The Traditional Owner Settlement Act 2010 (Vic)

On 23 September it will be fourteen years since the commencement of the Traditional Owner Settlement Act 2010(Vic) (“the Settlement Act”). The Act was a result of the joint efforts of the Victorian Traditional Owner Land Justice Group and the Victorian Labor Government led by John Brumby as Premier and Rob Hulls as Attorney-General. Of course, Labor subsequently lost the state election held in December 2010.

The impetus for the legislation arose from the defeat of Traditional Owners in the High Court decision of Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors [2002]HCA 58  (Yorta Yorta) which was handed down on 12 December 2002.The respondent Victorian Government (until two weeks before the decision was handed down) was led by Jeff Kennet.

Subsequent to the Yorta Yorta decision, there was doubt that Traditional Owners in the south-eastern areas of Australia, which had been subject of the longest and arguably most intense processes of dispossession, would ever successfully satisfy the native title requirement to demonstrate an ongoing “traditional connexion” to their lands. In 2005 there was the first positive determination of native title in the consent Wotjobaluk, Jaadwa, Jadawadjali, Wergaia andJupagulk People of the Wotjobaluk Nations (WJJWJ) consent determination.

Despite the positive WJJWJ determination, Victorian Traditional Owners and the Labor government agreed that an approach to recognising the rights and addressing the aspirations of Traditional Owners better than that available under the Native Title Act 1993 (Cth) (NTA) was needed. The Settlement Act was the outcome.

The Act was based on:

·      recognition of the status of Traditional Owners without the need to evidentially demonstrate a “traditional connexion” under native title jurisprudence.

·      Obviating a contested litigious approach to settlements through negotiation.

·      Providing certainty to the state and proponents without the need for surrender or extinguishment of native title rights.

·      Ensuring rights and benefits for Traditional Owners no lesser than and generally better than those available under purely native title outcomes

·      Providing a more expeditious path to settlement of Traditional Owner claims.

The implementation of these high aspirations has been mixed. In the fourteen years of its operation, there have six Recognition and Settlement Agreements (RSA)under the Settlement Act entered between the State and Traditional Owner groups. Four of these have been in conjunction with a native title consent determination.

Where these Agreements are in place they have delivered real, tangible benefits to Traditional Owners far above what is possible under NTA outcomes alone. However, they uptake of the Agreements has been disappointingly slow.

By way of example, counterintuitively the Eastern Maar Peoples achieved a native title determination in 2023 after a native title determination process that lasted over a decade. However, the State has still not agreed to an RSA under the Settlement Act for these Traditional Owners.

To my mind there are two key reasons for the failure to secure more Agreements. Both lie in the attitude of the State:

·      The State has refused to negotiate with Traditional Owners who are also pursuing a native title determination application. This approach is a policy position of the State. It is not in the legislation, that is deliberately written to create structures that coexist with ongoing native title rights. To compound matters the State has persistently refused to ensure “future act” equivalent rights to Traditional Owner groups during Settlement Act negotiations unless - compelled by a registered native title determination application.

·      The State has imposed requirements in the administrative “threshold statement” that create a near insurmountable barrier to a Traditional Owner group to commence advanced negotiations. This is particularly so in the State demands for essentially unanimous agreement from all neighbouring and internal subgroups regarding questions of extent of country.

One lesson learnt is that judges are better at making decisions than public servants. Another lesson learnt is that Traditional Owner structures are better at reaching outcomes than public servants. The determination of appointment areas for Registered Aboriginal Parties by the Victorian Aboriginal Heritage Council under the Aboriginal Heritage Act 2006 (Vic) has far exceeded, in both number and extent of country, outcomes under the Settlement Act.

It would be nice to believe that the State will reconsider its unenthusiastic approach to giving effect to the Settlement Act, but there is little evidence base for this belief.

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