Alternative Settlements

Native title determinations are an important way to legally recognise Indigenous connections to country. However, in-court processes for resolving native title claims can be an expensive, long and sometimes result in limited outcomes. Indigenous land interests can be recognised through other means than under the Native Title Act 1993 (Cth) (NTA) through alternative settlements. Alternative settlements are negotiated out-of-court processes that can be achieved in many different ways, including through state legislation or Indigenous Land Use Agreements (ILUAs). These approaches are not focused on the technical aspects of the law but community outcomes and can be more efficient and economical than native title determinations.

Recently in the case of Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 (Yamatji Nation Case), it was accepted that both legal outcomes and alternative settlements could be pursued together to achieve more comprehensive compensation. However, usually settlements require traditional owners to withdraw existing native title claims and undertake not to lodge any future native title claims in exchange for other benefits.

The flexibility of negotiated alternative settlements means outcomes widely vary, as they are designed to suit the needs of each specific claim and can cover any matters agreed to by the parties involved. They can include native title and non-native title outcomes. The broader scope in agreement making can potentially provide greater practical outcomes and benefits than pursuing land justice under the NTA. Additionally, settlements can provide for traditional owner group recognition in areas where native title has been extinguished or where it is difficult for a group to prove that native title persists.

Alternative settlements may include such matters as:

• settlement of native title claims
• recognition of traditional owner rights in land
• the grant of freehold title for cultural and economic purposes
• joint management agreements
• a right to be notified, comment on or consent to activities on public lands
• a right to be involved in planning, development and environmental management of traditional lands
• funding for traditional owner corporations to manage their rights and responsibilities under a settlement agreement and to pursue economic and community development activities
• a right to be consulted and participate in natural resource management.

State Legislation

In Victoria, the Traditional Owner Settlement Act 2010 (Vic) (TOSA) provides an alternative legislative mechanism for the Victorian Government to recognise traditional owners and land rights through out-of-court settlement. The TOSA does not replace the NTA, although settlement means ceasing current and future NTA claims. The types of alternative settlement agreements that may be covered under the TOSA include:

• recognition of a traditional owner group and certain traditional owner rights over Crown land
• a land agreement granting land in freehold title for cultural or economic purposes, or as Aboriginal title to be jointly managed in partnership with the state
• a Land Use Activity Agreement (LUAA) which allows traditional owners to comment on or consent to certain activities on public land
• a funding agreement to enable traditional owner corporations to manage their obligations and undertake economic development activities
• a natural resource agreement to recognise traditional owners' rights to take and use specific natural resources and provide input into land and resource management.

Under the TOSA, the Dja Dja Wurrung Clans Aboriginal Corporation (DDWCAC) entered into a Recognition and Settlement Agreement with the Victorian Government in 2013. The agreement formally recognises the Dja Dja Wurrung people as the traditional owners for part of Central Victoria and provides a LUAA which allows the Dja Dja Wurrung people to hunt, fish and gather in accordance with specified terms and conditions. Six parks and reserves within the area were handed back to Dja Dja Wurrung for joint management by the traditional owners and government representatives. Two culturally significant properties were also transferred over to the DDWCAC for the group’s benefit. The agreement demonstrates that under the TOSA, land use, land return, joint land management and recognition can all be achieved through non-native title mechanisms, through a relatively short negotiation time of 18 months. 

Graham Atkinson, Chair of the Dja Dja Wurrung Clans Aboriginal Corporation states:

“This Agreement will make sure that we walk the next part of this journey together so that our history proudly takes it rightful place as part of the story of modern Australia.”

Settlements

The Yamatji Case, was settled in February 2020 over the mid-west of Western Australia. It was the first time both native title recognition and an ILUA have been determined simultaneously.  This agreement was negotiated between the state government and the Southern Yamatji, Hutt River, Mullewa Wadjari and Widi Mob claim groups. Covering 48,000 square kilometres, it was one of the largest determinations in Western Australian history. The Yamatji nations were collectively awarded non-exclusive native title recognition and possession of traditional lands, as well as a comprehensive a $450 million economic package which included a significant package of benefits to deliver social and economic development and self-determination for Yamatji people featuring:

• cash assets
• a conservation estate for joint management and ranger opportunities to empower traditional owners to be able to care for their country
• transfers of commercial land to the Yamatji Nation
• joint ventures and tourism opportunities
• access to housing for sale, leasing or development
• revenue streams from mining, leasing and sale of land
• an Aboriginal water reserve for use, lease or trade
• a program to establish and assist Yamatji businesses

Wajarri people talk about the significance of the settlement in this video.

Also in Western Australia, the South West Native Title Settlement between the Noongar people and the state is the largest and most comprehensive settlement for Indigenous Australian land interests in Australian history. The settlement ceased all Noongar native title claims in exchange for statutory recognition of the Noongar people as the traditional owners of south Western Australia and a comprehensive benefits package.

The settlement includes:

• enactment of the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) which recognises the Noongar peoples' relationship with the Noongar lands, and their significant and unique contribution to the heritage, cultural identity, community and economy of WA
• Noongar Boodja Trust - a perpetual trust, receiving yearly instalments of $50 million for 12 years
• Noongar corporations - the establishment of six Noongar regional corporations and one central services corporation, with funding support of $10 million a year for 12 years
• Noongar land estate - up to 320,000 hectares of development and cultural land to be held by the Noongar Boodja Trust
• co-operative and joint management of national parks and the South West Conservation Estate
• land access - to certain crown lands for customary activities
• Noongar standard heritage agreement establishing standard processes for determining when and how to carry out heritage surveys on Noongar lands
• Noongar heritage partnership agreement creating a collaboration framework for identifying, recording, protecting and managing Noongar heritage values and sites
• Noongar housing program including the transfer and refurbishment of 121 properties to the Noongar Boodja Trust
• economic and community development through development frameworks to assist Noongar businesses and improve government service delivery to the Noongar community
• capital works funding to contribute to the establishment of a Noongar cultural centre and office space for Noongar corporations
• Noongar land fund of up to $46,850,000 over ten years for land-related projects.

The South West Native Title Settlement, although not explicitly referred to as a treaty, is a significant step that shows a growing commitment of governments towards nation-wide treaty implementation.

The below outlines a quick guide to the South West Native Title Settlement and Yamatji Nation Southern Regional Agreement. 

Table prepared by Mia Stone and Devereau Booth

Treaties

In recent years, treaty discussions with Aboriginal and Torres Strait Islanders have begun. Opinions widely vary for whether a potential treaty should be between the government and First Nations people at the national, state/territory or local level, or a combination of these. Treaties are recognised as the most important path to self-determination, as they acknowledge sovereignty and entitle the treaty holder to a distinctive relationship with the state. This creates a more equal platform for Indigenous peoples to represent their land interests. Despite the calls in the Uluru Statement in 2017, the federal government has taken little action. However, state and territory governments can sign treaties with their First Nations and have indicated a willingness to begin discussions to do so.

For example, in 2020 the Victorian Government met with the First Peoples’ Assembly of Victoria with the aim to establish a framework for treaty negotiations. This follows the government’s commitment to a treaty making process in February 2016, and then enacting Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic). The Annual Report and Plan 2018-2019 described the present and future phases of treaty proceedings.

Details about the First Peoples’ Assembly in Victoria can be found in this video, or read more about treaty in Victoria.

The steps Victoria has taken provide the groundwork and push for other jurisdictions to follow in paving the way for treaty formation.

In South Australia, the labour government formally commenced treaty negotiations in September 2017, but change of government lead to this being reverted in June 2018.

In 2018, the Northern Territory Government and the territory’s four Aboriginal Land Councils entered into the Barunga Agreement. The Agreement is a memorandum of understanding to pave the way for treaty negotiations, and appoints an independent Treaty Commissioner to lead consultations and develop a framework for negotiations. Professor Dodson, the current Treaty Commissioner discusses his role in this video.

Further resources

Examples:

• Recognition and Settlement Agreement, Dja Dja Wurrung Clans Aboriginal Corporation with the Victorian Government, 2013
• Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42: which produced the Yamatji settlement between the Yamatji nations and the Western Australian Government, registered March 2020
• South West Native Title Settlement, Noongar people with the Western Australian Government, 2016
• The Recognition and Settlement Agreement and LUAA, Dja Dja Wurrung and Victorian Government, 2013
• Nantawarrina IPA, the Adnyamathanha people with the South Australian Government, 1989
• Central Land Council Rangers, with Northern Territory Government and Northern Territory traditional owners, 2014

Reading:

• Uluru Statement, made in May at the 2017 First Nations National Constitutional Convention
• Barunga Agreement, formed between the Northern Territory’s four Land Councils and the Northern Territory Government, June 2018
• Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic)
• Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA).
• Native Title Act 1993 (Cth)

Practical information:

• Factsheet on ILUAs, National Native Title Tribunal Australia
• Information about ILUAs, National Native Title Tribunal Australia
• ILUAs, PBC website
• Indigenous Protected Areas, Mandingalbay Yidinji Aboriginal Corporation 2020
• Indigenous Protected Areas, Department of Agriculture, Water and the Environment
• Indigenous Protected Areas, National Indigenous Australians Agency
• Treaty in Victoria Information, Victorian Government