Lovett (on behalf of the Gunditjmara People) v State of Victoria [2007] FCA 474

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

Between:

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

And

The State Of Victoria and others (as per list of respondent parties) (RESPONDENT)

Judge: North J

Where: Mt Eccles National Park

Determination:

Non-exclusive native title rights exist over 133,000 hectares of vacant crown land, national parks, reserves, rivers, creeks and sea north-west of Warrnambool. Native title has been extinguished over 7,600 hectares of the claim area.

Background

On 30 August 1996, a native title application was lodged for determination on behalf of the Gunditjmara people. A second application was filed covering areas outside the boundaries of the initial application on 9 June 2006.

The application covered 14,000 hectares of crown land and waters including state forests, national parks, recreational reserves, river frontages and coastal foreshores.

170 different respondents became party to the proceedings. These included 'not only state and Commonwealth Government interests but also mining, farming, local government, fishing, beekeeping and recreational land used interests' (North J, Reasons for Judgment, para 2, [2007] FCA 474).

In 2002, the Court ordered mediation in the National Native Title Tribunal. This continued until 2005, during which time the State was supplied with anthropological evidence to demonstrate Gunditjmara connection to the land. In 2005, the State provided its report on the information, expressing an unwillingness to enter into a consent determination.

In 2005, the court took evidence from a number of Gunditjmara people relating to connection to land in order to preserve the evidence. Still no agreement was reached and the Court convened a conference of experts in July 2005 in preparation for trial. The report of this conference was released in November 2005, and by February 2006, resolution in principle had been reached.

Agreement was finalised in November 2006.

Details of Judgment

The determination states that non-exclusive native title exists in the areas described in Schedule 2, an area of land of approximately 133,000 hectares.

It was also agreed that native title had been extinguished over some 7000 hectares as outlined in Schedule 3 (Reasons for judgment, para 2, [2007] FCA 474).

The nature and extent of non-exclusive native title rights and interests include:

• entering and remaining on the land and waters;
• camping on the land and waters landward of the high watermark of the sea;
• the use and enjoyment of the land and waters;
• right to take the resources of the land and waters; and
• right to protect places and areas of importance on the land and waters. (Determination, para 5)

The Determination also states that insofar as the native title rights and interests may provide a right to take water from waterways, that right is limited to domestic and ordinary use. (Determination, para 6)

In light of the non-exclusive nature of Gunditjmara title, the native title rights and interests do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others. (Determination, para 8)

Further, there is no native title in the Native Title Area in or in relation to:

• minerals as defined in the Mineral Resources Development Act 1990 (Vic), as they are owned by the Crown;
• petroleum as defined in the Petroleum Act 1998 (Vic); and
• groundwater as defined in the Water Act 1989 (Vic). (Determination , para 3)

The native title is to be held on trust by the Gunditj Mirring Traditional Owners Aboriginal Corporation (Determination, para 7), for the benefit of the descendants of the following persons who identify as Gunditjmara: Jenny Green (Alberts), Timothy James Arden, Barbara Winter, Mary (mother of James Egan), Billy Gorrie, Mary (wife of Billy Gorrie), William King, Hannah (wife of William King), James Lancaster, Susannah McDonald (Lovett), James McKinnon and Mary, Eliza Mitchell (Saunders), John Henry Rose, Lucy Sutton, James Sutton and Mary, Louisa (mother of Agnes and Alex Taylor) and Andrew Winter. (Determination, para 4)

The relationship between the native title rights and interests and the other interests is that: 'where and to the extent that any of the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests:

• the native title rights and interests continue to exist in their entirety; but
• the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests' (Determination, para 11).

The Gunditjmara Consent Determination represents the 100th determination of native title in Australia. In his reasons for judgment, North J states that the Gunditjmara have 'won their battle to cement their place in this country and in history'. The agreement, he states, 'is a major achievement taken on behalf of and for the benefit of the people of Victoria, in particular, and for the people of Australia more generally' (Reasons for Judgment, para 55).

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