Native title describes the rights and interests of Aboriginal and Torres Strait Islander people in land and waters, according to their traditional laws and customs. In Australia, Aboriginal and Torres Strait Islander peoples' rights and interests in land were recognised in 1992 when the High Court delivered its historic judgment in the case of Mabo v the State of Queensland.
This decision overturned the legal fiction that Australia upon colonisation was terra nullius (land belonging to no-one). It recognised for the first time that Indigenous Australians continue to hold native title. The Commonwealth Government responded to the historic Mabo v Queensland decision in 1992 with the Native Title Act 1993 (Cth).
Under the Native Title Act, Traditional Owners can lodge a claim with the Federal Court to have their native title rights determined. Where the claim is over Crown land in Victoria, the respondent will be the Victorian State Government.
The Victorian State Government's role in native title claims is led by the Department of Justice. DELWP provides input into this process as the Crown land manager, including conducting tenure assessments to determine where native title exists on Crown land.
In addition, as the Crown land manager, we are responsible for ensuring that any activities which occur on Crown land comply with the provisions of the future act regime of the Native Title Act 1993 (Cth).
Native title determinations in Victoria
To date, four native title claims have been determined in Victoria.
Three claims resulted in the recognition of native title by agreement via a consent determination in the Federal Court.
The relevant determinations are:
- Gunaikurnai People (October 2010)
- Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Yupagalk Peoples (known as the 'Wimmera' claim) (2005)
- Gunditjmara People (2007)
- Gunditjmara and Eastern Maar peoples (2011) (Part B)
The Eastern Maar hold recognised native title rights, jointly with the Gunditjmara People, in an area of western Victoria (known as the Part B area) pursuant to a Federal Court consent determination made in July 2011. This was the first time in Australia where the Federal Court recognised co-existing native title rights.
In 2012, the Eastern Maar lodged a new native title claim over a larger area of land to the east of the area where they jointly hold native title rights with the Gunditjmara. This new claim was registered in March 2013 and is currently proceeding through the Federal Court. In 2017, the Eastern Maar entered into negotiations with the State of Victoria for a Recognition and Settlement Agreement under the TOS Act. The TOS Act negotiation area includes but is larger than the native title claim area.
In Victoria, the Native Title Unit (Department of Justice and Community Safety) is the lead agency with responsibility for native title matters. Please find more information on their work and history of native title claims in Victoria here.
In the Yorta Yorta claim, native title was determined not to exist by the Federal Court in a litigated determination in 2003.
National Native Title Tribunal
The National Native Title Tribunal website provides information about the Tribunal, future act processes, indigenous land use agreements, mediation and other information regarding native title and the Native Title Act 1993. The site also enables you to search for applications as well as maps and area descriptions.
The National Native Title Tribunal provides assistance and information to resolve native title issues over land and waters to all people involved in the native title process. Set up under the Native Title Act 1993, the Tribunal is a federal government agency and is part of the Attorney-General's portfolio.
Page last updated: 14/07/21