FEDERAL COURT OF AUSTRALIA

Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237

ORDERS

BEING SATISFIED that the determination of native title in the terms set out in the Minute of Proposed Consent determination of Native Title in respect of the Eastern Maar Application would be within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to s 87A of the Native Title Act 1993 (Cth) (NTA) and by the consent of the parties,

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

(a)    There be a determination of native title in proceedings VID 21 of 2019 in the terms of the determination of native title that follows, in relation to the land and waters covered by the proceeding within the locations identified in Schedule 1 of the determination.

(b)    Eastern Maar Aboriginal Corporation shall hold the determined native title as an agent of the Eastern Maar peoples pursuant to s 57(2) of the NTA.

(c)    There be no order as to costs.

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

1.    The native title rights and interests are held in the Determination Area by the Eastern Maar peoples, being those descendants, including by adoption, of the following persons: 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) and Richard Sharp; and who:

(a)    either identify as being from the eastern domain of the Maar speaking people and are recognised as being from the eastern domain by the Eastern Maar People; or

(b)    otherwise identify as Maar, Gunditjmara, Tjap Wurrung, Peek Whurrung, Keeray Wooroong (Kirrae Whurrung), Kuurn Kopan Noot, Yarro Waetch (Tooram Tribe), Djargurd Wurrung, Gulidjan and/or Gadubanud and are recognised as being from the eastern domain by the Eastern Maar people.

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

2.    Subject to Orders 3-7, the native title that exists in the Determination Area (“native title rights and interests”) consists of the non-exclusive:

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

(b)    right to camp on the land and waters landward of the high water mark of the sea;

(c)    right to use and enjoy the land and waters;

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

(e)    right to protect places and areas of importance on the land and waters.

3.    The native title rights and interests referred to in Order 2(c) and (d) must only be exercised for a non-commercial purpose to satisfy personal, cultural, domestic or communal needs.

4.    The native title rights and interests referred to in Order 2 do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others.

5.    The native title rights and interests referred to in Order 2 are subject to and exercisable in accordance with:

(a)    the traditional laws and customs of the native title holders; and

(b)    the laws of the State in which the land or waters concerned are situated and of the Commonwealth, including the common law.

Determination Area (s 225 of the NTA)

6.    Native title exists in relation to land and waters wholly located within the External Boundary described in Schedule 1 with the exception of land and waters described in Order 7.

Excluded Areas

7.    Subject to Order 8, the following areas of land and waters are excluded from the Determination Area:

(a)    any area that is subject to any of the following kinds of acts as they are defined in either the NTA (where the act in question is attributable to the Commonwealth) or Land Titles Validation Act 1994 (Vic) (the LTV Act) (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 of any native title rights or interests; and

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

(b)    any area in relation to which a previous exclusive possession act under s 13H or 13I of the LTV Act was done and that act is attributable to the State of Victoria;

(c)    any area in relation to which a previous exclusive possession act as defined by s 23B (including s 23B(7) of the NTA) was done in relation to the area and the act was attributable to the Commonwealth;

(d)    any area where native title rights and interests have otherwise been wholly extinguished including any area where there has been:

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

(ii)    a public work as defined in s 253 of the NTA and any adjacent land or waters referred to in s 251D of the NTA.

Extinguishment required to be disregarded by ss 47A, 47B or 47C of the NTA

8.    The Determination Area includes land and waters where extinguishment is required to be disregarded by ss 47A, 47B or 47C of the NTA.

9.    The Determination Area includes areas where, on 14 December 2012, one or more members of the native title claim group occupied an area, and:

(a)    a freehold estate existed, or a lease was in force, over the area or the area was vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(b)    the area was held expressly for the benefit of, or was held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders.

10.    For the avoidance of doubt, Order 9 includes:

(a)    Falbala Farm, Beech Forest (170 Beech Forest-Lavers Hill Road, Beech Forest) being the land more particularly described in Certificates of Title:

(i)    Volume 5855, Folio 860;

(ii)    Volume 8326, Folio 917;

(iii)    Volume 8151, Folio 301;

(iv)    Volume 9189, Folio 229;

(v)    Volume 9189, Folio 230;

(vi)    Volume 9203, Folio 535;

(vii)    Volume 9457, Folio 213;

(viii)    Volume 9622, Folio 163;

(ix)    Volume 9711, Folio 470; and

(x)    Volume 3919, Folio 616.

(b)    Framlingham Reserve, Framlingham, being the land more particularly described in Certificates of Title:

(i)    Volume 08876, Folio 128;

(ii)    Volume 10625, Folio 612;

(iii)    Volume 10625, Folio 614; and

(iv)    Volume 08938, Folio 136.

(c)    Framlingham Forest, Framlingham (being the land more particularly described in Certificate of Title Volume 10526, Folio 279).

11.    The Determination Area includes areas where, on 14 December 2012, one or more members of the native title claim group occupied an area, and the area was not:

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

(b)    covered by a reservation, proclamation, dedication, condition, permission or authority (“reservation”), 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 was to be used for public purposes or for a particular purpose (unless the reservation is to be disregarded by operation of an agreement made under s 47C); or

(c)    subject to a resumption process (see s 47B(5)(b) NTA).

12.    A party has liberty to apply to the Court on 90 days written notice to establish the location and boundaries of the area where extinguishment is required to be disregarded by operation of ss 47A and 47B of the NTA.

13.    There is no native title in the Determination Area in or in relation to:

(a)    minerals as defined in the Mineral Resources (Sustainable Development) Act 1990 (Vic), as in force at the date of the determination, as are owned by the Crown;

(b)    petroleum as defined in the Petroleum Act 1998 (Vic), as in force at the date of the determination, as is owned by the Crown; and

(c)    groundwater as defined in the Water Act 1989 (Vic), as in force at the date of the determination.

Nature and extent of any other interests (s 225(c) of the NTA)

14.    The nature and extent of other interests in relation to the Determination Area, as they exist at the date of the determination (“other interests”), are those set out in Schedule 2.

Relationship between native title and other interests (s 225(d) of the NTA)

15.    The relationship between the native title rights and interests and the other interests referred to in Schedule 2, Part 1 is that where and to the extent that any of the other interests are inconsistent with the continued enjoyment or exercise of the native title rights and interests:

(a)    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 interests to the extent of the inconsistency during the currency of the other interests;

(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 interests; and

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

16.    The relationship between the native title rights and interests and the other interests referred to in Schedule 2, Part 2 is that those interests, and rights held under them, co-exist with the native title rights and interests, and both the rights held under the other interests and the native title rights must be exercised reasonably.

Definitions and interpretation

17.    In this determination, including its schedules, unless the contrary intention appears, words and expressions have the same meaning as they have in Part 15 of the NTA and:

“Crown” means the Crown in right of Victoria or the Crown in right of the Commonwealth, as the case requires;

“Determination Area” means the land and waters referred to in Order 6 and 8 which fall within the External Boundary described in Schedule 1;

"External Boundary" means the written description described in Schedule 1;

“land” and “waters” respectively have the same meanings as in the NTA;

“NTA” means the Native Title Act 1993 (Cth);

“native title rights and interests” means those rights and interests set out in Order 2 subject to Orders 3 – 5;

“other interests” means the interests referred to in Order 15 and 16, being the interests set out in Schedule 2;

“public rights” means the other interests identified in paragraphs 14 and 15 of Part 2 of Schedule 2;

“public work” has the same meaning as in s 253 of the NTA and, in relation to any public work described in Order 7, includes any adjacent land or waters under s 251D of the NTA;

"statutory authority" has the same meaning as in s 253 of the NTA;

"valid" has the same meaning as in s 253 of the NTA;

"validated" includes a right or interest which has been confirmed pursuant to s 15 of the Land Titles Validation Act 1994 (Vic); and

“waterway” has the same meaning as in s 3 of the Water Act 1989 (Vic) as in force at the date of this determination.

18.    In this determination including its schedules, in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the Determination Area Map in Schedule 3, the written description shall prevail.

Volume 5855, Folio 860;

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SCHEDULE 1 – EXTERNAL BOUNDARY

External Boundary within which the various areas comprising the Determination Area are located

The Determination Area is located wholly within the following locations only and excludes the land and waters described in Order 7.

External boundary description

Commencing at the intersection of the Hamilton Highway, Penshurst-Dunkeld Road and Scales Street in Penshurst and extending generally northerly along the centreline of the Penshurst-Dunkeld Road to Latitude 37.816311° South; then south westerly to the western boundary of that road reserve at Latitude 37.816826° South; then generally northerly along the boundary of that road reserve and onwards to the northern boundary of the Glenelg Highway road reserve; then generally easterly along the boundary of that highway road reserve to Longitude 142.605802° East; then generally northerly passing through the following coordinate points:

Then northerly to the eastern boundary of the Grampians National Park at Longitude 142.578682° East (approximate Latitude 37.419886° South); then easterly and generally north westerly along the eastern boundaries of that national park to Latitude 37.385623° South; then generally easterly passing through the following coordinate points:

Then north easterly to the northern boundary of the Hopkins River catchment at Longitude 142.816643° East; then generally south easterly along the northern boundary of that catchments to Longitude 142.867393° East; then south west to an unnamed watercourse at Longitude 142.867064° East, Latitude 37.370617° South; then generally south westerly along that unnamed watercourse to Longitude 142.861160° East, Latitude 37.375882° South; then south easterly to another unnamed watercourse at Longitude 146.862146° East, Latitude 37.376431° South; then generally south easterly along that unnamed watercourse to the Hopkins River (approximately 500 metres to the east of the northernmost point of Maroona Streamside Reserve) and extending to the southern bank of that river at Longitude 142.871769° East; then generally south easterly and generally north easterly along the high water mark of the southern and eastern banks of that river to the southern boundary of the Western Highway road reserve; then generally south easterly along the boundary of that road reserve to the western boundary of the Charliecombe Creek catchment; then generally south westerly along the western boundaries of that catchment and Fiery Creek catchment to Latitude 37.528274° South; then generally south westerly, generally southerly and generally south easterly through the following coordinate points:

Then south to the northern boundary of the Curdies River catchment at Longitude 143.218501° East; then generally easterly, generally southerly, generally easterly again and generally south easterly along the boundary of that catchment, eastern boundary of Scotts Creek catchment, northern boundaries of Danger Creek catchment, Kennedys Creek catchment, Yahoo Creek catchment and Ten Mile Creek catchment, eastern boundaries of Love Creek catchment, Gellibrand River catchment and Barramunga Creek catchment, northern boundaries of Smythe Creek catchment and Grey River catchment to Latitude 38.628011° South; then generally south easterly along a series of ridgelines passing through the following coordinate points:

Then southerly to Cape Paton Lookout (at Longitude 143.829867° East, Latitude 38.692070° South); then southerly to a point 100 metres seaward of the mean low water mark of the coastline at Longitude 143.829814° East; then generally south westerly and generally north westerly along a buffer 100 metres seaward of the mean low water mark of the coastline to a point south of the mouth of the Hopkins River at Longitude 142.508263° East; then northerly to the centreline of the mouth of the Hopkins River and generally north easterly along the centreline of that river to the north eastern boundary of Warrumyea Road reserve at the Warrumyea Bridge; then generally north westerly along the north eastern boundary of that road reserve, the south western boundary of Lot 1 on PS503217, the southern and western boundaries of Lot 4 on TP749286 and again the south western boundary of Lot 1 on PS503217 to the Framlingham Forest Road reserve; then generally north easterly along the north western boundaries of Lot 1 on PS503217, Lot 2 on PS503217 (crossing Kirrae Avenue) and the western and northern boundaries of Lot 1 on TP800036 to and onwards to the centreline of the Hopkins River; then generally northerly along the centreline of that river to Muston Creek; then generally westerly and generally north westerly along the centreline of that creek and Burchett Creek to the centreline of the Hamilton Highway at Barwidgee Bridge; then generally north westerly along the centreline of that highway road reserve through Caramut back to the commencement point.

Exclusions

    Any area within the Grampians National Park, including Allotments 58B and 59B within the Parish of Watgania;

    Any area within the external boundary described in Schedule 1 for the following native title determinations:

    VID 6004 of 1998, VID 655 of 2006 Gunditjmara – Part A (VCD2007/001) as determined by the Federal Court of Australia on 30 March 2007; and

    VID 6004 of 1998, VID 655 of 2006 Gunditjmara & Eastern Maar (VCD2011/001) as determined by the Federal Court of Australia on 27 July 2011.

Note

Data reference and source

    Determination boundary compiled by National Native Title Tribunal based on data, information and instructions provided by the applicants and First Nations legal and Research Services.

    Cadastre data sourced from the Department of Environment, Land, Water & Planning (Vic), February 2022.

    Road reserves and rivers casements based on cadastre data sourced from the Department of Environment, Land, Water & Planning (Vic), February 2022 where available, else 1:25K topographic data sourced from the Department of Environment, Land, Water & Planning (Vic), November 2020.

    Catchments are based on Sustainable Diversion Limit (SDL) Catchment Baseflows data sourced from the Department of Environment, Land, Water & Planning (Vic), October 2022.

    Reserves and national parks based on Public Land Management (PLM25) data sourced from Department of Environment, Land, Water & Planning (Vic), February 2021.

    Cape Patton Lookout location sourced from the Register of Geographic Names, Department of Environment, Land, Water & Planning (Vic), November 2019.

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

Use of coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Prepared by Geospatial Services, National Native Title Tribunal (23 November 2022).

SCHEDULE 2 – OTHER INTERESTS

“Other interests” – Orders 15 and 16

Part 1

The other interests, as they exist as at the date of the determination, are as follows:

(1)    The right of an employee or agent or instrumentality of the Crown, or of any local government or other statutory authority, to access land or waters in the Determination Area and to undertake works, carry out activities and take any other action on such land or waters as may be required in the performance of statutory or common law duties.

(2)    The interests of the Crown, or a local government body or other statutory authority of the Crown, in any capacity in any public works and other facilities whose construction or establishment:

(a)    was valid or has been validated;

(b)    did not extinguish native title (even as a consequence of validation); and

(c)    commenced prior to the date of this determination.

(3)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556), its related bodies corporate and any of their successors in title:

(a)    as the owner(s) or operator(s) of telecommunications facilities installed within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including existing rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(c)    for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d)    under any lease, licence, permit, access agreement or easement relating to their telecommunication facilities in the Determination Area.

(4)    The interests of persons holding licences, permits, statutory fishing rights, quotas, quota units or other statutory rights pursuant to:

(a)    the Fisheries Act 1995 (Vic) or regulations or management plans made under that Act;

(b)    the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act;

(c)    any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area.

(5)    The interests of Powercor Australia Limited (and its related entities), including:

(a)    rights and interests as an entity holding a distribution licence under the Electricity Industry Act 2000 (Vic);

(b)    rights and interests created pursuant to the Electricity Industry Act 2000 (Vic);

(c)    rights and interests as owner or operator of electrical facilities and infrastructure (facilities) installed within the Determination Area; and

(d)    rights of access for the performance of their duties by employees, agents or contractors of Powercor Australia Limited to its facilities in, and in the vicinity of, the Determination Area; and

(e)    rights and interests under Order in Council published in Victorian Government Gazette No. G29 18 July 2002 (page 1704) pursuant to section 138A(11) of the Land Act 1958 (Vic) to occupy without licence any stratum of Crown land on, over or under government roads for electricity services.

(6)    The interests of persons to whom valid and validated rights have been:

(a)    granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or

(b)    granted or issued by a statutory authority or otherwise conferred by the State.

(7)    The rights and interests of Cooper Energy (CH) Pty Ltd (Cooper) (including any of its related entities and successors, or joint venture partners and any of their related entities and successors, in title from time to time):

(a)    as holder of the following (including any renewal, extension or interest granted in place of any of the following):

(i)    an interest in Pipeline Licence 228 (PL228) and Pipeline Licence 251 (PL251) granted under the Pipelines Act 2005 (Vic);

(ii)    an interest in the pipeline the subject of PL228;

(iii)    an interest in the pipeline the subject of PL251; and

(iv)    any permits, easements, licences or other approval issued in respect of PL228 and/or PL251.

(b)    for Cooper, its employees, agents and contractors (or any of them) to enter the Determination Area to access Cooper’s rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in and in the vicinity of the Determination Area in performance of their duties.

(8)    The interests of Beach Energy Ltd (Beach) (including any of its related entities and successors, or joint venture partners and any of their related entities and successors, in title from time to time):

(a)    as holder of the following (including any renewal, extension or interest granted in place of any of the following):

(i)    Petroleum Exploration Permit 168 (PEP 168); and

(ii)    Onshore Petroleum Production Licence (6 and 9).

(b)    For Beach, its employees, agents and contractors (or any of them) to enter the Determination Area to access its rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in and in the vicinity of the Determination Area in performance of their duties.

(9)    The interests of Beach Energy (Operations) Ltd (BOL) (including any of its related entities and successors, or joint venture partners and any of their related entities and successors, in title from time to time):

(a)    as holder of the following (including any renewal, extension or interest granted in place of any of the following):

(i)    Onshore Petroleum Special Drilling Authorisation (PSDA2);

(ii)    Offshore Petroleum Access Authority (VIC/AA21(V));

(iii)    Offshore Petroleum Production Licence (VIC/L1(V));

(iv)    Offshore Petroleum Production Licence (VIC/L007745(V));

(v)    Offshore Petroleum Exploration Permit (VIC/P42(V));

(vi)    Offshore Petroleum Exploration Permit VIC/P007192(V);

(vii)    Onshore Petroleum Special Drilling Authorisation (PSDA006846);

(viii)    Onshore Pipeline Licence (PL250);

(ix)    Onshore Pipeline Licence (PL006009);

(x)    Onshore Pipeline Licence (PL006998); and

(xi)    Offshore Pipeline Licence (VIC/PL36(V)).

(b)    For BOL, its employees, agents and contractors (or any of them) to enter the Determination Area to access its rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in and in the vicinity of the Determination Area in performance of their duties.

(10)    The rights and interests of South East Australia Gas (Mortlake) Pty Ltd (and its related entities and successors in title from time to time):

(a)    as:

(i)    holder of Miscellaneous Licence No. 2017643 for an easement issued pursuant to section 130 of the Land Act 1958 (Vic) on 25 August 2016 (licence); and

(ii)    owner of the pipeline the subject thereof known as the Mortlake pipeline; and

(iii)    holder of Pipeline Licence No.259 issued pursuant to the Pipelines Act 2005 (Vic) on 28 November 2008.

(b)    recognising those licences entitle and require South East Australia Gas (Mortlake) Pty Ltd, inter alia, to install, maintain and operate the pipeline and to carry out authorised purposes including the installation, operation, inspection, extension, alteration, repair and removal of the pipeline or associated equipment and the carrying out of maintenance work on the pipeline or associated equipment; and

(c)    for South East Australia Gas (Mortlake) Pty Ltd, its employees, agents and contractors (or any of them) in performance of their duties to enter the Determination Area and to do all things necessary to exercise the rights and interests and perform all obligations of South East Australian Gas (Mortlake) Pty Ltd in the Determination Area.

(11)    The rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Eastern Tuna and Billfish Fishery and the Southern Bluefin Tuna Fishery, and permits issued for the Eastern Skipjack Tuna Fishery.

(12)    The rights and interests of the Australian Maritime Safety Authority (the Authority) as the owner, manager, or operator of aids to navigation pursuant to section 190 of the Navigation Act 2012 (Cth) and in performing the functions of the Authority under section 6(1) of the Australian Maritime Safety Act 1990 (Cth) including to be a national marine safety regulator, to combat pollution in the marine environment and to provide a search and rescue service.

Part 2

The other interests, as they exist as at the date of the determination, are as follows:

(13)    So far as confirmed pursuant to section 15 of the LTV Act as at 24 November 1998, public access to and enjoyment of the following places:

(a)    waterways;

(b)    bed and banks or foreshores of waterways;

(c)    coastal waters;

(d)    beaches; and

(e)    areas that were public places at the end of 31 December 1993.

(14)    Any public right to fish.

(15)    The public right to navigate.

(16)    The international right of innocent passage through the territorial sea.

SCHEDULE 3 – DETERMINATION AREA MAP

SCHEDULE 4 – PROPOSED SECTION 47C AGREEMENT

(1)    The State and the Eastern Maar Aboriginal Corporation agree, following the making of this order, to negotiate in good faith with a view to entering into agreements under section 47C of the Act in relation to:

(a)    The whole of the following park areas, to the extent that they lie within the Determination Area:

(i)    Great Otway National Park, being comprised of all those pieces or parcels of land containing 110 555 hectares, more or less, situate in the Counties of Grant, Heytesbury and Polwarth, being the land delineated and coloured pink or coloured yellow or coloured blue in plans lodged in the Central Plan Office and numbered N.P. 111A/4, N.P. 111B/4, N.P. 111C/3, N.P. 111D/3, N.P. 111E/5, N.P. 111F/2, N.P. 111G/2, N.P. 111H/4, N.P. 111J/2 and N.P. 111K/2, excepting the Great Ocean Road, Beech Forest Road, Carlisle– Colac Road, Colac–Lavers Hill Road, Deans Marsh–Lorne Road, Forrest–Apollo Bay Road, Gellibrand River Road, Lavers Hill–Cobden Road, Otway Lighthouse Road, Princetown Road and Skenes Creek Road and the area of the Cape Otway Aid to Navigation (AtoN) being that contained within and bounded by a line commencing at Latitude 38.85560 South, Longitude 143.51230 East (Point A), and then to a point Latitude 38.85580 South, Longitude 143.51280 East (Point B), and then to a point Latitude 38.85610 South, Longitude 143.51270 East (Point C), and then to a point Latitude 38.85610 South, Longitude 143.51224 East (Point D), and then to a point Latitude 38.85710 South, Longitude 143.51181 East (Point E); and then to a point Latitude 38.85710 South, Longitude 143.51165 East (Point F), and then to a point Latitude 38.85669 South, Longitude 143.51165 East (Point G), and then to a point Latitude 38.85669 South, Longitude 143.51184 East (Point H), and then continuing to the point of commencement (point A); as shown on the Map at Schedule 5, including any road to the AtoN. Also excepted is any land between high water mark and low water mark forming part of the park described in Part 8 and in Part 11 of Schedule Seven of the National Parks Act 1975 (Vic).

(ii)    Twelve Apostles Marine National Park, being the land comprising 7500 hectares, more or less, delineated and shown shaded on the plan numbered M.N.P. 10/2 lodged in the Central Plan Office and which is at or above a depth of 200 metres below the land surface (whether or not that is covered by water).

(iii)    Port Campbell National Park, being all those pieces or parcels of land containing 1830 hectares, more or less, situate in the Townships of Port Campbell and Princetown, and in the Parishes of La Trobe, Narrawaturk, Paaratte and Waarre, County of Heytesbury, being the land delineated and coloured pink or coloured yellow, excepting therefrom the Great Ocean Road, in a plan lodged in the Central Plan Office and numbered N.P. 16/5. Also excepted is any land forming part of the park described in Part 11 of Schedule Seven of the National Parks Act 1975 (Vic).

(iv)    Lake Milangil, being the land comprising Milangil Lake Wildlife Reserve, consisting of parcel P081029, at Crown allotment 3, Section 4, Parish of Taaraak, Corangamite.

(v)    Bay of Islands Coastal Park, being all those pieces and parcels of land containing 950 hectares, more or less, situate in the Parishes of Mepunga, Nirranda and Narrawaturk, County of Heytesbury, being the land delineated and bordered red excepting therefrom the roads shown as excluded in the plan lodged in the Central Plan Office and numbered N.P. 101.

(b)    Parts, to be agreed between the State and the Eastern Maar Aboriginal Corporation, of the following areas, to the extent that they lie within the Determination Area:

(i)    Gellibrand Bushland Reserve, being the land described in the table below:

(ii)    Lake Purrumbete, being the land described in the table below:

(iii)    Cobra Killuc Conservation Reserve, being the land described in the table below:

(iv)    Lake Colongulac, being the land described in the table below:

(v)    Lake Bookar, being the land described in the table below:

(2)    The State and the Eastern Maar Aboriginal Corporation agree to negotiate in good faith with respect to further agreement or agreements under section 47C of the NTA in relation to any other park area not listed in paragraph 1 within the Determination Area.

(3)    The Eastern Maar Aboriginal Corporation, the State and the Commonwealth of Australia agree that, if agreement is reached in accordance with section 47C(1)(b) of the NTA that section 47C is applicable to a park area listed in paragraph 1, the State and the Commonwealth would not oppose an application being brought on behalf of the Eastern Maar People pursuant to section 13(1) of the NTA, for a determination that native title exists in relation to that park area, or an application to amend the original application pursuant to section 64(2A) of the NTA.

SCHEDULE 5 – MAP OF AID TO NAVIGATION EXCLUDED FROM GREAT OTWAY NATIONAL PARK

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The parties seek a consent determination of native title under s 87A of the Native Title Act 1993 (Cth) (NTA) to recognise the native title of the Eastern Maar Peoples in relation to a large area in south-west Victoria. The applicant filed the application for a determination of native title (the Determination Application) as long ago as 14 December 2012, but it was then largely dormant while the applicant and the State pursued parallel negotiations under the Traditional Owner Settlement Act 2010 (Vic) (TOS Act). On 29 October 2018, the Court ordered that, by 25 February 2019, the applicant notify the Court and the first respondent, the State of Victoria, as to whether the applicant intended to pursue the Determination Application. In response to that order, the applicant confirmed its intention to do so.

2    Since notifying the Court of its intention to pursue the Determination Application the proceeding has progressed with speed, including by way of a series of mediations convened by Native Title Judicial Registrar Ann Daniel aimed at achieving a consent determination in relation to part or all of the claim area.

3    Happily, the mediations have proved fruitful, and the parties now seek a consent determination of native title in respect of part of the area over which the applicant seeks a determination of native title. The relevant part for the consent determination consists of the area set out in Schedule 1 (the Determination Area) to the Draft Minute of Proposed Consent Determination executed by the necessary parties and filed herein (the Minute of Consent). The balance of the area covered by the Determination Application remains contested, and the different areas are either listed for a two week hearing of separate questions to commence on 1 May 2023, or subject to ongoing mediation.

4    The State filed written submissions dated 8 March 2023 in support of the proposed consent determination, which were adopted by the applicant. In providing these reasons I have drawn directly and extensively from those submissions.

5    For the reasons I now explain, I am satisfied that the proposed orders for a consent determination are within the power of the Court and that it is appropriate to make them pursuant to s 87A of the NTA.

6    The Court’s recognition that the Determination Area is and always was the country of the Eastern Maar Peoples is another significant step forward for them and for the surrounding community. From the assertion of British sovereignty in 1788 until the mid-1860s the Aboriginal population in south-west Victoria declined by more than 90 per cent, reflecting the devastating impact of colonisation on Aboriginal communities. By this determination the Court recognises that despite the attempted dispossession and removal from their country, the Eastern Maar Peoples to this day maintain a deep and enduring connection to their country, following on from their ancestors.

7    This determination has been too long in coming, it now being 12 years since the last native title determination concerning the Eastern Maar Peoples (Lovett on behalf of the Gunditjmara People and Others v Victoria (No 5) [2011] FCA 932 (Lovett (No 5)). The persistence and hard work of the parties, and particularly the applicant, the State and Judicial Registrar Daniel, must be commended. The Court has been greatly assisted by their respective efforts and it is hoped that their cooperation will continue and lead to just outcomes in relation to the proposed agreements under s 47C of the NTA and the remaining contested areas in the Determination Application.

THE CLAIMANTS AND THEIR COUNTRY

8    The Court’s task in dealing with a proposed consent determination under s 87A of the NTA is not to assess and make findings about the matters set out in s 223 but this determination and the reasons which accompany will stand as a permanent record for the Eastern Maar Peoples of the judicial recognition of their native title rights. In the circumstances, it is appropriate to say something about the Eastern Maar Peoples and their country.

9    The applicants in the amended Determination Application filed by leave of the Court on 9 February 2023 are Ms Janice Austin, Ms Vicki Couzens, Mr Thomas Clarke, Mr Jidah Clarke and Ms Sheree Lowe on behalf of the Eastern Maar Peoples, being the descendants of 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) and Richard Sharp, and those who either:

(a)    identify as being from the eastern domain of the Maar speaking people and are recognised as being from the eastern domain by the Eastern Maar Peoples; or

(b)    identify as Maar, Gunditjmara, Tjap Wurrung, Peek Whurrung, Keeray Woorong (Kirrae Whurrung), Kuurn Kopan Noot, Yarro Waetch (Tooram tribe), Djargurd Wurrung, Gulidjan and/or Gadubanud and are recognised as being from the eastern domain by the Eastern Maar Peoples.

10    Through the amendment to the Determination Application, one additional apical ancestor was added, Mr Richard Sharp. That arose through Mr Ron Arnold, a Gulidgan and Gadubanud person and a descendant of Mr Sharp, who asserted traditional rights and interests in relation to Area D of Annexure 1 of the Orders made on 9 April 2020 (which now forms part of the Determination Area). In a report in 2021, the anthropologist retained by the State, Dr Suzi Hutchings, opined that at effective sovereignty the Gadubanud language group predominated in Area D but was not a distinct society. Dr Hutchings inferred that the Gadubanud language group was part of the broader Maar-speaking society. Following receipt of that report, the applicant, the State and Mr Arnold agreed that it was appropriate to recognise the descendants of Mr Sharp for the purposes of the consent determination in relation to Area D, and Mr Arnold withdrew his opposition to the Determination Application.

11    At the assertion of British sovereignty in 1788, the Maar speaking peoples shared a system of traditional law and custom, customary practices and obligations. They assert in the Determination Application that their traditional territory extended from the catchment of the Glenelg in the west, to the catchment of the Leigh and the Barwon in the east and from the sea in the south to the Great Dividing Range. In the Determination Application they assert native title rights and interests in relation an area in south-west Victoria which stretches along the coast from Yambuk in the west to Aireys Inlet in the east (which takes in Port Fairy, Warrnambool, Port Campbell, Apollo Bay and Lorne) and inland from Dunkeld in the west up to Ararat in the north/north west, across to Raglan in the north/north east (near Beaufort) and down to Camperdown in the south/south east. But, as I have said, the Determination Area in the proposed consent determination only relates to part of the claim area in the Determination Application, and the balance of the claim area is either the subject of ongoing mediation or is listed for hearing by way of separate questions on 1 May 2023.

12    At sovereignty, the Maar Society comprised two domains, whose people were the Gunditjmara People, and the predecessors of the Eastern Maar Peoples, the territories of which domains overlapped in the vicinity of the Shaw and Eumerella Rivers. The report of the conference of experts retained by the Eastern Maar Peoples, the State, and the Gunditjmara People (Ms Olivia Norris, Dr Hutchings and Dr Raymond Madden respectively) on 13-14 October 2022 sets out their joint opinion that:

(a)    the Eastern Maar Peoples comprise the people identified in the Determination Application;

(b)    the Eastern Maar Peoples and the Gunditjmara People are descended from members of an Aboriginal society identified as the Maar or Maar-speaking society at the time of effective sovereignty (approximately between 1830 to 1850). Following effective sovereignty, landholding in the region evolved so that Maar society now comprises two domains:

(i)    the Eastern Maar domain, which is the country of the Eastern Maar Peoples; and

(ii)    the Western Maar domain, which is the country of the Gunditjmara People.

(c)    the Eastern Maar Peoples formed an association with Framlingham/Purnim, which became a key site for the reproduction of the eastern domain of the Maar people and the practice and evolution of its normative system of traditional laws and customs; and

(d)    the Gunditjmara People formed an association with Lake Condah, which became a key site for the reproduction of the western domain of the Maar people and the practice and evolution of its normative system of traditional laws and customs.

13    The parties agree that the Eastern Maar Peoples are the descendants of the apical ancestors identified in the proposed consent determination, and the label “Eastern Maar” encompasses a broad range of identity labels, which designate sub-groupings of a larger regional society to which the native title claim group belongs. Thus, “Eastern Maar” incorporates people who identify variously as Maar, Gunditjmara, Tjap Wurrung (also rendered Djab Wurrung), Peek Whurrong, Keeray Wooroong (also rendered Kirrae Whurrung), Kuurn Kopan Noot, Yarro waetch (Tooram Tribe), Djargurd Wurrung, Gulidjan and/or Gadubanud among others. Any one claimant may refer to themselves by one or more of these descriptions, and other members of the claim group may from time to time refer to the claimant by a different one of those descriptions.

14    The Eastern Maar Peoples were earlier recognised by the Court in the consent determination in Lovett (No 5), which recognised the joint native title rights and interests of the Eastern Maar and the Gunditjmara Peoples in relation to the “Part B” area in that determination, which is country bounded in the west by the Eumeralla River and extending to the east to the Shaw River, to the west of the present Determination Area. In that decision at [39], North J acknowledged that “the Eastern Maar people assert interests, not yet determined, in relation to areas east of the determination area”, and the present Determination Area is part of the area to which North J referred.

15    North J recorded the submissions of the State regarding the history of the Eastern Maar Peoples as follows in Lovett (No 5) at [16]:

They are one of the Aboriginal societies which existed in south-west Victoria at sovereignty. Historical materials by George Augustus Robinson, Isabella and James Dawson, Norman B Tindale, and Dr Clark bear testimony to the Aboriginal societies in that area at the time. Then, in the 1860s, missions were established at Framlingham / Purnim, and Lake Condah. Between the dates of sovereignty until the mid-1860s the Aboriginal population declined by more than 90 per cent. The eastern people, including the Eastern Maar, tended to live at Framlingham / Purnim, and the western people tended to live at Lake Condah. The Eastern Maar people included the families of the Abrahams, Alberts, Austin, Bert, Chatfield, Clark, Clarke, Couzens, Harradine, Lowe and Rose. The connection material provided to the State established that the Eastern Maar people exercise their rights at and have particular connections with a number of locations in the Part B area, as well as lands to the east of it. For example, the Eastern Maar fish at places like Yambuk Lake and Port Fairy. The Couzens family express a strong connection to Penshurst which is just east of the northern section of the Part B area. Those connected with Frank Clarke identify with the area around the Eumeralla River and many Eastern Maar people speak of both Yambuk and Deen Maar as spiritual places from which people’s spirits ascended to the sky.

(Emphasis added.)

16    The historical materials there referred to were authored by some individuals who were in the relevant area in the early 1800s, and other individuals who later conducted research into the history of the area in that period. They include Mr Robinson, who was ‘Chief Protector of Aborigines’ in the Port Phillip District in the period 1839-1849; Mr Dawson who was a settler and pastoralist between Port Fairy and Camperdown in the period 1844-1866, his daughter Isabella (born 1842), who spoke some Maar and Kulin; Mr Tindale, who was a biologist and ethnologist, active from 1925–1974; and Dr Ian Clark, who is a geographer, toponymist, and author of Aboriginal languages and clans: an historical atlas of western and central Victoria, 1800–1900 (1990) and Scars in the landscape: a register of massacre sites in Western Victoria 1803–1859 (1995) and other studies of the region.

17    In the lead up to the State’s provision of consent in Lovett (No 5), the Eastern Maar Peoples provided the State with anthropological and historical materials intended to show that they had native title rights and interests in the “Part B” area in that proceeding. North J recorded the State’s submissions regarding those materials as follows (at [21]):

In broad terms, the materials advanced the theses that, at sovereignty, there was an Aboriginal society (sometimes described as the society of Maar-speaking society) whose territory included the land the subject of the Gunditjmara Part A Determination, the area of Part B was a very substantial area of land extending for to the east of Part B. The Gunditjmara and the Eastern Maar were said to form two discrete domains within this socio-geographic area. Part B was said to be the overlap area of the domains of the Gunditjmara and the Eastern Maar. Within it, each group asserted the same native title rights and interests, and recognised the coextensive rights and interests of the other.

THE REQUIREMENTS UNDER SECTION 87A OF THE NTA

18    Section 87A of the NTA provides the following preconditions before the Court may make a consent determination in relation to part of the area covered by an application for a determination of native title:

(a)    there is a proceeding in relation to an application for determination of native title (subs (1)(a));

(b)    the specified notice period under s 66 has ended (subs (1)(b));

(c)    the parties have reached agreement as to the proposed determination of native title in relation to part of the area covered by the native title application (subs (1)(b));

(d)    the parties have reduced their agreement to writing, the agreement has been signed by or on behalf of all of the persons required to be parties to the agreement, and has been filed with the Court (subs (1)(c) and (d) and (2));

(e)    that the requirements regarding a registered native title claimant being a party to the agreement and signing the terms of the proposed determination are satisfied;

(f)    the Chief Executive Officer of the Court has given notice to any other parties to the proceeding that the proposed determination of native title has been filed with the Court (subs (3));

(g)    the Court has taken into account any objection made by the other parties to the proceeding (subs (8)); and

(h)    the Court is satisfied that an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or of the hearing started without completing the hearing, if the Court considers that;

(i)    the order would be within the power of the Court (subs (4)(a)); and

(ii)    it would be appropriate to do so (subs (4)(b)).

19    Putting to one side for the moment the issues arising under s 87A(4), I am satisfied that each of the above requirements have been met in the present application. Amongst other things:

(a)    the proceeding is an application for a determination of native title filed in the Court (subs (1)(a));

(b)    the notification period under s 66 of the NTA ended many years ago ((subs (1)(a)) and the parties have reached agreement in relation to part of an area covered by the application; and the proposed determination relates to that part. The balance of the area covered by the application overlaps with claims made by other Indigenous parties and does not form part of the proposed consent determination;

(c)    the Draft Minute is an agreement in writing (subs (1)(d)), filed in the Court (subs (2)) and signed by all persons required to be parties:

(i)    it is signed by the applicant through its lawyer, Michael O’Donnell of First Nations Legal & Research Services. Based on the affidavit of Mr O’Donnell affirmed 9 March 2023, I am satisfied that the applicant’s signature on the agreement (through their legal representative) is properly authorised by the Eastern Maar native title claim group (subs (1)(c)(i));

(ii)    there are no other registered native title claimants in relation to any part of the Determination Area (subs (1)(c)(ii) and (iv)). A number of respondents asserted an interest in the claimed area, including several Indigenous respondents in relation to various parts of the claim area, including areas that are now within the Determination Area. However, through mediation some of the respondents withdrew and the remaining respondents with an interest in the Determination Area reached agreement about the terms of the proposed consent determination; and

(iii)    it is signed by each person who claims to hold native title in relation to land or waters in the Determination Area and who is a party to the proceeding (subs (1)(c)(vi)). The only respondents who have not signed the agreement are persons who an investigation by the State has determined are not required to do so, as they either do not hold “an interest in relation to land or waters in the determination area” or do not claim “to hold native title in relation to the land or waters in the determination area” in accordance with subs (1)(c)(v) to (vi) and (1)(d);

(d)    it is signed by the Commonwealth and the State who are parties to the proceeding. The relevant Federal and State Ministers are not parties to the agreement and are not required to sign it (subs (1)(c)(vii) and (viii));

(e)    is signed by the local government bodies in relation to the different parts of the Determination Area and who are parties to the proceeding (subs (1)(c)(ix)); and

(f)    as all necessary respondents have signed the agreement there was no requirement for the CEO of the Court to give notice to any other parties to the proceeding, and accordingly there are no objections by any such persons nor any requirement for the Court to address such objections (subs (3) and subs (8)).

SOME FEATURES OF THE PROPOSED DETERMINATION

20    The proposed consent determination reflects that the applicant does not claim exclusive native title in all areas of the Determination Area, and also the State’s lack of satisfaction that there is a credible basis upon which the applicant could claim continuity of a right of exclusive possession in the Determination Area.

21    The proposed consent orders contained in the Draft Minute, however, vary from previous practice in Victoria in two significant respects.

22    First, they provide a process for good faith negotiations with respect to proposed agreements that will trigger the operation of s 47C of the NTA. That provision was introduced into the NTA with effect from 25 March 2021, since Lovett (No 5) in 2011, the last native title determination in Victoria.

23    As the State submits, s 47C builds upon and expands the principles in ss 47, 47A and 47B of the NTA. The effect of each of these sections is to disregard prior extinguishment of native title for the purpose of an application for determination of native title. Section 47C provides for the possibility of an agreement to be made in relation to an onshore place that comprises the whole or part of a ‘park area’ (as defined, but in simple terms, in national parks and similar areas). An agreement for the purpose of s 47C may be made between an applicant for native title and the State (or, if applicable, the Commonwealth) under whose law the park area was set aside.

24    As Colvin J observed in Ward, on behalf of the Pila Nature Reserve Traditional Owners v Western Australia [2022] FCA 689 at [6], the purpose of s 47C is to address certain consequences of the decision in Western Australia v Ward, Attorney-General (NT) v Ward, Ningarmara v Northern Territory, Ward v Crosswalk Pty Ltd [2002] HCA 28; 213 CLR 1, particularly at [219]-[221], [255]-[258], [468]. In the second reading speech for the Native Title Legislation Amendment Bill 2020 (Cth) the Attorney-General said that the purpose of the amendment was to “provide parties with more flexibility to disregard historical extinguishment and will allow for more opportunities for native title to be recognised over areas where important connection to country exists for traditional owners.”: Commonwealth, Parliamentary Debates, House of Representatives, 17 October 2019, 4486.

25    Schedule 4 of the Determination addresses the question of which areas within the External Boundary described in Schedule 1 include national parks that are capable of being subject to an agreement under s 47C. By agreement between the State and the applicant, under the proposed orders, the making of any s 47C agreement is to be addressed subsequently to this consent determination, so as not to delay it. A notation to the consent determination provides that it is the intention of the State and the Eastern Maar Aboriginal Corporation on behalf of the Eastern Maar Peoples to negotiate in good faith with a view to entering a s 47C agreement in relation to certain park areas, bushland reserves, lakes and conservation reserves within the Determination Area. This may lead to an amended claim application under s 64(2A) of the NTA or an application to vary an approved determination of native title under s 13.

26    Second, unlike previous native title determinations in Victoria, the State has not carried out a detailed tenure and extinguishment assessment in relation to the Determination Area. Instead, the proposed consent determination records certain general principles which flow from the NTA and apply to the claimable land in the Determination Area. This is novel in Victoria, but is not without precedent in Australia: for example, see Kynuna on behalf of the Bar Barrum People No 5 v Queensland [2016] FCA 1504 at [17]-[36] per Reeves J especially as to the role of a State in response to the Court’s entreaties to “be creative and work smarter” at [25]-[26] and [36].

27    A detailed tenure assessment will be performed, as and when required, in respect of any future act. The parties intend to reach a further agreement through an Indigenous Land Use Agreement (ILUA) as part of agreements under the TOS Act which would provide an agreed alternative regime for dealing with future acts and may negate the need for any tenure assessment. To the extent that detailed analysis of extinguishment of native title becomes necessary, any future assessment will be carried out in accordance with the established principles set out in the State’s submissions.

THE POWER TO MAKE THE ORDERS SOUGHT

28    In relation to the question of power under s 87A(4)(a) of the NTA, I am satisfied that:

(a)    the Court has jurisdiction to hear and determine the application (s 81);

(b)    the area covered by the proposed consent determination does not overlap with any other application for determination of native title (s 67(1));

(c)    the area covered by the proposed consent determination is not the subject of a previously approved determination of native title (s 68);

(d)    the proposed consent determination complies with s 94A of the NTA by setting out the details of the matters required under s 225. In relation to those requirements:

(i)    Order 1 describes the persons, or groups of persons, holding the common or group rights comprising the native title (s 225(a)). That description of the claim group replicates the claim group that was recognised in Lovett (No 5) (at [7]), except for the addition of Mr Sharp, and it is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15] per Wilcox, North and Weinberg JJ;

(ii)    Orders 6 and 7 describe the “particular area” in relation to which native title exists. Order 6 provides that the Determination Area is located wholly within the External Boundary described in Schedule 1, and Order 7 provides that the lands and waters therein described are excluded;

(iii)    Orders 2 to 5 describe the nature and extent of the native title rights and interests held by the applicant in the Determination Area (s 225(b)). Under proposed Order 2 they consist of non-exclusive rights to have access to or enter and remain on the land and waters, to camp on the land and waters landward of the high-watermark of the sea, to use and enjoy the land and waters, to take the resources of the land and waters and to protect places and areas of importance in the land and waters. These are similar rights and interests as recognised in Lovett (No 5). Under Order 3 the rights and interests referred to in Order 2 must only be exercised for a non-commercial purpose to satisfy personal, cultural, domestic or communal needs. Under Order 5 the rights and interests referred to in Order 2 are subject to and exercisable in accordance with the traditional laws and customs of the native title holders and the laws of the State and the Commonwealth, including the common law;

(iv)    the nature and extent of any other interests in relation to the Determination Area (s 225(c)). Under proposed Order 14 the “other interests” are those set out in Schedule 2;

(v)    the relationship between the native title rights and interests and the other interests in relation to the Determination Area (s 225(d)). Under proposed Orders 15 and 16 the relationship between native title rights and interests and the other interests referred to in Schedule 2, Parts 1 and 2, are described; and

(vi)    proposed Order 4 provides that the native title rights and interests do not confer possession, occupation, use and enjoyment of the Determination Area on the native title holders to the exclusion of all others (s 225(e)).

29    I am satisfied that the proposed consent determination sets out the details of the matters required under s 223 of the NTA. Those requirements, as considered in Members of Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 were summarised in Lovett (No 5) at [22] per North J, in the following terms:

In summary those requirements are that there was, at sovereignty, a body of persons united in their acknowledgment and observance of a body of laws and customs, who held rights and interests in land and waters pursuant to those laws and customs, and by which they were connected to the land and waters. The group must have maintained its identity and its connection with the land and waters, and must continue to acknowledge the laws and observe the customs substantially uninterrupted, from sovereignty to the present.

30    The terms of the proposed consent determination contained in the Draft Minute are within the power of the Court, in the sense that the native title rights and interests that are proposed to be declared are recognisable by the common law of Australia: s 223(1)(c). The rights and interests recognised by the common law are those native title rights and interests that existed at sovereignty, which survived that fundamental change in the legal regime, and can now, by resort to the NTA, be enforced and protected: Yorta Yorta at [77].

31    I am also satisfied that there is probative material against which the Court can assess whether the matters set out in ss 223 and 225 can be stated in a determination: Agius v South Australia (No 6) [2018] FCA 358 at [68] per Mortimer J (Agius (No 6)).

WHETHER IT IS APPROPRIATE TO MAKE THE ORDERS SOUGHT

32    In relation to whether I am satisfied that it is appropriate to make the proposed consent determination under s 87A(4)(b) of the NTA, it is necessary to understand the requisite standard of satisfaction.

The requisite standard of satisfaction

33    The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is “appropriate” takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J.

34    It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J.

35    The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a “credible”, “rational”, “sufficient” or “cogent” basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]–[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.

36    The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44].

37    As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]-[22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A:

In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court’s function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act’s emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed.

The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8].

Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State’s agreement that there is a credible and rational basis for the determination proposed: Freddie at [18].

The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

The consideration of the application undertaken by the State

38    The terms of the proposed consent determination were negotiated and agreed to principally between the applicant and the State, and then presented to the other respondents and reviewed and ultimately consented to by them.

39    The negotiations between the applicant and the State began for the purpose of negotiating agreements under the TOS Act. While discussions between the applicant and the State, at least from 2012 until 2018, were framed around a process leading towards a settlement under the TOS Act, they also concerned matters necessarily and directly relevant to a determination of native title.

40    The TOS Act is intended to advance reconciliation and promote good relations between the State and traditional Aboriginal owners principally through agreements between the State and Traditional Owner Groups: s 1 TOS Act. It enables the State and traditional owners to agree on a range of rights and benefits by negotiation as an alternative or in addition to an application to this Court for a determination of native title under the NTA.

41    Discussions aimed at a settlement under the TOS Act may concern matters that are directly relevant to a determination of native title. That can be seen in the terms of the TOS Act which relies for its operation upon several key definitions drawn from the NTA. Relevantly, the phrase “traditional owner group” is defined in s 3 of the TOS Act “in relation to an area of public land” to mean:

(a)    a group of Aboriginal persons who may authorise (within the meaning in section 251A of the Native Title Act) the making of an indigenous land use agreement with the Minister, on behalf of the State—

(i)    or the purposes of the settlement of any application of a kind listed in the Table to section 61 of the Native Title Act or in which the group agrees not to make an application of that kind; and

(ii)    that is capable of being registered under section 24CK or 24CL of the Native Title Act; or

(b)    if there are native title holders (within the meaning of the Native Title Act ) in relation to the area, the native title holders; or

…

42    Thus, the definition of “traditional owner group” imports into the TOS Act some of the concepts and processes prescribed by the NTA. One is that of authorisation within the meaning in s 251A of the NTA, so that the traditional owner group for the purposes of the TOS Act is the same as the group that is capable of authorising an ILUA under s 251A, being all those persons who hold or may hold native title for the area: see Bright v Northern Land Council [2018] FCA 752 at [169] and more generally [154]-[170], per White J.

43    As part of the TOS Act process, the applicant submitted, and the State considered, a range of material in response to guidelines developed by the State that are designed to establish that the traditional owner group consists of the right people for the country claimed. The State developed its “Threshold Guidelines” following extensive consultation with traditional owners from across Victoria, First Nations Legal and Research Services, the native title service provider for Victoria (then called Native Title Services Victoria), and other key stakeholders. In summary, pursuant to the Threshold Guidelines operational at the relevant time, a traditional owner group was required to demonstrate that:

(a)    it comprises the right traditional owner group for an area on the basis of its “traditional and cultural association” to the area; and

(b)    it is ready to negotiate a settlement package that binds all persons who may hold native title for the proposed settlement area.

44    As part of the TOS Act threshold process, the State considered the following materials:

(a)    the applicant’s “Part A Threshold Statement” dated 14 August 2014, prepared in accordance with the requirements set out in the Threshold Guidelines;

(b)    further information provided by the applicant in May 2015 both during and following threshold conferences between the Eastern Maar people and the State;

(c)    submissions received during the threshold notification period that ended in November 2015, plus reply comments from Native Title Services Victoria (as it then was) regarding these submissions;

(d)    independent research reports commissioned by the State in the second half of 2016; and

(e)    further written information provided by the Eastern Maar Peoples in the first half of 2017, including amendments made to the group description and corporate membership rules.

45    After its consideration of the material set out above, in 2017, the State was satisfied that the applicant had met the threshold under the Threshold Guidelines to negotiate TOS Act agreements. The applicant and the State intended for that settlement package to include an ILUA, by which the applicant would withdraw its current native title application.

46    But following the reactivation of the Determination Application in 2019, the Court ordered mediation between the applicant, the State and the Indigenous respondents who were joined to the proceeding. Pursuant to orders of the Court, Judicial Registrar Daniel convened separate and parallel mediations for the discrete areas claimed by the applicants in which there were Indigenous respondents contesting the applicant’s claim, and there were areas claimed by the applicant in relation to which there was no overlapping claim or contest. It is those uncontested areas which make up the present Determination Area following mediation.

47    The State submits, and I accept, that the information it gained through the process of endeavouring to reach agreement under the TOS Act may legitimately be used by the State to inform itself in respect of the proposed consent determination and was important for its agreement to the proposed consent determination. Analogously, in Bright at [105]-[107], [113] White J held that information and investigations about traditional owners under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) can be relevant to conclusions as to native title rights and interests under the NTA.

48    The discussions between the applicant and the State occurred against the backdrop of Lovett (No 5) in which case the State had assessed the materials before it against the requirements of ss 225 and 223 of the NTA. The State submits, and I accept, that in Lovett (No 5) it reached the requisite state of satisfaction in respect to the Eastern Maar Peoples having regard to the principles set out below:

(a)    Principle 1: At the time of sovereignty there was a body of persons united in and by its acknowledgement and observance of a body of laws and customs (the original society) which held rights and interests in the land and waters subject to the native title application (the claim area) pursuant to those laws and customs;

(b)    Principle 2: There was a body of laws and customs of defined nature and content (the traditional laws and customs) under which the original society and its members held rights and interests in the claim area (the traditional rights and interests);

(c)    Principle 3: The original society has substantially maintained its identity and existence from generation to generation, through to the present; its members and successors acknowledging and observing the traditional laws and customs, such that the acknowledgement and observance has continued substantially uninterrupted since sovereignty;

(d)    Principle 4: Since sovereignty, the original society, its members and their successors have maintained a connection with the claim area, in accordance with the traditional laws and customs, substantially uninterrupted;

(e)    Principle 5: The members of the native title claim group (the claimants) are members of an identifiable Aboriginal society, which is recognisably based in the original society (as it may have adapted or evolved), and who still collectively acknowledge and observe the traditional laws and customs;

(f)    Principle 6: The traditional laws and customs which are still acknowledged and observed give rise to an ongoing connection with the claim area, and rights and interests in the claim area (of a defined nature and extent) which are recognised by the common law of Australia; and

(g)    Principle 7: Such rights and interests have not been extinguished.

49    Following a conference of four independent expert anthropologists, the State satisfied itself in Lovett (No 5) that sufficient material had been provided to justify it supporting that consent determination which recognised both the Eastern Maar Peoples and the Gunditjmara Peoples as the holders of joint native title rights and interests over the “Part B” area.

50    Importantly the Eastern Maar part of the native title claim group for that claim is the same as the native title claim group in this claim, except for the addition of Mr Sharp. The only remaining concerns that the State needed to address arose from the Indigenous respondents that asserted claims over parts of the claim area in the Determination Application, which claims have been resolved insofar as the Determination Area is concerned.

51    In reaching agreement to the proposed consent determination, the State also drew upon its knowledge of the background and history of the regional Aboriginal societies of western Victoria that forms part of the heritage and origins of traditional laws and customs of the applicant, which was gained through evidence heard by the Court and in negotiations with the neighbouring native title holders in Lovett (No 5).

It is appropriate to exercise the discretion under s 87A(4)(b)

52    I accept that in coming to its support for the proposed consent determination the State assessed the applicant’s claim to have native title rights and interests in the Determination Area by applying the principles in the authorities cited above. Having regard to the State’s consideration of the proposed consent determination, and to the matters set out below, I am satisfied that it is appropriate to make orders in the terms of the proposed consent determination under s 87A(4)(b) of the NTA, without holding a hearing:

(a)    the State submits, and I accept, that all of the parties to the application who asserted an interest in the proposed Determination Area (including those who have subsequently withdrawn) have had the benefit of independent legal advice and representation, or have been appropriately engaged with by the State and applicant whilst being encouraged to obtain independent legal advice and representation;

(b)    the State says, and I accept, that it has taken a “real interest” in the proceeding in the interest of the community generally. In order to reach the compromise embodied in the proposed consent determination, it has given careful and extensive consideration to the applicant’s connection material and other relevant material, including:

(i)    evidence and material previously considered in respect of the process leading to the consent determination in Lovett (No 5);

(ii)    the material provided by the applicant through the TOS Act Threshold Guidelines process;

(iii)    research reports relevant to the composition of the applicant and/or the extent of and nature of native title rights and interests in the Determination Area, including:

(A)    Dr Deane Fergie, anthropologist, for NTSV (2009);

(B)    Dr Fiona Skyring, historian, for the State (2016);

(C)    Mr Kim McCaul, anthropologist, for the State (2016),

(D)    Dr Michael O’Kane, anthropologist, for the Applicant (2019);

(E)    Dr Hutchings, anthropologist for the State (2021); and

(F)    other reports of experts in various relevant disciplines commissioned by other parties and made available to the State in the course of mediations; and

(iv)    material from Ron Arnold and the agreement in principle reached in December 2021 between the Applicant, Mr Arnold and the State after the mediation held on 18 and 19 November 2021;

(c)    the State submits, and I accept, that the non-State respondents have been provided with multiple opportunities to engage, and have engaged, in consultation on the form of the proposed minute of consent determination at numerous points between circulation of the first version of the Draft Minute on 19 November 2019 and the circulation of the final form of the Draft Minute on 20 January 2023;

(d)    the State says, and I accept, that the terms of the proposed consent determination represents the agreement of the parties, entered into freely, without duress, fraud or misrepresentation;

(e)    the applicant and the State submit that they consider that the connection material, including material provided through the Threshold Guidelines process and previously considered in respect of the process leading to the consent determination in Lovett (No 5) justifies the making of the orders in the proposed consent determination;

(f)    the native title rights and interests that are to be declared in the proposed determination are recognised by the laws of Australia;

(g)    the requirements of the NTA have been complied with (in particular, ss 94A and 225);

(h)    the proposed consent determination appropriately deals with other interests; and

(i)    the proposed consent determination is unambiguous and certain as to the rights declared, while acknowledging that some particular intersections of native title rights and interests and Commonwealth and State law, including the common law, are to be worked out having regard to the circumstances of any particular case.

NOMINATION OF A PRESCRIBED BODY CORPORATE

53    Under s 55 of the NTA, if the Court proposes to make a determination that native title exists, the Court must at the same time, or as soon as practicable after that time, make such determinations pursuant to the requirements of s 56 which deals with holding the determined native title on trust, or s 57 which deals with determination of the prescribed body corporate and its possible non-trust functions.

54    Having regard to the affidavit of Mr O’Donnell affirmed 9 March 2023, I am satisfied that:

(a)    on 3 December 2022 a meeting of the Eastern Maar Peoples native title claim group was held, and in accordance with a decision-making process, agreed and adopted at the authorisation meeting, the claim group resolved to nominate Eastern Maar Aboriginal Corporation (EMAC), to hold the determined native title as an agent for the Eastern Maar Peoples;

(b)    EMAC was registered on 11 July 2011 as a prescribed body corporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

(c)    on 17 February 2023 the Board of EMAC resolved to consent in writing to the proposed nomination to act as an agent;

(d)    on 7 March 2023 Sheree Lowe, a representative of the common law holders of native title and a member of the applicant, provided Mr O’Donnell with a signed document that nominated EMAC to be the prescribed body corporate and to hold the native title rights and interests to be determined in VID 21 of 2019 as agent for the common law holders; and

(e)    on 7 March 2023 Mr O’Donnell received from EMAC a document evidencing its consent to appointment to hold native title rights and interests to be determined in VID 21 of 2019 as the agent for the common law holders, signed by two directors of that corporation.

55    In Lovett (No 5) the common law native title holders also nominated EMAC to hold the determined native title as the prescribed body corporate acting as agent for the Eastern Maar Peoples, and the Court appointed it in that capacity. In my view it is appropriate in this proceeding to again appoint EMAC to hold the determined native title as the prescribed body corporate acting as agent for the Eastern Maar Peoples, pursuant to s 57(2) of the NTA.

CONCLUSION

56    The parties are to be congratulated on reaching agreement regarding the proposed consent determination and I have made orders in the terms proposed.

Associate:

Dated:    28 March 2023

SCHEDULE OF PARTIES

VID 21 of 2019