First Peoples of the Millewa-Mallee Native Title Determination

The First Peoples of the Millewa-Mallee are the Traditional Owners of Country in the north-west of Victoria that runs south of the Murray River to the Mallee Highway and west from the Calder Highway to the South Australian border, including part of the Murray-Sunset National Park.

The First Peoples of the Millewa-Mallee are a community of family groups associated with the Murray River Region. Some individuals within the group identify as Latji Latji, Ngintait and Nyeri Nyeri, while others identify themselves through their connections to the area, and as part of the community of Native Title Holders.

All members of the First Peoples of the Millewa-Mallee are descended from identified ancestors who occupied the area around the time of European settlement.

The First Peoples of the Millewa-Mallee’s native title consent determination is very similar to previous consent determinations reached in Victoria.

The First Peoples of the Millewa-Mallee hold the following non-exclusive native title rights, including the right to:

• have access to and remain on (including live on and belong to) Crown land
• take and use resources
• protect and maintain areas, sites, objects and places of significance under traditional law and custom, and
• invite spouses and partners or others onto the land in accordance with traditional law and custom, for the performance of cultural activities.

The Court has recognised that the First Peoples of the Millewa-Mallee have exclusive possession native title rights over Section 47A land

For the first time in Victoria, the First Peoples of the Millewa-Mallee’s consent determination includes recognition of exclusive possession native title. This is the highest level of rights recognised under the Native Title Act.

The First Peoples of the Millewa-Mallee have exclusive possession native title over limited areas within their consent determination area. These parcels are known as section 47A land under the Native Title Act. This land is described below but is essentially Aboriginal-held freehold land.

Freehold title takes precedence over exclusive possession native title rights. The exclusive possession native title rights are suppressed under the law by the existing freehold title held by or on behalf of Aboriginal people, meaning the First Peoples of the Millewa-Mallee group has no right to control access over these titles while the freehold title is in place.

The exclusive possession native title right to control access to the land cannot be exercised by the First Peoples of the Millewa-Mallee unless the freehold title is surrendered to the Crown and ceases to exist.

The consent determination includes a commitment from the State to negotiate in good faith with the First Peoples of the Millewa-Mallee native title holders to enter into agreements under section 47C of the Native Title Act

Any existing interest-holders – such as people with leases or licences over Crown land – are unaffected by this determination.

Existing public access rights to Crown land in the determination area are also unaffected, including in areas where exclusive possession rights are or may in future, be recognised. Local governments and volunteer committees of management continue to manage their Crown land reserves as before.

Under the Native Title Act, two types of native title can be recognised: ‘non-exclusive’ native title and ‘exclusive possession’ native title.

Non-exclusive native title can be recognised over areas where there are shared interests in Crown land. In these circumstances, native title co-exists alongside other people’s rights, such as a pastoral lease. Examples of non-exclusive native title rights include the right to hunt or camp on the land. It does not include the right to control access to Crown land.

Exclusive possession native title is the right to possess and occupy Crown land to the exclusion of all others (i.e. a right to control access to land). Exclusive possession native title rights are akin to freehold title but, unlike freehold title, they are not full legal ownership of land and waters, and they cannot be sold. Exclusive possession native title can only be recognised over limited areas where the State has not reserved the land for a purpose, or where the Native Title Act allows it to exist. Sometimes, the exclusive possession native title can exist but, under the law, will be wholly suppressed by other people’s rights, including by licences and leases that may be in force, meaning the right to control access cannot be exercised by the native title holders in those circumstances. This is the case in this determination.

Any existing interest-holders – such as people with leases or licences over Crown land – are unaffected by this determination. Existing public access rights to Crown land in the determination area are also unaffected.

The First Peoples of the Millewa-Mallee have exclusive possession native title over limited areas within their consent determination area. These parcels are known as section 47A land under the Native Title Act. This land is described below but is essentially Aboriginal-held freehold land.

The consent determination includes a commitment from the State to negotiate in good faith with the First Peoples of the Millewa-Mallee to enter into section 47C agreements under the Native Title Act. A section 47C agreement may include recognition of exclusive possession native title or non-exclusive native title rights. The Government will consider all submissions from the public before it decides whether to enter into a section 47 agreement.

Section 47A land is freehold land, not Crown land.

Section 47A land refers to land that at the time the claim was made in 2015, was:

The determination documents do not list the land to which it applies. It applies automatically to land which meets the criteria above.

Section 47B land refers to land that was vacant, unreserved Crown land at the time the claim was made in 2015.

The determination documents do not list the land to which Section 47B applies. It applies to land which meets the criteria above. Only non-exclusive native title rights can be recognized over this type of land.

Section 47C is a provision in the Native Title Act which allows the State and native title holders to enter into agreements recognising native title over certain types of park or conservation areas. The First Peoples of the Millewa-Mallee consent determination requires the State to negotiate this with the native title holders.

A section 47C agreement may include recognition of exclusive possession native title or non-exclusive native title rights (see above).

Where a section 47C agreement applies, the Native Title Act protects public access to the park areas, and third-party rights and interests in the park areas, for example, leases or licenses.

A proposed section 47C agreement must undergo a 3-month public notification process before it can be agreed. The State would notify the public and interested persons can then comment on the proposal. The State would consider all submissions made and may decide to modify its proposal, not proceed, or proceed as originally proposed.

The Department of Premier and Cabinet will provide further information on any future section 47C proposal with the First Peoples of the Millewa-Mallee via the Victorian Government Public Notices website(opens in a new window) at the relevant time.