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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
336
Unalienated Crown land and the rights of Aboriginal owners
That unalienated Crown land granted on the basis of cultural, historical and/or traditional association of Aboriginal people should be granted under inalienable freehold title and should carry with it the right of the Aboriginal owners to, inter alia:
a) Determine who may enter the land and the terms of such entry; and
b) Control the impact of development on the land in so far as such development may threaten the cultural and/or social values of the Aboriginal owners and their communities.
The pace of reform around Settlement Act processes is too slow, and at times unambitious...to the recognition of Traditional Owner rights...these are longstanding issues for which the State has been on notice for at least three years, although in some cases longer as they have been raised previously by Traditional Owners in other forums.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 336 was to ensure that unalienated Crown land is granted to Aboriginal people under inalienable freehold title, with rights to control land access and the impact of development that may threaten Aboriginal cultural or social values.
The Victorian Government cited the Traditional Owner Settlement Act 2010 (TOSA) and related natural resource agreements as addressing this recommendation. However, the First Principles Review of the Act found that it imposes restrictions that undermine inalienable freehold title, such as limiting the collection of flora and the commercial use of animals and waters.
We also highlighted restrictions in the rights provided under the Act:
Under the Traditional Owner Settlement Act, if we wanted to collect firewood, there’s still restrictions on what we can do with that firewood.
(John Gorton, Chairperson, Grampians RAJAC and Member, Barengi Gadjin Land Council)
Progress in land return has been limited, with only 34,920 square kilometres of land transferred since the Act’s inception, compared to 8 million hectares of Crown land in Victoria.
Traditional Owner groups have reported an increased workload and emotional responsibility.
The TOSA has increased the workload and responsibility of Aboriginal people, Traditional Owner groups, and RAP [Registered Aboriginal Party] groups to advocate and get things across the line, while being inadequately resourced to do so.
(Ebony Hickey, Chairperson, Barwon Southwest RAJAC and Member, Eastern Maar Aboriginal Corporation)
In addition, the process of land area recognition and mapping, inherent in negotiations under TOSA, is itself an act of ongoing colonisation.
Land area recognition and the mapping of such land is further ongoing colonisation... it’s a separatist practice of extracting land from the State but also extracting land from one another. The continuous sense of connection and understanding is different in the way that we see the connection between land and Country, a connection that is continuously disrupted by these sorts of processes.
(Ebony Hickey)
Traditional Owner groups are required to take on the responsibility of assessing land offered through the process, including undertaking liability assessments and monitoring the suitability of land, work that adds to the burden already placed on under-resourced Traditional Owner groups.
Priority for Further Work:
High
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Implement all the recommendations from the First Principles Review
Implement all the recommendations from the First Principles Review of the Traditional Owner Settlement Act 2010.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) demonstrated the importance of Aboriginal and Torres Strait Islander peoples maintaining self-determination over land granted based on cultural and traditional association. The Commission emphasised that land title needs to recognise ‘land rights’ as a legitimate need. Despite some transfers of unalienated Crown land, significant efforts were required to enhance land rights for Aboriginal and Torres Strait Islander peoples.
Actions Taken Since Last Review
Department of Premier and Cabinet
In their 2023 response to this recommendation, the Land Justice Unit noted:
The Traditional Owner Settlement Act 2010 (Vic) (TOSA) enables the Victorian Government to transfer Crown land of cultural significance under inalienable freehold title inter alia to Traditional Owner Corporations. The Natural Resource Agreement (a sub agreement under TOSA) provides a framework for Traditional Owners management of natural resources within their Agreement Area. Additionally, The Traditional Owner Land Natural Resource Agreement extends the operation of the Natural Resource Agreement to freehold land that is owned by the Traditional Owner Corporation or by a member of the Traditional Owner group.
Impact
Outputs
The Traditional Owner Settlement Act 2010 (Vic) allows for the transfer of Crown land to Traditional Owner Corporations under inalienable freehold title. Under the Act, the State recognises certain inherent rights of Traditional Owners that are similar to, and sometimes in excess, of the rights native title holders may have recognised through a positive non-exclusive determination under the Native Title Act 1993 (Cth). These include access to land for traditional purposes, to take and use natural resources, and participation or negotiation in land-use decisions affecting those rights. These rights are defined in the Act and implemented through standard template agreements.
Outcomes
First Principles Review of the Traditional Owners Settlement Act 2010
The First Principles Review raised concerns with Natural Resource Agreement requirements for Traditional Owner Corporations to “comply” with sustainability principles, arguing that this undermined self-determination associated with inalienable land title. The review recommended replacing the term “comply” with “given proper consideration to.” It also highlighted additional restrictions on Traditional Owners, including limits on collecting flora, native plants and firewood, and prohibitions on the commercial use of animals and water, noting that the State was not subject to the same obligations.
Victorian Government Aboriginal Affairs Report 2024
Information is published annually in the Victorian Aboriginal Affairs Framework Data Dashboard. As of 30 June 2024, there were four Recognition and Settlement Agreements under the Traditional Owner Settlement Act 2010 covering about 96,210 km² of Victoria, including 34,920 km² of Crown land and waters, with no new agreements begun since 2022-23. (There was approximately 8 million hectares of land still reserved by the Crown in Victoria based on government figures.)
Under the Native Title Act 1993, native title has been recognised over 16,629 km² of Crown land and waters, including the 2024 Federal Court determination for the Eastern Maar People that added 289.16 km² to the area where their native title exists. This was the second consecutive year of growth in native title coverage in Victoria following more than a decade without expansion since 2012–13.
Community Views
Federation of Victorian Traditional Owner Corporations
As Aboriginal people have always maintained, and history makes clear, pre-contact societies in Australia engaged in complex and sophisticated methods of trade, and an economy that traversed the entire continent. Whereas native title has typically recognised rights based on traditional activities, such as hunting, fishing, camping, and so on, it has struggled to reflect or recognise wider rights that may be attributable to, or arise from, a more complex and accomplished society than is typically acknowledged by long standing racist and colonial narratives.
First Principles Review Committee
The First Principles Review Committee (FPRC) remains of the view that the pace of reform around Settlement Act processes is too slow, and at times unambitious. The FPRC wishes to make clear that these comments are provided, not to diminish the real advances achieved from this review, but in a spirit of reflection, to improve the joint undertaking of Traditional Owners and the State, as they work towards the implementation of self-determination in Victoria. Furthermore, these comments are particularly directed to the recognition of Traditional Owner rights, and the 22 recommendations made in Part 4 of this Report. With respect to these 22 Recommendations, it is notable that 13 address issues that were first formally raised by the Template Review Committee in 2018. That is, these are longstanding issues for which the State has been on notice for at least three years, although in some cases longer as they have been raised previously by Traditional Owners in other forums.