this application.

Details of any claim by the native title claim group of exclusive possession of all or part of an offshore place.

50    See paragraphs [14] and [15] above. No claim of exclusive possession is made in relation to any offshore place.

Details of any claim by the native title claim group of ownership of minerals, petroleum or gas wholly owned by the Crown.

51    The applicant makes no claim to any minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth or State of Victoria.

If the application has been certified by each representative Aboriginal/Torres Strait Islander body, a copy of the certificate.

52    Not Applicable

If the application has not been certified by each representative Aboriginal/Torres Strait Islander body:

(a)    a statement that the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group; and

(b)    the grounds on which the Registrar should consider that the above statement is correct.

53    Each of the persons comprising the applicant is a member of the native title claim group and is authorised by all other persons in the native title claim group to make the application and deal with matters arising in relation to it.

If the application is an amended application, details of the difference between this application and the original application.

54    Schedule B of the Original Application is amended to describe the area subject to claim as within the boundaries of Part B, due to the orders referred to in Schedule A. Schedule C is also amended for the same reason.

55    Schedules I and L of the Application have been amended to be correct as at the date of the amended Application.

56    The following sections of the Application are also amended to more accurately and clearly plead the case of the Applicants:

    Schedule A – the native title claim group;

    Schedule F – general description of native title rights and interests claimed.

Any other relevant information that the applicant wants to provide.

57    No other information is provided at this time.

Dated:    th day of July 2011

Solicitor for the Applicant

Attachment B

(See Schedule B paragraph [8])

LOCATION 1

Commencing at the intersection of the boundary between the Shire of Glenelg and the Shire of Moyne and the mean high water mark (coast) and extending south to a point 100m seaward of the mean low water mark; then generally south easterly along a buffer 100m seaward of the mean low water mark to Longitude 142.063308° east. Then north to the intersection of the centreline of the Shaw River. Then generally north east, generally north west, generally north east, generally north along the centreline of that river to Latitude 38.035268° South. Then north easterly to the intersection of the westerly boundary of the Penshurst- Dunkeld road reserve and Latitude 37.816927° south. Then generally northerly along the boundary of the road reserve to the northern boundary of the Glenelg Highway road reserve. Then generally southwesterly along the boundary of that highway reserve to the centreline with the Tarrington-Strathkellar Road; Then southerly along that road to the centreline of the Hamilton Highway; Then easterly along that highway to the intersection with the centreline of Yatchaw Road; Then southerly and generally south-westerly along that road to the centreline of the Research Station Road; Then westerly along that road to the centreline of the Mount Napier Road; Then south-south-easterly along that road for approximately 3 kms to the intersection of the Mount Napier Road and the centreline of Murroa-Buckley Swamp Road in Buckley Swamp; Then south-south-westerly to the summit of Mount Napier; Then south-south-westerly to the intersection of the centreline of the Byaduk-Penshurst Road and the centreline of the Macarthur-Warrabkook Road; Then southerly along the Macarthur-Warrabkook Road to the centreline of the Macarthur-Penshurst Road; Then generally south-westerly along that road for approximately 5.5 kms to the centreline of the Macarthur-Hawkesdale Road; Then generally south-westerly along Macarthur-Penshurst Road for approximately 800 metres to the centreline of the Hamilton-Port Fairy Road; Then south-easterly along that road for approximately 450 metres to the centreline of the Eumeralla River in Macarthur; Then generally southerly, westerly and again southerly along that river to the centreline of Portland Road; Then generally south-westerly and southerly along that road to the centreline of Condons Road; Then southerly along that road to the centreline of the Princes Highway; Then generally north-westerly along that highway to intersect the boundaries of the Shire of Glenelg and the Shire of Moyne; Then generally southerly along those boundaries to the commencement point.

LOCATION 2

All the land and waters of Lady Julia Percy Island contained within the outer limit of a 100m buffer seaward of the mean low water mark surrounding the island..

Notes

Reference Datum

Geographical coordinates are referenced to the Geocentric Datum of Australian 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

Reference Data and Source:

    Mean Low Water Mark/Mean Low Water Mark based on coastline data sourced from Dept of Sustainability & Environment VIC (May 2011).

    River data based on Vicmap Hydro vector data (1:25,000) sourced from Dept of Sustainability & Environment, VIC (May 2011).

    State borders based on Vicmap Shared vector data (1:25,000) sourced from Dept of Sustainability and Environment.

    Cadastre information based upon Vicmap Property sourced from the Dept of Sustainability and Environment (May 2011).

    Road information based upon Vicmap Transport vector data (1:25,000) sourced from the Dept of Sustainability and Environment (May 2011).

    Shire boundary data based on LGA data sourced from Dept of Sustainability & Environment, VIC (May 2011).

ATTACHMENT B1     

See Schedule B paragraph [8]

LIST OF PARCELS WHOLLY OR PARTLY COVERED BY THE CLAIM

ATTACHMENT C    MAPS

(See Schedule C)

ATTACHMENT J DRAFT ORDER

(See Schedule J)

Existence of native title (s.225)

1.    The Determination Area is the land and waters described in Schedule 1.

2.    Native title exists in the whole of the Determination Area.

The Native Title Holders (s.225(a))

3.    The native title is held by the persons identified in a Schedule 2.

The nature and extent of native title rights and interests (s.225(b)) and exclusiveness of native title (s.225(e))

4.    The nature and extent of the native title rights and interests that exist in relation to each part of the Determination Area referred to in a Schedule 3 [being areas where there has been no extinguishment to any extent of native title and areas where any extinguishment is required to be disregarded] is a right of possession, occupation, use and enjoyment of land and waters as against all others.

5.    The nature and extent of the native title rights and interests that exist in relation to each part of the Determination Area referred to in a Schedule 4 [being areas where there has been extinguishment to an extent of native title and where such extinguishment is not required to be disregarded] is rights to:

(a)    have access to or enter and remain on the land and waters;

(b)    live on the land and waters;

(c)    use and enjoy the land and waters;

(d)    take the resources of the land and waters;

(d)    engage in trade of resources of the land and waters by exchange, barter, sale or otherwise;

(e)    protect places of importance on the land and waters; and

(f)    control the access to, and use and enjoyment of, the land and waters and the taking of resources by others except any person exercising:

(i)    a public right;

a right comprised in or pursuant to a previous act or other interest; and

any right accorded by a law of the Commonwealth or Victoria.

6.    The rights referred to in paragraph 5 do not confer possession, occupation, use and enjoyment of that land and waters on the native title holders to the exclusion of all others.

7.    The native title rights and interests are subject to and exercisable in accordance with the laws of the State of Victoria and the Commonwealth.

8.    Notwithstanding anything in the determination, there are no native title rights and interests in or in relation to:

(a)    such minerals as are wholly owned by the Crown; or

(b)    such petroleum as is wholly owned by the Crown.

The nature and extent of any other interests in relation to the Determination Area (s.225(c))

9.    The nature and extent of other interests in relation to the Determination Area are set out in Schedule 5.

Relationship between the Native Title Rights and Interests and the Other Interests (s.225(d))

10.    The relationship between the native title rights and interests described in paragraphs 3 and 4 and the other rights and interests referred to in paragraph 9 (other interests) is that:

(a)    to the extent that any of the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency during the currency of the other rights and interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

AND THE COURT FURTHER ORDERS THAT

How the Native Title is Held

11.    The native title is to be held in trust by the […].(Aboriginal) Corporation for the benefit of the Native Title Holders.

REASONS FOR JUDGMENT

1    On 30 August 1996, an application was filed on behalf of the Gunditjmara people for a determination of native title in relation to land and waters in South West Victoria (VID6004)/1998). On 9 June 2006, a further application was filed in relation to land and waters which had not been included in the original application (VID655/2006). On 18 January 2007, the Court ordered that the proceeding in each of the applications be divided into two parts (Part A and Part B) relating to separate areas within the claim area. These orders were made so the Court could deal with Part A ahead of Part B, as it became evident that there may be additional people with rights and interests in the Part B area together with the Gunditjmara people. On 30 March 2007, a determination was made by consent in relation to the Part A area under s 87 of the Native Title Act 1993 (Cth) (the Act) (Part A determination).

2    Mediations were conducted in relation to the Part B area including between the Gunditjmara people and the Eastern Maar people over approximately three years. The mediations resulted in an agreement between the two groups. The agreement recognises that both the Gunditjmara people and the Eastern Maar people have rights and interests in the Part B area.

3    As a consequence of the agreement between the Gunditjmara people and the Eastern Maar people, an application was made to the Court on 8 July 2011 to amend the applications in both proceedings in respect of the Part B area to reflect the rights and interests of the Eastern Maar people. The most significant amendment sought by the applicants to the original applications, as they apply to Part B, is the amendment to the description of the native title group to include reference to the Eastern Maar people.

4    The affidavits of Mark Egan, sworn on 8 July 2011, and the affidavits of John Maxwell Lovett and Marie Thornhill, sworn on 7 July 2011, provide evidence of the procedure adopted by the Gunditjmara people and the Eastern Maar people in order to authorise the proposed amendments to the application.

5    The first step taken by each group was to conduct separate meetings to consider the decision-making process for authorisation of the amended applications. Neither the Gunditjmara people nor the Eastern Maar people had a decision-making process in accordance with s 251B(a) of the Act. Consequently, they agreed upon a decision-making process pursuant to s 251B(b).

6    The seperate meeting of the Gunditjmara people was held on 6 July 2011 and it was agreed that the amendments to the applications should be authorised by majority vote at a combined authorisation meeting of the Gunditjmara people and the Eastern Maar people. The Eastern Maar people held a separate meeting on 1 July 2011 during which they also agreed that the amendments to the applications should be authorised by majority vote at a combined authorisation meeting.

7    Notice of the combined authorisation meeting to be held on 7 July 2011 was sent to the Gunditjmara people and the Eastern Maar people, who were listed as such in the records of Native Title Services Victoria.

8    On 7 July 2011, the Gunditjmara people and the Eastern Maar people held a combined authorisation meeting in Yambuk. The agreed decision-making process was adopted by resolution at this meeting and authorisation to amend the applications was agreed to by a majority vote.

9    It is not entirely clear whether the provisions of s 251B apply in these circumstances. However, the better view is that they do. In any event, as a matter of a caution, the full procedure required by s 251B was followed by the Gunditjmara people and the Eastern Maar people.

10    The amendment is not opposed by the five respondent parties to the applications, namely Telstra Corporation Limited, Powercor Australia Limited, certain commercial fishing interests, the Commonwealth and the State of Victoria.

11    Consequently, there will be leave to amend the applications in accordance with the minutes of proposed orders filed in each application.

Associate:

Dated:    1 August 2011

List of Respondent Parties

VID 6004 of 1998

Interest Group 1. Government Interests – State of Victoria

State of Victoria

Interest Group 3. Commonwealth of Australia

Commonwealth of Australia

Interest Group 11. Victorian Commercial Fishing Licence

Abdiva Investments Pty Ltd

Christopher Wayne Carson

Tony Phillip Crapper

Rodney Ernest Crowther

Double Eight Golden Eels' (Australia) Pty Ltd

Eels Australis Pty Ltd

Gregory William Hollis

Dean Anthony Humphries

David Malcolm and Elizabeth Ann Johnston

Brampton and Jacqueline Linda Le Page

Andrew Levings

LJ & SA Plummer Fishing Pty Ltd

Roderick McDonald

Alan and Tanya Moncrieff

Steven James Nathan

Glen Edward Plummer

Phillip A Plummer

Peter R Price

Graham Richard Quarrell

Peter William Sandow

Richard John Smith

Murray Edward Thiele

Bert Davey Tober

Trymore Investments Pty Ltd

Interest Group 22. Public Access 2

Powercor Australia Limited

Interest Group 24. Telecommunication

Telstra Corporation Limited

List of Respondent Parites

VID 655 of 2006

Interest Group 1. Government Interests – State of Victoria

State of Victoria

Interest Group 3. Commonwealth of Australia

Commonwealth of Australia

Interest Group 11. Victorian Commercial Fishing Licence

Abdiva Investments Pty Ltd

LJ & SA Plummer Fishing Pty Ltd

Glen Edward Plummer

Phillip Plummer

Trymore Investments

88 Golden Eels (Aust) Pty Ltd

Western Victorian Eel Growers Group Pty Ltd

Peter Sandow

David Malcolm and Elizabeth Ann Johnston

Christopher Wayne Carson

Rodney Ernest Crowther

DA & JE Humphries

Murray Edward Thiele

Kenneth John Osborne

Roderick McDonand

Interest Group 22. Public Access 2

Powercor Australia Limited

Interest Group 24. Telecommunication

Telstra Corporation Limited