Breakthrough in Wotjobaluk Native Title claim |
The Victorian Government has announced that it has reached an in-principle agreement with the Wotjobaluk people to settle their native title claim in the Wimmera region. |
Attorney-General Rob Hulls said the proposed agreement could serve as a model for settling other native title claims in Victoria, as it gives the Wotjobaluk significant recognition as descendants of the people who occupied the land before European settlement, while also maintaining the rights of current land holders. |
"This has the potential to be an historic agreement and vindicates the Victorian Government's determination to settle this claim without litigation" Mr Hulls said. |
"The proposed agreement can deliver a win for everyone - the Wotjobaluk people, government interests and land users - and keep the claim out of court. |
"The Victorian Government is about being fair-minded for all Victorians and I am pleased that this in-principle agreement has the potential to deliver a good result to all stakeholders." |
The Victorian Government and the Wotjobaluk are now consulting all parties to the claim to see if a final agreement is possible. Meetings are being arranged with farmers, local government, apiarists and all interest groups. |
Mr Hulls said that the Wotjobaluk people were the first Victorian claimants to present proof to the Government outside the Federal Court. There has been a rigorous independent assessment of the Wotjobaluk evidence to verify who the claimants are and what traditional rights they might retain. |
The claim was lodged in 1995 and is the largest in Victoria. It covers almost a million hectares of Crown land and involves 438 registered respondents, including 300 farmers in the Wimmera. The Federal Court recently advised that the claim must either be settled by negotiation or scheduled for trial in the near future. |
Mr Hulls said that through negotiation the Government and the Wotjobaluk people had reached an in-principle agreement that protected all third party rights. |
The two-part proposal deals first with native title rights under the Native Title Act over less than two percent of the claimed land, with no native title rights recognized in the remaining area of the claim. |
Other parties will be asked to support a native title determination that gives the Wotjobaluk the right to hunt, fish, gather and camp along the banks of the Wimmera River, subject to all existing laws and regulations. |
Such rights would not limit public access, grazing licences, water frontage licenses, or any other existing interest. There would be no rights over water. |
The second part deals with arrangements outside the Native Title Act. This includes giving the Wotjobaluk: |
an advisory role in national parks in part of the claim, a role in protecting Wotjobaluk cultural heritage in part of the claim, and financial support for the Wotjobaluk, including the purchase of three parcels of Crown land, totalling 45 hectares, which are of particular cultural significance. Continuation of any interests in these sites will be addressed between parties. |
"Through the Victorian Government's negotiations with the Wotjobaluk people, we have the potential for a landmark agreement that will be good for people in the Wimmera and for reconciliation in Victoria" Mr Hulls said. |
All parties must make a progress report to the Federal Court on 25 November 2002. |
FAQs |
GENERAL |
Why should Aborigines get special rights? |
It has been recognised since 1992 that indigenous people occupied Australia before European settlement, and exercised traditional connections to the land under the system of ownership which we call 'native title'. Some indigenous people can prove that they have retained 'native title' through continued links with the land of their ancestors in accordance with tradition. Native title is protected by the High Court decision in Mabo and subsequent Court decisions and the Native Title Act. |
YORTA YORTA AND OTHER NATIVE TITLE CLAIMS |
Why isn't the Government going to Court as it did with the Yorta Yorta? |
The State Government believes that native title claims should be resolved by negotiation rather than litigation. The Yorta Yorta case has cost Victorian taxpayers millions of dollars and there is still no final outcome. The Wotjobaluk and the Government are in agreement about how to settle this claim. The Government would only need to go to Court if there was disagreement with the claimants about the evidence or some other legal issue. |
Will the government now also settle Yorta Yorta by agreement? The Yorta Yorta claim is currently awaiting a decision by the High Court. The legal action covers important points of law that must be tested by the Court. The Wotjobaluk negotiations demonstrate what can be achieved without litigation. The government is currently negotiating with the Yorta Yorta on matters outside the Native Title Act. |
What does this mean for other native title claims in Victoria? Every native title claim is different and will be assessed on the strength of the evidence. Settlement of the Wotjobaluk claim would provide a precedent for the resolution of the remaining 21 claims in Victoria but it does not mean that all claims will be settled the same way. |
RECOGNISING THE WOTJOBLAUK AS NATIVE TITLE HOLDERS |
Who are the Wotjobaluk? |
The Wotjobaluk are the descendants of the original inhabitants of the Wimmera Region. Most of the claimants' ancestors can be linked to Ebenezer Mission which was established in the 1860's for people from the Wimmera region. The impact of European settlement meant that many of the traditional laws and customs of the Wotjobaluk have been lost. However, the evidence supports the conclusion that the Wotjobaluk remain an identifiable community, with some of their traditions still intact. |
How does the Government know that the Wotjobaluk are native title holders? The Wotjobaluk have provided the Government with extensive anthropological/historical information about their traditional connection to the Wimmera Region. The Government had the evidence assessed independently by expert historians, anthropologists and lawyers. Based on those assessments and the its own research, the Government considers the Federal Court is likely to approve a determination. |
What are the laws and customs that underpin the native title determination? The Wotjobaluk have shown that they continue to hunt, gather, fish and camp along the Wimmera River in ways handed down to them by their ancestors. |
Why is the Government recognising native title over lands where I may not have seen the Wotjobaluk? Aboriginal people do not need to permanently live on lands to maintain a native title right to hunt, gather, fish and camp. Occasional use is sufficient. The evidence that the Wotjobaluk have provided to Government shows that they have continued to use the river reserves for these limited purposes. |
Are there other Aborigines who claim this area? |
There has been a comprehensive process to identify any other Aboriginal people whose ancestors are from the same area. As a result of that process a number of other people were recognised as members of the claim group. Membership of the Wotjobaluk Traditional Land Council is open to all indigenous people whose share ancestry with the Wotjobaluk claimants. People who are no longer resident in the claim area but have family links are not precluded from joining the Wotjobaluk Traditional Land Council. The Wotjobaluk claim is overlapped by two other claims - the Jupagalk claim in the north-east and the Dja Dja Wurrung claim in the south-east. |
Each of those claims is actually over different parcels of land to those claimed by the Wotjobaluk. Those claims are unaffected by the settlement proposal and will still have to be the subject of future negotiations. |
SETTLEMENT OF THE CLAIM |
Why is the Government announcing this now? |
The Wotjobaluk claim has been in the Courts since 1995. Since June 2002 the Federal Court has set deadlines for the State and the claimants to either settle the claim out-of-court or prepare to have the matter tried. This is an acceptable position for the Court to take after seven years. The Government and the Wotjobaluk have reached an in-principle agreement on the continued existence of some native title rights in a small part of the claim. If other respondents (farmers, water users etc.) agree a trial can be avoided. As there are more than 400 respondents to the claim, the Government wishes to make its position as clear as possible, to avoid misunderstandings about what is being proposed. No other consent determination of native title in Australia has involved more than a few dozen respondents. |
What happens now? |
The government and the Wotjobaluk will meet with the other respondents to the claim to see if a consent agreement is possible. These meetings have already commenced with the assistance of the National Native Title Tribunal. The government has offered to meet with groups of farmers and water users in Horsham if required. The Federal Court has indicated they want to know if agreement can be reached prior to the end of the year. |
What happens if there is no agreement? |
The Wotjobaluk claim is currently an application in the Federal Court and the Court has deferred a trial while the parties attempt to come to agreement. If there is no agreement the claim will probably be scheduled for a trial next year. This would be similar to the Yorta Yorta trial where the claimants are required to produce evidence in Court and can be cross-examined on that evidence. Based on the Yorta Yorta experience, the trial could take 6 months and cost millions of dollars. Either side could then appeal the Judge's decision to the Full Federal Court and possibly the High Court. If some respondents agree to a consent determination and some do not, a trial might only involve those who challenge matters of evidence. |
Will there be an indigenous land use agreement? |
An ILUA would be considered if a consent determination can not be reached. A determination of native title delivers the highest level of certainty possible and makes an ILUA unnecessary. |
DETERMINATION AREA |
What area is affected by the determination (the "determination area") ? |
The area affected by the determination is the Wimmera River reserve - the banks of the Wimmera River from the high water mark to an average of about fifty metres either side of the river. This area represents at most about 20,000 hectares of river reserves, approximately 2% of the total area of claimed land. The river banks are public reserves where there has not, to the Government's knowledge, been extinguishment of native title by previous grants of title. The determination area runs from north of Lake Albacutya to the junction of the Wimmera River and Yarriambiak Creek. The river itself and the beds of the river are not affected by the determination. |
THE CORE AREA |
What is the 'core area'? |
The core area is that part of the claim area that the Government is prepared to recognise as the traditional lands of the Wotjobaluk but where native title has not survived. The core area is not part of the native title determination but is part of the Government's broader recognition that the Wotjobaluk have continued to have a relationship with an area of land wider than the determination area. Within the core area, the Wotjobaluk will be granted 3 Crown allotments of particular historical and cultural significance to them, will have the opportunity to provide advice on cultural heritage management, major developments and management of National Parks and other Crown lands. |
THE CLAIM AREA |
What about the rest of the claim area? |
The proposed agreement does not recognise that native title has survived over the rest of the Wotjobaluk claim area. At the same time that the Court is asked to recognise the Wotjobaluk's rights to hunt, gather, fish and camp along the banks of the Wimmera River, it will be asked to make a determination that native title has been extinguished over the remainder of the claim area (about 98% of the claim). |
WATER |
What effect will the determination have on water in the Wimmera Region? |
None whatsoever. The Government and the Wotjobaluk agree that no native title rights to water have survived. The Wotjobaluk will not have any more say over water use than the wider community and will have the same rights as others to fish and swim in the river. |
How will the Wimmera River be affected? |
The Wimmera River will not be affected in any way from settling the native title claim. The proposed settlement does not give the Wotjobaluk native title rights to water. Existing water management arrangements will remain in place. |
What about the Wimmera River irrigation scheme? |
All irrigation use and plans will be unaffected by the settlement. |
THE WIMMERA RIVER RESERVE |
What about the farmers and others who use the Wimmera River reserves? |
The rights of farmers, recreational fishers, hunters, tourists, water users, local governments, beekeepers, and the general public will be unaffected by the resolution of the native title claim. If there is any conflict between the rights of farmers or others and the Wotjobaluk, the rights of farmers and others will prevail. |
Will the Wotjobaluk be able to exclude others from the river and river reserve? No. The Wotjobaluk's native title rights coexist with the rights of farmers and the wider community in the Wimmera River reserves. The Wotjobaluk do not own the land or have any exclusive rights over it. |
Will it be safe for the public and livestock in the determination area? |
There will be no change to the current regulations. All fire restrictions, firearm use regulations, livestock protection measures and public safety requirements would be unaffected by the determination. |
What will happen if I want to get a new grazing or water diversion licence in the determination area? The same procedure as currently applies will apply in the future, Currently the Wotjobaluk have the opportunity to comment on applications for new licences, but renewals do not need native title clearance. Normal Aboriginal cultural heritage protection measures will remain in place. |
WOTJOBALUK NATIVE TITLE RIGHTS |
What will the Wotjobaluk be able to do with their native title? |
The Wotjobaluk will have a native title right to hunt, gather, fish and camp along the banks of the Wimmera River. The Wotjobaluk will not own this land and the public and all other people who use the river reserve will be continue to be able to use the land. Public rights and native title rights will coexist. The Wotjobaluk will be required to follow all laws and regulations that apply to these activities (e.g. fishing bag limits, camping permits etc.). |
What are the Wotjobaluk going to do with the land? |
The Wotjobaluk use of the land is unlikely to alter much from the present - using it to camp, fish, hunt and gather - however their native title right to do these things will be recognised. |
How will the rights of claimants interact with other land users rights? |
To the extent that there is any inconsistency between the native title rights of the Wotjobaluk and the rights of other users of the land, the rights of other users will prevail. For example, graziers will continue to be able to graze their stock in the Wimmera River Reserve in areas under grazing licence and the public will be able to continue to fish and camp along the river. |
Will public access to National Parks or other Crown lands be affected? |
No. All existing public access arrangements to parks will be unaffected and there will be no additional park or access fees as a result of this agreement. Over time the Wotjobaluk may become more heavily involved in the protection, conservation and interpretation of cultural heritage places, adding to the quality of information available to visitors. |
How will I know who is Wotjobaluk? |
The Wotjobaluk Traditional Land Council will maintain a register of its members at its office which is currently in Horsham. Only those people on the register will be entitled to exercise native title rights to hunt, gather fish and camp. Members of the public and Government agencies will be entitled to know who is on the register. |
Will the Wotjobaluk be able to permanently camp on the river banks? No. Camping will be subject to agreed arrangements between the government and the Wotjobaluk. |
Will there be mining in the determination area? |
The right to explore for and mine minerals will not be affected by the determination. The Native Title Act's 'right to negotiate' will continue only in the determination area along the river banks. This gives the Wotjobaluk the right to negotiate with miners about proposed development. |
THE WIMMERA COMMUNITY AND OTHER VICTORIANS |
What do the wider Wimmera community get from the settlement? |
Resolution of the claim delivers certainty regarding native title arrangements throughout the Wimmera Region. All native title issues will be removed over 98% of the claim area with remaining rights clearly identified and regulated. Certainty over identification of the region's traditional owners will assist reconciliation between the indigenous and non-indigenous communities. |
Do the local Government authorities and other parties agree to the determination? The Government and the Wotjobaluk have reached in-principle agreement and are now consulting with the relevant local Government authorities, farmers, water users etc. to seek their approval. |
What is the cost of resolving the claim? |
The Government will provide some ongoing support to the Wotjobaluk for them to run the Wotjobaluk Traditional Land Council and to assist them to be involved in cultural heritage and land management. A grant will also be made for improvements to the three Crown allotments. There will be no costs to members of the public. The cost of settlement will be only a fraction of the cost if the claim goes to trial. |
Who will implement the agreement? |
The Government will continue to work with the Wotjobaluk after the determination to put the arrangements into practice. The Government will remain responsible for implementation on behalf of all Victorians, through a partnership with the Wotjobaluk. |
CULTURAL HERITAGE AND CONSULTATION OVER DEVELOPMENTS |
What changes will there be to the existing cultural heritage arrangements? |
The Goolum Goolum Aboriginal Co-operative is currently responsible for cultural heritage across the area of the Wotjobaluk's claim. The Goolum Goolum and the Wotjobaluk are considering a partnership arrangement whereby they will consult with one another over cultural heritage decisions across the whole claim area. The Goolum Goolum and the Wotjobaluk are also discussing the possible transfer of responsibility for cultural heritage in the 'core area' from the Goolum Goolum to the Wotjobaluk. Under this arrangement, the Goolum Goolum would continue to be responsible for the rest of their area. |
Will developers continue to have to consult with both the Wotjobaluk and the Goolum Goolum? Currently the Goolum Goolum need to be consulted with respect to cultural heritage clearance matters and the Wotjobaluk with respect to native title clearance over the whole claim area. If the Goolum Goolum and the Wotjobaluk agree to transfer responsibility for cultural heritage in the 'core area' to the Wotjobaluk, developers will only have to consult with the Wotjobaluk in this area. Under this arrangement, developers will only have to consult with the Goolum Goolum over the remaining area. |
Why will major developers have to consult with the Wotjobaluk in the core area where there is no native title? Under the proposed agreement, the Wotjobaluk will have statutory rights to protect cultural heritage from the impacts of development. The government has committed to consult more broadly with the Wotjobaluk over major developments in the core area - construction employment and training opportunities etc. This is not a native title obligation, but something that the government has agreed to do to assist the Wotjobaluk to have a say in major developments on their traditional lands. |
The government will encourage major private developers to consult with the Wotjobaluk along similar lines when fulfilling their cultural heritage responsibilities |
Contacts Department of Justice Native Title Unit 55 St Andrews Place East Melbourne VIC 3002 03 9651 0669 |
Reprinted from Sydney Morning Herald September 27 2002 |