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Vic Traditional Owners seek dispensation to prevent land acquisitions, fund to back land councils' recommendations

Dechlan Brennan -

Traditional Owner groups in Victoria are asking for special dispensation to prevent their land from ever being acquired by the government.

It comes as the First Peoples' Assembly will this year begin Treaty negotiations with the Victorian government, and has seen the creation of a Self-Determination Fund to allow Traditional Owners to separately seek their own Treaties with the government.

Indigenous Traditional Owner groups - including the Taungurung Land and Waters Council (TLaWC) - have submitted to the Yoorrook Justice Commission reforms around land rights proposals.

Yoorrook, the state's first Indigenous truth-telling commission, is this year investigating housing disparity and land inequality for Indigenous Victorians after last year releasing an interim report into the state's justice and child protection systems.

The TLaWC submission, on behalf of the Taungurung First Nations people group, presented proposals for reform in the wake of "the Taungurung experience of massive colonial injustice".

It recommended the Victorian government enact legislative changes to enable the protection of freehold title hand which is currently owned by Traditional Owner groups. Furthermore, they ask for the land to be protected from being repossessed by the state or offered up to mining groups by third parties.

TLaWC asked Yoorrook to seek "government action to legislate special provisions to apply to freehold land that is owned by traditional owner organisations such as TLaWC".

"Such provisions," TLaWC said, "would provide a greater measure of security and protection".

The Traditional Owner Settlement Act 2010 (the Act) notes it allows the Victorian government to "recognise traditional owners and certain rights in Crown land".

"In return for entering into a settlement, traditional owners must agree to withdraw any native title claim, pursuant to the Native Title Act 1993 (Cth) and not to make any future native title claims."

Freehold - considered the most absolute form of ownership - allows proprietors to completely sell land, and can sell, lease or mortgage without restrictions if it meets legislative requirements.

The TLaWC chief executive and Taungurung man, Matthew Burns, told National Indigenous Times despite the Taungurung people and the TLaWC holding particular rights to Country as per Taungurung's Recognition and Settlement Agreement, this only covered Crown land, as well as land owned by TLaWC and Taungurung people within agreement area.

Mr Burns, who is also the reserved seat holder in the Assembly for TLaWC, used the example of former crown land acquired on behalf of the Taungurung people by TLaWC that, despite being freehold, saw a new zoning overlay resulting in camping (in the planning scheme) no longer being allowed.

"There are particularly recognised procedural rights that TLaWC hold on behalf of the Taungurung people… however those rights do not extend to land that is owned under free-hold title by Traditional Owners and Traditional Owner Group Entities," Mr Burns said.

"To my mind there is a need to reconcile these inconsistencies in the way that Government and relevant legislation interacts with those inherent and enduring rights of rights of Traditional Owners."

Dr Erin O'Donnell, senior lecturer at the University of Melbourne Law School, told Guardian Australia the suggested reforms would change the relationship between the settler state and traditional owners, and could be controversial as it "would grant special rights that other landholders do not have".

"This would acknowledge the sovereignty of traditional owners. Instead of the settler state retaining all power, it would strengthen the power of traditional owners to negotiate on what terms, if any, they would allow that access," she said.

In response to those claims, Mr Burns said in his perspective, the "Taungurung people (Traditional Owners) hold enduring rights, inherent obligations and lore that apply to Country that existed prior to the colonisation of our lands."

He argued whilst these rights exist to the present day, the nuanced rights and obligations' of Traditional Owners are "not understood or defined by existing colonial legislative structures".

"There continues to be a lack of understanding in the general population to the significance of Traditional Owners obligations/rights to Country, with the solution of the general populace ignorantly is to continue the assimilation rhetoric," he said.

Gunditjmara man and Assembly co-chair Reuben Berg told National Indigenous Times Treaty negotiations meant nothing was "off the table" for Indigenous people - big or small.

"The Yoorrook recommendations are very important, and the consistent theme in our approach is that decisions about Aboriginal people should be made by Aboriginal people," he said.

Assembly co-chair Reuben Berg (left) says the Treaty process allows all ideas to be considered.

Mr Berg noted Indigenous people were the "the experts when it comes to Aboriginal communities, culture and Country," and Treaty would help to "empower our communities so they can implement practical solutions at a local level".

The submission from TLaWC called for the state government to enact a "Land Acquisition Fund," for which Traditional Owner organisations, including TLaWC, could apply for assistance to acquire parcels of private land with particular cultural significance.

Mr Burns said this could be done through an expansion of remit for the Self-Determination Fund.

"As many people understand, the colonial tenure system has fractured the continuity of cultural landscapes which may be present across a multitude of tenure and zoning overlays," he said.

"The intention of this recommendation is to provide a readily available resource that enables Traditional Owner nations to engage with private land holders with the potential for acquisition of private land."

He expressly noted: "Compulsory acquisition is not part of the consideration; private land holders would not be compelled to sell in this recommendation".

A spokesperson for the Victorian Government told National Indigenous Times the submission process for Yoorrook gave all individuals and organisations to submit ideas from the community.

"We are listening to and working with the Yoorrook Justice Commission in an open and genuine way to address current and historic injustices experienced by First Nations people in Victoria, and all recommendations from the Commission will be carefully considered," the spokesperson said.

TLaWC's submission also recommended more information and clarity should be shared to avoid "the damage that can be done by the hard right media in relation to Traditional Owner agreement-making and benefits".

It argued for better education surrounding the benefits and flow-on effect from Traditional Owner groups exercising responsibility for their traditional lands.

Mr Burns said these "attacks" were damaging and argued they compounded the "lack of understanding of the unique rights and obligations that exist with Traditional Owner to Country."

Simultaneously, he said they only helped feed a feeling of a "perceived injustice" by non-Indigenous people.

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