Lovett on behalf of the Gunditjmara People v State of Victoria

• Jurisdiction: Australia Federal only
• Judgment Date: 30 March 2007
• Neutral Citation: [2007] FCA 474
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

Native Title Act 1993 (Cth) ss 55, 56 and 87

Federal Court Rules O 34A r 3

Native Title (Prescribed Bodies Corporate) Regulations 1999 r 4

JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA PEOPLE v THE STATE OF VICTORIA AND OTHERS

VID 6004 OF 1998

EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE v THE STATE OF VICTORIA AND OTHERS

VID 655 OF 2006

NORTH J

30 MARCH 2007

MT ECCLES NATIONAL PARK

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 6004 OF 1998

BETWEEN:	JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA PEOPLE Applicant
AND:	THE STATE OF VICTORIA AND OTHERS (as per list of respondent parties) Respondent

VID 655 OF 2006

BETWEEN:	EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE Applicant
AND:	THE STATE OF VICTORIA AND OTHERS (as per list of respondent parties) Respondent

JUDGE:	NORTH J
DATE OF ORDER:	30 MARCH 2007
WHERE MADE:	MT ECCLES NATIONAL PARK

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 6004 OF 1998

BETWEEN:	JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA PEOPLE Applicant
AND:	THE STATE OF VICTORIA AND OTHERS (as per list of respondent parties) Respondent

VID 655 OF 2006

BETWEEN:	EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE Applicant
AND:	THE STATE OF VICTORIA AND OTHERS (as per list of respondent parties) Respondent

JUDGE:	NORTH J
DATE:	30 MARCH 2007
PLACE:	MT ECCLES NATIONAL PARK

REASONS FOR JUDGMENT

1 On 30 August 1996, an application (VID 6004/98) was filed on behalf of the Gunditjmara People for a determination of native title under the Native Title Act 1993 (Cth) (the Act). The proposed determination also applies to some lands within the outer boundary of the original application area but which were not the subject of that application. A second application was filed on 9 June 2006 (VID 655/2006) in order to include those areas of land.

2 The respondents totalled 170 individual parties encompassing not only State and Commonwealth Government interests but also mining, farming, local government, fishing, beekeeping, and recreational land user interests. These interests were allocated by the Court to 27 groups for ease of management.

3 The application area is bounded on the west by the Glenelg River, to the north by the Wannon River and extends as far east as the Shaw River. It includes Lady Julia Percy Island and coastal foreshore between the South Australian border and the township of Yambuk. The application for native title determination relates to Crown land and waters within the application area including state forests, national parks, recreational reserves, river frontages and coastal foreshores comprising 140,000 hectares.

4 The area and its significance has been described as follows:

…

Dating back thousands of years, the area shows evidence of a large, settled Aboriginal community systematically farming eels for food and trade in what is considered to be one Australia’s earliest and largest aquaculture ventures.

This complex enterprise took place in a landscape carved by natural forces and full of meaning for the Aboriginals who lived there.

More than 30 000 years ago the ground in this area rumbled and rolled as Aboriginal people nearby witnessed Budj Bim, an important creation being from the Dreamtime reveal himself in the landscape. That volcano that today we call Mount Eccles, is his forehead and the scoria are his teeth.

Budj Bim is the source of the Tyrendarra lava flow, which extends from Mount Eccles over 50 km to the west and south and which is central to the history of these local Aboriginal people, known as the Gunditjmara.

As the lava flowed from Mount Eccles to the sea it changed the drainage pattern in this part of Western Victoria, creating some large wetlands. Beginning thousands of years ago, the Gunditjmara People started to develop this landscape by digging channels to bring water and young eels from Darlots Creek to low lying areas.

They built stone dams to hold the water in these areas, creating ponds and wetlands in which they grew short-fin eels and other fish. They also created channels linking these wetlands. These channels contained weirs with large woven baskets made by women to harvest mature eels.

The modified and engineered wetlands and eel traps provided an economic basis for the development of a settled society with villages. Gunditjmara used stones from the lava flow to create the walls of their circular stone huts. Groups of between two and sixteen huts are common along the Tyrendarra lava flow and early European accounts of Gunditjmara describe how they were ruled by hereditary chiefs.

…

I will return to this passage later in these reasons.

5 The Court sits today at Mt Eccles to hear and determine an application under s 87 of the Act. The section applies where parties to an application for determination of native title reach agreement on the terms of an order of the Court in relation to the proceedings. If the agreement is filed with the Court, s 87 gives the Court the power to make orders consistent with the agreement without holding a hearing or without completing a hearing which has started. The power is subject to two conditions, namely, that the terms of the orders of the Court are within the power of the Court, and that it is appropriate for the Court to make the orders sought.

6 The State has filed a submission, agreed to by the other parties, which argues that the Court should find that these conditions have been met, and that the Court should make a determination of native title in favour of the Gunditjmara People.

7 On 18 January 2007, the Court ordered that the application area be divided into Part A and Part B. Part B is an area of land on the eastern edge of the application area and Part A is the balance. Part B is not included in the proposed determination.

8 The proposed determination relating to Part A, recognises that the Gunditjmara People have non-exclusive native title rights over 133,000 hectares to access or enter and remain on the lands and waters, to camp on the lands and waters landward of the high water mark of the sea, to use and enjoy the land and waters, to take the resources of the land and waters, and to protect places and areas of importance (Determination par 5 and Schedule 2). It sets out the nature and extent of other interests in the area (Determination par 10 and Schedule 4), and the relation between the native title interests and the other interests (Determination par 11). In particular par 11 of the Determination provides that where and to the extent of any inconsistency between the native title rights and interests and the other interests, native title rights and interests have no effect during the currency of the other interests. The proposed determination specifies areas amounting to 7600 hectares over which the parties agree native title has been extinguished (Determination par 2 and Schedule 3).

9 The parcels of claimed land within Part B are identified in the orders made on 18 January 2007 and represent approximately 3.5% of the total area claimed. Part B is coextensive with that part of the claim area over which the Framlingham Aboriginal Trust presently has cultural heritage protection responsibilities under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

10 The orders made on 18 January 2007 adjourned the proceeding relating to Part B by consentto a date to be fixed not later than 30 September 2008. The Court further ordered that the proceeding in respect of Part B continue in mediation. There are two remaining issues to be resolved in relation to Part B. The first relates to an enclave within this area that parties have agreed should be the subject of further anthropological assessment. It has been agreed that if the assessment is satisfactory to the State then the enclave would, subject to the consent of the other respondents, be resolved in the same terms as the proposed present determination. If not, it was agreed that the application relating to the enclave would be withdrawn. The second issue relates to continuing mediation between the Gunditjmara People and the Framlingham Aboriginal Trust, where it has also been agreed that either the claim will be resolved by consent or the application withdrawn.

Procedural History of the Applications

11 In order to determine whether it is appropriate to make the orders sought, it is necessary to examine the history of the applications.

12 The detailed steps taken in the process that have ultimately given rise to the agreement are set out in detail in the submission. What follows is largely taken from that submission.

13 In December 2002, the Court ordered mediation to be conducted by the National Native Title Tribunal (the Tribunal)

14 Between February 2004 and February 2005, the State was supplied with anthropological assessments, genealogies, and affidavits or statements by the Gunditjmara People to demonstrate that they had a connection to...