The Land Use Activity Regime is a simplified alternative to the future acts regime of the Native Title Act 1993 (Commonwealth). It will provide procedural rights for recognised traditional owner groups over certain land use activities that occur on areas of public land.  The objective is to enable these land use activities to proceed whilst accommodating third party interests and respecting the Traditional Owner (TO) rights attached to the public land.

The Land Use Activity Regime is enabled by Part 4 of the Traditional Owner Settlement Act 2010 (TOS Act) and given effect through a Land Use Activity Agreement (LUAA). A LUAA can be entered into by the Attorney-General, on behalf of the State, and a traditional owner group entity (corporation), on behalf of a traditional owner group.A LUAA is to be accompanied by an Indigenous Land Use Agreement, which provides for the ‘contracting out’ of the Native Title Act processes.

A LUAA classifies land use activities into one of four categories, each attracting different procedural rights:

• Routine activities – no procedural rights apply;
• Advisory activities – notification and consultation required before activity proceeds;
• Negotiation activities (A & B) – agreement required before activity proceeds, with ability to apply to the Victorian Civil and Administration Tribunal for a determination;
• Agreement activities – agreement required before activity proceeds.

A Land Use Activity Agreement (LUAA) can only apply over public land as defined in section 3 of the TOS Act.  This includes land under the Crown Land (Reserves) Act 1978, Alpine Resorts Act 1983, National Parks Act 1975, Forests Act 1958, Land Act 1958, and theWildlife Act 1975. It does not include land vested in a public authority, or freehold land.

Specifically, the procedural rights will apply to Agreement Land (as in s 27 of the Act), which must be clearly defined in a LUAA. All public land where the traditional owner rights of a traditional owner group are recognised (in a Recognition and Settlement Agreement) will be included as Agreement Land, subject to a number of exclusions, including:

• Land where there is existing infrastructure (as defined in the draft LUAA Template);
• Land where there is a specific planned future use, subject to criteria included in the draft LUAA Template; and
• Any other land that the State at the time of entering into a LUAA, wishes to exclude from the operation of the LUAA and on which agreement is reached to exclude that land.

The procedural rights under the Land Use Activity Regime will only apply to those activities that are listed in a LUAA.  The draft LUAA Template provides this list and their classification into one of four categories. The final listing and classification is subject to negotiation.

To be listed in a LUAA, an activity must be defined as a land use activity in section 28 of the TOS Act.  Some subsets of these land use activities are excluded from the operation of the Regime as a matter of policy. These are listed in the draft LUAA Template, and include:

• Commercial Crown land leases in the Alpine Resorts;
• Activities or classes of activities that are consistent with a joint management plan;
• Activities that are undertaken pursuant to an existing authorisation (e.g. Crown land lease, mining licence), or pursuant to an authorisation that has been carried out in accordance with the requirements of a LUAA.

Existing interests will not be affected by a LUAA, for example, an existing Crown land lease, or the State’s right to harvest native timber from State forests.

Each LUAA will be published on a public register – the Register of Land Use Activity Agreements. Key information will include:

• The area of land to which the agreement applies (Agreement Land);
• The list of land use activities to which the LUAA applies, and their classification;
• Contact details for the traditional owner group entity (corporation) for the purpose of notification, consultation or negotiation (as applicable).

The requirements for the Negotiation and Agreement categories of land use activities are detailed in Division 3 of Part 4 of the Act. The requirements for Advisory activities will be detailed in Ministerial directions, a draft of which is included in the draft LUAA Template. 

The Land Use Activity Regime should provide efficiencies and a simpler more streamlined approach to procedural rights over activities on Crown land where traditional owner rights may be impacted. In particular:

• The Land Use Activity Regime has only four categories of land use activities, as compared to ten under the future acts regime;
• There is no process required for assessing what category a land use activity falls in, and therefore what procedural rights apply to an activity;
• The procedural rights for an activity are not affected by the tenure of the land;
• There is no need to assess whether or not native title has been extinguished;
• The traditional owners and their representative organisation will be clearly identified, and they will be resourced to provide responses to notifications and other requests;
• There will be standard terms and conditions available for low impact earth resource activities (i.e. exploration), which mean industry does not need to negotiate;
• The State will take on responsibility to negotiate agreement to the sale of Crown land and for paying community benefits for those sales, along with the leasing of Crown land and activities where it is the responsible person;
• Aboriginal cultural heritage obligations will be dealt with under the Aboriginal Heritage Act 2006, and there will be no duplication or inconsistency;
• Parties to a Negotiation activity can seek a determination from the Victorian Civil and Administrative Tribunal, and the Minister has powers to require a decision by a certain time, or make his or her own determination (in certain circumstances).

At this stage, the State intends to negotiate towards Land Use Activity Agreements with three traditional owner groups:

• The Gunaikurnai Peoples of Gippsland;
• The Dja Dja Wurrung Peoples, covering an area around Bendigo; and
• The Wadi Wadi Barapa Barapa Wamba Wamba Peoples in the North-west of the State.

These Land Use Activity Agreements would not come into operation until some time in 2013. The future acts regime will continue to operate up until it is replaced by the LUAR.

The Government will be developing detailed practitioner guidelines, establishing the Register of Land Use Activity Agreements and developing regulations regarding negotiation costs, to be in place before an Agreement comes into operation. The development of the practitioner guidelines will provide further detail on the implementation and operation of the Land Use Activity Regime, and will be accompanied by a communication program.

Yes, as part of the negotiation of any LUAA, the State will consult with affected industries and other third parties to ensure that transitional arrangements are appropriate. There will also be consultation during the development of regulations regarding negotiation costs.