The following information will help local governments to understand and carry out their obligations under the Dja Dja Wurrung Land Use Activity Agreement (LUAA).
Other land managers may find this information helpful, but some aspects of the LUAA that are not relevant to local government are not explained here.
This is general information and not legal advice.
The Land Use Activity Agreement (LUAA) is part of the broader Settlement Package with the Dja Dja Wurrung that commenced on 24 October 2013. In that package, the Dja Dja Wurrung people agreed not to pursue the legal recognition of native title rights that they may hold through the national native title process, in return for a package of agreements, including the LUAA.
These agreements are legally binding on the State of Victoria, including government agencies, and on the Dja Dja Wurrung Clans Aboriginal Corporation (DDWCAC) as the representative body of the Dja Dja Wurrung people.
The Traditional Owner Settlement Act 2010 requires that proposed activities on public land (often called ‘Crown’ land) must comply with the LUAA. Part 4 of the TOS Act, as well as the LUAA, sets out the processes that managers of public land must follow when wishing to deal with, or carry out works on that land. These processes are simpler and more streamlined than the equivalent processes under the Native Title Act, benefiting both parties.
The LUAA gives strong procedural rights to the Dja Dja Wurrung when proposed activities have a greater impact on their rights as recognised Traditional Owners. DDWCAC gets lesser or no procedural rights when the impact is lower. These procedural rights are separate from any requirements that may arise under the Aboriginal Heritage Act.
Consider these three hypothetical examples.
Example 1: Routine activity
A local government wishes to carry out mowing, fence repair and other maintenance works on a recreation reserve. These are Routine activities under the LUAA, and may proceed without notifying the DDWCAC.
Example 2: Advisory activity
A new picnic area is planned for an existing recreation reserve, including tables and a toilet block.
The Council has already developed an appropriate Cultural Heritage Management Plan for this site.
These works are Advisory activities under the LUAA, so the council must consult DDWCAC before finalising whether and how to go ahead with the works.
This consultation process leads to an agreement about the name of the new picnic area and a sign that explains the name’s significance.
Example 3: Negotiation activity
The other end of the reserve is to be developed as a football oval, requiring levelling of the surface and construction of a grandstand.
This is a Negotiation Activity (Class B) under the LUAA. Council negotiates with DDWCAC, leading to an agreement to use a Dja Dja Wurrung contractor for some of the works, and to provide community benefits through DDWCAC. As a matter of convenience, the parties also use these negotiations to address the cultural heritage protection requirements that will apply to this project.
A new relationship
Local governments regularly seek to consult with stakeholders in their communities, including Aboriginal people. However, the Recognition and Settlement Agreement established a different kind of relationship between government and the Dja Dja Wurrung people:
"This Recognition and Settlement Agreement binds the State of Victoria and the Dja Dja Wurrung People to a meaningful partnership founded on mutual respect.
It is a means by which Dja Dja Wurrung culture and traditional practices and the unique relationship of Dja Dja Wurrung People to their traditional country are recognised, strengthened, protected and promoted, for the benefit of all Victorians, now and into the future.”
Recognition Statement, 2013 (emphasis added)
Land managers should interpret the provisions of the LUAA consistently with this commitment to a “meaningful partnership founded on mutual respect”. For example, local governments and other land managers have engaged in dialogue with the DDWCAC when questions of interpretation have arisen, rather than seeking advice from lawyers on how to minimise their compliance.
The compliance process
All Crown land managers (including local governments) must ensure that they are complying with the LUAA in relation to land that they manage.
Who exactly is responsible for complying with the LUAA?
Under the Traditional Owner Settlement Act, the responsibility for ensuring LUAA compliance falls on the person or organisation that is the “decision maker” for the land. This is usually the land manager.
Where a local council is empowered to issue permits or carry out works on land, that council must determine what (if any) processes the LUAA requires before taking that action. For the kinds of land use activities typically undertaken by local councils, the council is also required to conduct any required notification, consultation or negotiation processes.
If a committee of management is legally delegated to make decisions or carry out works on its own authority, then it is the “decision maker” and has the legal responsibility to comply with the LUAA. In practice, local councils may wish to assist committees of management to understand and/or carry out their responsibilities.
Where a council is involved in a project that requires authorisation by DELWP or another department, then that department may be the relevant “decision maker” – and thus responsible for assessing and carrying out LUAA processes. Of course, it will assist council’s planning to be aware of the likely LUAA requirements from an early stage, even if a department will bear the legal responsibility.
The Act also refers to a “responsible person”, responsible for carrying out negotiations and paying any agreed amounts. For most if not all Negotiation activities relevant to local councils – typically major public works for which council is the decision maker – council will be responsible for conducting the negotiations itself.
If the DDWCAC believes that the LUAA has not been complied with, it can seek orders from the Victorian Civil and Administrative Tribunal (VCAT). VCAT can determine, or order:
- whether a land use activity was correctly classified
- whether negotiations were in good faith
- whether the reasonable costs of negotiation (which must be reimbursed to the DDWCAC) were correctly calculated
- to stop, not start, cancel or suspend a land-use activity (including interim enforcement orders in urgent cases)
- to restore land as nearly as practicable to its condition immediately before the land use activity started.
Two key questions
To determine what (if anything) the LUAA requires before a land manager can carry out a “land use activity” on Crown land, there are two main questions.
- Does the LUAA apply to this land?
- Is the land “public land” (reserved or unreserved Crown land)?
- Is it within the LUAA area?
- Is it excluded from the operation of the LUAA for one of several listed reasons, including the existence of certain kinds of infrastructure?
- What kind of activity is it?
- Routine: No action needed
- Advisory: Notification and consultation process
- Negotiation: Negotiation process. VCAT and the minister can break deadlocks after 6 months
- Agreement: Negotiation process. The activity can only proceed with DDWCAC agreement; this category is unlikely to be relevant to decisions within local government jurisdiction
Each type of activity has specific processes, together with mandatory or recommended templates, which are explained on What's the process.