3.89 The Hon Aden Ridgeway, Gumbayyngirr man and former Senator, has called for ‘a complete rethinking of the way native title issues are resolved and managed in this country. What we need is to establish comprehensive settlements’. The National Native Title Council has also endorsed such an approach.
3.90 In jurisdictions outside Australia, ‘settlement’ implies not only the resolution of native title claims, but the resolution of broader issues. Professor Mick Dodson has noted that property rights alone will not ‘allow Indigenous peoples to determine our economic and social development’ and suggested that Indigenous people should be involved in all decision-making forums which impact on the region. On this view, regional settlements could include settlement of native title claims, provision for Aboriginal control of land use and development on land they own, resource royalties, participation in planning, development and environmental management in the area, joint management agreements, service delivery arrangements and measures to strengthen Aboriginal local government.
3.91 At the Native Title Minister’s Meeting in 2008, Ministers acknowledged that the potential of the native title system had been ‘constrained by technical and inflexible legal practices’. The Ministers agreed to work towards negotiated settlements and established a Joint Working Group on Indigenous Land Settlements (Joint Working Group) ‘to develop innovative policy options for progressing broader and regional land settlements’.
3.92 The Joint Working Group produced Guidelines for Best Practice, Flexible and Sustainable Agreement Making. The Guidelines do not define what the scope of a ‘broader land settlement’ might be, except to note that they can include both native title and non-native title outcomes.
3.93 The Traditional Owner Settlement Act 2010 (Vic) (TOSA) provides for settlements between the Victorian Government and traditional owner groups in Victoria. Settlements are to be made on the basis that traditional owners must withdraw native title claims and agree not to make a claim in the future. Settlements may include recognition of the group and certain traditional owner rights over Crown land, grants of land either as freehold title or ‘Aboriginal title’, funding for traditional owner corporations, and the right to comment on or consent to certain activities and provide input into the management of land and natural resources. The Social Justice Commissioner described this agreement as setting ‘the benchmark for other states to meet when resolving native title claims’.
3.94 The first settlement under the TOSA was with the Gunaikurnai people, in 2010. In 2013, a comprehensive settlement was made with the Dja Dja Wurrung, which included the transfer of two freehold properties; hunting, fishing and gathering rights; a Land Use Activity Agreement (a simplified ILUA); transfer of parks and reserves as ‘Aboriginal title’ and joint management of those lands.
3.95 The Western Australian Government and the South West Aboriginal Land and Sea Council, representing six native title groups—Yued, Gnaala Karla Boodja, South West Boojarah, Wagyl Kaip, Ballardong, and Whadjuk—have, since 2009, been negotiating a settlement in the South West of Western Australia. The matters under negotiation include recognition of the Noongar people as traditional owners, the transfer of land, funding, joint management of the conservation estate and processes for the protection of heritage.
3.96 The South Australian Government reports that it has had a policy of resolving claims by consent since 2004:
Eleven claims have been resolved by consent determinations … and, of these, six have involved comprehensive settlement agreements that address broader issues including compensation, sustainability of the Prescribed Body Corporate, and future act issues.
3.97 Some efforts have been made to achieve regional agreements in Queensland, but they do not appear to have been successful. QSNTS has suggested that an alternative settlement framework, similar to the Victorian TOSA, should be discussed.
Aden Ridgeway, ‘Where We’ve Come from and Where We’re at with the Opportunity That Is Koiki Mabo’s Legacy to Australia’ (Paper Presented at Native Title Conference, Alice Springs, 3-5 June 2003), cited in Stuart Bradfield, ‘Agreeing to Terms: What Is a “Comprehensive” Agreement?’ (Land, Rights, Laws: Issues of Native Title 2/26, 2004) 13.
National Native Title Council, Submission 16.
Bradfield, above n 137, 2–3.
Mick Dodson, ‘Indigenous Social Justice Strategies and Recommendations’ (Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995).
Native Title Ministers Meeting Communique 2009.
Joint Working Group on Indigenous Land Settlements, Guidelines for Best Practice: Flexible and Sustainable Agreement Making, August 2009 5.
Department of Justice Justice, Traditional Owner Settlement Act <http://www.justice.vic.gov.au/home/your+rights/native+title/traditional+owner+settlement+act>.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2011’ (Australian Human Rights Commission, 2011) 4.
Department of Justice, Victoria, Submission 15.
Dja Dja Wurrung Clans Aboriginal Corporation, Settlement of the Dja Dja Wurrung Native Title Applications under The Traditional Owner Settlement Act 2010.
Western Australian Government, The South West Native Title Settlement Land, Approvals and Native Title Unit <http://www.dpc.wa.gov.au>.
South Australian Government, Submission 34.
Graeme Neate ‘Negotiating Comprehensive Settlements of Native Title Claims’ (Paper Presented at LexisNexis Native Title Law Summit, 2009) 26.
Queensland South Native Title Services, Submission 24.