FEDERAL COURT OF AUSTRALIA

Austin on behalf of the Eastern Maar People v State of Victoria (No 2) [2024] FCA 266

ORDERS

BEING SATISFIED that a determination of native title in the terms set out in the following minute of Proposed Consent Determination of Native Title in respect of proceeding VID 21 of 2019 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 NOTES THAT:

A.    It is the intention of the State of Victoria and the Eastern Maar Aboriginal Corporation on behalf of the Eastern Maar peoples to negotiate in good faith with the view of entering into an agreement or agreements with respect to the application of s 47C of the NTA in the determination area in accordance with Schedule 4.

B.    The Wadawurrung Respondents became parties to the application on 12 October 2019 on behalf of the Wadawurrung People, on the basis of asserted Wadawurrung interests in the areas included within this determination.

C.    During mediation conducted by the Federal Court, the Applicant and the Wadawurrung People resolved issues between them regarding the assertion of interests and executed a Deed of Agreement, which included provision for:

(a)    Wadawurrung People withdrawing any assertion of native title rights and interests in relation to the Eastern Maar native title application area, including by:

(i)    agreeing to this determination; and

(ii)    removing the areas that are the subject of this determination from the Wadawurrung Native Title determination application (VID 693 of 2022); and

(b)    the Applicant amending the application to remove the area described as ‘Terinallum Homestead’, (being so much of Lot 9 TP833961 that is west of the centreline of Mt Emu Creek ).

D.    The Applicant has removed Terinallum Homestead from the application area in recognition of the significance of the area of Terinallum Homestead for Wadawurrung People, who acknowledge it as the birthplace of their apical ancestor John Robinson (also known as John Robertson) in 1846.

THE COURT ORDERS THAT:

(a)    There be a determination of native title in proceedings VID 21 of 2019 in 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, as shown in Areas 1, 2 and 3 on the map at Schedule 3.

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

(c)    There be no order as to costs.

THE COURT DETERMINES THAT:

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) NTA) and exclusiveness of native title (s 225(e) 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.

Determined Area (s 225 NTA)

6.    Native title exists in relation to land and waters wholly located within the External Boundary described in Schedule 1, as shown in Areas 1, 2 and 3 on the map at Schedule 3, 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 in the 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;

(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 ss 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; or

(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.    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;

(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 NTA); or

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

11.    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.

12.    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))

13.    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))

14.    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.

15.    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

16.    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, as shown in Areas 1, 2 and 3 on the map at Schedule 3;

"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 13, being the interests set out in Schedule 2;

“public rights” means the other interests identified in paragraphs 10 and 11 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.

17.    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.

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

SCHEDULE 1 – EXTERNAL BOUNDARY DESCRIPTION

External boundary descriptions

Area 1

Commencing at the intersection of the western boundary of the Painkalac Creek catchment and a western boundary of the Wadawurrung Traditional Owners Aboriginal Corporation (RAP) area at Longitude 143.948601° East in the vicinity of Boonah; then generally south easterly along the boundaries of that RAP area (being to the source of Painkalac Creek and along the centreline of that creek to its mouth at Bass Strait, then seawards) to intersect a buffer 100 metres seaward of the mean low water mark of the coastline; then generally south westerly along a buffer 100 metres seaward of the mean low water mark of the coastline to intersect an eastern external boundary of the native title determination in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at Longitude 143.829814° East; then generally north westerly along eastern boundaries of the external boundary of that determination to the westernmost point of the northern boundary of the Kennett River catchment; then generally north easterly along the northern boundaries of that catchment, north western boundaries of Wye River catchment, western and north western boundaries of Cumberland River catchment, western boundaries of Saint George River catchment, north western boundaries of Erskine River catchment, Stone Creek and Reedy Creek catchment, and western boundaries of Grassy Creek and Painkalac Creek catchments back to the commencement point.

Area 2

Commencing at the intersection of a north eastern corner on the northern external boundary of the native title determination in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 and the western boundary of the Charliecombe Creek catchment, being also a point on the southern boundary of the Western Highway road reserve; then generally south easterly along the southern boundaries of that road reserve to a western boundary of the Wadawurrung Traditional Owners Aboriginal Corporation (RAP) area; then generally southerly along western boundaries of that RAP boundary (being along the centrelines of Fiery Creek, the Western SG line railway and Mount Emu Creek) to intersect an eastern boundary of Lot 9 on TP833961; then generally westerly along eastern, northern and western boundaries of that lot to intersect the eastern external boundary of the native title determination in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237; then generally north westerly, northerly, and generally north easterly along eastern boundaries of the external boundary of that determination back to the commencement point.

Area 3

Commencing at a point on the eastern external boundary of native title determination the native title determination in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at Longitude 143.218501° East, Latitude 37.998649° South; then generally north westerly along the eastern external boundary of that determination to the southern boundary of Lot 9 on TP833961; then generally easterly along the southern boundary of that lot to the western boundary of the Wadawurrung Traditional Owners Aboriginal Corporation (RAP) area; then generally south easterly along western and southern boundaries of that RAP boundary (being along the centrelines of Mount Emu Creek, Fire Access Road and Chatsworth Road) to the centreline of the Hamilton Highway in the township of Derrinallum; then southerly back to the commencement point.

Note

Data reference and source

    Application boundary compiled by National Native Title Tribunal based on information or instructions provided by the applicants.

    Cadastre data sourced from the Department of Environment, Land, Water & Planning (Vic), May 2023.

    Roads and watercourses based on cadastre data where available, else 1:25K topographic data sourced from the Department of Environment, Land, Water & Planning (Vic), November 2020. Reference to roads and rivers refers to the centreline of those features.

    Registered Aboriginal Parties (RAP) data sourced from the Department of Premier and Cabinet, Office of Aboriginal Victoria, (August 2022). Where these boundaries are intended to follow roads or watercourses and cadastral data is available, the cadastre data is used, else the RAP area data based on 1:25K topographic data has been used.

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

    Coastline based upon Geodata Coast 100K data sourced from the Commonwealth of Australia (Geoscience Australia) 2004.

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 (13 September 2023).

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; and

(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;

(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 s 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 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.

8.    The rights and interests of the Australian Maritime Safety Authority (the Authority) as the owner, manager, or operator of aids to navigation pursuant to s 190 of the Navigation Act 2012 (Cth) and in performing the functions of the Authority under s 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:

9.    So far as confirmed pursuant to s 15 of the Land Titles Validation Act 1994 (Vic) 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.

10.    Any public right to fish.

11.    The public right to navigate.

12.    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 s 47C of the NTA in relation to:

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

(i)    Lake Bolac Lake Reserve, being the land described in the table below:

(ii)    Wongarra Coastal Reserve, being the land described in the table below:

(iii)    Lake Terrinallum Wildlife Reserve, being the land described in the table below:

(iv)    Lake Terrinallum N9 and N10 Lake Reserve, being the land described in the table below:

(v)    Kings Forest, Challicum Natural Features Reserve, being the land described in the table below:

(vi)    Lake Bolac Highway Park, being the land described in the table below:

(vii)    Lakes Turangmoroke, Yuangmania and Gunjal Wildlife Reserve, being the land described in the table below:

(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)    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. 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; and

(ii)    Otway Forest Park, being comprised of the land delineated and coloured pink or coloured yellow on the plans lodged in the Central Plan Office and numbered LEGL./14-056, LEGL./14-057, LEGL./14-058, LEGL./14-059 and LEGL./17-344.

2.    The State and the Eastern Maar Aboriginal Corporation agree to negotiate in good faith with respect to further agreement or agreements under s 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 s 47C(1)(b) of the NTA that s 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 s 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 s 64(2A) of the NTA.

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 rights and interests of the Eastern Maar Peoples over three discrete areas in south-west Victoria. The parties have filed a Draft Minute of Proposed Consent Determination executed by the necessary parties (the Minute of Consent) which gives effect to the terms of agreement reached between them and recognises the native title rights and interests held by members of the Eastern Maar Peoples over those areas.

2    This proposed consent determination is in relation to three discrete areas described in Schedule 1 and depicted in Schedule 3 of the Minute of Consent, and described as Areas 1, 2 and 3 (the Determination Areas). The three areas are part of a broader application for a determination of native title filed by the applicant on 14 December 2012 (the Determination Application) in which the applicant asserts native title rights and interests over a large area of south-west Victoria.

3    I have case managed the Determination Application for some time, made a consent determination in relation to part of the claim area in that application, I am part-heard in relation to another part of the claim area in that application, and have considered further materials in relation to this proposed consent determination. My involvement in this case has given me a better understanding of the utter devastation to First Nations communities in this region caused by European colonisation, including calamitous rates of illness and death, dispossession of country, systematic removal from country, and numerous atrocities against First Nations people and communities. The devastation is reflected in the fact that 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.

4    By this determination the Court again recognises that despite the dispossession and systematic removal from country, despite the atrocities, and despite the attack on their culture and way of life, the Eastern Maar Peoples have maintained their culture, which includes a deep and enduring connection to their country. That is a testament to the strength and commitment of the Eastern Maar Peoples, and the strength and commitment of their respective communities.

5    For the reasons I now turn to explain, I am satisfied that it is within the power of the Court to make the orders sought in relation to the three discrete areas in this part of the Determination Application, and that it is appropriate to do so. This represents another step forward for the Eastern Maar Peoples and their surrounding communities and it reflects the hard and effective work of the parties, and particularly that of Judicial Registrar Ann Daniel, the applicant and the State, which has been ongoing for years.

6    In these reasons I have sometimes drawn directly from the parties’ submissions.

THE CLAIMANTS AND THEIR COUNTRY

7    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. Even so, it is important to say something about the Eastern Maar Peoples and their country as this determination and the reasons which accompany it will stand as a permanent record for the Eastern Maar Peoples of the judicial recognition of their native title rights.

8    At the assertion of British sovereignty in 1788, the Maar speaking peoples shared a system of traditional law and custom, customary practices and obligations. Their traditional territory is said to have extended from the catchment of the Glenelg River in the west, to the catchment of the Leigh and the Barwon Rivers in the east and from the sea in the south to the Great Dividing Range. Following effective sovereignty, the landholding in the region evolved so that the Maar Society now comprises two domains, the Eastern Maar domain, which is the country of the Eastern Maar Peoples and the Western Maar domain which is the country of the Gunditjmara People, the territories of which domains overlap: see Lovett on behalf of the Gunditjmara People and Others v Victoria (No 5) [2011] FCA 932 (Lovett (No 5)) at [33] (North J).

9    In the broader Determination Application the Eastern Maar Peoples 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. That application has been the subject of:

(a)    a native title consent determination in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 (Austin (No 1)) which recognised the native title rights and interests of the Eastern Maar Peoples in relation to a large swathe of the area claimed in the Determination Application; and

(b)    a part-heard trial in relation to the area referred to as “Area C”, in which area competing claims of native title are made by the Eastern Maar Peoples and the Gunditjmara People.

10    The Eastern Maar Peoples’ native title right and interests were earlier recognised in Lovett (No 5) which recognised the joint native title rights and interests of the Eastern Maar Peoples and the Gunditjmara Peoples in relation to an area referred to as “Part B” in that application, being country bounded in the west by the Eumeralla River and extending to the east to the Shaw River.

11    The Eastern Maar Peoples have chosen the name, Eastern Maar, in recognition of the eastern domain of the Maar speaking peoples. The Eastern Maar Peoples are defined in Order 1 of the Minute of Consent, in the following terms:

1.    The native title rights and interests are held in the Determination Area by the Eastem 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:

1.1    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

1.2    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.

12    The parties agree that the Eastern Maar Peoples are the descendants of the apical ancestors identified in the Minutes of Consent. 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. Members of the claim group 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 them by a different one of those descriptions.

PROCEDURAL BACKGROUND AND THE PROCESS TOWARDS A CONSENT DETERMINATION

13    As I have said, this application for a consent determination relates to three discrete areas in south-west Victoria identified as Areas 1, 2 and 3 in Schedule 3 to the Minute of Consent, none of which are now contested by other Indigenous parties.

14    On 28 March 2023, sitting on Eastern Maar country on the eastern bank on the Hopkins River at Warrnambool, the Court recognised the native title rights and interests of the Easter Maar Peoples over a large swathe of the areas claimed in the broader Determination Application: see Austin (No 1). Areas 1, 2 and 3 were not included in that determination because at that point they were contested and the subject of ongoing mediation.

15    The general history of the negotiations leading to the determination in Austin (No 1) are set out in that judgment at [38]-[47]. Much of that history applies equally to the present proposed determination, but the agreement here also involved mediations between the applicant and the Wadawurrung respondents, and the Barengi Gadjin Land Counsel (BGLC), being the prescribed body cooperate holding native title for the Wotjobaluk, Jaadwa, Jadawadjli, Wergai & Japagulk Peoples (WJJWJ) and Mr Corey Theatre.

The Wadawurrung Peoples’ claim

16    The Wadawurrung respondents became respondents to the Determination Application on 12 November 2019. As Wadawuurung people they asserted native title rights and interests in areas falling within the area claimed by the Eastern Maar Peoples, which are identified as Areas D and E. The Wadawurrung peoples subsequently filed an application for a determination of native title on 26 October 2022 (VID 693 of 2022 Patrick Fagan & Ors on behalf of the Wadawurrung Native Title Claim and State of Victoria) (the Wadawurrung Native Title Application), which includes areas overlapping with the Eastern Maar Peoples’ Determination Application.

17    A conference of experts was held in late October 2022 in respect of the overlap, and mediation then followed with the assistance of Judicial Registrar Daniel. Through that mediation the overlap of asserted interests was resolved. Among other things, the agreement reached provided for:

(a)    the Eastern Maar Peoples to amend the area claimed in the Determination Application to remove the area described as “Terinallum Homestead” (being so much of Lot 9 TP83396 that is west of the centreline of Mt Emu Creek); and

(b)    the Wadawurrung Peoples to withdraw any assertion of native title rights and interests in relation to the balance of the area claimed by the Eastern Maar Peoples and to remove that area from the Wadawurrung Native Title Application. They did so by filing an amended application for a determination of native title on 7 June 2023.

18    The Eastern Maar Peoples decision to remove the claim in relation to Terinallum Homestead was recognition of the significance of the homestead for the Wadawurrung Peoples, it being the acknowledged birthplace of their apical ancestor John Robinson (also known as John Robertson) in 1846. The Minute of Consent includes orders giving effect to that agreement.

19    As a result of the agreement, the area previously identified as Area D is now identified as Area 1, and what was Area E has been split into two areas, separated by the Terinallum Homestead, with the northernmost area now being identified as Area 2 and the southernmost area as Area 3. The insert in the map at Schedule 3 of the Minute of Consent depicts the split between Area 2 and 3.

Barengi Gadjin Land Council, the Wotjobaluk, Jaadwa, Jadawadjli, Wegai and Japagulk Peoples and Mr Corey Theatre

20    Following the notification of the Determination Application, the BGLC, WJJWJ and Mr Theatre asserted native title rights and interests in areas falling within the area claimed by the Eastern Maar Peoples in the Determination Application, which are identified as Areas A and B.

21    Through a series of Court facilitated mediations between the applicants the BGLC, WJJWJ and Mr Theatre, on 29 March 2023 the applicants resolved to withdraw their claim over Areas A and B, effectively resolving the overlapping claims. Orders 25 and 29 of the Minute of Consent give effect to that resolution.

THE REQUIREMENTS UNDER SECTION 87A OF THE NTA

22    As the Determination Areas in this application cover only part of the area claimed in the broader Determination Application, the following preconditions prescribed by s 87A of the NTA must be met before the Court can make a determination of native title:

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

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

(b)    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));

(c)    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));

(d)    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 (subs (1B));

(e)    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));

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

(g)    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)).

23    Putting to one side for the moment the issues arising under s 87A(4) of the NTA, 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 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)(b)) and the parties have reached agreement in relation to part of an area claimed in the Determination Application, and the proposed determination relates to that part. The balance of the Determination Application overlaps with claims made by other Indigenous parties and does not form part of the Determination Areas;

(c)    the Minute of Consent is an agreement in writing (subs (1)(d)) filed with the Court on 8 December 2023 (subs (2)), and having regard to the affidavit of Byron Knight, a solicitor at the Victorian Government Solicitor’s Office, the solicitors for the State, affirmed 6 December 2023, I am satisfied that:

(i)    it has been signed by or on behalf of all necessary parties (subs (1)(c)(ii), (iv), (vii), (viii) and (ix)). As all necessary respondents have signed the Minute of Consent there is no requirement for the Chief Executive Officer 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 (8)); and

(ii)    there are no other registered native title claimants in relation to any part of the Determination Areas (subs (1)(c)(ii) and (iv)). A number of Indigenous respondents earlier asserted an interest in the claimed areas but, as I have said, those claims were resolved through mediation, and it is unnecessary for those claimants to have signed the Minute of Consent (subs (1)(c)(vi)).

24    The balance of the Court’s consideration thus turns upon whether the Court has the power to make the orders sought (s 87A(4)(a)) and whether it is appropriate to make the orders sought (s 87A(4)(b)). These matters are addressed below.

SOME FEATURES OF THE PROPOSED DETERMINATION

25    The proposed consent determination reflects that the applicant does not claim exclusive rights and interests over the Determination Areas.

26    The nature of the native title rights and interests to be conferred on the Eastern Maar Peoples are set out in Order 2 of the Minute of Consent, they consist of the:

(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 resources of the land and waters; and

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

27    The extent to which the Eastern Maar Peoples may enjoy the native title rights and interests is qualified by Orders 3 to 5 of the Minute of Consent. They provide that the native title rights and interests:

(a)    must only be used for a non-commercial purpose to satisfy personal, cultural, domestic or communal needs (Order 3);

(b)    do not confer possession, occupation, use and enjoyment of the Determination Areas on the Eastern Maar Peoples to the exclusion of all others (Order 4); and

(c)    must be used in accordance with traditional law and custom and the laws of the State and the Commonwealth of Australia, including the common law (Order 5).

28    Orders 14 and 15 of the Minute of Consent also qualifies the native title rights and interests by reference to other interests but also confirms that those interests do not extinguish the interest conferred by the determination.

29    The proposed determination includes a process for good faith negotiations between the Eastern Maar Aboriginal Corporation (EMAC) and the State for making agreements under s 47C of the NTA with respect to certain ‘park areas’ within the Determination Areas that are identified in Schedule 4 of the Minute of Consent. 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. The effect of the provision is to disregard prior extinguishment of native title for the purpose determination of native title. In the second reading speech for the Native Title Legislation Amendment Bill 2020 (Cth), which introduced the provision, 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.

30    By agreement between the State and the applicant, under the proposed orders, the making of any agreement under s 47C is to be addressed subsequently to the making the proposed determination, so as not to delay the determination. A notation to the consent determination provides that it is the parties intention to negotiate in good faith. The negotiations may lead to an amended claim application under s 64(2A) of the NTA, or to an application to vary an approved determination of native title under s 13.

31    It is worth noting that there has not been a detailed tenure analysis carried out over the Determination Areas. Instead, the areas in which native title will be determined to exist and not to exist are described generically. Before Austin (No 1) this was novel in Victoria, but 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] (Reeves J).

THE POWER TO MAKE THE ORDERS SOUGHT

32    I am satisfied that there is probative material against which the Court can assess whether the matters set out in s 225 can be stated in the determination: see Agius v South Australia (No 6) [2018] FCA 358 at [68] (Mortimer J). The principal source of my satisfaction in this regard is the submissions filed by the applicant and the State in support of making the proposed determination and the terms of the Minute of Consent.

33    In relation to the questions of jurisdiction and power under ss 81 and 87A(4)(a) of the NTA respectively, I am satisfied that:

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

(b)    the terms of the proposed determination are within the power of the Court, in the sense that the native title rights and interests that are to be declared properly reflect the characteristics of native title rights and interests set out in s 223 of the NTA and the terms confer native title rights and interests recognisable by the common law of Australia. Those requirements, as considered in Members of Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422, were summarised by North J in Lovett (No 5) at [22] as follows:

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.

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];

(c)    the Determination Areas do not overlap with any other application for determination of native title (s 67(1));

(d)    the Determination Areas are not the subject of a previously approved determination of native title (s 68); and

(e)    the proposed determination complies with s 94A by setting out the details of each of the matters mentioned in s 225. In relation to those matters:

(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 replicates the claim group that was recognised in Lovett (No 5) with the exception of Richard Sharp, and subsequently in Austin (No 1), and it is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15];

(ii)    Orders 2 to 5 describe the nature and extent of the native title rights and interests in relation to the Determination Areas (s 225(b)). These orders provide that the native title rights and interest consist of non-exclusive rights, which must only be exercised for a non-commercial purpose, and are similar to those recognised in Lovett (No 5) and Austin (No 1). Order 4 provides that Order 2 does not confer possession, occupation, use and enjoyment of the Determination Areas on the Eastern Maar Peoples to the exclusion of all others (s 225(e));

(iii)    Orders 6 and 7 describe the “particular area” in relation to which native title exists as required by the preamble to s 225. Order 6 provides that the Determination Areas are located wholly within the External Boundary described in Schedule 1, and Order 7 provides that the lands and waters therein described are excluded;

(iv)    Order 13 refers to Schedule 2 to the Minute of Consent which sets out the “other interests” in the Determination Areas (s 225(c)); and

(v)    Orders 14 and 15 distinguishes the relationship between the native title rights and interests and the “other interests” set out in Schedule 2 of the Minute of Consent (s 225(d)).

WHETHER IT IS APPROPRIATE TO MAKE THE ORDERS SOUGHT

34    Before reaching a conclusion as to whether it is appropriate to make the proposed consent determination it is necessary to understand the requisite standard of satisfaction.

The requisite state of satisfaction

35    I set out the requisite standard of satisfaction in Austin (No 1) at [33]-[37], as follows:

[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 State’s consideration of the application

36    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 who reviewed the terms and ultimately consented to them.

37    The State submits that it has taken a “real interest” in the proceeding in the interests of the community generally; has given careful consideration to the connection material and other relevant material of the same kind as it set out in support of the determination in Austin (No 1); and in relation to the addition of Richard Sharp as an apical ancestor, of the material provided to the State by the respondent, Ron Arnold, and an agreement in principle reached in December 2021 between the applicant, Mr Arnold and the state following mediation in November 2021.

38    The State says that in coming to its support for the proposed consent determination it assessed the applicant’s claim applying the principles set out in the authorities cited above. The State also submits that it confirmed by reference to:

(a)    the material of which it was aware from Lovett (No1) and Lovett (No 5);

(b)    the Threshold Material filed with it by the applicant under the Traditional Owner Settlement Act 2010 (Vic); and

(c)    other material obtained in these proceedings,

that the apical ancestors and their descendants identified in the proposed consent determination appropriately describe the holders of the native title rights and interests to be determined to exist by the proposed determination. The State notes that this description directly replicates the apical ancestors recognised in Austin (No 1) (which with the addition of Richard Sharp, replicates the Eastern Maar apical ancestors recognised in Lovett (No 5)).

39    The State appreciates that the application by the Eastern Maar Peoples brings together different groups who historically had rights and interests in accordance with traditional laws and customs in separate parts now covered by the Determination Areas, and understands that the exercise of rights within the Determination Areas will be a matter to be regulated intra-murally by and among the native title holders. The State said that it nevertheless considers that the description is sufficient to identify who holds the proposed native title rights.

Exercise of the discretion under s 87A

40    I accept the submissions of the State and the applicant. I am satisfied, having regard to the following matters, that it is appropriate to make an order in terms of the proposed determination without holding a hearing (s 87A(4)):

(a)    the State has taken a “real interest” in the proceeding in the interests of the community generally and has given careful consideration to the connection material and other relevant material which it obtained in previous relevant proceedings and in this proceeding;

(b)    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 Areas by applying the principles in the authorities cited above;

(c)    all of the parties to the application who asserted an interest in the Determination Areas (including those that 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;

(d)    the non-State respondents were provided with and had multiple opportunities to engage, and did so engage, in consultation on the form and content of the Minute of Consent at numerous stages, including on the final form circulated to all parties on 15 September 2023;

(e)    the terms of the proposed consent determination represents the agreement of the parties, entered into freely, without duress, fraud or misrepresentation;

(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 resolved having regard to the circumstances of any particular case.

NOMINATION OF A PRESCRIBED BODY CORPORATE

41    Where the Court proposes to make a determination that native title rights and interests exist, under s 56(1) of the NTA, the Court must also make a determination as to whether those rights and interests are to be held on trust and if so, by whom.

42    The Minute of Consent signed by the parties seeks a determination that EMAC hold the determined native title as an agent for the Eastern Maar Peoples pursuant to s 57(2). This agreement is supported by the affidavit of Rohan Thwaites, a lawyer employed by First Nations Legal and Research Services, the solicitors for the applicant, affirmed 4 December 2023. Having regard to Mr Thwaites’s affidavit, I am satisfied that:

(a)    at a meeting of the Eastern Maar claim group on 8 September 2023 the claim group resolved to nominate EMAC to hold determined native title as an agent for the Eastern Maar Peoples;

(b)    at a meeting of the board of EMAC on 11 October 2023 the board resolved to consent to the proposed nomination to act as agent;

(c)    on 25 October 2023, Ms Vicki Couzens, as an authorised representative of the common law holders of native title and a member of the applicant, signed and provided to Mr Thwaites a document that nominated EMAC to be the prescribed body corporate to hold the native title for the Eastern Maar Peoples common law holders to be determined in VID 21 of 2019; and

(d)    on 15 November 2023, Mr Thwaites received from EMAC a document evidencing its consent to its appointment to hold the native title to be determined in VID 21 of 2019 as agent for the common law holders, signed by two of its directors.

43    EMAC was registered on 11 July 2011 under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The common law native title holders in both Lovett (No 5) and Austin (No 1) also nominated EMAC to hold the determined native title as the prescribed body corporate acting as agent for the Eastern Maar Peoples, and in both determinations the Court appointed it in that capacity. It is appropriate 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

44    For these reasons, I will make the orders proposed in the Minute of Consent and make the determination of native title as proposed by the parties.

Associate:    

Dated:    21 March 2024

SCHEDULE OF PARTIES