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This research paper provides an overview of the key mechanisms by which Aboriginal and Torres Strait Islanders can exercise their rights to land and waters in Victoria. In particular, it provides:

  • an overview of the historical context, structure and processes of the Traditional Owner Settlement Act 2010 (Vic) (TOS Act);
  • discussion of the experiences of Traditional Owner corporations who have concluded settlement agreements with the Victorian Government under the TOS Act;
  • an overview of native title and the processes of the Native Title Act 1993 (Cth) (NTA);
  • a summary of other key mechanisms that enable rights to land and water; and
  • analysis of how the recognition and exercise of land and water rights might change in the future.

The TOS Act was enacted in Victoria as an alternative to the native title regime, and is currently the most expansive means by which Traditional Owners can gain rights to country and settle native title claims in Victoria. It is a comprehensive, non-litigated claims process that can provide a package of agreements and rights, including recognition as the Traditional Owners of country; funding; and use, access and management of natural resources. As the TOS Act provides the largest scope for recognition of various rights, it receives primary consideration in this paper (see Chapter 2).

The core focus of this consideration is discussion of the experiences of the Traditional Owner corporations who have negotiated a TOS Act settlement agreement: Gunaikurnai Land and Waters Aboriginal Corporation and Dja Dja Wurrung Clans Aboriginal Corporation. In conducting this research, the author met with representatives of the corporations to hear their experiences of the negotiation processes, and of the practical outcomes following settlement. Some of the common themes that are discussed relate to the potential of TOS Act settlements; the negotiation process; funding and resources; relationships with government and the future Victorian treaty processes. At the time of publication, four Traditional Owner groups were negotiating TOS Act settlements. These groups were not contacted in order to respect the confidentiality of the negotiations process (see Chapter 3).

Native title was the first major legal mechanism for recognising the existing rights of Aboriginal and Torres Strait Islanders to their country. It was first recognised in the Mabo No. 2 decision, before being codified by the NTA. Native title is the recognition of existing title, as opposed to the grant of a new title or set of rights. While the TOS Act provides broader scope for recognition of various rights, Traditional Owners can still elect to make claims under the NTA (see Chapter 4).

Alongside the TOS Act and NTA, there are many other ways in which Victorian Traditional Owners can exercise rights to country. This include approaches aimed at protecting cultural heritage, enabling joint management of natural resources, and facilitating Traditional Owner participation in the development of policy. These mechanisms create a complex system of interwoven rights and structures that can be difficult to navigate for Traditional Owners, government agencies, private bodies and the broader public (see Chapter 5).

There are many possibilities for the further reform of native title and alternative settlement processes. The future treaty processes in Victoria are one factor that have significant potential to disrupt the ways in which land and water rights are recognised and effected. Other factors for consideration include the transition into the post-determination and post-settlement phase; economic development of traditional lands; compensation for extinguishment or impairment of native title; and possibilities regarding water (see Chapter 6).

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Research paper no.3, September 2018
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