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.”


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. 


South West Native Title Settlement Agreement

Yamatji Nation Southern Regional Agreement

Date concluded

17 October 2018

7 February 2020

Date commenced

25 February 2021

30 July 2020

Negotiation process

In Bennell v Western Australia (2006) 230 ALR 603, the Federal Court found that the Noongar people held native title rights and interests over metropolitan Perth. This was overturned on appeal by the Full Federal Court in 2008, leading the parties to agree to negotiation to resolve the claims. Negotiations took place between the WA government and South West Aboriginal Land and Sea Council (SWALSC) on behalf of the Noongar people, leading to the authorisation of six ILUAs in 2015 and formal conclusion in 2018. 

The agreement extinguishes all native title claims. This was opposed by some claimants, and led to a successful Federal Court challenge on the basis that not all native title holders had signed the ILUAs. However, the outcome was overturned by the Native Title (Indigenous Land Use Agreement) Act 2017 (Cth) which rendered the agreements valid by signature of the majority.

The negotiation was conducted as a mediation through the Federal Court of Australia. The decision in Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 included both a native title consent determination and ILUA (the substance of the settlement agreement). It was the first time both native title recognition and an ILUA had been determined simultaneously. Usually settlements require claimants to withdraw and to not pursue native title claims. However, the native title areas comprise only 0.57% of the total Agreement area and the Future Acts regime does not apply. The settlement encompasses four native title claim groups.

Statutory recognition

Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA)

The Recognition Act recognises the Noongar people as the traditional owners of the lands which makes up the Agreement.




$442 mil

  • $325 mil held in trust
  • $70 mil for economic development
  • $47.4 mil for implementation

Additional revenue


  • 35% annual rental from mining tenure in Agreement area for 10 years
  • 5% lease income from land within Oakajee Industrial Precinct

Land size

200, 000km2

48, 000km2

Population affected

30, 000

9, 000


The Noongar Agreement is comprised of six individual Indigenous Land Use Agreements (ILUAs)


Land transfer

  • Minimum of 20, 000 ha freehold
  • Minimum 30, 000 ha leasehold or reserve land
  • Funding of up to $46, 850, 000 over 10 years for purchase of land
  • Exact parcels not identified in the agreement, which instead establishes a process for identification and purchase of appropriate lands in consultation with WA government, SWALSC and Noongar Boodja Trust (NBT)
  • 14, 500 ha in freehold/conditional freehold
  • Management orders over 134, 000 ha of reserve land
  • Divestment of 8 Aboriginal Lands Trust properties


This includes commercial and industrial land commitments in defined areas (worth $8.7 mil), with options to participate in joint venture and development. 

Park co-management

Creation of South West Conservation Estate.

Creation of Yamatji Conservation Estate for joint management of Conservation and National Parks over 470, 000 ha and funding for Yamatji ranger positions.


  • NBT to hold and distribute assets to Noongar Corporations
  • Noongar Corporations for each Agreement Group
  • Noongar Committees to advise the NBT

Heritage and culture

  • Provides that the State will enter into a Noongar Heritage Standard Agreement when conducting an Aboriginal Heritage Survey in the Agreement area.
  • Provides that each Noongar Corporation will enter into a Noongar Heritage Partnership Agreement with the Department of Planning, Lands to improve heritage protection, recording and preservation processes within the Agreement area.
  • $5.3 mil provided for the development of a Noongar Cultural Centre.

Provides for the recognition, protection and preservation of Aboriginal Heritage and culture in the Agreement area through:

  • collaborative management of Yamatji heritage and cultural materials and records
  • delivery of Aboriginal Water Sites Restoration Project that identifies, restores and protects water based cultural sites
  • Funding for a cultural heritage advisor to advise the management and curation of Yamatji cultural heritage and materials
  • Significant landmarks to be named in consultation with the Yamatji Southern Regional Corporation.

Community development and housing

Establishment of a Community Development framework focused on services in housing, youth, health and education. The specifics of programs and implementation are unclear, however.

A housing package worth $15 mil for purchase of properties, and a 49% interest in new developments in certain areas, with opportunities for joint ventures.

Business development and economic activity

Establishment of the Noongar Economic Participation framework, which provides support for Noongar businesses and joint ventures as well as Noongar participation in the broader economy. This includes exemption from competitive tendering for certain government procurements and capacity building programs. 

Establishment of a Business Development Unit with funding of $5 mil over five years to help Yamatji people set up new businesses and improve existing businesses. This includes links to regional procurement and partnership opportunities and start-up grants.


$8.92 mil for development of Yamatji tourism ventures.  


Amendments to by-laws to protect the rights of Noongar people to hunt, gather and use water in the settlement area for customary activities. 

$21.3 mil for creation of a Strategic Aboriginal Water Reserve of 25 gigalitres per year for domestic or commercial use or trade.

Table prepared by Mia Stone and Devereau Booth


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



Practical information: