Formal recognition in Victoria
Formal recognition refers to the ways that First Nations people in Victoria can have their rights as the First Peoples of the lands and waters of Victoria formally recognised under different laws.
The journey towards securing formal recognition through native title in Victoria has been complex. Through resilience, determination, and collaboration, First Nations people have achieved significant milestones in native title which have led to multiple successful outcomes in formal recognition.
While progress has been made, there is more work to be done to ensure meaningful recognition, protection of First Nations peoples’ land rights, and the preservation of cultural heritage for future generations is maintained.
With the establishment of the First Peoples’ Assembly of Victoria, the Treaty Authority, and the development of the Treaty Negotiation Framework, there are further options available for First Nations people to have their rights recognised within Victoria.
In Victoria, there are four different pathways for First Nations people to become formally recognised under Victorian and Commonwealth law. These are:
- A determination of native title, under the Commonwealth Native Title Act 1993;
- A Recognition and Settlement Agreement with the Victorian State Government, under the Victorian Traditional Owner Settlement Act 2010;
- A Registered Aboriginal Party, under the Victorian Aboriginal Heritage Act 2006; and
- A Traditional Owner Treaty, under the Victorian Advancing the Treaty Process with Aboriginal Victorians Act 2018.
In addition, groups can apply for a Reserved Seat on the First Peoples’ Assembly of Victoria, under the Victorian Advancing the Treaty Process with Aboriginal Victorians Act 2018.
Recognition and Settlement Agreement
What is the Victorian Traditional Owner Settlement Act 2010?
The Victorian Traditional Owner Settlement Act 2010 provides an alternative framework for Victorian First Peoples to negotiate an out-of-court native title settlement. It differs to the often lengthy and costly process of native title settlement under the Native Title Act.
It was established between 2006 to 2010 following successful negotiations from Victorian First Peoples to create a simpler way to resolve native title disputes.
It empowers First Nations communities to enter directly into agreements with the Victorian Government to reach settlements including native title, grant of freehold land, joint management of public lands and the foundation of sustainable economic development.
Making an application under the Victorian Traditional Owner Settlement Act 2010
First Nations communities must lodge a Threshold Statement with the Victorian Government if making an application under the Victorian Traditional Owner Settlement Act 2010. Following the acceptance of the Threshold Statement, negotiations between the State and First Nations communities can commence.
Settlement Package
The settlement package under Victorian Traditional Owner Settlement Act 2010 can include any or all the following agreements:
Recognition and Settlement Agreement
to recognise a Traditional Owner group and their rights over Crown land.
Land agreement
to provide for grants of land in freehold title for cultural or economic purposes, or as native title over land to be jointly managed with the State.
Traditional Owner Land Management Agreement
to enable the joint management of land by Traditional Owner Groups and the State.
Land Use Activity Agreement
to ensure First Peoples can comment on or consent to certain activities on public land.
Natural Resource Agreement
to recognise First Peoples rights to take and use specific natural resources and provide input into the management of land and natural resources.
Funding Agreement
to enable Traditional Owner Corporations to undertake their Settlement Agreement responsibilities and engage in economic development activities.
Indigenous Land Use Agreement
which addresses native title issues if there is no determination of native title in relation to the agreement area.
Registered Aboriginal Party
What is the Victorian Aboriginal Heritage Act 2006?
The Victorian Aboriginal Heritage Act 2006 provides protection of First Peoples cultural heritage and covers all types of land tenures, including private and Crown land. It allows different organisations, groups and bodies to connect and better enforce and preserve policies regarding First Peoples heritage.
Registered Aboriginal Parties (RAPs) are Traditional Owner Corporations that are appointed under the Victorian Aboriginal Heritage Act 2006 to manage and protect First Peoples cultural heritage over their Country including coastal and onshore waters.
The Victorian Aboriginal Heritage Act 2006 recognises RAPs as the primary guardians, keepers, and knowledge holders of First Peoples cultural heritage. They are the primary source of advice and knowledge on matters relating to First Peoples places or objects in their appointed RAP region. It does not recognise First Peoples rights and interests in land and waters in the way native title and settlements do.
Traditional Owner Treaty
What is a Traditional Owner Treaty?
In addition to the Statewide Treaty between the Assembly and the Victorian Government, Victorian First Peoples groups can negotiate Traditional Owner Treaties over their Country. First Nations groups can negotiate directly with
the Victorian Government on priority areas for their particular group.
In the Victorian Treaty process, the Treaty Authority is empowered to oversee Treaty negotiations, and the Self Determination Fund is empowered to ensure Victorian First Peoples groups are financially on an equal footing to engage in the Treaty process.
Please see the Treaty Authority and Self-Determination Fund websites for more information.
Reserved Seat on First Peoples’ Assembly of Victoria
What is a Reserved Seat?
As the elected voice for First Nations peoples in the Victorian Treaty process, the First Peoples’ Assembly of Victoria has developed an additional pathway for groups who do not have formal recognition under existing laws to apply for a Reserved Seat. The Assembly Members decide whether to grant a Reserved Seat, based on criteria set by the Assembly.
The Assembly (comprised of elected Members and Reserved Seat holders) will be charged with negotiating the State-wide Treaty with the Victorian Government.
Please see the First Peoples’ Assembly website for more information.
Resources For Formal Recognition in Victoria
We have produced a range of Information Sheets to explain how formal recognition works in Victoria. See below:
- What are the processes to achieve formal recognition?
In Victoria, there are three different processes for groups to become formally recognised as Traditional Owners of Country. These types of formal recognition provide legal recognition of Traditional Owners under Victorian and Australian law. Traditional Owners seeking formal recognition can pursue any or all of the three. View more information here. - What is a native title determination? Under the Native Title Act 1993 (Cth), native title is the recognition by Australian law of the rights and interests in land and waters held by Aboriginal and Torres Strait Islander peoples under their traditional laws and customs, which existed before the start of colonisation. View more information here.
- What is settlement under Victoria’s Settlement Act? The Traditional Owner Settlement Act 2010 (Vic) (the Settlement Act) provides an avenue to recognise Traditional Owner rights in Victoria. View more information here.
- What is a Registered Aboriginal Party? Registered Aboriginal Parties (RAPs) are Traditional Owner corporations that are appointed under the Aboriginal Heritage Act 2006 (Vic) (the Aboriginal Heritage Act) to manage and protect Aboriginal cultural heritage over their Country including coastal and onshore waters. View more information here.
- What is the role of research in formal recognition processes? First Nations Legal & Research Services (First Nations) works with Victorian Traditional Owners on native title and Traditional Owner settlement processes. View more information here.
- Glossary of terms The processes of formal recognition are legal, requiring that any explanation of them includes complex terms. This Glossary explains those terms down into understandable language. View glossary of terms here.
For more information about native title across Australia, visit the National Native Title Tribune.