Traditional Owner Settlement Amendment Bill 2016

This bill is proposed in the context of the commonwealth Native Title Act 1993 and the groundbreaking Victorian Traditional Owner Settlement Act 2010. The bill’s goal, through significant amendments, is to improve on an already excellent principal act. As the Attorney-General noted in the other place, the bill’s purpose is to ensure that the 2010 act continues to be an attractive alternative to the commonwealth Native Title Act 1993. The Native Title Act was a brave, outstanding achievement of the Keating government which legislated a High Court judgement that Australia was not terra nullius but rather had been occupied for tens of thousands of years, and it acknowledged two centuries of dispossession. However, it unfortunately created legal nightmares for traditional owners typified by years of long, drawn-out cases in the Federal and High courts — unnecessarily adversarial and litigious, extremely costly, complex, and above all, never intended to address land justice in the more densely settled regions of Australia like Victoria.

The difficulty has always been for Aboriginal people to prove that they have maintained a continuous connection with their country since European colonisation, almost impossible in a region such as Victoria which is closely settled and where, under the impact of European colonisation, the Indigenous population under extreme pressure was dispersed. There is no doubt that the dense European settlement in Victoria dispossessed Indigenous people of their land.

Victoria’s land area is slightly less than 230 000 square kilometres. Today, in 2016, Victoria has a population density of 25 per square kilometre, the highest of all of the states, 3 times higher than New South Wales and nearly 10 times higher than Queensland. That comparison has never been significantly different since the early days of European settlement, and it has inevitably been easier to establish native title in less densely populated Queensland, Western Australia and the Northern Territory than in our state of Victoria.

This reality goes to the heart of the issue: how can land justice be delivered effectively to communities whose link with their land has been so disrupted for such a long time? The difficulty for native title claims in Victoria is epitomised by the first case in Australia where the Yorta Yorta in northern Victoria took nine years to have their case resolved, and it failed. Labor governments, both commonwealth and in Victoria, have been engaged in a continuing effort to deliver land justice to traditional owner groups in Victoria, recognising traditional owner status. The Bracks Victorian government in 2004, in the aftermath of the Yorta Yorta’s failure in the native title process and the appeals to the Federal and High courts, recognised the Yorta Yorta claim. Labor followed in 2010 with the Traditional Owner Settlement Act, an innovative and alternative approach to native title in Victoria. As then Premier Brumby said in 2010, this new approach:

… delivers the practical and symbolic recognition of traditional owners’ rights in Crown lands, and … provides certainty to land managers, to industry and to developers.

Victoria is the only state to have co-designed with traditional owners a comprehensive alternative to the Native Title Act. Most significantly, the 2010 act provides for an out-of-court settlement of native title. It is important to acknowledge that in 2016 the Traditional Owner Settlement Act remains the government’s and traditional owners’ preferred approach to resolving native title claims in Victoria. The 2010 act established the ability of the Victorian government to enter into agreements, or settlements, directly with traditional owner groups, to be registered as Indigenous land use agreements under the Native Title Act, and to be legally binding, continuing in perpetuity and giving all parties certainty. The act empowers the Attorney-General to enter into a recognition and settlement agreement with a traditional owner entity for a given area. There are four sub-agreements that sit below the recognition and settlement agreement — land agreements, land use activity agreements, funding agreements and natural resource agreements.

What has been achieved in six years? There have been grants of freehold title and grants of Aboriginal title to enable joint management of parks and reserves. The act has delivered economic outcomes and helped to support long-term financial sustainability of traditional owner corporations. Settlements have also been reached with the people of the Loddon Valley and the Gunaikurnai people of Gippsland. There are six other traditional owner groups that have either begun negotiations for a settlement under the 2010 act or who are seeking to enter the process.

However, the experience of the past six years makes it clear that some change is needed. The amendments proposed today relate to four sub-agreements specifically and support the rights of traditional owners in their spiritual, material and economic relationship with the land and its natural resources. The bill also ensures that all existing leases, licences and other interests on Crown land are preserved after a grant of Aboriginal title is made in order to protect essential public interests.

There are consequential amendments to related acts as well. These amendments will improve an already very good principal act by addressing three important aspects. Firstly, it will ensure that the grants of Aboriginal title under part 3 of the act do not have any adverse impact on existing interests. I note that there have been some concerns expressed by business interests in alpine resort areas, but the Minister for Aboriginal Affairs, Natalie Hutchins, has emphasised that the bill will not alter in any way the alpine resort land and how it is treated under the Traditional Owner Settlement Act and that it will not increase costs. Secondly, it will enhance the operation of land use activities agreements — that is, part 4 of the principal act — including providing for formal measures to resolve instances of non-compliance and to resolve disputes through the Victorian Civil and Administrative Tribunal. Thirdly, it will streamline the operation of natural resource agreements (NRAs) under part 6 of the principal act to provide for access to and use of natural resources via an NRA rather than through natural resource authorisation orders. This will provide for greater flexibility in accessing natural resources, such as the right to hunt wildlife, game and fish and to gather flora and forest produce.

We are a long way from the hysterical and fearful response to the federal Native Title Act, and we are much further down the path of seeking to understand that a relationship to the land lies at the very heart of Indigenous culture. In this bill, Labor is continuing to build on good legislation to assist traditional owners and to lead the way on these matters in comparison to other states in this country. This bill is another step towards self-determination for Victoria’s first peoples. At every point, Labor governments have sought to consult and negotiate with traditional owners. In developing the 2010 act we responded to initiatives of the Victorian Traditional Owner Land Justice Group and Native Title Services Victoria, and in proposing these 2016 amendments we have also responded to initiatives of the Federation of Victorian Traditional Owner Corporations.

It is pleasing to note that this bill is supported by the opposition and that it therefore, like its 2010 predecessor, enjoys bipartisan support. This bill will ensure that Victorian traditional owners can more easily exercise their rights to Crown land and resources, and it is a key aspect of this government’s path towards achieving Indigenous self-determination. I absolutely commend this bill to the house.