Today federal court justice Tony North will journey to Mt Eccles National Park, near Portland in south western Victoria, where he will preside over an “on country” hearing of the Federal Court. It is likely that the court will approve a consent determination that the Gunditjmara people enjoy Native Title over Crown lands and waters within an area of some 140,000 hectares.

The package will also include a co-management agreement for the National Park, and the hand back in freehold of small parcels of land which are of particular significance.

This region has been Gunditjmara country for many thousands of years. Stone houses and stone fish traps built before the arrival of Europeans can still be seen on the coastline between Portland and Port Fairy, and near the site of the Lake Condah Aboriginal Mission Station.

This community is known affectionately as the “fighting Gunditjmara”, variously because they have contributed soldiers to Australia’s war efforts and pugilists to Jimmy Sharman’s boxing tents. This tenacity and resilience has served them well in their 11-year legal battle to win acknowledgment of their traditional owner status.

In layperson’s terms there is not much doubt that the Gunditjmara have an obvious connection to their country, but the law is an ass – and the native title law is an ass of significant proportions. Justice Cullinan noted in the High Court’s 2002 Mirriuwung- Gadjerrong decision that native title is so “complicated, shifting and abstruse that it continues to require the intervention of this court to resolve even the most basic issues.”

The scenes of jubilation in the Senate during the early hours of 22 December 1993, when the Native Title Bill was passed, have simply not been matched by results. The Native Title Act is federal legislation, but where the rubber hits the road the state governments are in control, because property law falls within their bailiwick.

Over time pastoralists, miners and other commercial interests have joined with governments to frustrate native title claims at every opportunity, despite the legislative prescription that the rights of licence holders will always prevail over the rights of native title holders. If the Gunditjmara determination is granted this will be only the second finding that native title has survived in Victoria.

The ALP’s draft national platform on human rights which will be debated at the party’s national conference next month states that “Labor fully supports Native Title as a property right under Australian law”.

It will be interesting to see if Steve Bracks from Victoria (who actively opposed the Yorta Yorta native title claim in the High Court) and Alan Carpenter from Western Australia (who announced his decision to appeal against the recent Noongar decision before the ink on the judgment was dry) offer full-throated support for this proposition.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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