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Seidel, Peter; Hetyey, Julian --- "Summary of Yorta Yorta Nation Aboriginal Corporation/State of Victoria Co - operative Management Agreement (Part One)" [2004] IndigLawB 45; (2004) 6(4) Indigenous Law Bulletin 15


Summary of Yorta Yorta Nation Aboriginal Corporation/State of Victoria Co-operative Management Agreement – Part I

by Peter Seidel & Julian Hetyey

On 10 June 2004 the Yorta Yorta Nation Aboriginal Corporation (‘YYNAC’) and the State of Victoria entered into a Co-operative Management Agreement (‘the Agreement’). To commemorate the Agreement, a declaration was signed by YYNAC and the Victorian Attorney General, Rob Hulls, on 10 June 2004. It reads, in part:

The State [of Victoria] recognises that the Yorta Yorta Peoples are the traditional owners of and have a unique inherent relationship with and responsibility to their country ... In accordance with this recognition, the State will ensure the ongoing important role of the Yorta Yorta Peoples in land and water management decision making relating to the protection, management and sustainability of their country, including cultural and environmental values.

The Agreement, which has recently been made public, was reached outside the native title process and serves to create a forum for the Yorta Yorta peoples to co-manage with the State of Victoria parts of Yorta Yorta country, referred to in the Agreement as the ‘Designated Areas’.

This article summarises the key steps in the negotiations and the principal features of the Agreement.

Background to the Agreement

YYNAC was incorporated in November 1998 under the Aboriginal Councils and Associations Act 1976 (Cth) to, amongst other things:

Represent all family groups comprising the Yorta Yorta nation, including the Bangerang, Kailtheban, Wollithiga, Moira, Ulupna, Kwat Kwat, Yalaba Yalaba and Nguariaiiliam-wurrung clans;
Make decisions in respect of the Yorta Yorta nation; and
Enter into agreements with any person, government agency or authority in relation to the protection of Yorta Yorta traditional lands and waters.

Consistent with its corporate objectives, YYNAC represented the views of each Yorta Yorta family group, in the negotiations leading to the Agreement, during which various land and water management opportunities were explored with the State. These negotiations commenced after an announcement to that effect by Rob Hulls immediately following the dismissal of the Yorta Yorta peoples’ native title appeal in the Full Court of the Federal Court on 8 February 2001, and continued following the subsequent defeat of their High Court appeal on 12 December 2002.[1] The negotiations were progressed using signed Negotiation Principles (approved by Victorian Cabinet in May 2002), which were used by the parties as a framework to ensure fairness and equity in the negotiations.

The Agreement establishes a sustainable partnership between the Yorta Yorta peoples and the State of Victoria. The Preamble to the Agreement speaks of the development of a partnership based on ‘recognition, mutual respect and agreed goals’. It also provides that the ‘State will adopt a flexible and learning approach to working with and meeting the aspirations of the Yorta Yorta People...’ and that ‘[t]he Yorta Yorta People will adopt a flexible and learning approach to state land and water management policies and processes.’

Clause 13 of the Agreement identifies its objects, which are to facilitate:

The active and resourced involvement of the Yorta Yorta people in decisions about the management of the Designated Areas, including ‘the integration of Yorta Yorta knowledge, internal decision-making processes and perspectives into management planning and works programming’;
‘[T]he development of mutual recognition and trust between the Yorta Yorta people and the State’; and
The identification and promotion of employment, training and economic development opportunities for the Yorta Yorta people.

Designated Areas

The Agreement’s ‘Designated Areas’ comprise Victorian crown lands and waters in Yorta Yorta country, being a sub-set of traditional Yorta Yorta country in Victoria. Yorta Yorta country extends into New South Wales, straddling the Murray River. Regrettably, and for reasons best known to itself, the State of New South Wales has declined to enter into any similar mediation process with the Yorta Yorta nation.

The Designated Areas include Kow Swamp, Barmah State Park, Barmah State Forest and other areas of public lands and waters located along the Murray and Goulburn Rivers in Victoria. The Preamble to the Agreement records that ‘[t]he State of Victoria acknowledges the cultural connection of the Yorta Yorta People to the Designated Areas.’ By the Agreement, the value of the Yorta Yorta peoples’ involvement in planning and management decisions concerning the Designated Areas is recognised.

Operation of the Agreement

Establishment of the Yorta Yorta Joint Body

In practical terms, under the Agreement an eight member committee is established, known as the Yorta Yorta Joint Body, constituted by five members representing the Yorta Yorta peoples (as nominated by YYNAC) and three members representing the State of Victoria (as nominated by the Secretary of the Department of Sustainability and Environment).

The Yorta Yorta Joint Body constitutes a committee within the meaning of section 12 of the Conservation, Forests and Lands Act 1987 (Vic) (‘the CF and L Act’). One of the legislative purposes of the CF and L Act is the establishment of a system of land management co-operative agreements.

The Terms of Reference of the Yorta Yorta Joint Body are contained within Schedule 3 to the Agreement. They state that the function of the Joint Body is to provide advice and make recommendations to the Minister for Environment or the Secretary concerning the management of the Designated Areas, including advice on:

The development and review of strategic and site specific management plans;
The development of work programs and land, waters and resources protection and management plans;
Certain major developments concerning land, water and resource uses (see below); and
The management of grazing in Barmah.

Additionally, the Yorta Yorta Joint Body is required to fulfill the following functions, amongst others, set out in sub-section 12(2) of the CF and L Act:

Provide advice and make recommendations to the Minister or the Secretary in relation to any matters referred to it by the Minister or the Secretary;
Assist in the implementation of departmental policies, programs and services; and
Monitor the effectiveness, efficiency and economy of departmental policies, programs and services relating to the Designated Areas.

The decision-making process

The Agreement’s Terms of Reference state that the five Yorta Yorta representatives on the Yorta Yorta Joint Body have the right to refer any matter before the Joint Body to YYNAC for advice or consideration prior to any Yorta Yorta Joint Body decision being made. This right includes an entitlement to refer any matter to the Elders’ Council of YYNAC, a group of Yorta Yorta Elders who are the guardians of the objects of YYNAC. ‘Elder’ is defined in the Schedule 1 List of Definitions to mean:

[A]ccording to Yorta Yorta traditional law and custom... a mature, capable, wise and respected adult Yorta Yorta person who has knowledge of Yorta Yorta culture and is recognised and respected by Yorta Yorta People in general as having such knowledge.

The State representatives have an equivalent right to refer matters to senior managers for advice before a decision is made.

The Minister or Secretary (as applicable) is required, when making a decision regarding the management of the Designated Areas, to take into account advice and recommendations received from both the Yorta Yorta Joint Body and other organisations responsible for managing and providing advice in relation to the Designated Areas (Clause 16). If the Minister or Secretary receives conflicting advice, then he or she is obliged to seek the advice of the Yorta Yorta Joint Body in relation to the conflicting advice before making a decision (Clause 17). If the Minister or Secretary ultimately decides to act otherwise than in accordance with advice or recommendations given by the Joint Body, he or she may provide written reasons to the Yorta Yorta Joint Body for that decision (Clause 18).

Schedule 5, Part A of the Agreement characterises certain developments within the Designated Areas as ‘high impact land, water and resource management activities’. They include mining, the construction of pipelines, electricity transmission lines and telecommunications infrastructure, logging and other high impact forestry activities and the sale of land or changes to the status of land. If the State is considering approving any such activities, it must first provide to the Yorta Yorta Joint Body all relevant information regarding the project and require the Joint Body to seek advice from the Yorta Yorta peoples about what actions might be taken to minimise the impact of the proposed project, from a ‘caring for country’ perspective, which accommodates both cultural heritage and environmental concerns. The Joint Body is then required to refer that advice back to the State and the State is obliged to consider that advice when deciding whether to approve the project.

Whilst the Agreement provides a mechanism by which the Yorta Yorta Joint Body can influence government decision-making, the Agreement makes clear that ultimate responsibility for decision-making resides with the Minister.

Other mechanics

The Terms of Reference provide that the Yorta Yorta Joint Body shall develop an Annual Action Plan, which sets out (among other things) the broad topics which will be focused on, the measurable objectives and the resources required for the coming year. The Joint Body is also required to provide an Annual Report to the Minister or Secretary which considers (among other things) the performance of the Joint Body in the preceding year as measured against the Annual Action Plan.

Schedule 4 to the Agreement sets out and describes the positions that are provided to the Yorta Yorta Joint Body. In addition to the five Yorta Yorta representatives, the positions of Convenor, Executive Officer, Research/Liaison Officer, Cultural Heritage Officer and Specialist Officer have been created and resourced. The responsibilities associated with the positions of Research/Liaison Officer, Cultural Heritage Officer and Specialist Officer include the task of liaising with the Yorta Yorta peoples ‘to facilitate the provision of informed consent on matters relating to the Designated Areas’.

Clause 20 of the Agreement states that the role and structure of the Yorta Yorta Joint Body is subject to ongoing internal review. The Minister may also undertake a review of the role and structure of the Joint Body within two years from the date of its establishment.

Limitations of the Agreement

The Agreement does not provide the Yorta Yorta peoples with legal recognition of native title and the legislative protection that flows from a determination of native title that it exists. Rather, the Agreement’s emphasis on co-management constitutes the application of Victorian Government Indigenous policy to the Yorta Yorta peoples in part of their country in Victoria. As laudable as that policy is, it cannot guarantee long term land justice for the Yorta Yorta in the way that a native title determination or legislation specifically dealing with the Agreement would so protect the inherent rights of the Yorta Yorta peoples. Even so, the position in Victoria stands in marked contrast to that in New South Wales. Sadly, no negotiations of a similar kind between the Yorta Yorta nation and the State of New South Wales have even commenced to date.

Where to from here

Ultimately, the Yorta Yorta peoples are looking to the State of Victoria to enter into further partnership agreements that would include agreed legislative transfer of title of public lands and waters in Yorta Yorta country and conversion to national park, with complementary legislative accommodation of the evolving co-management structures. Obviously they would like to similarly engage in agreement-making processes with New South Wales.

From where Arnold Bloch Leibler stands, as the long term privileged pro-bono legal advisers to and supporters of the Yorta Yorta nation, land justice for the Yorta Yorta peoples in Victoria is no mere hope in vain. The State of Victoria has recently agreed to enter into ‘Stage Two’ negotiations with the Yorta Yorta peoples. The aim of these discussions is to look at ways of improving on what has been achieved to date, and also of establishing social and economic processes that meet the general aspirations of the Yorta Yorta peoples, through employment, training, health and enterprise development opportunities, using a ‘whole of government’ approach.

Thus the future is beginning to look promising, at least so far as the blossoming partnership between the Yorta Yorta peoples and Victoria is concerned. But no doubt the Yorta Yorta peoples’ struggle for justice will continue unabated, until the day comes when they are recognised by all and fully empowered as a peoples with a unique and vibrant cultural identity, not treated as a problem washed away by the ‘tide of history’.

Peter Seidel is a Public Interest Law Partner and Julian Hetyey is a Solicitor with Arnold Bloch Leibler, Lawyers and Advisers. Peter was involved with the co-management regional agreement negotiations.

This article is Part I of a two-part piece on the recent co-management regional agreement between the Yorta Yorta Peoples and the State of Victoria. Part II will discuss the implications of the agreement for the Yorta Yorta peoples, published in the August/September edition of the Indigenous Law Bulletin.


[1] See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538.


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