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Editors --- "Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v State of Victoria [2005] FCA 1795 - Case Summary" [2006] AUIndigLawRpr 2; (2006) 10(1) Australian Indigenous Law Reporter 17

CLARKE ON BEHALF OF THE WOTJOBALUK, JAADWA, ADAWADJALI, WERGAIA AND JUPAGULK PEOPLES V STATE OF VICTORIA

Federal Court of Australia (Merkel J)

13 December 2005

[2005] FCA 1795

Native title — consent determination — whether it is appropriate to make the orders sought in the consent determination

Facts:

Between 1995 and 1999, three native title claims were made on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk peoples (‘the applicants’), in the Wimmera region of western Victoria. The total area covered by the three applications was 9624 square kilometres.

The claims were mediated by the National Native Title Tribunal. There were over 400 respondent parties, including the Victorian and Australian governments; local government councils; telecommunications and other utilities; and holders of leases, licences and permits for mining, forestry, agriculture, beekeeping, fishing, tourism and recreation.

A consent determination was reached in which the applicants and all respondent parties agreed that native title exists in relation to 269 km of the area originally claimed (Determination Area A), and that native title does not exist in relation to the remaining area (Determination Area B). The parties applied to the Federal Court for a Consent Order in relation to Determination Areas A and B.

Under section 87 of the Native Title Act 1993 (Cth) (the ‘NTA’), where parties reach agreement on the terms of an order of the Federal Court, the Court may make an order in the terms agreed on without holding a hearing ‘if it appears to it to be appropriate to do so’. For such an order to be made the terms of the agreement must, inter alia, be in writing, signed by or on behalf of the parties, and filed in Court.

Held, making the orders sought in the consent determination:

1. The requirements that the terms of the agreement be in writing, be signed by or on behalf of the parties, and be filed in Court have been satisfied, and the Court is satisfied that is has jurisdiction to make the orders sought [4], [5].

2. The terms of the orders are clear and unambiguous, and have been freely agreed upon after the parties had access to competent and independent legal advice. Anthropological material relied upon in submissions shows that the applicants possess communal native title rights and interests and have a connection through traditional laws and customs with some of the land and waters in the claim area. The determination agreed upon by the parties resolves their dispute as to the nature and extent of these native title rights and interests. In these circumstances, the Court is satisfied that it is appropriate to make the orders sought in the consent determination: [6], [10].

3. The outcome of this claim indicates that the ‘tide of history’ has not ‘washed away any real acknowledgement of traditional laws’ and any real observance of traditional customs, and illustrates that traditional laws and customs are not fixed and unchanging, but rather evolve over time in response to new or changing social and economic exigencies: [11]. Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 60 and Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025, [368] referred to.

4. The order made is not a grant of native title. Rather, it is a determination under Australian law recognising the native title of the applicant peoples that has been held by them since long before the imposition of British sovereignty: [13].

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