Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
337
Meeting the land needs of Aboriginal people
That governments recognise that where appropriate unalienated crown land is unavailable to be claimed on grounds of cultural, historical or traditional association with the land or where, due to the processes of the history of colonisation, Aboriginal people are no longer able to, nor seek to, make claims to particular areas of unalienated crown land on the basis of cultural, historical or traditional association there remain land needs of Aboriginal people which should be met by governments. These needs should be accommodated by a process which:
a) Enables Aboriginal communities or groups to obtain secure title to unalienated crown land or to purchase land for social, recreational and community purposes (including the obtaining of additional land in circumstances in which an Aboriginal community is on Aboriginal land but where the area of that land is established as being too small to accommodate the community);
b) Enables Aboriginal communities or groups to obtain secure title to land so as to improve the environmental circumstances in which they live;
c) Provides adequate funding in order that land may be purchased on the open market in pursuance of the needs identified in paragraphs (a) and (b); and
Where pastoral land is held on lease from the Crown, permits Aboriginal communities traditionally or historically associated with the land to have priority when leases come up for renewal.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 337 was to ensure there are alternative and flexible processes for gaining land title when it is unavailable due to cultural or historical ties.
The Treaty Negotiation Framework was developed to guide treaty negotiations. Both statewide and Traditional Owner Treaties will address land and water justice, which may include the development of processes and arrangements relevant to Recommendation 337.
Actions taken to date do not fulfil the intent of Recommendation 337, as the outcomes of treaty negotiations remain uncertain and may take many years to occur. Existing legislative frameworks, such as the Traditional Owners Settlement Act (TOSA), are also insufficient at enabling Aboriginal communities to secure title to unalienated Crown land or to access funding for land acquisition for social, recreational, or community purposes.
This is exemplified by the native title determination for the Eastern Maar people, whose lands cover southwestern Victoria, including the Great Ocean Road. Initially, the Eastern Maar sought land title through TOSA before pursuing native title. They encountered significant challenges in proving connection to Country, largely due to the impacts of colonisation. The Eastern Maar have been petitioning for land title since 2012 and only recently entered negotiations for a Recognition and Settlement Agreement under TOSA. Although the necessary evidence was submitted in 2015 and approval was announced in 2017, no further updates on the agreement have been provided.
We raised concerns about relying solely on treaty negotiations to address this recommendation, questioning whether such an approach would deliver improved land justice for Traditional Owners.
You know, it's saying a lot about what could happen if treaty happens, but it doesn't say anything if it doesn't. What happens then?
(Kooramyee Cooper, Chairperson, Western Metropolitan RAJAC)
Therefore, there is a clear need to strengthen existing legislative provisions for Traditional Owners to pursue land title rights while treaty negotiations are underway.
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) | |||||
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised that the processes of colonisation led to the loss of Aboriginal people's knowledge of the land, traditional stories, and practices. RCIADIC highlighted that this makes claiming land titles based on historical or cultural ties an unfeasible process. Therefore, processes for claiming land titles should be flexible and accommodating to the various sentimental ties and needs relating to the land.
Actions Taken Since Last Review
Treaty Negotiations and Strategy, First Peoples State Relations, DPC
Per the requirements of the Advancing the Treaty Process with Aboriginal Victorians Act 2018, the Victorian Government and the First Peoples’ Assembly of Victoria have agreed to and established a process for negotiating Treaties between First Peoples and the State of Victoria.
The Treaty Negotiation Framework (TNF) provides a framework for the negotiation of Treaties, including a statewide Treaty between the State and the First Peoples Representative Body, and Traditional Owner Treaties between the State and Traditional Owner groups over specific land and waters.
Both statewide and Traditional Owner Treaties will involve negotiations in relation to land and water justice (25.3(e)(iii)) and other land related matters listed as potential subject matters, including cultural heritage, economic and community development, environmental management, funding and revenue raising, and housing. Traditional Owner Treaty negotiations may also involve (25.4), protecting land and water and cultural heritage, culture and language, and economic sustainability and empowerment.
Agreements reached through Treaty negotiations will address land needs of Aboriginal peoples, which may include the creation of processes and arrangements to the effect of Recommendation 337. These or similar outcomes may also be achieved through alternative agreed mechanisms.
Impact
Outputs
The First Peoples State Relations have stated they have established a process for negotiating Treaties through the Treaty Negotiation Framework. Agreements reached through Treaty negotiations will address land needs of Aboriginal people which may include the creation of land title processes relating to this recommendation.
Outcomes
Eastern Maar traditional owners' land rights formally recognised at Warrnambool
ABC News reported on the celebratory win of the Eastern Maar people gaining native title over southern-western Victoria, including the coastline of the Great Ocean Road and sections of the Great Otway National Park. The report highlighted that the Eastern Maar people had been petitioning for this title since 2012 and had found gathering the required proof challenging due to the processes of colonisation, which saw their people forcibly removed from the land and placed into missions. The title acknowledges the rights of the Eastern Maar people to access and use the land, as well as their right to be consulted on proposed developments.
In addition, the First Peoples State Relations asserted that the Eastern Maar people originally tried to pursue this under TOSA, indicating that the frameworks of both the Native Title Act and TOSA have not met the land needs of the Eastern Maar people. They have now agreed to negotiate a Recognition and Settlement Agreement with the State under TOSA. The Eastern Maar people submitted evidence to meet the State’s requirements in 2015 and the agreement to commence negotiations was not announced till 2017. The information on this agreement was last updated in 2024, and no new updates have been announced since.
National Indigenous Times - Truth and Treaty: Victoria continues progress towards reconciliation (2024)
The National Indigenous Times discussed their hope for Treaty to provide more land justice outcomes for Traditional Owners that have not been met through TOSA. The paper stated that ‘far too many other decisions impacting Aboriginal people’s lives continue to be made without them.’ It also was reported that only four Victorian Recognition and Settlement Agreements have been signed under the Act since 2010.
However, the paper recognised that TOSA has had greater ability than the Native Title Act to grant land title claims based on other factors that lie outside traditional laws and customs. The Native Title Act provided limited opportunity to leverage social and economic opportunities which is crucial to improving Aboriginal health and wellbeing.
Community Views
Matthew Burns, CEO, Taungurung Land and Waters Council
Taungurung people (Traditional Owners) hold enduring rights, inherent obligations and lore that apply to Country that existed prior to the colonisation of our lands.