How will exclusive native title rights work in Victoria's Millewa-Mallee?

Australia Broadcast Center

2 days ago

A landmark Victorian native title ruling handed down near Mildura has left residents with unanswered questions about how "exclusive" native title works.
The decision from earlier this month granted traditional owners from the Ngintait, Latji Latji and Nyeri Nyeri First Nations groups native title rights over an area along the south side of the Murray River, between Iraak, 40 kilometres south-east of Mildura, and Lindsay Point, 130km west of Mildura.
And in a Victorian-first, the Federal Court has determined "exclusive" native title rights over some of that land.
Native title is a legal recognition that some traditional owners continue to hold rights to their land and waters, giving them the power to move about, camp, hunt, fish and teach on country.
The strongest form of native title is exclusive rights, which may be recognised in areas such as freehold property owned by an Aboriginal corporation.
First Nations Legal and Research Services lawyer Eleanor Kay said it meant "they've maintained their laws and customs and have an enduring connection to their country".
But Ms Kay said the exclusive native title of the prescribed body corporate, The First People of the Millewa-Mallee Aboriginal Corporation, did not mean land would be "locked up" or public access would be denied.
"There's no encroachment on the public right to access," she said.
Ms Kay said for most people living in north-west Victoria, the determination was more a legal change rather than a practical one.
She said farmland remained farmland, public land remained public, and boats still had access to waterways.
"It isn't going to really change anything for the everyday person living in this part of Victoria," Ms Kay said.
The Victorian government has confirmed freehold title takes precedence over exclusive native title rights.
Ngintait man Nathan Giles said the determination was a "progressive" decision to give traditional owners clarity and authority.
"It's not just a right through native title, but it's a responsibility that we have as First Nation mob from here to look after the country," he said.
Latji Latji junior elder, Aunty Melissa Jones, said native title meant traditional owners could go about protecting First Nations "old people" — ancestors buried across the Millewa-Mallee — by restoring the burial grounds without breaking rules or laws.
One suggestion is for the First Peoples of the Millewa-Mallee to build up logs as a barrier around burial grounds to stop sand from covering the burial sites during winds.
Ten years ago, and just across the Murray River, the Barkindji traditional owners were awarded native title status in south-west New South Wales.
But a decade on, Barkindji elder Uncle Arthur Kirby said native title had not provided what he had hoped it would.
He said the Barkindji traditional owners were waiting for Crown land to be transferred so they could build an office, but the land would be allocated to the body corporate and leased back to the community.
"You get rights in a sense, but the government controls it," Uncle Kirby said.
"It sounds good, but the definition is wrong."
In the recent determination, exclusive rights relate to Aboriginal-held freehold land already owned by Aboriginal organisations, or land held in trust or reserved for the benefit of Aboriginal peoples.
The Victorian government said any existing interest-holders, such as people with leases or licences over Crown land within that area, would be unaffected by the determination.
If traditional owners choose to exercise their exclusive rights over parcels of land, the First Peoples of the Millewa-Mallee would enter into negotiations with the Victorian government.
The government said it would go through a three-month public notice period, taking submissions from the public, before any agreement was struck.
Once agreed, the Aboriginal corporation would then have to apply to the Federal Court to vary the determination.
"Places like Murray Sunset National Park will be subject to an agreement with the state, and we don't know exactly what that will look like."
The native title ruling for the Millewa-Mallee does not provide native title over minerals, petroleum and groundwater, which continue to be owned by the federal and state governments.
The CSIRO office at Irymple and the Mildura Recreation Reserve are also exempt.
Alongside exclusive rights, there are also non-exclusive rights where the traditional laws and customs of the First Peoples of the Millewa-Mallee operate alongside state and Commonwealth law, and other land titles and licences.
Marrah Law senior lawyer Henry Dow said under exclusive rights, an Aboriginal corporation could enter into an Indigenous land use agreement with another party.
He said this approach was common in other states, such as Western Australia, where traditional owner groups such as the Banjima People, in the Pilbara region, have entered into agreements with mining companies on exclusively-held land.
On non-exclusive land, where the state and native title coexist, the rules are a little different.
And if they clash, Mr Dow said the law often reads that state and Commonwealth law will prevail over native title.
"You might have traditional laws, customs and rights within a national park where you would have non-exclusive native title," Mr Dow said.
The right to hunt by native title holders was confirmed by the High Court of Australia in 1999 when the Queensland government tried to prosecute traditional owner and native title holder, Murrandoo Yanner, for taking and killing two crocodiles.