Ngambri traditional custodians have left open the possibility of a native title claim on Canberra, which would set off a legal process to determine the custodians' connection to the area.
"We'll consider the possibility of using that legal avenue if we have to," said Paul Girrawah House, who this week reached a settlement with the ACT government on a Supreme Court claim the human rights of Ngambri people had been breached.
The government had previously only recognised Ngunnawal people as traditional owners in the ACT, which Ngambri custodians said breached their legal rights.
"I can go back to the Supreme Court chief justice any time if we can demonstrate there's a breach of this deed of settlement and I don't think we're going to breach the deed of settlement because we've been subjugated," Mr House said.
Mr House said the story of the Ngambri people, whose name gave Canberra its name, was one the ACT government should embrace.
The Ngambri custodians ultimately wanted equal recognition with Ngunnawal custodians, not to replace or stop Ngunnawal recognition, he said.
Indigenous Affairs Minister Rachel Stephen-Smith on Friday said decisions of who should be recognised as traditional owners in the territory should be made by those people who have a connection to country.
"Fundamentally, we don't believe that this should be a decision that is made by government or the courts," Ms Stephen-Smith said.
However, Ms Stephen-Smith acknowledged there was potential for matters of recognition to be considered through native title processes.
"What we also know about the ACT, though, is that when it became the capital territory, people were moved off country. And so those continuing connections to the land in the ACT have been broken in most cases," she said.
"So the capacity to actually make the native title claim is potentially quite limited in that regard."
But an Australia Institute paper recommended an analysis of land tenure, suggesting transfers of land in 1911 that formed part of the ACT did not extinguish native title.
Ngunnawal elders consider position
Ngunnawal Elder Aunty Violet Sheridan said Ngunnawal traditional owners would meet to discuss the decision of the ACT government and consider their position and possible next steps.
"We have always enjoyed a long-standing and proud connection to Ngunnawal country. This is the land of our ancestors. We take very seriously out obligation and responsibility as traditional owners and custodians of our lands and culture," Ms Sheridan said in a statement.
"The recent decision by the ACT government doesn't change this.
"We stand united as proud Ngunnawal traditional owners and will continue to do so no matter what decision the ACT government has made."
Ms Stephen-Smith said the government wanted to support a conversation between traditional owners to reach a "position where we can support a self-determined position of the local traditional custodians".
The Indigenous Affairs Minister said it was a "deeply personal and complex issue for traditional custodians".
"The evidence support Ngunnawal traditional custodianship of this land is very strong and we continue to recognise Ngunnawal as traditional custodians," Ms Stephen-Smith said.
Ms Stephen-Smith said it had been a fact for a period of time that people with "traditional connection" the land on which Canberra has been built but did not identify as Ngunnawal traditional owners had been recognised.
An example of this recognition was through their roles in representative Aboriginal organisations under the territory's Heritage Act, she said.
"But the evidence for Ngunnawal custodianship is very strong and we continue to acknowledge Ngunnawal specifically, but also to recognise that there are other families and other people who have a traditional connection to this land who have a different identity," Ms Stephen-Smith said.
Formal recognition
The ACT government formally recognised the Ngunnawal people as the traditional owners of the Canberra area in August 2009, following a request from the United Ngunnawal Elders Council.
"The ACT government's adoption of the use of the term 'Ngunnawal' to identify the traditional custodians of the ACT was based on advice from a special meeting of Ngunnawal community members in May 2002," the protocol adopted at the time said.
The government then advised its ministers and agencies of the policy in light of "one family group renam[ing] itself from 'Ngunnawal' to 'Ngambri'" since the 2002 meeting without providing "evidence to support the claim that it is the sole traditional custodian group in the ACT".
"In light of a lack of evidence to the contrary, the ACT government continues to recognise the Ngunnawal as the traditional custodians of the ACT and surrounding region and does not formally recognise any other groups," the advice said.
The interim protocol acknowledges the right of Aboriginal people to self determination and "re-emerging knowledge" about their history and connections with the land.
"The territory acknowledges that those identifying as Ngambri (Kamberri) have determined they are traditional custodians of land within the ACT and surrounding region," the interim protocol said.
The Ngunawal Traditional Owners Network began work on a fresh native title claim last year.
Two separate undetermined native title claims over the ACT were discontinued after the ACT entered an agreement with the claimants over the Namadgi National Park in April 2001.
Mr House's Supreme Court action under the Human Rights Act relied in part on work prepared by Ann Jackson-Nakano, a researcher who compiled histories of Indigenous people in the Canberra area beginning in the early 1990s, who found Ngambri people could demonstrate their connections to the land where Canberra is now.
An expert witness report prepared by Dr Ed Wensing, filed as part of the claim, endorsed the conclusions reached by Ms Jackson-Nakano, who died in 2021.
Dr Wensing, an honorary research fellow at the Centre for Aboriginal Economic Policy Research at the Australian National University who has worked extensively in areas including planning and native title, wrote that he agreed with Ms Jackson-Nakano's conclusions based on an assessment of her research material held by the National Library.
"The Ngambri can demonstrate their ancestral connections to the Aboriginal people that were occupying the lands that now comprise the ACT at the time when the first Europeans arrived in the 1820s and are the real and original traditional owners of the ACT and surrounds," Dr Wensing wrote in the report, seen by the The Canberra Times.
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