Lovett on behalf of the Gunditjmara People v State of Victoria (No 5)
[2011] FCA 932
•27 July 2011
FEDERAL COURT OF AUSTRALIA
Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932
Citation: Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932 Parties: JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA AND EASTERN MAAR PEOPLES v THE STATE OF VICTORIA AND OTHERS
EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE AND EASTERN MAAR PEOPLE v THE STATE OF VICTORIA AND OTHERS
File number(s): VID 6004 of 1998
VID 655 of 2006Judge: NORTH J Date of judgment: 27 July 2011 Catchwords NATIVE TITLE – consent determination – request for orders to be made under s 87 of the Native Title Act 1993 (Cth) – whether it is appropriate to make orders sought Legislation: Aboriginal Heritage Act 2006 (Vic)
Aboriginal and Torres Strait Islander Protection Act 1984 (Cth)
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Native Title Act 1993 (Cth) ss 56, 57, 87, 94A, 223, 225Cases cited: Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 Date of hearing: 27 July 2011 Place: Eumeralla Coastal Reserve, Yambuk Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 48 Counsel for the Applicants: Mr R Blowse SC with Ms A Keely Solicitor for the Applicants: Native Title Services Victoria Counsel for the Group 1 Respondent: Mr T Neal SC with Ms M Scalzo Solicitor for the Group 1 Respondent: Victorian Government Solicitor Solicitor for the Group 3 Respondent: Mr C Rawson of Australian Government Solicitor Solicitor for the Group 11 Respondents: No appearance
Solicitor for the Group 22 Respondent: No appearance
Solicitor for the Group 24 Respondent: No appearance
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 6004 of 1998
BETWEEN: JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA AND EASTERN MAAR PEOPLES
Applicant
AND: THE STATE OF VICTORIA AND OTHERS (as per attached list of Respondent parties)
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
27 JULY 2011
WHERE MADE:
EUMERALLA COASTAL RESERVE, YAMBUK
THE COURT ORDERS THAT:
See attachment 1 at the back of these reasons.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 655 of 2006
BETWEEN: EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE AND EASTERN MAAR PEOPLE
ApplicantAND: THE STATE OF VICTORIA AND OTHERS (as per attached list of Respondent parties)
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
27 JULY 2011
WHERE MADE:
EUMERALLA COASTAL RESERVE, YAMBUK
THE COURT ORDERS THAT:
See attachment 1 at the back of these reasons.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 6004 of 1998
BETWEEN: JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA AND EASTERN MAAR PEOPLES
ApplicantAND: THE STATE OF VICTORIA AND OTHERS (as per attached list of Respondent parties)
Respondent
Vid 655 of 2006 BETWEEN: EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE AND EASTERN MAAR PEOPLE
ApplicantAND: THE STATE OF VICTORIA AND OTHERS (as per attached list of Respondent parties)
Respondent
JUDGE:
NORTH J
DATE:
27 JULY 2011
PLACE:
EUMERALLA (YAMBUK) COASTAL RESERVE, YAMBUK
REASONS FOR JUDGMENT
On 30 August 1996 the Gunditjmara People filed an application (VID 6004 of 1998) for the determination of native title under the Native Title Act 1993 (Cth) (the Act). On 9 June 2006, they filed a further application (VID 655 of 2006) to include certain parcels of land which had been overlooked in framing the original application.
In early 2007 it became clear that the parties were near to an agreement in relation to over 95 per cent of the area for which a determination was sought, but that there were outstanding issues concerning the remaining area. As a result on 18 January 2007, the Court ordered that the applications be dealt with in two parts. The larger area was called Part A and the smaller area Part B.
On 30 March 2007, the Court sat at Mount Eccles which is located in the Part A area and made a consent determination in relation to the Part A area in favour of the Gunditjmara people. The Court gave written reasons why the consent determination was made (the Part A reasons).
Before the Court today at Eumeralla Coastal Reserve, Yambuk, which is located in the Part B area, is an application for a consent determination in relation to the Part B area.
The applicant in the original application was the Gunditjmara people. In circumstances which will be described later in these reasons, it became clear that Part B was country shared by the Gunditjmara people and the Eastern Maar people. In order to reflect the interests of the Eastern Maar people, on 19 July 2011, the Court granted leave to amend the application by adding the Eastern Maar people as proposed native title holders.
The Gunditjmara People are described in the application for a determination of native title as:
[T]hose 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.
The Eastern Maar people are described in the proposed determination as:
[T]hose descendants, including by adoption, of the following persons, who identify as being from the eastern domain of the Maar speaking people and are recognised as being from the eastern domain by the Eastern Maar people: King of Port Fairy and Eliza; Old Jack (father of John Dawson); Charlie and Alice (parents of Albert Austin); Samuel Robinson and Mary Caramut; Lizzie (mother of Frank Clarke); Robert and Lucy (parents of Alice Dixon); Barney Minimalk; Nellie Whiturboin; Louisa (mother of William Rawlings).
The reference to descendants by adoption is to people who were reared up by members of the Eastern Maar people, who identify as being Eastern Maar people, and who are recognised by the Eastern Maar people as being Eastern Maar people.
The land and waters for which a determination was sought is in South Western Victoria. The Part B area adjoins the Part A area on the eastern side of the Part A area. It is bounded on the west by the Eumeralla River and extends east to the Shaw River. The area includes Deen Maar Island and the coastal foreshore of the Parishes of Eumeralla and Tyrendarra. In the north the Part B area contains a number of significant water bodies including Lake Linlithgow and Lake Kennedy Wildlife Reserve. A full description of the combined Part A and Part B areas can be found in the Part A reasons ([3]).
The area covered by the proposed determination is approximately 4000 hectares in 172 parcels of land. All the land is Crown land. It is proposed that native title be determined to exist in about 3000 hectares in 121 parcels. It is further proposed that native title be determined not to exist in approximately 1000 hectares in 19 parcels. In relation to 32 parcels it is proposed that native title be determined to exist in part of the parcels and not in other parts.
The respondents to the Part B application who played an active part in the proceedings are the State of Victoria, the Commonwealth of Australia, Telstra Corporation Limited, Powercor Australia Limited and a group of commercial fisherman.
The State filed written submissions in support of the application for a consent determination. The submissions were supplemented orally at the hearing by representatives of the State. The Gunditjmara people and the Eastern Maar people joined in the submissions. The other respondents agreed with the proposed determination.
The application for a consent determination is made under s 87 of the Act. This section empowers the Court to make orders consistent with an agreement made between the parties to an application for a native title determination. Once the written agreement is signed and filed with the Court, the Court may make a consent determination if it is satisfied that the orders are within the power of the Court, and if it appears to the Court to be appropriate to make the orders.
IS IT APPROPRIATE TO MAKE THE ORDERS – S 87(1A)(a)
In the Part A reasons the approach taken by the Court to applications under s 87 of the Act was described as follows:
36The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
37In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. …
38The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases.
Whilst the process adopted to reach agreement is a matter of central concern, the Court it is also able to take into account material before the Court which might support the making of the determination.
In relation to the connection of the Gunditjmara people to the Part A and Part B areas, the Court heard some early evidence on country in March and April 2005. This evidence is described in the Part A reasons at [16] – [18]. Those reasons explain how compelling the Court found that evidence.
The early evidence did not relate to the Eastern Maar people. However, the State has explained in its written submissions something of the history of the Eastern Maar people. They are one of the Aboriginal societies which existed in south-west Victoria at sovereignty. Historical materials by George Augustus Robinson, Isabella and James Dawson, Norman B Tindale, and Dr Clark bear testimony to the Aboriginal societies in that area at the time. Then, in the 1860s, missions were established at Framlingham / Purnim, and Lake Condah. Between the dates of sovereignty until the mid 1860s the Aboriginal population declined by more than 90 per cent. The eastern people, including the Eastern Maar, tended to live at Framlingham / Purnim, and the western people tended to live at Lake Condah. The Eastern Maar people included the families of the Abrahams, Alberts, Austin, Bert, Chatfield, Clark, Clarke, Couzens, Harradine, Lowe and Rose. The connection material provided to the State established that the Eastern Maar people exercise their rights at and have particular connections with a number of locations in the Part B area, as well as lands to the east of it. For example, the Eastern Maar fish at places like Yambuk Lake and Port Fairy. The Couzens family express a strong connection to Penshurst which is just east of the northern section of the Part B area. Those connected with Frank Clarke identify with the area around the Eumeralla River and many Eastern Maar people speak of both Yambuk and Deen Maar as spiritual places from which people’s spirits ascended to the sky.
This material about the Gunditjmara people and the Eastern Maar people provides some basis for the Court to assess the appropriateness of the orders sought. However, it is also necessary to consider the process which led to the present agreement between the parties.
The lengthy process which led to agreement in relation to the Part A area is relevant to the agreement made in relation to the Part B area because the State conducted a thorough examination of the connection of the Gunditjmara people to the entire area in that original process. It is described in the Part A reasons ([11] – [33]).
After the making of the Part A determination there were two outstanding issues relating to the Part B area. First, the area in the east-north-east of the Part B area required further anthropological assessment, and second, there was a dispute between the Gunditjmara people and the Framlingham Trust which had cultural heritage responsibilities under the Aboriginal and Torres Strait Islander Protection Act 1984 (Cth).
The material provided by the Gunditjmara people to the State to establish their connection to the whole of the Part A and Part B areas included reference to a broad Maar speaking society. In 2007, Native Title Services Victoria (NTSV), which represented the Gunditjmara people, commissioned external anthropological research into a broader society extending east beyond the application area. That research was to investigate whether the Eastern Maar hold native title rights and interests not only in the greater area, but particularly in relation to the Part B area which was located next to the Part A area in which the Gunditjmara people held native title rights and interests.
In March 2010, the State received anthropological and historical materials from the Gunditjmara people and Eastern Maar people which were intended to show that both the Gunditjmara people and the Eastern Maar people separately have the same rights in the Part B area. The written submissions of the State described the nature of the materials as follows:
12.In broad terms, the materials advanced the theses that, at sovereignty, there was an Aboriginal society (sometimes described as the society of Maar-speaking society) whose territory included the land the subject of the Gunditjmara Part A Determination, the area of Part B was a very substantial area of land extending for to the east of Part B. The Gunditjmara and the Eastern Maar were said to form two discrete domains within this socio-geographic area. Part B was said to be the overlap area of the domains of the Gunditjmara and the Eastern Maar. Within it, each group asserted the same native title rights and interests, and recognised the coextensive rights and interests of the other.
The State assessed the materials against the requirements of s 225 and s 223 of the Act as explained by the substantial case law on the subject. In summary those requirements are that there was, at sovereignty, a body of persons united in their acknowledgment and observance of a body of laws and customs, who held rights and interests in land and waters pursuant to those laws and customs, and by which they were connected to the land and waters. The group must have maintained its identity and its connection with the land and waters, and must continue to acknowledge the laws and observe the customs substantially uninterrupted, from sovereignty to the present.
In its written submissions the State described the process which led to the agreement as follows:
23.In coming to its position supporting the proposed consent determination, the State tested the Applicants’ case against these requirements. For the purposes of an order under s 87(2) of the NTA, the State takes the view that it is unnecessary that these requirements be proven as if at trial. The benchmark adopted by the State was that of a reasonably arguable case.
The Process of Reaching Agreement to the Consent Determination
24.As noted above, the agreement of the parties to a consent determination is the product of a successful mediation process. The mediation involved various stages worth recording as they reveal the extensive and rigorous process which has resulted in the parties agreeing to seek a consent determination. For reasons which will become obvious from the discussion below, the Part B phase has built on the processes and conclusions that resulted in the Part A determination made on 30 March 2007.
25.At the time Part A was determined, the State had already concluded that the Gunditjmara had provided material sufficient to justify the State supporting a consent determination over most of Part B.
26.In assessing the material provided in relation to the Eastern Maar, the State adopted the same approach it had applied to the material received from the Gunditjmara Applicants. This included forming a view on whether the Eastern Maar’s contentions that both groups shared Part B were consistent with the conclusions that underpinned the consent determination in 2007 over Part A. It was necessary to consider both whether the connection material received in 2010 met the requirement of s 225 of the NTA and whether it was consistent with the legal and anthropological basis articulated in the extensive connection material and evidence relied on for the 2007 determination and upon which the State had supported that determination.
27.On 27 August 2010, by order of the Court, two Federal Court Registrars convened a conference of experts to consider the new connection material. Similar to the conferences of experts that led to the Part A determination, the purpose of this conference was to identify areas of agreement and disagreement. The conference was attended by four independent expert anthropologists, one engaged by the State, one engaged by the Gunditjmara, one by the Eastern Maar and one engaged by both the Gunditjmara and Eastern Maar. Except for the expert engaged by the Eastern Maar, all had been involved in either producing or reviewing the Part A connection materials in the lead up to the 2007 determination.
28.The experts were required to consider a lengthy set of formal propositions which address the necessary elements for reaching a consent determination and which expressly sought reaffirmation of the propositions agreed to at the conference of experts held on 28-29 October 2005.
29.On 1 September 2010, the Registrars circulated a formal conference report that recorded that, subject to particular qualifications not here relevant, the experts unanimously agreed that all the propositions had been satisfied. Amongst other things, this satisfied the State that the basis on which the Part B claim was proceeding was congruent with the basis on which the Part A determination had been supported.
The State also examined the tenure details and history of each parcel of land in the Part B area. It presented the results of that investigation to the Gunditjmara people and disagreements and queries were worked through to reach an agreed position.
The non State respondents were briefed by the applicants and the State on 1 March 2011.
The process by which agreement was reached was thorough. It was focused on the legal requirements necessary to establish native title, but at the level of an arguable case. This is an appropriate approach to agreement making. The process involved assessment by professional anthropologists. The mediation was directed by Registrars Anderson and Irving of the Federal Court, both of whom have wide experience and qualifications for that role. The State, the Gunditjmara people and the Eastern Maar people were represented by counsel and often by senior counsel in the negotiations. Additionally, the Court is able to make some assessment of the validity of the case itself from the early evidence concerning the Gunditjmara people, and from the factual material in the written submissions concerning the Eastern Maar people.
For these reasons I am satisfied that it is appropriate as required by s 87(1A)(a) of the Act to make the consent determination sought by the parties.
ARE THE ORDERS WITHIN POWER – S 87(1)(c)
Next, the Court must determine whether it has power to make the orders sought. Section 94A of the Act requires the order in which the Court makes a determination of native title must set out the details of the matters mentioned in s 225 of the Act. So far as is relevant to this case, s 225 requires the Court to determine whether or not native title exists in relation to a particular area of land or waters, and if it does exist, to make a determination of who are the persons, or each group of persons holding the common or group rights comprising native title (s 225(a)), the nature and extent of the native title rights and interests in relation to the determination area (s 225(b)), the nature and extent of any other interests in relation to the determination area (s 225(c)), the relationship between the native title rights and interests and the other interests in relation to the determination area.
Each of the matters listed in s 225 are dealt with in [1] – [11] of the proposed consent determination by express reference to those subsections. I am also satisfied that the rights and interests for which a determination is sought are rights and interests recognised by the common law of Australia as referred to in s 223(1)(c) of the Act.
The written submissions of the State record some debate between the Gunditjmara people, the Eastern Maar people, the State, and the Commonwealth about the articulation of the right to take resources of the land and waters referred to in [5(d)] of the proposed consent determination. Part of the agreement between the parties involves bringing the attention of the Court to the differing views of the parties on this issue. In the end the proposed formulation of the determination has been agreed against the background outlined in the written submissions.
For these reasons I am satisfied that the proposed consent determination is within the power of the Court as required by s 87(1)(c) of the Act.
PROPOSED BODIES CORPORATE
Where the Court proposes to make a determination that native title exists, the Court must also make a determination whether the native title is to be held in trust and, if so, by whom (s 56(1) of the Act).
The area the subject of the consent determination is traditionally shared by the Gunditjmara people and by the Eastern Maar people.
The native title rights and interests held by the Gunditjmara people in the Part A area are held in trust by the Gunditj Mirring Traditional Owners Aboriginal Corporation.
The affidavit of Mark Gerard Egan, an NTSV lawyer, sworn on 20 July 2011, deposes to the matters necessary to comply with the requirements of s 56(2) and s 57(2) of the Act. He states that the Gunditjmara people held a meeting on 6 July 2011 and resolved that the Gunditj Mirring Traditional Owners Aboriginal Corporation be the prescribed body corporate for the purposes of the Act and that it hold the native title of the Gunditjmara people in relation to Part B in trust. On 6 July 2011, the Gunditj Mirring Traditional Owners Aboriginal Corporation provided a consent in writing to the nomination as required by s 56(2)(a)(ii).
Mr Egan further deposes to a meeting of the Eastern Maar people held on 1 July 2011, when they resolved to incorporate the East Maar Corporation. The meeting also resolved that the Eastern Maar Corporation be the prescribed body corporate for the purpose of s 57(2) of the Act, that it not hold the native title of the Eastern Maar people in relation to the Part B area in trust but rather act as agent for the Eastern Maar people in that regard. The Eastern Maar Aboriginal Corporation was registered on 11 July 2011 under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). A further affidavit of Mr Egan, sworn on 22 July 2011, shows that the Eastern Maar Aboriginal Corporation, on 22 July 2011, consented in writing to the nomination pursuant to s 57(2)(a)(ii).
Then, on 7 July 2011, both the Gunditjmara people and the Eastern Maar people met and resolved, if it were necessary to do so, that the respective corporations would be the prescribed bodies corporate in relation to each of their interests.
The nomination of two corporate entities over one determination area has not occurred before in the State of Victoria. Section 56(2)(a) and s 57(2)(a) of the Act allow for two prescribed bodies corporate for one determination area where there are two groups that hold interests in the area and each intends to nominate its own prescribed body corporate: Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 [376]-[386].
It is convenient to the Gunditjmara people and the Eastern Maar people to have their native title rights and interests held by separate bodies corporate. The Gunditjmara people have rights and interests in the Part A area in which the Eastern Maar people do not have rights and interests. The Eastern Maar people assert interests, not yet determined, in relation to areas east of the determination area and their body corporate will be able to represent them in relation to this area.
The State has an interest in developing a single interface to deal with native title matters in relation to the Part B determination area and matters arising under the Aboriginal Heritage Act 2006 (Vic) within that area. The parties have made arrangements outside the terms of the determination to ensure efficient communication in relation to these matters.
On the basis of this evidence the Court determines under s 56(1) and (2)(b) of the Act that the native title rights and interests of the Gunditjmara people in relation to the Part B area are to be held in trust by the Gunditj Mirring Traditional Owners Aboriginal Corporation. Further, on the basis of the evidence, the Court determines under s 57(2)(b) of the Act that the Eastern Maar Aboriginal Corporation perform the functions mentioned in s 57(3) of the Act.
CONCLUSION
In the Part A reasons I highlighted the good will and professionalism of the people who contributed to the process of agreement making. That good will and professionalism has continued and has led to the conclusion of this final stage of the case.
Mention should be of two additional contributions. The Eastern Maar people came into the picture in the negotiations concerning the Part B area. The fact that these neighbours have been able to cooperate in the resolution of the shared rights and interests in the boundary area is testimony to the capacity of strong dynamic indigenous peoples to administer their affairs efficiently, competently, and in a spirit of harmony which is an example to all Australians.
Finally, in the course of the negotiations there was a change in the State government. Native title negotiations characteristically take a long time to reach fruition. Their course often has to endure changes in personnel be they government, legal, anthropological or other. Any of these changes is capable of throwing the negotiations off course. This is the experience of the Court over a decade. When the new government took office in Victoria in November 2010, the negotiations had slowed over the terms of the ancillary agreements which usually accompany a consent determination. The impasse was broken when the new State government offered a consent determination without the need for independent ancillary agreements. The written submissions explain the position as follows:
36.1In this regard, the position reached between the State and the Applicants is a compromise of the State’s preferred position. In all other consent determinations in Victoria, the State has provided its consent as part of a broader settlement involving an indigenous land use agreement under Subdivision B of Part 2 Division 3 of the NTA and other bilateral agreements.
36.2That the State did not insist upon a broader settlement package in this case is a function of a number of factors unique to this case. These include: (a) a change of government during the mediation which resulted in a re-visiting of the State’s usual practice; (b) a concern that previous delays in the resolution of Part B be brought to an end; (c) the presence of two discrete native title holding groups; and (d) most importantly for the State, that a comprehensive indigenous land use agreement was entered into by the State and the Gunditjmara as part of the settlement arrived at in March 2007.
The flexibility demonstrated by the new government is to be welcomed. It coincides with the new flexibility of approach in the Northern Territory where the government recently indicated that in native title cases it would no longer engage its own anthropologists to test the applications but would accept the professional views of the anthropologists engaged by the applicants. The State and NTSV have built up a strong professional working relationship over a long period. As a result, the way they work in native title applications have often been seen as a model to other states. It is significant that the Attorney General of Victoria has honoured the Gunditjmara people and the Eastern Maar people by attending this hearing to witness the final stage of the work done in part by the government of which he is a member.
In the Part A reasons I addressed the importance of the development of the process of alternative dispute resolution in the Court system, and used this application for determination of native title as an example of the value of that process. The conclusion of the agreement in relation to Part B is yet another example of the value of mediation as described in the Part A reasons thus:
53.The successful conclusion of this proceeding by agreement of the parties also reflects the development of the court system in Australia. The system is designed as an instrument of our society to resolve disputes. In times past the emphasis has been on the provision by courts of judicial determination of disputes as the single means to achieve that end. But it has become more and more recognised that judicial determination is but one means of dispute resolution. A greater role is now given to dispute resolution by mediation and other methods such as early neutral evaluation. The advantages of parties to disputes taking control and responsibility for outcomes rather than leaving the results in the hands of judges are well recognised. Some disputes are particularly appropriate for assisted dispute resolution. Many native title cases fall within this category because the issues raised often concern the very identity, beliefs, culture and history of people. It is unlikely that an enforced resolution of such issues by judicial determination will be accepted or durable. The worldwide trend is towards the development of courts with many doors. One door leads to judicial determination, but other doors lead to other forms of dispute resolution. Unless the courts in Australia continue to reflect this development they will gradually decrease in relevance as the social institution for dispute resolution. The conclusion of this case using sophisticated techniques of assisted dispute resolution is a sure mark that this court embraces the modern concept of a court with many doors.
I conclude this day as I did at Mount Eccles by observing that this day marks a special achievement for the Gunditjmara and Eastern Maar People. They have won another battle to cement their place in this country and in history. But their success is a shared victory. By doing justice to the Gunditjmara and Eastern Maar People, the State, the Commonwealth and the other respondents have taken a step to right past wrongs and lay a basis for reconciliation between indigenous and non-indigenous Australians. In this respect the agreement 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. To the extent that our society acts justly it is enhanced. This proceeding and its resolution has thrown light on the rich reality of Gunditjmara and Eastern Maar society in this place stretching back into the mists of time. The case has provided the means by which we may all recognise the rights and interests of the Gunditjmara and Eastern Maar People.
As a symbol of this recognition accorded to the Gunditjmara and Eastern Maar People by the non-indigenous law of Australia I will now hand to the Gunditjmara and Eastern Maar elders and the Attorney-General for the State of Victoria copies of the signed orders of the Court which evidence the act of recognition under Australian law that the Gunditjmara people and the Eastern Maar people are the right people for this country.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 12 August 2011
List of Respondent Parties
VID 6004 of 1998Interest Group 1. Government Interests – State of Victoria
State of Victoria
Interest Group 3. Commonwealth of Australia
Commonwealth of Australia
Interest Group 11. Victorian Commercial Fishing Licence
Abdiva Investments Pty Ltd
Christopher Wayne Carson
Tony Phillip Crapper
Rodney Ernest Crowther
Double Eight Golden Eels' (Australia) Pty Ltd
Eels Australis Pty Ltd
Gregory William Hollis
Dean Anthony Humphries
David Malcolm and Elizabeth Ann Johnston
Brampton and Jacqueline Linda Le Page
Andrew Levings
LJ & SA Plummer Fishing Pty Ltd
Roderick McDonald
Alan and Tanya Moncrieff
Steven James Nathan
Glen Edward Plummer
Phillip A Plummer
Peter R Price
Graham Richard Quarrell
Peter William Sandow
Richard John Smith
Murray Edward Thiele
Bert Davey Tober
Trymore Investments Pty LtdInterest Group 22. Public Access 2
Powercor Australia Limited
Interest Group 24. Telecommunication
Telstra Corporation Limited
List of Respondent Parites
VID 655 of 2006Interest Group 1. Government Interests – State of Victoria
State of Victoria
Interest Group 3. Commonwealth of Australia
Commonwealth of Australia
Interest Group 11. Victorian Commercial Fishing Licence
Abdiva Investments Pty Ltd
LJ & SA Plummer Fishing Pty Ltd
Glen Edward Plummer
Phillip Plummer
Trymore Investments
88 Golden Eels (Aust) Pty Ltd
Western Victorian Eel Growers Group Pty Ltd
Peter Sandow
David Malcolm and Elizabeth Ann Johnston
Christopher Wayne Carson
Rodney Ernest Crowther
DA & JE Humphries
Murray Edward Thiele
Kenneth John Osborne
Roderick McDonandInterest Group 22. Public Access 2
Powercor Australia Limited
Interest Group 24. Telecommunication
Telstra Corporation Limited
ATTACHMENT 1
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 6004 of 1998
VID 655 of 2006B E T W E E N:
JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA AND EASTERN MAAR PEOPLES
Applicant in VID 6004 of 1998
EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA AND EASTERN MAAR PEOPLES
Applicant in VID 655 OF 2006
and
THE STATE OF VICTORIA AND OTHERS
Respondents
ORDERS
JUDGE MAKING ORDER: NORTH J
WHERE MADE: EUMERALLA (YAMBUK) COASTAL RESERVE, YAMBUK, VICTORIA
DATE OF ORDER: 27 JULY 2011
VID6004/1998
JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE
SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA AND EASTERN MAAR PEOPLES
ApplicantSTATE OF VICTORIA AND OTHERS
Respondents01 Government Interests – State of Victoria
State of Victoria03 Government Interests - Commonwealth
Commonwealth of Australia11 Victorian Commercial Fishing Licence
Abdiva Investments Pty Ltd
Christopher Wayne Carson
Tony Phillip Crapper
Rodney Ernest Crowther
Double Eight Golden Eels' (Australia) Pty Ltd
Eels Australis Pty Ltd
Gregory William Hollis
Dean Anthony Humphries
David Malcolm and Elizabeth Ann Johnston
Brampton and Jacqueline Linda Le Page
Andrew Levings
LJ & SA Plummer Fishing Pty Ltd
Roderick McDonald
Alan and Tanya Moncrieff
Steven James Nathan
Glen Edward Plummer
Phillip A Plummer
Peter R Price
Graham Richard Quarrell
Peter William Sandow
Richard John Smith
Murray Edward Thiele
Bert Davey Tober
Trymore Investments Pty Ltd22 Public Access 2
Powercor Australia Limited24 Telecommunication
Telstra Corporation LimitedVID655/2006
EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF
THE GUNDITJMARA AND EASTERN MAAR PEOPLES
ApplicantSTATE OF VICTORIA AND OTHERS
Respondents01 Government Interests – State of Victoria
State of Victoria03 Government Interests - Commonwealth
Commonwealth of Australia11 Victorian Commercial Fishing Licence
Abdiva Investments Pty Ltd
LJ & SA Plummer Fishing Pty Ltd
Glen Edward Plummer
Phillip Plummer
Trymore Investments
88 Golden Eels (Aust) Pty Ltd
Western Victorian Eel Growers Group Pty Ltd
Peter Sandow
David Malcolm and Elizabeth Ann Johnston
Christopher Wayne Carson
Rodney Ernest Crowther
DA & JE Humphries
Murray Edward Thiele
Kenneth John Osborne
Roderick McDonand22 Public Access 2
Powercor Australia Limited24 Telecommunication
Telstra Corporation LimitedBEING SATISFIED that a determination of native title in the terms set out in the following minute of consent determination of native title in respect of proceedings VID6007 of 1998 and VID 655 of 2006 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87 of the Native Title Act1993 (Cth) and by the consent of the parties:
THE COURT ORDERS THAT:
(a)There be a determination of native title in proceedings VID 655 of 2006 and VID 6004 of 1998 in terms of the determination of native title that follows, in relation to the land and waters covered by the proceedings within the location identified in Schedule 1 of the determination.
(b)Gunditj Mirring Traditional Owners Aboriginal Corporation shall hold the determined native title in trust for the Gunditjmara People pursuant to s56(2) of the Native Title Act 1993 (Cth).
(c)Eastern Maar Aboriginal Corporation shall act as agent for the Eastern Maar People pursuant to s57(2) and (3) of the Native Title Act 1993 (Cth) and perform the functions as provided for in that Act.
(d)There be no order as to costs.
Date that entry is stamped: 27 July 2011
Justice A.M. North
THE COURT DETERMINES THAT:
Existence of native title (s 225)
1.Native title exists as provided in Order 5 in the areas described in Schedule 2 (“Native Title Area”).
2.Native title does not exist in the areas described in Schedule 3. To be clear, where Schedule 3 refers to an area covered by a public work, the land and waters in relation to which native title does not exist includes the land and waters adjacent to that public work, as described in s 251D of the Native Title Act.
3.There is no native title in the Native Title Area in or in relation to:
(a)minerals as defined in the Mineral Resources (Sustainable Development) Act 1990 (Vic), as in force at the date of the determination, as are owned by the Crown;
(b)petroleum as defined in the Petroleum Act 1998 (Vic), as in force at the date of the determination, as is owned by the Crown; and
(c)groundwater as defined in the Water Act 1989 (Vic), as in force at the date of the determination.
The Native Title Holders (s 225(a))
4. The native title rights and interests are held in the Native Title Area by:
(a)the Gunditjmara people, who are those 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; and
(b)the Eastern Maar peoples, who are those descendants, including by adoption, of the following persons, who identify as being from the eastern domain of the Maar speaking people and are recognised as being from the eastern domain by the Eastern Maar people: King of Port Fairy and Eliza; Old Jack (father of John Dawson); Charlie and Alice (parents of Albert Austin); Samuel Robinson and Mary Caramut; Lizzie (mother of Frank Clarke); Robert and Lucy (parents of Alice Dixon); Barney Minimalk; Nellie Whiturboin; Louisa (mother of William Rawlings.
4A.A reference to adoption in Order 4(b) is a reference to a person who was reared up by members of the Eastern Maar peoples, who identifies as being an Eastern Maar person, and is recognised by the Eastern Maar peoples as being an Eastern Maar person.
The nature and extent of native title rights and interests (s 225(b)) and exclusiveness of native title (s 225(e))
5.Subject to Orders 6-9, the native title that exists in the Native Title Area (“native title rights and interests”) consists of the non-exclusive:
(a)right to have access to or enter and remain on the land and waters;
(b)right to camp on the land and waters landward of the high water mark of the sea;
(c)right to use and enjoy the land and waters;
(d)right to take the resources of the land and waters; and
(e)right to protect places and areas of importance on the land and waters.
6.Insofar as the native title rights and interests may provide a right to take water from waterways, that right is limited to a right to take water from waterways for domestic and ordinary use.
7.The right in Order 5(e) does not entail a right to use physical force in a manner that would be unlawful.
8.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.
9.The native title rights and interests are subject to and exercisable in accordance with:
(a)the traditional laws and customs of the native title holders; and
(b)the laws of the State in which the land or waters concerned are situated and of the Commonwealth, including the common law.
Nature and extent of any other interests (s 225(c))
10.The nature and extent of other interests in relation to the Native Title Area, as they exist at the date of the determination (“other interests”), are those set out in Schedule 4.
Relationship between native title and other interests (s 225(d))
11.The relationship between the native title rights and interests and the other interests is that:
(a)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,
(i)the native title rights and interests continue to exist in their entirety; but
(ii)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;
(b) otherwise, except where (c) applies:
(i)the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other interests; and
(ii)the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them; and
(c)in relation to the other interests referred to in paragraph (a), (e) or (f) of Schedule 4, those interests, and rights held under them, co-exist with the native title rights and interests, and both the rights held under the other interests and the native title rights must be exercised reasonably.
Definitions and interpretation
12.In this determination, including its schedules, unless the contrary intention appears, words and expressions have the same meaning as they have in Part 15 of the Native Title Act and:
“Crown” means the Crown in right of Victoria or the Crown in right of the Commonwealth, as the case requires;
“Determination Area” means the land and waters referred to in Orders 1 and 2, being the land and waters of the areas described in the Determination Area Table in Schedules 2 and 3, and being certain lands and waters within the location described in Schedule 1;
“land” and “waters” respectively have the same meanings as in the Native Title Act;
“Native Title Act” means the Native Title Act 1993 (Cth);
“Native Title Area” means the areas referred to in Order 1;
“native title rights and interests” means those rights and interests set out in Order 5 always as subject to Orders 6 -9;
“other interests” means the interests referred to in Order 10, being the interests set out in Schedule 4;
“public rights” means the other interests identified in paragraphs (a), (e) and (f) of Schedule 4;
“public work” has the same meaning as in s 253 of the Native Title Act and, in relation to any public work described in the Determination Area Table, includes any adjacent land or waters under s 251D of the Native Title Act;
“waterway” has the same meaning as in s 3 of the Water Act 1989 (Vic) as in force at the date of this determination.
13.In this determination including its schedules, in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the Determination Area Map in Schedule 5, the written description shall prevail.
SCHEDULE 1 - LOCATION OF THE DETERMINATION AREA
External Perimeter within which the various areas comprising the Determination Area are located.
The Determination Area is located wholly within the following locations only and comprises the particular allotments and areas identified in the Determination Area Table and as generally shown on the Determination Area Map in Schedule 5.
LOCATION 1
Commencing at the intersection of the boundary between the Shire of Glenelg and the Shire of Moyne and the mean high water mark (coast) and extending south to a point 100m seaward of the mean low water mark; then generally south easterly along a buffer 100m seaward of the mean low water mark to Longitude 142.063308° east. Then north to the intersection of the centreline of the Shaw River. Then generally north east, generally north west, generally north east, generally north along the centreline of that river to Latitude 38.035268° South. Then north easterly to the intersection of the westerly boundary of the Penshurst- Dunkeld road reserve and Latitude 37.816927° south. Then generally northerly along the boundary of the road reserve to the northern boundary of the Glenelg Highway road reserve. Then generally southwesterly along the boundary of that highway reserve to the centreline with the Tarrington-Strathkellar Road; Then southerly along that road to the centreline of the Hamilton Highway; Then easterly along that highway to the intersection with the centreline of Yatchaw Road; Then southerly and generally south-westerly along that road to the centreline of the Research Station Road; Then westerly along that road to the centreline of the Mount Napier Road; Then south‑south-easterly along that road for approximately 3 kms to the intersection of the Mount Napier Road and the centreline of Murroa-Buckley Swamp Road in Buckley Swamp; Then south-south-westerly to the summit of Mount Napier; Then south-south-westerly to the intersection of the centreline of the Byaduk-Penshurst Road and the centreline of the Macarthur-Warrabkook Road; Then southerly along the Macarthur-Warrabkook Road to the centreline of the Macarthur-Penshurst Road; Then generally south-westerly along that road for approximately 5.5 kms to the centreline of the Macarthur-Hawkesdale Road; Then generally south-westerly along Macarthur-Penshurst Road for approximately 800 metres to the centreline of the Hamilton-Port Fairy Road; Then south-easterly along that road for approximately 450 metres to the centreline of the Eumeralla River in Macarthur; Then generally southerly, westerly and again southerly along that river to the centreline of Portland Road; Then generally south-westerly and southerly along that road to the centreline of Condons Road; Then southerly along that road to the centreline of the Princes Highway; Then generally north-westerly along that highway to intersect the boundaries of the Shire of Glenelg and the Shire of Moyne; Then generally southerly along those boundaries to the commencement point.
Area 2
All the land and waters of Lady Julia Percy Island contained within the outer limit of a 100 m buffer seaward of the mean low water mark surrounding the island.
Notes
Reference Datum
Geographical coordinates are referenced to the Geocentric Datum of Australian 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.
Reference Data and Source:·Mean Low Water Mark/Mean Low Water Mark based on coastline data sourced from Dept of Sustainability & Environment VIC (May 2011).
·River data based on Vicmap Hydro vector data (1:25,000) sourced from Dept of Sustainability & Environment, VIC (May 2011).
·State borders based on Vicmap Shared vector data (1:25,000) sourced from Dept of Sustainability and Environment.
·Cadastre information based upon Vicmap Property sourced from the Dept of Sustainability and Environment (May 2011).
·Road information based upon Vicmap Transport vector data (1:25,000) sourced from the Dept of Sustainability and Environment (May 2011).
·Shire boundary data based on LGA data sourced from Dept of Sustainability & Environment, VIC (May 2011).
SCHEDULE 2 – WHERE NATIVE TITLE EXISTS – ORDER 1
Subject to Orders 3(c) and 6-9, native title exists in:
(a)land and waters of the areas and parts of areas listed in the column marked “Schedule 2 Areas” in the Determination Area Table and shown generally on the Determination Area Map; and
(b)other waters within the area described in Schedule 1 and shown generally on the Determination Area Map, excluding any waters listed in the column marked “Schedule 3 Areas” in the Determination Area Table
SCHEDULE 3 – WHERE NATIVE TITLE DOES NOT EXIST – ORDER 2
Native title does not exist, because it has been wholly extinguished, in the land and waters of the areas and parts of areas listed in the column marked “Schedule 3 Areas” in the Determination Area Table and shown generally on the Determination Area Map.
DETERMINATION AREA TABLE
Table of Areas referred to in Schedules 2 and 3
(To be read in conjunction with the following Determination Area Notes)Note 1: In the Determination Area Table, areas are generally identified using parcel numbers and further described by official descriptions of allotment and section identifiers, parish and - where applicable – township names. Parcel numbers are internal references used by the State of Victoria for convenience. Where further description appears useful and convenient, or it is necessary to distinguish between areas where native title exists and areas where it does not (as to which, see Note 2), such further description is also included in the column headed “Native Title Assessment”.
Note 2: In many instances native title exists over part of a parcel but has been extinguished over the balance of the parcel. In those instances, the parcel has two separate entries in the Determination Area Table; distinguished by adding “A” and “B” respectively in the column headed “Entry” next to the relevant parcel reference. The letter “A” is used for the part of a parcel where native title does not exist. The letter “B” is used for an area where native title exists. Where an entry refers to part of a parcel where native title has been extinguished, the column headed “Native Title Assessment” contains a short reference to the act or fact that has caused the extinguishment of the native title over those areas.
Note 3: The spatial extent of extinguishment has not been surveyed or otherwise fixed but is to be determined by the spatial extent of the extinguishing act or interest referred to under the column headed “Native Title Assessment”. In a given parcel it is possible that, as a result of the spatial extent of an extinguishing act or interest being determined, native title may be found to have been extinguished over the entire parcel.
Note 4: In the Determination Area Table, the numbers in the first column against each row are sequential and for convenience of reference only.
Note 5: For the avoidance of doubt, there is only a determination in respect of the land and waters identified in Schedules 2 and 3 to the extent those land and waters or parts thereof fall within the boundary described in Schedule 1.
Note 6: The parcel identifiers in the Determination Area Table (Parcel ID, Allotment and Section) were current as at 1 December 2010. The entries in the Determination Area Table relate to the area that was within the parcels, as described by the parcel identifiers, at that date. Fixing the parcel identifiers at a specific date is necessary, because regular changes are made to parcel identifiers, whether because of parcel subdivision or otherwise. Any changes in parcel boundaries and parcel identifiers after 1 December 2010, whether before or after the date of the determination, do not affect the area within the Determination Area Table.
Parcel Id Entry Allotment Section Parish Township Native Title Assessment Sch 2- Native Title Sch 3-No Native Title 1 P040844 A 3A A BANANGAL Freehold grants and road, made before 1 January 1994 ▼ 2 P040844 B 3A A BANANGAL Part not covered by freehold grants and road described in entry A ▲ 3 P040845 A 8A A BANANGAL Freehold Grant, made before 1 January 1994 ▼ 4 P040845 B 8A A BANANGAL Extinguishment disregarded over part pursuant to s 47B NTA ▲ 5 P040846 A 17A A BANANGAL Freehold Grant, made before 1 January 1994 ▼ 6 P040846 B 17A A BANANGAL Extinguishment disregarded over part pursuant to s 47B
NTA
▲ 7 P040847 A 1C 3 BANANGAL Part covered by local road ▼ 8 P040847 B 1C 3 BANANGAL Part not covered by public works listed in entry A ▲ 9 P044459 7B 20 BANANGAL Extinguishment disregarded pursuant to s 47B NTA. ▲ 10 P040860 A 43A BESSIEBELLE Part covered by 500 KV SEC powerline ▼ 11 P040860 B 43A BESSIEBELLE Part not covered by public works listed in entry A ▲ 12 P040861 42C BESSIEBELLE ▲ 13 P044452 15B BESSIEBELLE ▲ 14 P041063 28A B BOONAHWAH ▲ 15 P041064 3B D BOONAHWAH ▲ 16 P044025 1D B BOONAHWAH ▲ 17 P042451 6A 1 BROADWATER ORFORD (T) ▲ 18 P040918 35D BROADWATER ▲ 19 P040919 (Part) 36D BROADWATER Only part of this parcel falls within Gunditjmara (Part B) ▲ 20 P040920 36E BROADWATER ▲ 21 P040921 (Part) 58C BROADWATER Only part of this parcel falls within Gunditjmara (Part B) ▲ 22 P040924 (Part) 30B 1 BROADWATER Only part of this parcel falls within Gunditjmara (Part B) ▲ 23 P040925 (Part) 15A 1 BROADWATER Only part of this parcel falls within Gunditjmara (Part B) ▲ 24 P040926 (Part) 26B 1 BROADWATER Only part of this parcel falls within Gunditjmara (Part B) ▲ 25 P040927 113B BROADWATER ▲ 26 P040928 A 72A BROADWATER Part covered by 500 KV SEC powerline ▼ 27 P040928 B 72A BROADWATER Part not covered by public works listed in entry A ▲ 28 P040931 76A BROADWATER ▲ 29 P040933 99A BROADWATER ▲ 30 P040934 98A BROADWATER ▲ 31 P040935 96A BROADWATER ▲ 32 P040936 92B BROADWATER ▲ 33 P040939 A 48G BROADWATER Road created before 31 October 1975 by being shown or delineated in a map or plan ▼ 34 P040939 B 48G BROADWATER Part not covered by road described in entry A ▲ 35 P040941 A 48F BROADWATER Part covered by school buildings and structures ▼ 36 P040941 B 48F BROADWATER Part not covered by public works described in entry A ▲ 37 P040942 27C BROADWATER Extinguishment disregarded pursuant to s 47B NTA ▲ 38 P040943 40C BROADWATER Extinguishment disregarded pursuant to s 47B NTA ▲ 39 P040944 26C BROADWATER ▲ 40 P040945 26A BROADWATER ▲ 41 P040946 22E BROADWATER Extinguishment disregarded pursuant to s 47B NTA ▲ 42 P040947 23J BROADWATER ▲ 43 P040948 A 4B BROADWATER Part covered by school house, garage, toilets, shedding, water pump and tanks ▼ 44 P040948 B 4B BROADWATER Part not covered by public works listed in entry A ▲ 45 P044434 99B BROADWATER ▲ 46 P044455 48H BROADWATER ▲ 47 P044457 45E BROADWATER Extinguishment disregarded due to s 47B NTA ▲ 48 P376343 1E 7 CLONLEIGH ▲ 49 P040807 A 10A CODRINGTON YAMBUK (T) Part covered by pavilion/dressing rooms and out-buildings ▼ 50 P040807 B 10A CODRINGTON YAMBUK (T) Part not covered by public works listed in entry A ▲ 51 P040808 10B CODRINGTON YAMBUK (T) ▲ 52 P040814 4A CODRINGTON YAMBUK (T) ▲ 53 P040819 13A CODRINGTON YAMBUK (T) ▲ 54 P040957 1B A1 CODRINGTON ▲ 55 P040958 20B A CODRINGTON ▲ 56 P040959 14A A1 CODRINGTON ▲ 57 P040962 1D B CODRINGTON ▲ 58 P041395 15B A1 CODRINGTON ▲ 59 P374527 2001 CODRINGTON Freehold Grant, made before 1 January 1994 - whole ▼ 60 P040973 1C 1 CROXTON EAST ▲ 61 P040972 3B 5 CROXTON WEST ▲ 62 P040974 7C 15 CROXTON WEST ▲ 63 P040975 4G 15 CROXTON WEST ▲ 64 P040977 2A 14 CROXTON WEST ▲ 65 P040978 3B 14 CROXTON WEST ▲ 66 P379485 CA 2002 DUNKELD Extinguishment due to former road- whole ▼ 67 72C DUNKELD Extinguishment disregarded pursuant to s 47B NTA ▲ 68 P044456 A 44E DUNMORE Part covered by road created before 31 October 1975 by being shown or delineated in a map or plan ▼ 69 P044456 B 44E DUNMORE Part not covered by road described in entry A ▲ 70 P040515 1D 12 EUMERALLA ▲ 71 P040516 13B 12 EUMERALLA ▲ 72 P040517 8D EUMERALLA Includes sea frontage, Eumeralla River frontage & frontage to Lake Yambuk ▲ 73 P040518 8C EUMERALLA ▲ 74 P040519 6C EUMERALLA ▲ 75 P040520 6B EUMERALLA ▲ 76 P040522 11A 14 EUMERALLA ▲ 77 P366054 6D EUMERALLA ▲ 78 P041136 A 22B C HAMILTON SOUTH Part covered by fire shed and siren pole ▼ 79 P041136 B 22B C HAMILTON SOUTH Part not covered by public works described in entry A ▲ 80 P041137 A 22C C HAMILTON SOUTH Part covered by tennis courts, clubhouse, toilets, shed and cricket nets ▼ 81 P041137 B 22C C HAMILTON SOUTH Part not covered by public works described in entry A ▲ 82 P041156 1D C JENNAWARRA ▲ 83 P041157 3D C JENNAWARRA ▲ 84 P041158 6A D JENNAWARRA ▲ 85 P041159 8A C JENNAWARRA ▲ 86 P043449 33B LINLITHGOW ▲ 87 P043450 33A LINLITHGOW ▲ 88 P043451 (Part) A 33C LINLITHGOW Only part of this parcel falls within Gunditjmara (Part B) Part covered by galvanised iron boat sheds, storage sheds and concrete shelter ▼ 89 P043451 B 33C LINLITHGOW Part not covered by public works listed in entry A ▲ 90 P043452 A 11A A LINLITHGOW Part covered by toilet blocks ▼ 91 P043452 B 11A A LINLITHGOW Part not covered by public works listed in entry A ▲ 92 P043453 3A A LINLITHGOW ▲ 93 P043454 10A B LINLITHGOW ▲ 94 P043455 46A LINLITHGOW ▲ 95 P043456 4D C LINLITHGOW ▲ 96 P043457 1A LINLITHGOW ▲ 97 P043458 54C1 D LINLITHGOW ▲ 98 P043459 4A I LINLITHGOW ▲ 99 P043460 10A I LINLITHGOW ▲ 100 P043461 A 4B I LINLITHGOW Part covered by railway tracks ▼ 101 P043461 B 4B I LINLITHGOW Part not covered by public works described in entry A ▲ 102 P043462 6A I LINLITHGOW ▲ 103 P043464 1A D LINLITHGOW Freehold Grant, made before 1 January 1994 - whole ▼ 104 P043465 8B D LINLITHGOW ▲ 105 P043466 10B D LINLITHGOW ▲ 106 P043467 10A D LINLITHGOW ▲ 107 P043468 11A D LINLITHGOW ▲ 108 P043469 54D LINLITHGOW ▲ 109 P043470 9A D LINLITHGOW ▲ 110 P043471 54E LINLITHGOW ▲ 111 P043472 1A A LINLITHGOW ▲ 112 P043473 1B A LINLITHGOW ▲ 113 P044097 6D C LINLITHGOW ▲ 114 P044098 3B A LINLITHGOW ▲ 115 P040277 5 9 MACARTHUR MACARTHUR (T) ▲ 116 P040278 5 10 MACARTHUR MACARTHUR (T) ▲ 117 P040279 6 10 MACARTHUR MACARTHUR (T) ▲ 118 P040280 A 21A MACARTHUR MACARTHUR (T) Part covered by clubrooms, broadcast box, cricket nets, netball courts, machinery shed, toilet block, change rooms, gate keepers box, umpires room and shower room. ▼ 119 P040280 B 21A MACARTHUR MACARTHUR (T) Part not covered by public works listed in Entry A ▲ 120 P040281 21B MACARTHUR MACARTHUR (T) ▲ 121 P040283 12B 16 MACARTHUR MACARTHUR (T) Freehold Grant, made before 1 January 1994 - whole ▼ 122 P041257 4A B MACARTHUR ▲ 123 P041261 (Part) 3 16 MACARTHUR Only part of this allotment is determined, being part not covered by cemetery ▲ 124 P041262 2 16 MACARTHUR ▲ 125 P043482 7 8A MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 126 P043483 8 8A MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 127 P043484 9 8A MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 128 P043485 2C B MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 129 P043486 4 B MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 130 P043487 5 B MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 131 P043488 5A B MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 132 P043489 2 C MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 133 P043490 3 C MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 134 P043491 6 8A MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 135 P043493 A 8A 12 MONIVAE Part covered by toilet block, and judge's boxes ▼ 136 P043493 B 8A 12 MONIVAE Part not covered by public works described in entry A ▲ 137 P043494 A 8B 12 MONIVAE Part covered by club rooms, toilet block and storage shed ▼ 138 P043494 B 8B 12 MONIVAE Part not covered by public works described in entry A ▲ 139 P363696 8A 8A MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 140 P371217 2001 MONIVAE Part covered by prior freehold Grant, made before
1 January 1994 - whole▼ 141 P043314 A 139C MOUTAJUP Part covered by railway line ▼ 142 P043314 B 139C MOUTAJUP Part not covered by public works described in entry A ▲ 143 P043315 A 138D MOUTAJUP Part covered by railway line ▼ 144 P043315 B 138D MOUTAJUP Part not covered by public works described in entry A ▲ 145 P044221 139D MOUTAJUP ▲ 146 P365397 (Part) 32B NAPIER Only part of this parcel falls within Gunditjmara (Part B) ▲ 147 P365401(Part) A 8A NAPIER Only part of this parcel falls within Gunditjmara (Part B). Part covered by steel survey trig beacon and monument ▼ 148 P365401(Part) B 8A NAPIER Only part of this parcel falls within Gunditjmara (Part B). Part not covered by public works described in entry A ▲ 149 P041376 171A ST. HELENS ▲ 150 P041377 113D ST. HELENS ▲ 151 P041378 130E ST. HELENS ▲ 152 P041379 132D ST. HELENS ▲ 153 P041380 133C ST. HELENS ▲ 154 P041381 157B ST. HELENS ▲ 155 P042554 A 148D ST. HELENS Part covered by overhead powerline ▼ 156 P042554 B 148D ST. HELENS Part not covered by public works listed in entry A ▲ 157 P370885 2001 ST. HELENS ▲ 158 P376342 CA 2001 TALLANGOORK ▲ 159 P041382 1C 1 TALLANGOORK ▲ 160 P041383 2C 3 TALLANGOORK ▲ 161 P041384 4A 4 TALLANGOORK ▲ 162 P041385 3D 6 TALLANGOORK Part covered by prior freehold Grant, made before 1 January 1994 - whole ▼ 163 P041392 1E 22 TALLANGOORK ▲ 164 P041404 22A TYRENDARRA ▲ 165 P041405 27B TYRENDARRA ▲ 166 P041406 58C TYRENDARRA ▲ 167 P041407 59E TYRENDARRA ▲ 168 P041408 68F TYRENDARRA ▲ 169 P041409 A 51G TYRENDARRA Part covered by powerline, school buildings and structures and road created before 31 October 1975 by being shown or delineated in a map or plan ▼ 170 P041409 B 51G TYRENDARRA Part not covered by covered by public works listed in entry A ▲ 171 P041411 (Part) 66B TYRENDARRA ▲ 172 P043693 2C 18 WARRABKOOK ▲ 173 P043694 5A 19 WARRABKOOK Part covered by road created before 31 October 1975 by being shown or delineated in a map or plan- whole ▼ 174 P043695 5B 19 WARRABKOOK Part covered by road created before 31 October 1975 by being shown or delineated in a map or plan- whole ▼ 175 P044149 3D 14 WARRABKOOK ▲ 176 P044150 6A 18 WARRABKOOK ▲ 177 P044240 31A B WARRAYURE Extinguishment disregarded pursuant to s 47B NTA ▲ 178 P044241 31B B WARRAYURE Extinguishment disregarded pursuant to s 47B NTA ▲ 179 P040531 A CA 20B D YAMBUK Part covered by: toilet block, concrete amenities block, concrete tank, sealed/graded access road and car park ▼ 180 P040531 B CA 20B D YAMBUK Part not covered by public works listed in Entry A ▲ 181 P040815 CA 13 3 YAMBUK ▲ 182 P040816 CA 11 2 YAMBUK ▲ 183 P040817 CA 1B 1 YAMBUK ▲ 184 P040818 CA 13 9 YAMBUK ▲ 185 P040821 CA 12 3 YAMBUK ▲ 186 P040822 A YAMBUK Part covered by church and church outbuildings. ▼ 187 P040822 B YAMBUK Part not covered by public works listed in Entry A ▲ 188 P040823 CA 2 6 YAMBUK ▲ 189 P040824 CA 3 6 YAMBUK ▲ 190 P044321 A CA 19A D YAMBUK Part covered by timber BBQ shelter, toilet block, sealed/graded access road and carpark. ▼ 191 P044321 B CA 19A D YAMBUK Part not covered by public works listed in Entry A ▲ 192 P042555 A 5C 1 YATCHAW EAST Part covered by irrigation drainage channels. ▼ 193 P042555 B 5C 1 YATCHAW EAST Part not covered by public works described in entry A ▲ 194 P042556 3A 2 YATCHAW EAST ▲ 195 P042557 3B 3 YATCHAW EAST ▲ 196 P042558 5A 10 YATCHAW WEST ▲ 197 P042559 A 5B 10 YATCHAW WEST Part covered by concrete water tanks, stand pipe, bore and pump, power pole ▼ 198 P042559 B 5B 10 YATCHAW WEST Part not covered by public works described in entry A ▲ 199 P042560 A 3A 10 YATCHAW WEST Part covered by irrigation drainage channels ▼ 200 P042560 B 3A 10 YATCHAW WEST Part not covered by public works described in entry A ▲ 201 P042561 A 6B 11 YATCHAW WEST Part covered by irrigation drainage channels ▼ 202 P042561 B 6B 11 YATCHAW WEST Part not covered by public works described in entry A ▲ 203 P044207 A 5C 10 YATCHAW WEST Part covered by irrigation drainage channels ▼ 204 P044207 B 5C 10 YATCHAW WEST Part not covered by public works described in entry A ▲ 205 All waters contained in each waterway (as defined in the Water Act 1989 (Vic), as in force at the date of the determination) within the location described in Schedule 1 ▲ 206 All land in and abutting each waterway(as defined in the Water Act 1989 (Vic), as in force at the date of the determination) within the location described in Schedule 1 not otherwise including in this table ▲ 207 All waters contained between the mean high water mark and mean low water mark of any area within the location described in Schedule 1. ▲ 208 All waters contained within the outer limit of a 100m buffer seaward of the mean low water mark of any area within the location described in Schedule 1. ▲
.
SCHEDULE 4 - “OTHER INTERESTS”
“Other interests”– Orders 10 and 11
The other interests, as they exist as at the date of the determination, are as follows:
(a)so far as confirmed pursuant to s 15 of the Land Titles Validation Act 1994 (Vic) as at 24 November 1998, public access to and enjoyment of the following places:
(i)waterways;
(ii)beds and banks or foreshores of waterways;
(iii)coastal waters;
(iv)beaches;
(v)areas that were public places at the end of 31 December 1993;
(b)the right of an employee or agent or instrumentality of the Crown, or of any local government or other statutory authority, to access land or waters in the Determination Area as required in the performance of statutory or common law duties;
(c)the interests of the Crown, or a local government body or other statutory authority of the Crown, in any capacity in any public works and other facilities whose construction or establishment:
(i)was valid or has been validated;
(ii)did not extinguish native title (even as a consequence of validation); and
(iii)commenced prior to the date of this determination.
(d) the following interests of Telstra Corporation Limited:
(i)rights and interests as the owner or operator of telecommunications facilities installed within the Determination Area and as the holder of a carrier licence under the Telecommunication Act 1997 (Cth);
(ii)rights and interests created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and
(iii)rights to enter land or waters in the Determination Area by employees, agents or contractors of Telstra Corporation Limited to enable access to its telecommunications facilities in, and in the vicinity of, the Determination Area; and
(e)any public right to fish;
(f)the public right to navigate;
(g)the international right of innocent passage through the territorial sea;
(h)the interests of persons holding licences, permits, statutory fishing rights, or other statutory rights pursuant to:
(i)the Fisheries Act 1995 (Vic) or regulations or management plans made under that Act;
(ii)the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act;
(iii)any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area
(i) the interests of Powercor Australia Limited (and its related entities), including:
(i)rights and interests as an entity holding a distribution licence under the Electricity Industry Act 2000 (Vic);
(ii)rights and interests created pursuant to the Electricity Industry Act 2000 (Vic);
(iii)rights and interests as holder of a carrier licence under the Telecommunications Act 1997 (Cth);
(iv)rights and interests as owner or operator of electrical and telecommunications facilities and infrastructure (facilities) installed within the Determination Area; and
(v)rights of access for the performance of their duties by employees, agents or contractors of Powercor Australia Limited to its facilities in, and in the vicinity of, the Determination Area; and
(j) the interests of persons to whom valid and validated rights have been:
(i)granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or
(ii)otherwise conferred by statute.
SCHEDULE 5 - Determination Area Maps
Map 1
Map 2
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