The four elders' case against the Taungurung Land and Waters Council, the State of Victoria and the Native Title Registrar was about the process by which an Indigenous Land Use Agreement was registered.

The boundary of the area in question sits near Rochester, Goornong, and Heathcote.

Each claim to hold native title in part of the area claimed by the Taungurung council under the agreement.

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But Taungurung Land and Waters Council representatives say they are confident the group's land use agreement would be registered once appropriate matters had been considered.

Federal Court judge Debra Mortimer upheld an application for a judicial review of a decision made by a delegate of the Native Title Registrar in April 2020 to register the Taungurung Settlement Indigenous Land Use Agreement.

The case was brought by four objectors - Margaret Gardiner, Gary Murray, Vincent Peters and Elizabeth Thorpe - against the Taungurung Land and Waters Council, the State of Victoria and the Native Title Registrar.

Justice Mortimer concluded there were jurisdictional errors in the registration of the Taungurung Land and Waters Council's Indigenous Land Use Agreement by the Native Title Registrar. Justice Mortimer said these "reveal sufficiently material and significant errors of law by the delegate that the registration decision cannot be said to be a lawful discharge of her function".

Justice Mortimer upheld two of the applicants' grounds for objection to the registration. One, that the Native Title Registrar Delegate asked herself the wrong questions by accepting First Nations' Legal's reliance on its database of more than 150 people, when there was a "live and central factual issue" to determine.

The objectors argued the database overlooked some people who reasonably claimed to hold native title rights and interests over part of the area subject the ILUA.

The second ground was that the delegate failed to engage with affidavit evidence from the objectors prior to registration, categorising it as "assertions" when it was in fact "sworn evidence" she was bound to take into account.

Justice Mortimer said raised a serious question about the composition process of the "apical ancestor list" in the ILUA, which was critical because rights and interests in land were acquired by descent.

She said parts of the affidavit evidence presented quite a different account of the efforts made by legal representatives to identify all persons who hold or may hold native title over an area. Justice Mortimer said this could not be dismissed without consideration.

The Native Title Act 1993 states a representative body must have made all reasonable efforts to identify people who hold or may hold native title in an area covered by an Indigenous Land Use Agreement, before certifying the application. All persons identified must also have authorised the making of the agreement, the act states.

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The ILUA agreements provide for the surrender of native title over an area, and the extinguishement of that title.

The applicants Margaret Gardiner, Gary Murray, Vincent Peters and Elizabeth Thorpe each claimed to hold native title in part of the ILUA area.

The Federal Court proceedings took place concurrently with a Supreme Court of Victoria case, in which three of the four applicants disputed that the Taungurung were the correct traditional owners and native title holders of the entire area covered by the recognition and settlement agreement. In August 2020 the Supreme Court proceeding was stayed until after the Federal Court determination.

Objector Gary Murray - a member of the Dja Dja Wurrung, Yorta Yorta and Dhudhuroa Waywurru people - said it was unprecedented for a group of elders, pensioners and retirees to take on the state, the native title representative body, the First Nations' Legal Service and the Taungurung Land and Waters Council.

Mr Murray said now the Federal Court case was complete, they hoped to get back into the Victorian Supreme Court on other matters.

He said the objectors' issue with the ILUA was that it misrepresented country, ancestors and their dependents.

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Mr Murray said the ILUA as it stood was a tool to extinguish native title under the act, beyond the Taungurung core country.

TLWC chief executive Matthew Burns said the Federal Court decision would just make things more complex for the organisation in the short term.

Mr Burns said the frustration was that the decision meant it was a longer process towards finalising the ILUA in its entirety.

He said the TLWC was confident registration of the ILUA would occur, saying it was most likely the judge would refer the matter back to the Native Title Tribunal to consider the matters which weren't considered appropriately.

Mr Burns said the TLWC was open and happy for scrutiny about the merits of the agreement, because they knew they were the right people for the country.

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