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  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.
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.