By Colin MacGillivray
A HISTORIC Indigenous Land Use Agreement between Taungurung Land and Waters Council and the State Government is in legal limbo after the Federal Court found it was registered incorrectly.
The land use agreement was finalised in October 2018 as part of a broader settlement agreement largely under the auspices Victoria’s Traditional Owner Settlement Act 2010.
The settlement agreement formally recognised the Taungurung people as the traditional owners of more than 20,000 square kilometres of land in north central Victoria from Kyneton in the west to Bright in the east, encompassing nearly all of Mitchell Shire north of Heathcote Junction.
The agreement between Taungurung and the State Government included an understanding that the Taungurung people would not exercise their rights under the federal Native Title Act 1993 in exchange for a range of economic and non-economic benefits estimated at about $34 million.
Included in the settlement was the transfer of nine national parks and reserves to be jointly-managed by the state and Taungurung Land and Waters Council, including the Buffalo and Lake Eildon national parks and areas of Alpine National Park.
When the agreement was reached in 2018, Taungurung leaders hailed it as ‘pleasing recognition’ of the group’s claim to the land after 15 years of campaigning, but several other First Nations groups raised objections.
Members of other Aboriginal groups claimed native title in areas covered by the agreement and said they had been excluded from the agreement.
Representatives of the Ngurai Illum Wurrung, Waywurru and Dhudhuroa people were among respondents who applied for a judicial review of the agreement process.
Federal Court proceedings concluded earlier this month, with Justice Debra Mortimer finding errors in the way the agreement was registered with the National Native Title Tribunal.
Justice Mortimer found a delegate of the Native Title Registrar, who was responsible for registering the agreement, made ‘significant errors of law’.
The finding has left the ILUA up in the air, with Justice Mortimer to consider submissions from all parties on the next steps to be taken.
Taungurung Land and Waters Council chief executive Matt Burns said the group was ‘extremely disappointed with the judgement’ but believed the agreement would eventually be upheld.
“We’re still very confident the outcome will be the same in the long run, it’s just additional time and additional frustration,” he said.
“The judge made it very clear that it’s not a decision on who the native title holders are or who the right traditional owner group is, it’s a decision relating to the fact that the delegate of the National Native Title Tribunal did not follow the right process.
“All the research and evidence to prove whose country it is has all been done.
“They didn’t tick the right boxes or consider the right things as part of their responsibility with the Native Title Registrar.”
Mr Burns said Taungurung was receiving legal advice on what to do next.
“We’re weighing up the decision of an appeal, which will probably take nine months before it’s heard, or just letting it go back to the registrar and asking them to reconsider with the additional considerations that the judge made clear hadn’t been considered,” he said.
“Then we can follow the process. For us, that may be the clearer path to resolving this once and for all with a positive determination.”
Mr Burns said the extension of Taungurung’s boundaries to Mount Buffalo National Park and other areas north-east of Mansfield granted in the 2018 settlement agreement with the State Government would remain in place.
“We don’t think it impairs our [other] agreements at all,” he said.
“Even if there is a temporary deregistration of our Indigenous Land Use Agreement, our agreements that are in place will continue to apply.
“By law under the Aboriginal Heritage Act, for a traditional owner group that has a Recognition and Settlement Agreement, their boundary applies to the same area as their Recognition and Settlement Agreement boundary.
“We welcome the scrutiny because we know we’re right, so this will just ensure we’ve followed all relevant steps. We’re confident in who we are and where our country is.
“It’s a bump in the road, but we’re confident of the outcome in the long run. It’s been a long journey already for us, so this is just an extension to the story.”