Insufficient proof of ongoing traditional connection defeats a bid to establish rights
The Federal Court has ruled that the Gunditjmara People did not prove they hold native title over a disputed stretch of south-western Victoria.
In Austin on behalf of the Eastern Maar People v State of Victoria (No 3) [2026] FCA 1054, handed down on 30 July 2026, the court answered a set of preliminary questions in two competing claims over an area between the Shaw River and the Hopkins River, taking in Warrnambool and nearby towns.
The preliminary questions concerned only the Gunditjmara claim, filed in October 2022. The court said the group had to prove that it was more likely than not that its people had kept observing their traditional laws and customs, without any substantial break, since British settlement, and so still held a connection to the disputed area under s. 223(1) of the Native Title Act 1993 (Cth) (the Act).
The court found the evidence fell short. It said the group did not show that its members had continued to observe those laws and customs in relation to the disputed area, or that their connection to it had been substantially maintained.
The court noted that the claim changed significantly during the case. By the time of final submissions, the group accepted that a neighbouring group, the Eastern Maar Peoples, was the appropriate land-holding group for the area, and pressed a narrower claim to enter the area and take its resources.
The court said it preferred the evidence given by the Eastern Maar group, which opposed the claim. It added that the lack of Gunditjmara evidence was not simply because "the tides of time" had erased it, because the Eastern Maar witnesses gave persuasive evidence of their own connection to the land.
The court accepted the Gunditjmara had already been recognised as holding native title in neighbouring areas to the west, in agreed outcomes reached in 2007 and 2011. It said its role was not to be "the arbiter of history" but to decide, on the evidence, what was more likely than not.
Because the answer to the first question was no, the court did not need to decide the second, which concerned the extent of any rights. The court said the matter would return for a hearing to decide how it should proceed.
