Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932

Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932

Between:

John Maxwell Lovett, Christina Maxwell Lovett, Christina Isabel Saunders, Eugene Samuel Lovett and Georgina Helen Redfern on behalf of the Gunditjmara and Easter Maar Peoples (APPLICANT)

and

State of Victoria and others (RESPONDENTS)

Between:

Eugene Samuel Lovett and Marie Thornhill on behalf of the Gunditjmara People and Eastern Maar People (APPLICANT)

and

State of Victoria and others (RESPONDENTS)

Judge: North J

Where made: Eumeralla Coastal Reserve, Yambuk

Determination:

Native title exists in part of the determination area.

It consists of non-exclusive native title rights.

Native title is held by the Gunditjmara and Eastern Maar people.

In relation to Part B of the determination area non-exclusive native title rights and interests that exist over land and water of the determination area include:

• the right of access the land and waters;
• the right to camp;
• the right to use and enjoy the land and waters;
• right to take resources of the land and waters;
• the right to protect places and areas of importance on the land and waters; and
• the right to take water from the waterways is limited to domestic and ordinary use.

Non-native title rights and interests that exist within the determination area

These rights can be summarised as:

• Public access and enjoyment of waterways, beds and banks of foreshores of waterways, coastal waters, beaches and areas that were public prior to 31 December 1993.
• The right of an employee or agent of the Crown to access the Determination Area in performance of their statutory duties.
• The interests of the Crown or local government authority in any public works or other facilities where the construction was valid, did not extinguish native title and were commenced prior to the date of this determination.
• The rights and interests of Telstra Corporation as the owner and operator of telecommunications facilities installed in the Determination Area and under various statutes.
• Any public right to fish.
• The public right to navigate.
• The international right of innocent passage.
• The interests of persons holding licences or permits or other rights pursuant to the Fisheries Act 1995 (Vic), the Fisheries Management Act 1991(Cth) or any other such legislative scheme.
• The interests of Powercor Australia Ltd under various Acts.
• The interests of any person whose rights have been legitimately granted by the Crown or conferred by statute.

Provisions Relevant to the Native Title Rights

Native title does not exist over
- minerals and petroleum.
- groundwater.

The native title rights and interests of the Gunditjmara people will be held on trust by the Gunditj Mirring Traditional Owners Aboriginal Corporation. Under the Native Title Act 1993(Cth) s57(2)(b) the Eastern Maar Aboriginal Corporation will perform the functions required under s57(3) of the Act and act as an agent for the Eastern Maar people.

Background

In August 1996 the Gunditjmara People filed an application for the determination of native title followed by a further application in June 2006 to include certain parcels of land which had been overlooked in the original application. Neither of the applications passed the registration test.

In 2007 the parties reached agreement over 95 percent or 133,000 hectares of the area claimed (Part A) however there were outstanding issues regarding the smaller Part B area. As a result, the Court ordered that the applications be dealt with in two parts.

In 2007 the Court made a consent determination in relation to Part A, recognising the rights and interests of the Gunditjmara people over that area.

This new consent determination in 2011 concerns Part B.

The original applicants were the Gunditjmara people however it became clear that the Eastern Maar people also shared Part B country and as a result the application was amended in early 2011.

This native title determination of the Gunditjmara and Eastern Maar people includes approximately 3000 hectares of crown land between Dunkeld and Yambuk on Victoria's south-west coast including Deen Maar Island, also known as Lady Julia Percy Island (Nolan, 2011). The determination bounds Part A to the east.

The determination was Victoria's fourth native title determination.

Details of Judgment

The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The Court, being satisfied that a determination of native title was within the power of the Court and that such orders were appropriate, made the determination in the form outlined in the determination.

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