Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 (No.1)

Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795.

This is one of three consent determinations to arise out of this case; the other two being Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples No. 2; and Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples No. 3 (see under 'Related Agreements' below).

Between: Kaylene Pamela Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples (APPLICANTS) and State of Victoria and others (RESPONDENTS).

Judge: Merkel J.

Where made: Horseshoe Bend, Little Desert National Park.

The area covered by this consent determination covers two areas:

• Determination Area A, which consists of Crown allotments (as described in Part 1 of Schedule 3) and beds of watercourses and lakes (as described in Part 2 of Schedule 3) in which native title is found to exist. This area is shown on maps in Schedule 4; and
• Determination Area B which consists of Crown allotments (as described in Part 1 of Schedule 5) and watercourses and lakes (as described in Part 2 of Schedule 5) where native title is found not to exist. This area is shown on maps in Schedule 6.

The native title rights found to exist in Determination Area A are non-exclusive native title rights to hunt, fish, gather, and camp. These rights are not held to the exclusion of all others.

The rights of the State of Victoria, utility companies, and those held by various respondents pursuant to their respective licences (as described in Schedule 7) will continue in this area. These respondent rights include the rights of Telstra Corporation Limited as the owner or operator of telecommunications facilities installed within Determination Area A.

The native title holders are the Wotjobaluk people (as described in Schedule 8). The native title rights and interests are held in trust by the prescribed body corporate of the native title parties, the Barengi Gadjin Land Council Aboriginal Corporation.

Native title does not exist in Determination Area A over:

• any waters, not including the beds or subsoil under the waters; and
• land on which public works were validly constructed.

The native title rights are subject to, but are not extinguished by, the other rights and interests, and must be exercised in accordance with the traditional laws and customs of the Wotjobaluk people, the laws of the State and Commonwealth and according to the terms of an Access Agreement that will be entered into by the applicants and several of the respondent parties.

These consent determinations represent the settlement of three native title claims lodged over the Wimmera area between 1995 and 1999, made with the consent of over 400 parties. It is the first time the Federal Court has recognised native title through a consent determination in Victoria.

On making the determination, Merkel J stated that these are areas in which the Aboriginal peoples suffered severe and extensive dispossession, degradation, and devastation as a consequence of the establishment of British sovereignty over their land and waters during the 19th century (at para 2, [2005] FCA 1795).

In the areas where native title is recognised, agreements will be entered into that give the native title holders "an advisory role in the management of some national parks and wilderness areas, and transfer three parcels of culturally significant land" (NNTT media release).

The nature of the agreement package means that native title holders will have other rights and benefits in the parts of the claim areas where native title is not recognised.

The traditional laws and customs observed by the Wotjobaluk people and acknowledged in this consent determination include following the teachings of Bunjil, of whom a senior, now deceased, Wotjobaluk elder said if we follow Bunjil's law and look after the country then the country will look after us. All the rules we have come from Bunjil. I must pass on Bunjil's law so it continues (at para 8, [2005] FCA 1795).

The National Native Tribunal mediated between the parties, with the native title claimants represented by Native Title Services Victoria. NNTT member Professor Doug Williamson QC said that by taking this approach they have formed long-term relationships that will help all parties to coordinate the enjoyment of their rights on the ground in the future (NNTT media release).

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