Native Title

On 22 October 2010, the Federal Court recognised that the Gunaikurnai people hold native title over much of Gippsland.

What is Native Title?
Native title is the recognition in Australian law that some Indigenous people continue to hold rights to their lands and waters that come from their traditional laws and customs.

Native title has its source in the laws and customs observed by Indigenous people when Australia was colonised by Europeans. Those laws and customs must have been acknowledged and observed in a ‘substantially uninterrupted’ way from the time of settlement until now. 

Native Title:
•  is administered through the Commonwealth Native Title Act 1993.
•  is not granted by governments but recognised through a determination made by the Federal Court.
•  will vary for each group because it comes from traditional laws and customs of the group.
•  exists alongside and is subject to, the rights of other people in the same area.
•  can be extinguished because of things the government has done, or allowed others to do, over a particular area that are inconsistent with native title.

What is the Native Title Act?
The Native Title Act 1993 is a Commonwealth law that provides a process by which Indigenous Australians can lodge applications in the Federal Court of Australia seeking a determination of native title.The Native Title Act 1993 also provides a process for applicants and native title holders to negotiate and enter into agreements relating to actions that affect native title interests. These actions are known as future acts.

How do you get Native Title?
The Court does not ‘give’ native title, rather it recognises that it still exists.
You have to prove:
•  that you possess rights and interests to the land under traditional laws and customs.
•  that those laws and customs are currently acknowledged and observed, in a continuous connection going back to pre-colonisation.
•  Native Title has not be extinguished.

What does recognition of Native Title give you?
Native Title does not give you ownership, but provides the right to camp, hunt, fish, gather food, and teach law and custom; and the right to negotiate with anyone seeking to carry out activities that might affect your rights.

Consultation and consent under the Native Title (Prescribed Body Corporate) Regulations 1999

As a prescribed body corporate, GLaWAC is empowered to make native title decisions and negotiate agreements on behalf of the Gunaikurnai native title holders. The Board does so in accordance with the GLaWAC Delegations Policy and with the support and on the recommendation of the Native Title and Cultural Heritage Subcommittee.

In addition, and in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations), the Board must undertake a process of consultation and consent with native title holders as part of that agreement-making process.

The process for consulting with native title holders and deciding whether consent has been received was agreed at a Gunaikurnai native title meeting on 30 November 2012 and incorporated into the GLaWAC Rule Book (see Rule 8). Once an agreement has been negotiated, the terms of the agreement and supporting information will be provided to both member and non-member native title holders and made available on the GLaWAC website as part of the consultation and consent process. Comments and feedback will be invited within 4 weeks of the mail-out date.

Following the consultation and consent process, Rule 8.1 provides that GLaWAC Directors will agree by majority vote whether the consultation and consent requirements for a particular native title decision have been met. Standing authorisations for future act notifications inviting comment The common law holders have also been consulted and have previously consented to the Board making decisions about whether to comment and whether to oppose, agree to or seek conditions in relation to certain future acts notifications inviting comment (see Rule 8.2).

Current Notices

GLaWAC will put up all notices concerning works on native title lands for native title holders to make comment if they wish. We will highlight where activities extinguish native title rights, although this is rarely the case. Please see below current notices on land:

NOTICE CONCERNING WORKS ON NATIVE TITLE LANDS (RIGHT TO COMMENT) PROPOSED INSTALLATION OF BEACON MONUMENT – PORT ALBERT PUBLIC PURPOSES RESERVE
The attached future act notice under s 24JA of the Native Title Act 1993 (the Act). The notice relates to the construction of a monument to Seafarers by the Port Albert Mechanics Institute Hall Committee, in partnership with Wellington Shire Council. The construction of the monument is part of a broader Port Albert Beacon Project.

 
As per the attached map, the site of the proposed future act falls within the Gunaikurnai native title determination area.
 
Native title will not be extinguished by the proposed future act.
 
GLaWAC and Gunaikurnai native title holders may provide comments regarding the proposed future act by 12 November 2022 (within 40 days from the date of the notification).
 
Any comments made may influence the proposed activity. However, there is no requirement that the State take such comments into consideration when deciding whether to approve the activity.
 
Cultural Heritage
Apart from native title obligations, a proponent (that is, the person proposing to conduct the activity or who will be granted an interest) may also have obligations under the Aboriginal Heritage Act 2006 (Vic). You may want to use the notice of the proposed activity to ensure that the proponent complies with its legal obligations (if any) under that Act.
 
Contact
If you have any further comment regarding native title or cultural heritage, please contact Angenita Hughes at DELWP by email angenita.hughes@delwp.vic.gov.au , or by phone on 0436 622 540; or Rohan Thwaites at First Nations Legal by email Rohan.Thwaites@fnlrs.com.au , or by phone on 0402 555 841 to discuss further.