Austin on behalf of the Eastern Maar People v State of Victoria

Austin on behalf of the Eastern Maar People v State of Victoria - [2023] FCA 237 - FCA 2023 case summary — Zoe

[7]

Extinguishment required to be disregarded by ss 47A, 47B or 47C of the NTA 8. The Determination Area includes land and waters where extinguishment is required to be disregarded by ss 47A, 47B or 47C of the NTA. 9. The Determination Area includes areas where, on 14 December 2012, one or more members of the native title claim group occupied an area, and: (a) a freehold estate existed, or a lease was in force, over the area or the area was vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the area was held expressly for the benefit of, or was held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders. 10. For the avoidance of doubt, Order 9 includes: (a) Falbala Farm, Beech Forest (170 Beech Forest-Lavers Hill Road, Beech Forest) being the land more particularly described in Certificates of Title: (i) Volume 5855, Folio 860; (ii) Volume 8326, Folio 917; (iii) Volume 8151, Folio 301; (iv) Volume 9189, Folio 229; (v) Volume 9189, Folio 230; (vi) Volume 9203, Folio 535; (vii) Volume 9457, Folio 213; (viii) Volume 9622, Folio 163; (ix) Volume 9711, Folio 470; and (x) Volume 3919, Folio 616. (b) Framlingham Reserve, Framlingham, being the land more particularly described in Certificates of Title: (i) Volume 08876, Folio 128; (ii) Volume 10625, Folio 612; (iii) Volume 10625, Folio 614; and (iv) Volume 08938, Folio 136. (c) Framlingham Forest, Framlingham (being the land more particularly described in Certificate of Title Volume 10526, Folio 279). 11. The Determination Area includes areas where, on 14 December 2012, one or more members of the native title claim group occupied an area, and the area was not: (a) covered by a freehold estate or a lease; or (b) covered by a reservation, proclamation, dedication, condition, permission or authority ("reservation"), made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area was to be used for public purposes or for a particular purpose (unless the reservation is to be disregarded by operation of an agreement made under s 47C); or (c) subject to a resumption process (see s 47B(5)(b) NTA). 12. A party has liberty to apply to the Court on 90 days written notice to establish the location and boundaries of the area where extinguishment is required to be disregarded by operation of ss 47A and 47B of the NTA. 13. There is no native title in the Determination Area in or in relation to: (a) minerals as defined in the Mineral Resources (Sustainable Development) Act 1990 (Vic), as in force at the date of the determination, as are owned by the Crown; (b) petroleum as defined in the Petroleum Act 1998 (Vic), as in force at the date of the determination, as is owned by the Crown; and (c) groundwater as defined in the Water Act 1989 (Vic), as in force at the date of the determination.

[14]

Then north easterly to the northern boundary of the Hopkins River catchment at Longitude 142.816643° East; then generally south easterly along the northern boundary of that catchments to Longitude 142.867393° East; then south west to an unnamed watercourse at Longitude 142.867064° East, Latitude 37.370617° South; then generally south westerly along that unnamed watercourse to Longitude 142.861160° East, Latitude 37.375882° South; then south easterly to another unnamed watercourse at Longitude 146.862146° East, Latitude 37.376431° South; then generally south easterly along that unnamed watercourse to the Hopkins River (approximately 500 metres to the east of the northernmost point of Maroona Streamside Reserve) and extending to the southern bank of that river at Longitude 142.871769° East; then generally south easterly and generally north easterly along the high water mark of the southern and eastern banks of that river to the southern boundary of the Western Highway road reserve; then generally south easterly along the boundary of that road reserve to the western boundary of the Charliecombe Creek catchment; then generally south westerly along the western boundaries of that catchment and Fiery Creek catchment to Latitude 37.528274° South; then generally south westerly, generally southerly and generally south easterly through the following coordinate points: Longitude (East) Latitude (South) 142.970092 37.529110 142.969889 37.530270 142.969228 37.532185 142.967599 37.535418 142.966252 37.536969 142.964068 37.538800 142.962170 37.540717 142.958166 37.545962 142.956871 37.547973 142.954658 37.553144 142.952433 37.556769 142.951405 37.558125 142.948518 37.560828 142.946981 37.563152 142.945958 37.563894 142.943248 37.565374 142.934668 37.568681 142.931764 37.570493 142.930343 37.571721 142.927260 37.575093 142.925161 37.577685 142.922840 37.581507 142.922173 37.582229 142.921208 37.582891 142.919225 37.583497 142.913722 37.583808 142.911279 37.584206 142.908787 37.584846 142.907773 37.584931 142.905741 37.584852 142.901666 37.584173 142.898531 37.584029 142.894413 37.584305 142.882943 37.584201 142.877290 37.584326 142.872453 37.585183 142.870516 37.585848 142.868611 37.587003 142.867190 37.588673 142.866497 37.589968 142.866006 37.592607 142.865805 37.596341 142.866158 37.598054 142.867004 37.600243 142.867602 37.601091 142.868818 37.601937 142.870986 37.602972 142.872185 37.603806 142.872792 37.604424 142.873223 37.605160 142.873838 37.607208 142.873912 37.608728 142.873676 37.610665 142.872706 37.613358 142.871375 37.616402 142.867310 37.621825 142.866452 37.624134 142.865188 37.628640 142.863445 37.747887 142.901014 37.760884 142.906520 37.762131 142.913837 37.764098 142.916278 37.765586 142.918459 37.766656 142.920096 37.767708 142.923572 37.770596 142.926086 37.771848 142.933571 37.774498 142.940182 37.777306 142.943506 37.778305 142.961449 37.781577 142.976042 37.783617 142.984817 37.785044 142.986035 37.785557 142.986506 37.785915 142.988593 37.788237 142.991811 37.791151 142.998481 37.796230 143.001188 37.799184 143.005777 37.805061 143.009306 37.809194 143.010353 37.810754 143.014004 37.818291 143.016458 37.824042 143.019111 37.828795 143.022386 37.837549 143.024572 37.844666 143.025245 37.847354 143.025447 37.853881 143.026091 37.858674 143.025612 37.863027 143.026533 37.865163 143.028248 37.865877 143.032196 37.868150 143.039434 37.870271 143.041753 37.871172 143.051187 37.874156 143.054113 37.875374 143.055646 37.876216 143.057967 37.877874 143.059485 37.879769 143.062105 37.883610 143.062631 37.884648 143.063983 37.886570 143.066371 37.890864 143.067208 37.893098 143.067665 37.895116 143.067721 37.901849 143.067898 37.903168 143.069929 37.906890 143.071185 37.908799 143.073167 37.911024 143.073594 37.911836 143.076733 37.921691 143.077274 37.922758 143.078191 37.923986 143.079493 37.925362 143.083166 37.927906 143.091150 37.936603 143.096678 37.941684 143.101825 37.945926 143.107403 37.949980 143.111548 37.952312 143.119808 37.957346 143.123580 37.960309 143.126903 37.962467 143.131885 37.965396 143.136018 37.967407 143.142350 37.970002 143.145508 37.971626 143.151878 37.974557 143.156978 37.976388 143.172205 37.984004 143.174197 37.984849 143.178147 37.986166 143.185231 37.989301 143.190230 37.991797 143.191023 37.992469 143.192172 37.992987 143.195951 37.994150 143.206828 37.995882 143.210881 37.996811 143.216942 37.998466 143.218501 37.998649

[15]

Then south to the northern boundary of the Curdies River catchment at Longitude 143.218501° East; then generally easterly, generally southerly, generally easterly again and generally south easterly along the boundary of that catchment, eastern boundary of Scotts Creek catchment, northern boundaries of Danger Creek catchment, Kennedys Creek catchment, Yahoo Creek catchment and Ten Mile Creek catchment, eastern boundaries of Love Creek catchment, Gellibrand River catchment and Barramunga Creek catchment, northern boundaries of Smythe Creek catchment and Grey River catchment to Latitude 38.628011° South; then generally south easterly along a series of ridgelines passing through the following coordinate points: Longitude (East) Latitude (South) 143.780115 38.629614 143.780442 38.630118 143.780538 38.630604 143.780431 38.631125 143.779251 38.632791 143.779084 38.633589 143.779228 38.633959 143.780525 38.635397 143.781507 38.636882 143.783016 38.637958 143.785429 38.638987 143.786637 38.639213 143.789222 38.639178 143.790422 38.639556 143.791630 38.641252 143.793939 38.643463 143.794507 38.645396 143.795083 38.646719 143.795262 38.648500 143.795773 38.649515 143.796288 38.649908 143.797716 38.650549 143.799639 38.652648 143.800357 38.654754 143.799839 38.656055 143.799805 38.656557 143.800895 38.658316 143.801156 38.659060 143.800993 38.659833 143.800303 38.660965 143.799592 38.663274 143.799513 38.664049 143.800291 38.665939 143.800924 38.668744 143.801164 38.669176 143.802183 38.670015 143.804872 38.672759 143.806031 38.673317 143.808361 38.673754 143.809215 38.674090 143.810145 38.674652 143.811126 38.675809 143.811489 38.676029 143.814485 38.676878 143.817155 38.677907 143.818522 38.677998 143.820426 38.677631 143.821428 38.677651 143.824813 38.678731 143.825444 38.679117 143.825501 38.679926 143.824829 38.682175 143.824558 38.684487 143.824055 38.685405 143.823140 38.686547 143.823059 38.687374 143.823527 38.688158 143.823908 38.688484 143.825212 38.689020 143.827398 38.689629 143.829665 38.690954 143.829829 38.691168

[21]

Part 1 The other interests, as they exist as at the date of the determination, are as follows: (1) The right of an employee or agent or instrumentality of the Crown, or of any local government or other statutory authority, to access land or waters in the Determination Area and to undertake works, carry out activities and take any other action on such land or waters as may be required in the performance of statutory or common law duties. (2) The interests of the Crown, or a local government body or other statutory authority of the Crown, in any capacity in any public works and other facilities whose construction or establishment: (a) was valid or has been validated; (b) did not extinguish native title (even as a consequence of validation); and (c) commenced prior to the date of this determination. (3) The rights and interests of Telstra Corporation Limited (ACN 051 775 556), its related bodies corporate and any of their successors in title: (a) as the owner(s) or operator(s) of telecommunications facilities installed within the Determination Area; (b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including existing rights: (i) to inspect land; (ii) to install, occupy and operate telecommunication facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities; (c) for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and (d) under any lease, licence, permit, access agreement or easement relating to their telecommunication facilities in the Determination Area. (4) The interests of persons holding licences, permits, statutory fishing rights, quotas, quota units or other statutory rights pursuant to: (a) the Fisheries Act 1995 (Vic) or regulations or management plans made under that Act; (b) the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act; (c) any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area. (5) The interests of Powercor Australia Limited (and its related entities), including: (a) rights and interests as an entity holding a distribution licence under the Electricity Industry Act 2000 (Vic); (b) rights and interests created pursuant to the Electricity Industry Act 2000 (Vic); (c) rights and interests as owner or operator of electrical facilities and infrastructure (facilities) installed within the Determination Area; and (d) rights of access for the performance of their duties by employees, agents or contractors of Powercor Australia Limited to its facilities in, and in the vicinity of, the Determination Area; and (e) rights and interests under Order in Council published in Victorian Government Gazette No. G29 18 July 2002 (page 1704) pursuant to section 138A(11) of the Land Act 1958 (Vic) to occupy without licence any stratum of Crown land on, over or under government roads for electricity services. (6) The interests of persons to whom valid and validated rights have been: (a) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or (b) granted or issued by a statutory authority or otherwise conferred by the State. (7) The rights and interests of Cooper Energy (CH) Pty Ltd (Cooper) (including any of its related entities and successors, or joint venture partners and any of their related entities and successors, in title from time to time): (a) as holder of the following (including any renewal, extension or interest granted in place of any of the following): (i) an interest in Pipeline Licence 228 (PL228) and Pipeline Licence 251 (PL251) granted under the Pipelines Act 2005 (Vic); (ii) an interest in the pipeline the subject of PL228; (iii) an interest in the pipeline the subject of PL251; and (iv) any permits, easements, licences or other approval issued in respect of PL228 and/or PL251. (b) for Cooper, its employees, agents and contractors (or any of them) to enter the Determination Area to access Cooper's rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in and in the vicinity of the Determination Area in performance of their duties. (8) The interests of Beach Energy Ltd (Beach) (including any of its related entities and successors, or joint venture partners and any of their related entities and successors, in title from time to time): (a) as holder of the following (including any renewal, extension or interest granted in place of any of the following): (i) Petroleum Exploration Permit 168 (PEP 168); and (ii) Onshore Petroleum Production Licence (6 and 9). (b) For Beach, its employees, agents and contractors (or any of them) to enter the Determination Area to access its rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in and in the vicinity of the Determination Area in performance of their duties. (9) The interests of Beach Energy (Operations) Ltd (BOL) (including any of its related entities and successors, or joint venture partners and any of their related entities and successors, in title from time to time): (a) as holder of the following (including any renewal, extension or interest granted in place of any of the following): (i) Onshore Petroleum Special Drilling Authorisation (PSDA2); (ii) Offshore Petroleum Access Authority (VIC/AA21(V)); (iii) Offshore Petroleum Production Licence (VIC/L1(V)); (iv) Offshore Petroleum Production Licence (VIC/L007745(V)); (v) Offshore Petroleum Exploration Permit (VIC/P42(V)); (vi) Offshore Petroleum Exploration Permit VIC/P007192(V); (vii) Onshore Petroleum Special Drilling Authorisation (PSDA006846); (viii) Onshore Pipeline Licence (PL250); (ix) Onshore Pipeline Licence (PL006009); (x) Onshore Pipeline Licence (PL006998); and (xi) Offshore Pipeline Licence (VIC/PL36(V)). (b) For BOL, its employees, agents and contractors (or any of them) to enter the Determination Area to access its rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in and in the vicinity of the Determination Area in performance of their duties. (10) The rights and interests of South East Australia Gas (Mortlake) Pty Ltd (and its related entities and successors in title from time to time): (a) as: (i) holder of Miscellaneous Licence No. 2017643 for an easement issued pursuant to section 130 of the Land Act 1958 (Vic) on 25 August 2016 (licence); and (ii) owner of the pipeline the subject thereof known as the Mortlake pipeline; and (iii) holder of Pipeline Licence No.259 issued pursuant to the Pipelines Act 2005 (Vic) on 28 November 2008. (b) recognising those licences entitle and require South East Australia Gas (Mortlake) Pty Ltd, inter alia, to install, maintain and operate the pipeline and to carry out authorised purposes including the installation, operation, inspection, extension, alteration, repair and removal of the pipeline or associated equipment and the carrying out of maintenance work on the pipeline or associated equipment; and (c) for South East Australia Gas (Mortlake) Pty Ltd, its employees, agents and contractors (or any of them) in performance of their duties to enter the Determination Area and to do all things necessary to exercise the rights and interests and perform all obligations of South East Australian Gas (Mortlake) Pty Ltd in the Determination Area. (11) The rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Eastern Tuna and Billfish Fishery and the Southern Bluefin Tuna Fishery, and permits issued for the Eastern Skipjack Tuna Fishery. (12) The rights and interests of the Australian Maritime Safety Authority (the Authority) as the owner, manager, or operator of aids to navigation pursuant to section 190 of the Navigation Act 2012 (Cth) and in performing the functions of the Authority under section 6(1) of the Australian Maritime Safety Act 1990 (Cth) including to be a national marine safety regulator, to combat pollution in the marine environment and to provide a search and rescue service.

[23]

SCHEDULE 4 - PROPOSED SECTION 47C AGREEMENT (1) The State and the Eastern Maar Aboriginal Corporation agree, following the making of this order, to negotiate in good faith with a view to entering into agreements under section 47C of the Act in relation to: (a) The whole of the following park areas, to the extent that they lie within the Determination Area: (i) Great Otway National Park, being comprised of all those pieces or parcels of land containing 110 555 hectares, more or less, situate in the Counties of Grant, Heytesbury and Polwarth, being the land delineated and coloured pink or coloured yellow or coloured blue in plans lodged in the Central Plan Office and numbered N.P. 111A/4, N.P. 111B/4, N.P. 111C/3, N.P. 111D/3, N.P. 111E/5, N.P. 111F/2, N.P. 111G/2, N.P. 111H/4, N.P. 111J/2 and N.P. 111K/2, excepting the Great Ocean Road, Beech Forest Road, Carlisle- Colac Road, Colac-Lavers Hill Road, Deans Marsh-Lorne Road, Forrest-Apollo Bay Road, Gellibrand River Road, Lavers Hill-Cobden Road, Otway Lighthouse Road, Princetown Road and Skenes Creek Road and the area of the Cape Otway Aid to Navigation (AtoN) being that contained within and bounded by a line commencing at Latitude 38.85560 South, Longitude 143.51230 East (Point A), and then to a point Latitude 38.85580 South, Longitude 143.51280 East (Point B), and then to a point Latitude 38.85610 South, Longitude 143.51270 East (Point C), and then to a point Latitude 38.85610 South, Longitude 143.51224 East (Point D), and then to a point Latitude 38.85710 South, Longitude 143.51181 East (Point E); and then to a point Latitude 38.85710 South, Longitude 143.51165 East (Point F), and then to a point Latitude 38.85669 South, Longitude 143.51165 East (Point G), and then to a point Latitude 38.85669 South, Longitude 143.51184 East (Point H), and then continuing to the point of commencement (point A); as shown on the Map at Schedule 5, including any road to the AtoN. Also excepted is any land between high water mark and low water mark forming part of the park described in Part 8 and in Part 11 of Schedule Seven of the National Parks Act 1975 (Vic). (ii) Twelve Apostles Marine National Park, being the land comprising 7500 hectares, more or less, delineated and shown shaded on the plan numbered M.N.P. 10/2 lodged in the Central Plan Office and which is at or above a depth of 200 metres below the land surface (whether or not that is covered by water). (iii) Port Campbell National Park, being all those pieces or parcels of land containing 1830 hectares, more or less, situate in the Townships of Port Campbell and Princetown, and in the Parishes of La Trobe, Narrawaturk, Paaratte and Waarre, County of Heytesbury, being the land delineated and coloured pink or coloured yellow, excepting therefrom the Great Ocean Road, in a plan lodged in the Central Plan Office and numbered N.P. 16/5. Also excepted is any land forming part of the park described in Part 11 of Schedule Seven of the National Parks Act 1975 (Vic). (iv) Lake Milangil, being the land comprising Milangil Lake Wildlife Reserve, consisting of parcel P081029, at Crown allotment 3, Section 4, Parish of Taaraak, Corangamite. (v) Bay of Islands Coastal Park, being all those pieces and parcels of land containing 950 hectares, more or less, situate in the Parishes of Mepunga, Nirranda and Narrawaturk, County of Heytesbury, being the land delineated and bordered red excepting therefrom the roads shown as excluded in the plan lodged in the Central Plan Office and numbered N.P. 101. (b) Parts, to be agreed between the State and the Eastern Maar Aboriginal Corporation, of the following areas, to the extent that they lie within the Determination Area: (i) Gellibrand Bushland Reserve, being the land described in the table below: Reserve/Park Name Parcel number Crown Allotment Section Parish Reservation purpose Gellibrand Bushland Reserve P081412 22H1 A Yaugher Conservation of an area of natural interest P377906 2074 - Yaugher Conservation of an area of natural interest P081422 22N A Yaugher Conservation of an area of natural interest P081421 2005 - Yaugher, Conservation of an area of natural interest P081417 22P A Yaugher Conservation of an area of natural interest

[30]

INTRODUCTION 1 The parties seek a consent determination of native title under s 87A of the Native Title Act 1993 (Cth) (NTA) to recognise the native title of the Eastern Maar Peoples in relation to a large area in south-west Victoria. The applicant filed the application for a determination of native title (the Determination Application) as long ago as 14 December 2012, but it was then largely dormant while the applicant and the State pursued parallel negotiations under the Traditional Owner Settlement Act 2010 (Vic) (TOS Act). On 29 October 2018, the Court ordered that, by 25 February 2019, the applicant notify the Court and the first respondent, the State of Victoria, as to whether the applicant intended to pursue the Determination Application. In response to that order, the applicant confirmed its intention to do so. 2 Since notifying the Court of its intention to pursue the Determination Application the proceeding has progressed with speed, including by way of a series of mediations convened by Native Title Judicial Registrar Ann Daniel aimed at achieving a consent determination in relation to part or all of the claim area. 3 Happily, the mediations have proved fruitful, and the parties now seek a consent determination of native title in respect of part of the area over which the applicant seeks a determination of native title. The relevant part for the consent determination consists of the area set out in Schedule 1 (the Determination Area) to the Draft Minute of Proposed Consent Determination executed by the necessary parties and filed herein (the Minute of Consent). The balance of the area covered by the Determination Application remains contested, and the different areas are either listed for a two week hearing of separate questions to commence on 1 May 2023, or subject to ongoing mediation. 4 The State filed written submissions dated 8 March 2023 in support of the proposed consent determination, which were adopted by the applicant. In providing these reasons I have drawn directly and extensively from those submissions. 5 For the reasons I now explain, I am satisfied that the proposed orders for a consent determination are within the power of the Court and that it is appropriate to make them pursuant to s 87A of the NTA. 6 The Court's recognition that the Determination Area is and always was the country of the Eastern Maar Peoples is another significant step forward for them and for the surrounding community. From the assertion of British sovereignty in 1788 until the mid-1860s the Aboriginal population in south-west Victoria declined by more than 90 per cent, reflecting the devastating impact of colonisation on Aboriginal communities. By this determination the Court recognises that despite the attempted dispossession and removal from their country, the Eastern Maar Peoples to this day maintain a deep and enduring connection to their country, following on from their ancestors. 7 This determination has been too long in coming, it now being 12 years since the last native title determination concerning the Eastern Maar Peoples (Lovett on behalf of the Gunditjmara People and Others v Victoria (No 5) [2011] FCA 932 (Lovett (No 5)). The persistence and hard work of the parties, and particularly the applicant, the State and Judicial Registrar Daniel, must be commended. The Court has been greatly assisted by their respective efforts and it is hoped that their cooperation will continue and lead to just outcomes in relation to the proposed agreements under s 47C of the NTA and the remaining contested areas in the Determination Application.

[31]

THE CLAIMANTS AND THEIR COUNTRY 8 The Court's task in dealing with a proposed consent determination under s 87A of the NTA is not to assess and make findings about the matters set out in s 223 but this determination and the reasons which accompany will stand as a permanent record for the Eastern Maar Peoples of the judicial recognition of their native title rights. In the circumstances, it is appropriate to say something about the Eastern Maar Peoples and their country. 9 The applicants in the amended Determination Application filed by leave of the Court on 9 February 2023 are Ms Janice Austin, Ms Vicki Couzens, Mr Thomas Clarke, Mr Jidah Clarke and Ms Sheree Lowe on behalf of the Eastern Maar Peoples, being the descendants of King of Port Fairy and Eliza, Old Jack (father of John Dawson), Charlie and Alice (parents of Albert Austin), Samuel Robinson and Mary Caramut, Lizzie (Mother of Frank Clarke), Robert and Lucy (Parents of Alice Dixon), Barney Minimalk, Nellie Whiturboin, Louisa (mother of William Rawlings) and Richard Sharp, and those who either: (a) identify as being from the eastern domain of the Maar speaking people and are recognised as being from the eastern domain by the Eastern Maar Peoples; or (b) identify as Maar, Gunditjmara, Tjap Wurrung, Peek Whurrung, Keeray Woorong (Kirrae Whurrung), Kuurn Kopan Noot, Yarro Waetch (Tooram tribe), Djargurd Wurrung, Gulidjan and/or Gadubanud and are recognised as being from the eastern domain by the Eastern Maar Peoples. 10 Through the amendment to the Determination Application, one additional apical ancestor was added, Mr Richard Sharp. That arose through Mr Ron Arnold, a Gulidgan and Gadubanud person and a descendant of Mr Sharp, who asserted traditional rights and interests in relation to Area D of Annexure 1 of the Orders made on 9 April 2020 (which now forms part of the Determination Area). In a report in 2021, the anthropologist retained by the State, Dr Suzi Hutchings, opined that at effective sovereignty the Gadubanud language group predominated in Area D but was not a distinct society. Dr Hutchings inferred that the Gadubanud language group was part of the broader Maar-speaking society. Following receipt of that report, the applicant, the State and Mr Arnold agreed that it was appropriate to recognise the descendants of Mr Sharp for the purposes of the consent determination in relation to Area D, and Mr Arnold withdrew his opposition to the Determination Application. 11 At the assertion of British sovereignty in 1788, the Maar speaking peoples shared a system of traditional law and custom, customary practices and obligations. They assert in the Determination Application that their traditional territory extended from the catchment of the Glenelg in the west, to the catchment of the Leigh and the Barwon in the east and from the sea in the south to the Great Dividing Range. In the Determination Application they assert native title rights and interests in relation an area in south-west Victoria which stretches along the coast from Yambuk in the west to Aireys Inlet in the east (which takes in Port Fairy, Warrnambool, Port Campbell, Apollo Bay and Lorne) and inland from Dunkeld in the west up to Ararat in the north/north west, across to Raglan in the north/north east (near Beaufort) and down to Camperdown in the south/south east. But, as I have said, the Determination Area in the proposed consent determination only relates to part of the claim area in the Determination Application, and the balance of the claim area is either the subject of ongoing mediation or is listed for hearing by way of separate questions on 1 May 2023. 12 At sovereignty, the Maar Society comprised two domains, whose people were the Gunditjmara People, and the predecessors of the Eastern Maar Peoples, the territories of which domains overlapped in the vicinity of the Shaw and Eumerella Rivers. The report of the conference of experts retained by the Eastern Maar Peoples, the State, and the Gunditjmara People (Ms Olivia Norris, Dr Hutchings and Dr Raymond Madden respectively) on 13-14 October 2022 sets out their joint opinion that: (a) the Eastern Maar Peoples comprise the people identified in the Determination Application; (b) the Eastern Maar Peoples and the Gunditjmara People are descended from members of an Aboriginal society identified as the Maar or Maar-speaking society at the time of effective sovereignty (approximately between 1830 to 1850). Following effective sovereignty, landholding in the region evolved so that Maar society now comprises two domains: (i) the Eastern Maar domain, which is the country of the Eastern Maar Peoples; and (ii) the Western Maar domain, which is the country of the Gunditjmara People. (c) the Eastern Maar Peoples formed an association with Framlingham/Purnim, which became a key site for the reproduction of the eastern domain of the Maar people and the practice and evolution of its normative system of traditional laws and customs; and (d) the Gunditjmara People formed an association with Lake Condah, which became a key site for the reproduction of the western domain of the Maar people and the practice and evolution of its normative system of traditional laws and customs. 13 The parties agree that the Eastern Maar Peoples are the descendants of the apical ancestors identified in the proposed consent determination, and the label "Eastern Maar" encompasses a broad range of identity labels, which designate sub-groupings of a larger regional society to which the native title claim group belongs. Thus, "Eastern Maar" incorporates people who identify variously as Maar, Gunditjmara, Tjap Wurrung (also rendered Djab Wurrung), Peek Whurrong, Keeray Wooroong (also rendered Kirrae Whurrung), Kuurn Kopan Noot, Yarro waetch (Tooram Tribe), Djargurd Wurrung, Gulidjan and/or Gadubanud among others. Any one claimant may refer to themselves by one or more of these descriptions, and other members of the claim group may from time to time refer to the claimant by a different one of those descriptions. 14 The Eastern Maar Peoples were earlier recognised by the Court in the consent determination in Lovett (No 5), which recognised the joint native title rights and interests of the Eastern Maar and the Gunditjmara Peoples in relation to the "Part B" area in that determination, which is country bounded in the west by the Eumeralla River and extending to the east to the Shaw River, to the west of the present Determination Area. In that decision at [39], North J acknowledged that "the Eastern Maar people assert interests, not yet determined, in relation to areas east of the determination area", and the present Determination Area is part of the area to which North J referred. 15 North J recorded the submissions of the State regarding the history of the Eastern Maar Peoples as follows in Lovett (No 5) at [16]: They are one of the Aboriginal societies which existed in south-west Victoria at sovereignty. Historical materials by George Augustus Robinson, Isabella and James Dawson, Norman B Tindale, and Dr Clark bear testimony to the Aboriginal societies in that area at the time. Then, in the 1860s, missions were established at Framlingham / Purnim, and Lake Condah. Between the dates of sovereignty until the mid-1860s the Aboriginal population declined by more than 90 per cent. The eastern people, including the Eastern Maar, tended to live at Framlingham / Purnim, and the western people tended to live at Lake Condah. The Eastern Maar people included the families of the Abrahams, Alberts, Austin, Bert, Chatfield, Clark, Clarke, Couzens, Harradine, Lowe and Rose. The connection material provided to the State established that the Eastern Maar people exercise their rights at and have particular connections with a number of locations in the Part B area, as well as lands to the east of it. For example, the Eastern Maar fish at places like Yambuk Lake and Port Fairy. The Couzens family express a strong connection to Penshurst which is just east of the northern section of the Part B area. Those connected with Frank Clarke identify with the area around the Eumeralla River and many Eastern Maar people speak of both Yambuk and Deen Maar as spiritual places from which people's spirits ascended to the sky. (Emphasis added.) 16 The historical materials there referred to were authored by some individuals who were in the relevant area in the early 1800s, and other individuals who later conducted research into the history of the area in that period. They include Mr Robinson, who was 'Chief Protector of Aborigines' in the Port Phillip District in the period 1839-1849; Mr Dawson who was a settler and pastoralist between Port Fairy and Camperdown in the period 1844-1866, his daughter Isabella (born 1842), who spoke some Maar and Kulin; Mr Tindale, who was a biologist and ethnologist, active from 1925-1974; and Dr Ian Clark, who is a geographer, toponymist, and author of Aboriginal languages and clans: an historical atlas of western and central Victoria, 1800-1900 (1990) and Scars in the landscape: a register of massacre sites in Western Victoria 1803-1859 (1995) and other studies of the region. 17 In the lead up to the State's provision of consent in Lovett (No 5), the Eastern Maar Peoples provided the State with anthropological and historical materials intended to show that they had native title rights and interests in the "Part B" area in that proceeding. North J recorded the State's submissions regarding those materials as follows (at [21]): In broad terms, the materials advanced the theses that, at sovereignty, there was an Aboriginal society (sometimes described as the society of Maar-speaking society) whose territory included the land the subject of the Gunditjmara Part A Determination, the area of Part B was a very substantial area of land extending for to the east of Part B. The Gunditjmara and the Eastern Maar were said to form two discrete domains within this socio-geographic area. Part B was said to be the overlap area of the domains of the Gunditjmara and the Eastern Maar. Within it, each group asserted the same native title rights and interests, and recognised the coextensive rights and interests of the other.

[32]

THE REQUIREMENTS UNDER SECTION 87A OF THE NTA 18 Section 87A of the NTA provides the following preconditions before the Court may make a consent determination in relation to part of the area covered by an application for a determination of native title: (a) there is a proceeding in relation to an application for determination of native title (subs (1)(a)); (b) the specified notice period under s 66 has ended (subs (1)(b)); (c) the parties have reached agreement as to the proposed determination of native title in relation to part of the area covered by the native title application (subs (1)(b)); (d) the parties have reduced their agreement to writing, the agreement has been signed by or on behalf of all of the persons required to be parties to the agreement, and has been filed with the Court (subs (1)(c) and (d) and (2)); (e) that the requirements regarding a registered native title claimant being a party to the agreement and signing the terms of the proposed determination are satisfied; (f) the Chief Executive Officer of the Court has given notice to any other parties to the proceeding that the proposed determination of native title has been filed with the Court (subs (3)); (g) the Court has taken into account any objection made by the other parties to the proceeding (subs (8)); and (h) the Court is satisfied that an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or of the hearing started without completing the hearing, if the Court considers that; (i) the order would be within the power of the Court (subs (4)(a)); and (ii) it would be appropriate to do so (subs (4)(b)). 19 Putting to one side for the moment the issues arising under s 87A(4), I am satisfied that each of the above requirements have been met in the present application. Amongst other things: (a) the proceeding is an application for a determination of native title filed in the Court (subs (1)(a)); (b) the notification period under s 66 of the NTA ended many years ago ((subs (1)(a)) and the parties have reached agreement in relation to part of an area covered by the application; and the proposed determination relates to that part. The balance of the area covered by the application overlaps with claims made by other Indigenous parties and does not form part of the proposed consent determination; (c) the Draft Minute is an agreement in writing (subs (1)(d)), filed in the Court (subs (2)) and signed by all persons required to be parties: (i) it is signed by the applicant through its lawyer, Michael O'Donnell of First Nations Legal & Research Services. Based on the affidavit of Mr O'Donnell affirmed 9 March 2023, I am satisfied that the applicant's signature on the agreement (through their legal representative) is properly authorised by the Eastern Maar native title claim group (subs (1)(c)(i)); (ii) there are no other registered native title claimants in relation to any part of the Determination Area (subs (1)(c)(ii) and (iv)). A number of respondents asserted an interest in the claimed area, including several Indigenous respondents in relation to various parts of the claim area, including areas that are now within the Determination Area. However, through mediation some of the respondents withdrew and the remaining respondents with an interest in the Determination Area reached agreement about the terms of the proposed consent determination; and (iii) it is signed by each person who claims to hold native title in relation to land or waters in the Determination Area and who is a party to the proceeding (subs (1)(c)(vi)). The only respondents who have not signed the agreement are persons who an investigation by the State has determined are not required to do so, as they either do not hold "an interest in relation to land or waters in the determination area" or do not claim "to hold native title in relation to the land or waters in the determination area" in accordance with subs (1)(c)(v) to (vi) and (1)(d); (d) it is signed by the Commonwealth and the State who are parties to the proceeding. The relevant Federal and State Ministers are not parties to the agreement and are not required to sign it (subs (1)(c)(vii) and (viii)); (e) is signed by the local government bodies in relation to the different parts of the Determination Area and who are parties to the proceeding (subs (1)(c)(ix)); and (f) as all necessary respondents have signed the agreement there was no requirement for the CEO of the Court to give notice to any other parties to the proceeding, and accordingly there are no objections by any such persons nor any requirement for the Court to address such objections (subs (3) and subs (8)).

[33]

SOME FEATURES OF THE PROPOSED DETERMINATION 20 The proposed consent determination reflects that the applicant does not claim exclusive native title in all areas of the Determination Area, and also the State's lack of satisfaction that there is a credible basis upon which the applicant could claim continuity of a right of exclusive possession in the Determination Area. 21 The proposed consent orders contained in the Draft Minute, however, vary from previous practice in Victoria in two significant respects. 22 First, they provide a process for good faith negotiations with respect to proposed agreements that will trigger the operation of s 47C of the NTA. That provision was introduced into the NTA with effect from 25 March 2021, since Lovett (No 5) in 2011, the last native title determination in Victoria. 23 As the State submits, s 47C builds upon and expands the principles in ss 47, 47A and 47B of the NTA. The effect of each of these sections is to disregard prior extinguishment of native title for the purpose of an application for determination of native title. Section 47C provides for the possibility of an agreement to be made in relation to an onshore place that comprises the whole or part of a 'park area' (as defined, but in simple terms, in national parks and similar areas). An agreement for the purpose of s 47C may be made between an applicant for native title and the State (or, if applicable, the Commonwealth) under whose law the park area was set aside. 24 As Colvin J observed in Ward, on behalf of the Pila Nature Reserve Traditional Owners v Western Australia [2022] FCA 689 at [6], the purpose of s 47C is to address certain consequences of the decision in Western Australia v Ward, Attorney-General (NT) v Ward, Ningarmara v Northern Territory, Ward v Crosswalk Pty Ltd [2002] HCA 28; 213 CLR 1, particularly at [219]-[221], [255]-[258], [468]. In the second reading speech for the Native Title Legislation Amendment Bill 2020 (Cth) the Attorney-General said that the purpose of the amendment was to "provide parties with more flexibility to disregard historical extinguishment and will allow for more opportunities for native title to be recognised over areas where important connection to country exists for traditional owners.": Commonwealth, Parliamentary Debates, House of Representatives, 17 October 2019, 4486. 25 Schedule 4 of the Determination addresses the question of which areas within the External Boundary described in Schedule 1 include national parks that are capable of being subject to an agreement under s 47C. By agreement between the State and the applicant, under the proposed orders, the making of any s 47C agreement is to be addressed subsequently to this consent determination, so as not to delay it. A notation to the consent determination provides that it is the intention of the State and the Eastern Maar Aboriginal Corporation on behalf of the Eastern Maar Peoples to negotiate in good faith with a view to entering a s 47C agreement in relation to certain park areas, bushland reserves, lakes and conservation reserves within the Determination Area. This may lead to an amended claim application under s 64(2A) of the NTA or an application to vary an approved determination of native title under s 13. 26 Second, unlike previous native title determinations in Victoria, the State has not carried out a detailed tenure and extinguishment assessment in relation to the Determination Area. Instead, the proposed consent determination records certain general principles which flow from the NTA and apply to the claimable land in the Determination Area. This is novel in Victoria, but is not without precedent in Australia: for example, see Kynuna on behalf of the Bar Barrum People No 5 v Queensland [2016] FCA 1504 at [17]-[36] per Reeves J especially as to the role of a State in response to the Court's entreaties to "be creative and work smarter" at [25]-[26] and [36]. 27 A detailed tenure assessment will be performed, as and when required, in respect of any future act. The parties intend to reach a further agreement through an Indigenous Land Use Agreement (ILUA) as part of agreements under the TOS Act which would provide an agreed alternative regime for dealing with future acts and may negate the need for any tenure assessment. To the extent that detailed analysis of extinguishment of native title becomes necessary, any future assessment will be carried out in accordance with the established principles set out in the State's submissions.

[34]

THE POWER TO MAKE THE ORDERS SOUGHT 28 In relation to the question of power under s 87A(4)(a) of the NTA, I am satisfied that: (a) the Court has jurisdiction to hear and determine the application (s 81); (b) the area covered by the proposed consent determination does not overlap with any other application for determination of native title (s 67(1)); (c) the area covered by the proposed consent determination is not the subject of a previously approved determination of native title (s 68); (d) the proposed consent determination complies with s 94A of the NTA by setting out the details of the matters required under s 225. In relation to those requirements: (i) Order 1 describes the persons, or groups of persons, holding the common or group rights comprising the native title (s 225(a)). That description of the claim group replicates the claim group that was recognised in Lovett (No 5) (at [7]), except for the addition of Mr Sharp, and it is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15] per Wilcox, North and Weinberg JJ; (ii) Orders 6 and 7 describe the "particular area" in relation to which native title exists. Order 6 provides that the Determination Area is located wholly within the External Boundary described in Schedule 1, and Order 7 provides that the lands and waters therein described are excluded; (iii) Orders 2 to 5 describe the nature and extent of the native title rights and interests held by the applicant in the Determination Area (s 225(b)). Under proposed Order 2 they consist of non-exclusive rights to have access to or enter and remain on the land and waters, to camp on the land and waters landward of the high-watermark of the sea, to use and enjoy the land and waters, to take the resources of the land and waters and to protect places and areas of importance in the land and waters. These are similar rights and interests as recognised in Lovett (No 5). Under Order 3 the rights and interests referred to in Order 2 must only be exercised for a non-commercial purpose to satisfy personal, cultural, domestic or communal needs. Under Order 5 the rights and interests referred to in Order 2 are subject to and exercisable in accordance with the traditional laws and customs of the native title holders and the laws of the State and the Commonwealth, including the common law; (iv) the nature and extent of any other interests in relation to the Determination Area (s 225(c)). Under proposed Order 14 the "other interests" are those set out in Schedule 2; (v) the relationship between the native title rights and interests and the other interests in relation to the Determination Area (s 225(d)). Under proposed Orders 15 and 16 the relationship between native title rights and interests and the other interests referred to in Schedule 2, Parts 1 and 2, are described; and (vi) proposed Order 4 provides that the native title rights and interests do not confer possession, occupation, use and enjoyment of the Determination Area on the native title holders to the exclusion of all others (s 225(e)). 29 I am satisfied that the proposed consent determination sets out the details of the matters required under s 223 of the NTA. Those requirements, as considered in Members of Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 were summarised in Lovett (No 5) at [22] per North J, in the following terms: In summary those requirements are that there was, at sovereignty, a body of persons united in their acknowledgment and observance of a body of laws and customs, who held rights and interests in land and waters pursuant to those laws and customs, and by which they were connected to the land and waters. The group must have maintained its identity and its connection with the land and waters, and must continue to acknowledge the laws and observe the customs substantially uninterrupted, from sovereignty to the present. 30 The terms of the proposed consent determination contained in the Draft Minute are within the power of the Court, in the sense that the native title rights and interests that are proposed to be declared are recognisable by the common law of Australia: s 223(1)(c). The rights and interests recognised by the common law are those native title rights and interests that existed at sovereignty, which survived that fundamental change in the legal regime, and can now, by resort to the NTA, be enforced and protected: Yorta Yorta at [77]. 31 I am also satisfied that there is probative material against which the Court can assess whether the matters set out in ss 223 and 225 can be stated in a determination: Agius v South Australia (No 6) [2018] FCA 358 at [68] per Mortimer J (Agius (No 6)).

[36]

The requisite standard of satisfaction 33 The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is "appropriate" takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J. 34 It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J. 35 The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a "credible", "rational", "sufficient" or "cogent" basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J. 36 The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44]. 37 As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]-[22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A: In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court's function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act's emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed. The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8]. Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State's agreement that there is a credible and rational basis for the determination proposed: Freddie at [18]. The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

[37]

The consideration of the application undertaken by the State 38 The terms of the proposed consent determination were negotiated and agreed to principally between the applicant and the State, and then presented to the other respondents and reviewed and ultimately consented to by them. 39 The negotiations between the applicant and the State began for the purpose of negotiating agreements under the TOS Act. While discussions between the applicant and the State, at least from 2012 until 2018, were framed around a process leading towards a settlement under the TOS Act, they also concerned matters necessarily and directly relevant to a determination of native title. 40 The TOS Act is intended to advance reconciliation and promote good relations between the State and traditional Aboriginal owners principally through agreements between the State and Traditional Owner Groups: s 1 TOS Act. It enables the State and traditional owners to agree on a range of rights and benefits by negotiation as an alternative or in addition to an application to this Court for a determination of native title under the NTA. 41 Discussions aimed at a settlement under the TOS Act may concern matters that are directly relevant to a determination of native title. That can be seen in the terms of the TOS Act which relies for its operation upon several key definitions drawn from the NTA. Relevantly, the phrase "traditional owner group" is defined in s 3 of the TOS Act "in relation to an area of public land" to mean: (a) a group of Aboriginal persons who may authorise (within the meaning in section 251A of the Native Title Act) the making of an indigenous land use agreement with the Minister, on behalf of the State - (i) or the purposes of the settlement of any application of a kind listed in the Table to section 61 of the Native Title Act or in which the group agrees not to make an application of that kind; and (ii) that is capable of being registered under section 24CK or 24CL of the Native Title Act; or (b) if there are native title holders (within the meaning of the Native Title Act ) in relation to the area, the native title holders; or … 42 Thus, the definition of "traditional owner group" imports into the TOS Act some of the concepts and processes prescribed by the NTA. One is that of authorisation within the meaning in s 251A of the NTA, so that the traditional owner group for the purposes of the TOS Act is the same as the group that is capable of authorising an ILUA under s 251A, being all those persons who hold or may hold native title for the area: see Bright v Northern Land Council [2018] FCA 752 at [169] and more generally [154]-[170], per White J. 43 As part of the TOS Act process, the applicant submitted, and the State considered, a range of material in response to guidelines developed by the State that are designed to establish that the traditional owner group consists of the right people for the country claimed. The State developed its "Threshold Guidelines" following extensive consultation with traditional owners from across Victoria, First Nations Legal and Research Services, the native title service provider for Victoria (then called Native Title Services Victoria), and other key stakeholders. In summary, pursuant to the Threshold Guidelines operational at the relevant time, a traditional owner group was required to demonstrate that: (a) it comprises the right traditional owner group for an area on the basis of its "traditional and cultural association" to the area; and (b) it is ready to negotiate a settlement package that binds all persons who may hold native title for the proposed settlement area. 44 As part of the TOS Act threshold process, the State considered the following materials: (a) the applicant's "Part A Threshold Statement" dated 14 August 2014, prepared in accordance with the requirements set out in the Threshold Guidelines; (b) further information provided by the applicant in May 2015 both during and following threshold conferences between the Eastern Maar people and the State; (c) submissions received during the threshold notification period that ended in November 2015, plus reply comments from Native Title Services Victoria (as it then was) regarding these submissions; (d) independent research reports commissioned by the State in the second half of 2016; and (e) further written information provided by the Eastern Maar Peoples in the first half of 2017, including amendments made to the group description and corporate membership rules. 45 After its consideration of the material set out above, in 2017, the State was satisfied that the applicant had met the threshold under the Threshold Guidelines to negotiate TOS Act agreements. The applicant and the State intended for that settlement package to include an ILUA, by which the applicant would withdraw its current native title application. 46 But following the reactivation of the Determination Application in 2019, the Court ordered mediation between the applicant, the State and the Indigenous respondents who were joined to the proceeding. Pursuant to orders of the Court, Judicial Registrar Daniel convened separate and parallel mediations for the discrete areas claimed by the applicants in which there were Indigenous respondents contesting the applicant's claim, and there were areas claimed by the applicant in relation to which there was no overlapping claim or contest. It is those uncontested areas which make up the present Determination Area following mediation. 47 The State submits, and I accept, that the information it gained through the process of endeavouring to reach agreement under the TOS Act may legitimately be used by the State to inform itself in respect of the proposed consent determination and was important for its agreement to the proposed consent determination. Analogously, in Bright at [105]-[107], [113] White J held that information and investigations about traditional owners under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) can be relevant to conclusions as to native title rights and interests under the NTA. 48 The discussions between the applicant and the State occurred against the backdrop of Lovett (No 5) in which case the State had assessed the materials before it against the requirements of ss 225 and 223 of the NTA. The State submits, and I accept, that in Lovett (No 5) it reached the requisite state of satisfaction in respect to the Eastern Maar Peoples having regard to the principles set out below: (a) Principle 1: At the time of sovereignty there was a body of persons united in and by its acknowledgement and observance of a body of laws and customs (the original society) which held rights and interests in the land and waters subject to the native title application (the claim area) pursuant to those laws and customs; (b) Principle 2: There was a body of laws and customs of defined nature and content (the traditional laws and customs) under which the original society and its members held rights and interests in the claim area (the traditional rights and interests); (c) Principle 3: The original society has substantially maintained its identity and existence from generation to generation, through to the present; its members and successors acknowledging and observing the traditional laws and customs, such that the acknowledgement and observance has continued substantially uninterrupted since sovereignty; (d) Principle 4: Since sovereignty, the original society, its members and their successors have maintained a connection with the claim area, in accordance with the traditional laws and customs, substantially uninterrupted; (e) Principle 5: The members of the native title claim group (the claimants) are members of an identifiable Aboriginal society, which is recognisably based in the original society (as it may have adapted or evolved), and who still collectively acknowledge and observe the traditional laws and customs; (f) Principle 6: The traditional laws and customs which are still acknowledged and observed give rise to an ongoing connection with the claim area, and rights and interests in the claim area (of a defined nature and extent) which are recognised by the common law of Australia; and (g) Principle 7: Such rights and interests have not been extinguished. 49 Following a conference of four independent expert anthropologists, the State satisfied itself in Lovett (No 5) that sufficient material had been provided to justify it supporting that consent determination which recognised both the Eastern Maar Peoples and the Gunditjmara Peoples as the holders of joint native title rights and interests over the "Part B" area. 50 Importantly the Eastern Maar part of the native title claim group for that claim is the same as the native title claim group in this claim, except for the addition of Mr Sharp. The only remaining concerns that the State needed to address arose from the Indigenous respondents that asserted claims over parts of the claim area in the Determination Application, which claims have been resolved insofar as the Determination Area is concerned. 51 In reaching agreement to the proposed consent determination, the State also drew upon its knowledge of the background and history of the regional Aboriginal societies of western Victoria that forms part of the heritage and origins of traditional laws and customs of the applicant, which was gained through evidence heard by the Court and in negotiations with the neighbouring native title holders in Lovett (No 5).

[38]

It is appropriate to exercise the discretion under s 87A(4)(b) 52 I accept that in coming to its support for the proposed consent determination the State assessed the applicant's claim to have native title rights and interests in the Determination Area by applying the principles in the authorities cited above. Having regard to the State's consideration of the proposed consent determination, and to the matters set out below, I am satisfied that it is appropriate to make orders in the terms of the proposed consent determination under s 87A(4)(b) of the NTA, without holding a hearing: (a) the State submits, and I accept, that all of the parties to the application who asserted an interest in the proposed Determination Area (including those who have subsequently withdrawn) have had the benefit of independent legal advice and representation, or have been appropriately engaged with by the State and applicant whilst being encouraged to obtain independent legal advice and representation; (b) the State says, and I accept, that it has taken a "real interest" in the proceeding in the interest of the community generally. In order to reach the compromise embodied in the proposed consent determination, it has given careful and extensive consideration to the applicant's connection material and other relevant material, including: (i) evidence and material previously considered in respect of the process leading to the consent determination in Lovett (No 5); (ii) the material provided by the applicant through the TOS Act Threshold Guidelines process; (iii) research reports relevant to the composition of the applicant and/or the extent of and nature of native title rights and interests in the Determination Area, including: (A) Dr Deane Fergie, anthropologist, for NTSV (2009); (B) Dr Fiona Skyring, historian, for the State (2016); (C) Mr Kim McCaul, anthropologist, for the State (2016), (D) Dr Michael O'Kane, anthropologist, for the Applicant (2019); (E) Dr Hutchings, anthropologist for the State (2021); and (F) other reports of experts in various relevant disciplines commissioned by other parties and made available to the State in the course of mediations; and (iv) material from Ron Arnold and the agreement in principle reached in December 2021 between the Applicant, Mr Arnold and the State after the mediation held on 18 and 19 November 2021; (c) the State submits, and I accept, that the non-State respondents have been provided with multiple opportunities to engage, and have engaged, in consultation on the form of the proposed minute of consent determination at numerous points between circulation of the first version of the Draft Minute on 19 November 2019 and the circulation of the final form of the Draft Minute on 20 January 2023; (d) the State says, and I accept, that the terms of the proposed consent determination represents the agreement of the parties, entered into freely, without duress, fraud or misrepresentation; (e) the applicant and the State submit that they consider that the connection material, including material provided through the Threshold Guidelines process and previously considered in respect of the process leading to the consent determination in Lovett (No 5) justifies the making of the orders in the proposed consent determination; (f) the native title rights and interests that are to be declared in the proposed determination are recognised by the laws of Australia; (g) the requirements of the NTA have been complied with (in particular, ss 94A and 225); (h) the proposed consent determination appropriately deals with other interests; and (i) the proposed consent determination is unambiguous and certain as to the rights declared, while acknowledging that some particular intersections of native title rights and interests and Commonwealth and State law, including the common law, are to be worked out having regard to the circumstances of any particular case.

[39]

NOMINATION OF A PRESCRIBED BODY CORPORATE 53 Under s 55 of the NTA, if the Court proposes to make a determination that native title exists, the Court must at the same time, or as soon as practicable after that time, make such determinations pursuant to the requirements of s 56 which deals with holding the determined native title on trust, or s 57 which deals with determination of the prescribed body corporate and its possible non-trust functions. 54 Having regard to the affidavit of Mr O'Donnell affirmed 9 March 2023, I am satisfied that: (a) on 3 December 2022 a meeting of the Eastern Maar Peoples native title claim group was held, and in accordance with a decision-making process, agreed and adopted at the authorisation meeting, the claim group resolved to nominate Eastern Maar Aboriginal Corporation (EMAC), to hold the determined native title as an agent for the Eastern Maar Peoples; (b) EMAC was registered on 11 July 2011 as a prescribed body corporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); (c) on 17 February 2023 the Board of EMAC resolved to consent in writing to the proposed nomination to act as an agent; (d) on 7 March 2023 Sheree Lowe, a representative of the common law holders of native title and a member of the applicant, provided Mr O'Donnell with a signed document that nominated EMAC to be the prescribed body corporate and to hold the native title rights and interests to be determined in VID 21 of 2019 as agent for the common law holders; and (e) on 7 March 2023 Mr O'Donnell received from EMAC a document evidencing its consent to appointment to hold native title rights and interests to be determined in VID 21 of 2019 as the agent for the common law holders, signed by two directors of that corporation. 55 In Lovett (No 5) the common law native title holders also nominated EMAC to hold the determined native title as the prescribed body corporate acting as agent for the Eastern Maar Peoples, and the Court appointed it in that capacity. In my view it is appropriate in this proceeding to again appoint EMAC to hold the determined native title as the prescribed body corporate acting as agent for the Eastern Maar Peoples, pursuant to s 57(2) of the NTA.

[41]

Associate: Dated: 28 March 2023 SCHEDULE OF PARTIES VID 21 of 2019 Respondents Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent ARARAT RURAL CITY COUNCIL Fourth Respondent COLAC OTWAY SHIRE COUNCIL Fifth Respondent CORANGAMITE SHIRE COUNCIL Sixth Respondent MOYNE SHIRE COUNCIL Seventh Respondent SOUTHERN GRAMPIANS SHIRE COUNCIL Eighth Respondent WARRNAMBOOL CITY COUNCIL Ninth Respondent EILEEN ALBERTS Tenth Respondent DAMIEN BELL Eleventh Respondent DENISE LOVETT Twelfth Respondent MICHAEL BRUCE BEVANS Thirteenth Respondent MICHAEL JOHN RAYMOND BEVANS Fourteenth Respondent SHANE ANDREW BEVANS Fifteenth Respondent PATRICK FAGAN Sixteen Respondent RICHARD FAGAN Seventeenth Respondent VIOLET MCPHERSON Eighteenth Respondent SHIRLEY ANN RICHARDSON Nineteenth Respondent BARENGI GADJIN LAND COUNCIL ABORIGINAL CORPORATION REGISTERED NATIVE TITLE BODY Twentieth Respondent DYLAN CLARKE Twenty-First Respondent KERRY CLARKE Twenty-Second Respondent JANINE COOMBS Twenty-Third Respondent ANNABELLE HARRISON MOORE Twenty-Fourth Respondent TIM MCCARTNEY Twenty-Fifth Respondent BRENDAN MUIR Twenty-Sixth Respondent STEVEN PORTELLI Twenty-Seventh Respondent COREY THEATRE Twenty-Eighth Respondent D & S HELLESSEY PTY LTD Twenty-Ninth Respondent JAMWILL INVESTMENTS PTY LTD Thirtieth Respondent LIFE SAVING VICTORIA LIMITED ACN 102 927 364 Thirty-First Respondent OWNERS CORPORATION NO 2, PS 608168W Thirty-Second Respondent WARRNAMBOOL SURF LIFE SAVING CLUB Thirty-Third Respondent BEACH ENERGY (OPERATIONS) LIMITED Thirty-Fourth Respondent BEACH ENERGY LIMITED Thirty-Fifth Respondent COOPER ENERGY (CH) PTY LTD Thirty-Sixth Respondent SOUTH EAST AUSTRALIA GAS (MORTLAKE) PTY LTD Thirty-Seventh Respondent ANNE ABBOTT Thirty-Eighth Respondent CHARLES ARMYTAGE Thirty-Ninth Respondent JO ARMYTAGE Fortieth Respondent HAMISH MCKENZIE CUMMING Forty-First Respondent ROBERT DI TOMASO Forty-Second Respondent AGNES JANE EDWARDS Forty-Third Respondent ALAN ROBERT EDWARDS Forty-Fourth Respondent MARYANNE HARRICKS Forty-Fifth Respondent ROBERT JOHN HARRICKS Forty-Sixth Respondent ANTHONY JOHN JACKSON Forty-Seventh Respondent DAVID C JACKSON Forty-Eighth Respondent VICKI JONES Forty-Ninth Respondent GREG JOYCE Fiftieth Respondent MICHELLE LEITH Fifty-First Respondent TIM LEITH Fifty-Second Respondent MARINA JOSEPHINE LEWIS Fifty-Third Respondent PHILIP CHARLES LONGMORE Fifty-Fourth Respondent KERIAN DUNCAN MACDONALD Fifty-Fifth Respondent JANET MCGAW Fifty-Sixth Respondent OWEN ROBERT MORRIS Fifty-Seventh Respondent PAMELA AVON MORRIS Fifty-Eighth Respondent DAVID ALEXANDER PADGETT Fifty-Ninth Respondent JURGEN KLAUS ROCHELMEYER Sixtieth Respondent JANINE MAREE YATES Sixty-First Respondent ADRIAN JOHN ELLIOTT Sixty-Second Respondent ABDIVA INVESTMENTS PTY LTD Sixty-Third Respondent RICHARD BRIAN ALLAN Sixty-Fourth Respondent WILLIAM JAMES ALLAN Sixty-Fifth Respondent ALLEN ABALONES PTY LTD Sixty-Sixth Respondent AQUA ENTERPRISES (VIC) P/L Sixty-Seventh Respondent AQUAPOINT PTY LTD Sixty-Eighth Respondent ASHROWAN PTY LTD Sixty-Ninth Respondent MICHAEL ASTBURY Seventieth Respondent AUST ASIA SEAFOOD PTY LTD Seventy-First Respondent AYLENE SPRINGALL PTY LTD Seventy-Second Respondent DAVID BARKER Seventy-Third Respondent BERISSA EELS PTY LTD Seventy-Fourth Respondent BUCK DIVING ENTERPRISES PTY LTD Seventy-Fifth Respondent C & Z FAMILY SUPER FUND PTY LTD ATF C & Z FAMILY SUPERANNUATION FUND Seventy-Sixth Respondent BRUCE JASON CARRISON Seventy-Seventh Respondent STEPHEN CHARA Seventy-Eighth Respondent DEEP SEA INVESTMENTS PTY LTD Seventy-Ninth Respondent DEVRIES ENTERPRISES P/L Eightieth Respondent DOUBLE CREST PTY LTD Eighty-First Respondent PETER DOUGLAS Eighty-Second Respondent S K DOWNES Eighty-Third Respondent JASON SCOTT FULHAM Eighty-Fourth Respondent WAYNE HANEGRAAF Eighty-Fifth Respondent STEPHEN CHARLES HIGGS Eighty-Sixth Respondent DAVID ANTHONY HUNT Eighty-Seventh Respondent JACENKO PTY LTD Eighty-Eighth Respondent DAVID MALCOLM JOHNSTON Eighty-Ninth Respondent KANSOM AUSTRALIA PTY LTD Ninetieth Respondent KAROBO PTY LTD Ninety-First Respondent KW & EF FOX PTY LTD Ninety-Second Respondent L.J. & S.A.PLUMMER FISHING PTY LTD Ninety-Third Respondent LECKFORD PTY LTD Ninety-Fourth Respondent M.I.LEE MARINE HOLDINGS PTY LTD Ninety-Fifth Respondent MBOWD TRUST Ninety-Sixth Respondent MC ALAMEDA INVESTMENT PTY LTD ATF MC ALAMEDA INVESTMENTS Ninety-Seventh Respondent L J MCCALL Ninety-Eighth Respondent DAVID THOMAS MCCARTHY Ninety-Ninth Respondent MERCURY GARAGE (BONDI) PTY LTD One-Hundredth Respondent ADAM MILNER One-Hundred-and-First Respondent GRAHAM LESLIE MILNER One-Hundred-and-Second Respondent SIMON NASH One-Hundred-and-Third Respondent MARKUS NOLLE One-Hundred-and-Fourth Respondent RUSSELL NEIL O'CONNELL One-Hundred-and-Fifth Respondent BRIAN DENIS O'LEARY One-Hundred-and-Sixth Respondent MERCURY GARAGE (BONDI) PTY LTD One-Hundred-and-Seventh Respondent ANTHONY CRAIG OLIVER One-Hundred-and-Eighth Respondent BENJAMIN JOHN OSBOURNE One-Hundred-and-Ninth Respondent OZLOBSTERS PTY LTD One-Hundred-and-Tenth Respondent P.J. & H JOHNSTON PTY LTD One-Hundred-and-Eleventh Respondent SUSAN ISABEL PEARDON One-Hundred-and-Twelfth Respondent PILATA CANDACE NOMINEES PTY LTD One-Hundred-and-Thirteenth Respondent PHILLIP A PLUMMER One-Hundred-and-Fourteenth Respondent PETER PRICE One-Hundred-and-Fifteenth Respondent QRD PTY LTD One-Hundred-and-Sixteenth Respondent QUOTA POOL PTY LTD One-Hundred-and-Seventeenth Respondent GARY FRANCIS RYAN One-Hundred-and-Eighteenth Respondent SIAMANG PTY LTD One-Hundred-and-Nineteenth Respondent SOUTHERN OCEAN MARICULTURE PTY LTD One-Hundred-and-Twentieth Respondent MICHAEL SPITERI One-Hundred-and-Twenty-First Respondent RICHARD JAMES STONE One-Hundred-and-Twenty-Second Respondent SWRL PTY LTD One-Hundred-and-Twenty-Third Respondent TANE QUARRELL One-Hundred-and-Twenty-Fourth Respondent TASMANIAN SEAFOODS PTY LTD One-Hundred-and-Twenty-Fifth Respondent CAROL MARIAN TAYLOR One-Hundred-and-Twenty-Sixth Respondent MURRAY THIELE One-Hundred-and-Twenty-Seventh Respondent TRYMORE INVESTMENTS PTY LTD One-Hundred-and-Twenty-Eighth Respondent TSF FISHERIES PTY LTD One-Hundred-and-Twenty-Ninth Respondent VFH ABOLONE PTY LTD One-Hundred-and-Thirtieth Respondent PETER JOHN WARNE One-Hundred-and-Thirty-First Respondent DARREN IAN WILLIAMS One-Hundred-and-Thirty-Second Respondent TELSTRA CORPORATION LIMITED ABN 33 051 775 556 One-Hundred-and-Thirty-Third Respondent ASHLEY BARRY SMITH T/A LAKESIDE HONEY One-Hundred-and-Thirty-Fourth Respondent POWERCOR AUSTRALIA LTD ABN 89 064 651 109

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