Aboriginal people and the law

Legislation, regulations, gazettes, committee reports, law

Online resources

The Library has a wide range of online resources - journal, magazine and newspaper articles, and and a growing collection of ebooks.

To search for articles choose 'articles' from the dropdown list next to the Search box.

They are all available onsite and most are also available off site to Victorian registered users.

Background

From the time of first contact, Aboriginal people have been calling for land justice.  Governor King received this request in 1805...

"If they could retain some places on the lower part of the river they should be satisfied and would not trouble the white men.  The observation and request appears to be so just and equitable that I assured them no settlement should be made lower down the river. [1]

From the settler perspective, land came to be seen as a means of separating colonised from colonisers and as an instrument of civilisation: 

Reserves of land should be made for their use and benefit in order that the best means may be taken for enabling them to pass from the hunting to the agricultural and pastoral life, and they may have spots on which to place themselves whenever they may have been induced by any means to abandon their wandering habit.[2]

For Victoria the protectorate, later mission system and the legislative framework that governed the lives of Aboriginal people from 1869 until 1967 with the abolition of the Aborigines Welfare Board virtually destroyed the rights of Aboriginal peoples in relation to their lands.

Through legislation, some land has been returned:

Developments in legislation and the consent determination process has allowed native title claims to be recognised in Victoria, details below.


1. King to Earl Camden. 30 April 1805. Historical records of Australia, Series 1, Vol.5, p.416
2. Land and Emigration Commissioners to Lord Russell. 17 July 1840. Historical records of Australia, Series 1, Vol 20, p.738

Commonwealth

For a native title claim to succeed the Commonwealth Native Title act No.110, 1993 required proof of ongoing and unsevered connection with the land and demonstration that life continued for Aboriginal people much as it was before the arrival of white colonisers.  Under the far reaching mission and reserve system, which severed connection to country and damaged language and cultural practice, native title for Victorian Aboriginal people has not been a source of much joy.

Under the Native Title Act, the consent determination process allows for agreement to be reached between the parties, without resorting to litigation.

The Native Title amendment act 2007  aimed to "ensure existing native title processes work more effectively and efficiently in securing outcomes for all parties." There have since been further amendments.

An Australian Law Reform Commission inquiry, Connection to country: Review of the Native Title Act 1993  was released in 2015 and reported on connection requirements and access to justice, native title rights and benefits.

An exposure draft bill to reform native title was released in December 2018.

Useful links:

Victoria

This, the outcome of a 10 year battle was the first consent determination under native title legislation. In December 2005 Justice Merkel of the Federal Court conferred non-exclusive rights on nearly 400 square kilometres of land in north western Victoria: 

The orders I propose to make are of special significance as they constitute the first recognition and protection of native title resulting in the ongoing enjoyment of native title in the State of Victoria and, it would appear, on the South-Eastern seaboard of Australia. These are areas in which the Aboriginal peoples suffered severe and extensive dispossession, degradation and devastation as a consequence of the stablishment of British sovereignty over their lands and waters during the 19th century. [1]


Traditional Owner Settlement Act No. 62 (Vic) 2010

The Traditional Owner Settlement Act provides for the making of negotiated agreements for land claims between traditional owner groups and government. In the event of dispute, the Right people for Country project will determine the traditional owner group. It requires the relinquishment of the right to make any native title claims, now or in the future. 

This page from the Department of Justice includes links to the steering committee report that made recommendations for a new native title framework, describes the purpose and operation of the act and web links to related information.

Useful links:

The Library's book collection includes publications on native title for several Australian and international jurisdictions as well as Victoria.


Yorta Yorta Co-operative Management Agreement

Members of the the Yorta Yorta Aboriginal community undertook an unsuccessful native title claim, finally rejected in 2002 after 8 years of deliberation in both the Federal and High Courts of Australia.  The Yorta Yorta Co-operative Management Agreement, sitting outside the native title process was a negotiated settlement describing the relationship between the Yorta Yorta Coporation and the state government regarding the care and management of designated areas of land and water within their traditional country. 

Useful links:


Gunditjmara Native Title claim

In 2007, the Gunditjmara people were successful in their native title claim. An Indigenous Land Use agreement was negotiated between the state government and the Gunditj Mirring Traditional Owners Aboriginal Corporation. The Winda Mara Aboriginal Corporation and the Lake Condah Sustainable Development Project contribute to land management projects.   The Aboriginal Lands Act (Lake Condah And Framlingham Forest) Act 1987 returned land at both these former mission sites to their communities.

Useful links:


Gunaikurnai Native Title agreement

This is the first agreement made under the Traditional Owner Settlement act. The native title claim of the Gunai/Kurnai people has been before the courts for 13 years. There has also been dispute between the parties as to who is entitled to pursue the claim - in 2010 the Federal Court adjudicated in favour of Gunai/Kurnai over the Kurnai.

In Stratford, on 22nd October 2010, the claim of the Gunai/Kurnai people was recognised in a consent determination. Orders made by the Federal Court recognising that the Gunai/Kurnai people hold native title under the Native Title Act 1993 are also included in the agreement.

Useful links:


Dja Dja Wurrung settlement

In October 2013 an agreement commenced between the Victorian Government and the Dja Dja Wurrung Clans Aboriginal Corporation (DDWCAC) (on behalf of the Dja Dja Wurrung traditional owner group). 

The agreement is the first comprehensive settlement under the Traditional Owner Settlement Act 2010 (Vic), and settles four native title claims in the Federal Court dating back to 1998.


Taungurung settlement

In 2018 the Victorian Government, the Taungurung Clans Aboriginal Corporation, and the Taungurung traditional owner group signed a Recognition and Settlement Agreement

Useful links:


1. Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria. 2005 Federal Court of Australia 1795.

From the Picture Collection...

Our land our rights

Our land our right. Red Letter Press.  Accession No. H2004.32/27

Native Title Research Unit, AIATSIS

This unit provides research and policy advice relating to native title in national, state and territory jurisdictions. Includes links to a range of online publications and conference papers.

Aboriginal Land Rights (Northern Territory) Act. No. 191, 1976

This act provided for legislated land rights for Aboriginal people in the Northern Territory. The Explanatory memorandum provides a background to the bill.
For more information -  Land rights  from the Northern Land Council.

About Native Title

These booklets from the National Native Title Tribunal explains native title and related legal processes.

Indigenous Land Corporation

The Corporation was established to support the purchase of freehold title to land by Indigenous groups. Employment, training and land management programs are run to support sustainability and cultural and socio-economic development.

ANTaR

The Australians for Native Title and Reconciliation website includes reports, education resources, position statements from a range of views, media releases, comment on Mabo and Wik legislation.

Ergo - Indigenous rights

The Library's Ergo website has a section on Indigenous rights, including Native title and the Yorta Yorta claim.

Collaborating for Indigenous rights

From the National Museum of Australia, The struggle for land rights from the early 1960's, including Lake Tyers. The site includes a resources section with documents, press clippings, timeline and useful web links.

Indigenous health and wellbeing: the importance of country

Much work has been done identifying the linkages between connection to country and indigenous health and wellbeing. This paper from AIATSIS provides an overview of research and annotated summary of materials. 

Comparative study of native title

The trouble with tradition: native title and cultural change compares native title regimes in United States, Canada and New Zealand and criticises the tradition heavy requirements of the Australian jurisdiction. The Yorta Yorta case is used for analysis.