The ACT government has breached a settlement agreement made with Ngambri custodians after not having completed promised reviews of Indigenous policies.
Ngambri custodians Paul Girrawah House and Leah House took the territory government back to the ACT Supreme Court earlier this year.
While they were successful in arguing it had not upheld the agreement made three years prior, claims the government had violated their human rights by failing to recognise the Ngambri people as traditional owners of the Canberra area were dismissed on Friday, October 2.
In April 2023, the ACT government agreed to undertake a "comprehensive review" of its Indigenous recognition policies "as part of a wide-reaching consultation process with First Nations peoples".
It also agreed to perform a review of ACT legislation "to facilitate a modern and contemporary use of language" in relation to First Nations peoples.
The settlement deed included the government adopting an acknowledgment of country that, in addition to the Ngunnawal people, recognised "other people or families with connection to the lands of the ACT and region".
Members of the Ngambri first filed a claim in 2022 against the government's "one-tribe policy", which states Ngunnawal people are the traditional custodians.
The policy "acknowledges that other people and families also have a traditional connection to the lands of the ACT and region and we respect this connection to country".
The ACT government adopted the policy to recognise only Ngunnawal people as the traditional custodians in 2002.
On Friday, Justice David Mossop determined that there was an implied term in the 2023 settlement agreement that "the obligations be carried out within a reasonable time" and this had not occurred.
"It is clear that the territory has not performed the obligation within a reasonable time," Justice Mossop said.
"The steps necessary to perform the obligation could readily have been commenced within a matter of months of the entry into the settlement deed.
"Even allowing for a protracted process, the obligations could have been completed before now."
The judge determined that while it was "understandable" the ACT government wanted "some degree of consensus between Aboriginal groups identifying as traditional custodians", it did not detract from the settlement obligations.
Both Mr House and a group of Ngunnawal people have flagged separate plans to lodge native title claims on the ACT.
Justice Mossop dismissed the claim that the Ngambri people had been discriminated against in their enjoyment of cultural rights as traditional owners, because the ACT government "treated their cultural identity differently to that of the Ngunnawal".
While he found that "there can be no doubt that in certain respects the territory treats those people identifying as Ngambri in a manner that is different to those identifying as Ngunnawal", it did not amount to denying cultural rights in the context of the settlement.
The judge said no evidence had been provided to the court that proved an "unjustified distinction" had been drawn between the two Indigenous groups by the ACT government.
The case is set to return next month for the parties to make submissions on what relief will be sought.
