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Explanatory information and documents for:

  • Process for Routine activities
  • Process for Advisory activities
  • Process for Negotiation activities
  • Process for Agreement activities

See the LUAA Contacts page for information about how to contact the Taungurung Land and Waters Council (TLaWC).

Process for Routine activities

For Routine activities there is no requirement to notify TLaWC. The activity may proceed immediately.

Decision Makers are encouraged to discuss the categorisation of the activity with TLaWC if there is any doubt.

In any case, Decision Makers are encouraged to make appropriate records of their assessments that certain activities are Routine. These could be called upon in an audit of LUAA assessments, or if TLaWC were to apply to VCAT for a determination on the classification of a land use activity.

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Process for Advisory activities

Advisory activities require notification of TLaWC and, depending on TLaWC’s response, a consultation process.

Ministerial Directions As To Advisory Activities (made by the Attorney-General on 7 August) specify minimum standards for the notification and consultation process. These include a 28-day minimum period to allow TLaWC to respond.

Document templates have been developed to assist with meeting these requirements, but use of the templates is not mandatory.

The Directions also encourage Decision Makers to exceed the minimum standards. That is, to go beyond formal procedures and to establish a relationship between Parties that is flexible enough to respect and accommodate the needs of each party.

As with any decision affecting people’s rights, Decision Makers for Advisory activities under the LUAA must also observe the principles of natural justice.

This table suggests a step by step approach that meets (and in some steps exceeds) the minimum standards. It is intended as a guide, noting that the steps may be adapted to meet the circumstances of each Advisory process.

Supporting documents for Advisory activities are available for downloading below.

Step Process for Advisory activities

1.

 

Notify TLaWC of the proposed activity

2. Await response from TLaWC until the date specified in your notice (minimum 28 days).

3. 

If no response received, or a response with no objection or comments: the activity can proceed.

You are encouraged to confirm by email or letter that you are proceeding.

4. 

If comments or requests received: acknowledge the comments or requests in writing.

Respond to the requests and actively consider the comments. Where appropriate, discuss those comments, and possible ways to resolve issues with TLaWC

5. 

Make your decision, taking relevant comments into account, as part of a process based on the principles of natural justice.

6. 

Record your decision, and notify TLaWC.

Templates and supporting documents for Advisory activities

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Process for Negotiation activities

Negotiation activities require notification of TLaWC and good faith negotiations. VCAT can adjudicate if agreement cannot be reached.

The minimum content of the notification is set out in the Traditional Owner Settlement Regulations 2017 (External link)

Document templates are available at the bottom of the page to assist with meeting these requirements, but organisations may develop their own documents that meet the minimum requirements.

Good faith negotiations

The Traditional Owner Settlement Act 2010 includes a requirement for both parties to negotiate in good faith (s.50).

The term ‘good faith’ is not defined in the Act, but an explanatory guide is available in the downloads section below. ‘Good faith’ does not require Decision Makers or Responsible Persons to negotiate under the LUAA in relation to cultural heritage protection, as this is managed under separate processes.

VCAT may make a determination as to whether or not either party has met the requirement for good faith.

Community Benefits

The State has agreed to provide Community Benefits for Negotiation activities according to formulas in Schedule 7 of the LUAA whenever the State, or a State agency:

  • is the Responsible Person, or
  • issues a Public Land Authorisation (PLA).

These formulas calculate the monetary value of the Community Benefits based on a percentage of value of the land, rent received, etc. Land values are determined by the Valuer-General of Victoria. The State may negotiate to provide some or all of the community benefits in non-monetary form, by agreement with TLaWC.

When the Responsible Person is anyone other than the State, and the State is not issuing a PLA, these formulas do not automatically apply.

In those negotiations, the Responsible Person and TLaWC may agree to adopt the formulas, or not. They must negotiate the value of any Community Benefits, and whether they will be provided in monetary or non-monetary form.

Role of VCAT

If the parties are unable to reach agreement on all matters, after 6 months of good faith negotiating, either party may apply to VCAT for a variety of orders to resolve the dispute.

Steps in the process

This table suggests a step by step approach that is consistent with the LUAA, the Act and its Regulations. It sets out the roles of the:

Supporting documents for Negotiation activities are available for downloading at the bottom of the page.

Step Process  for Negotiation activities
1.

DM identifies whether it, or another person, is the Responsible Person (RP).

DM also identifies who is responsible for Community Benefits.

DM explains the RP’s obligations under the LUAA to the relevant person (DM’s employee or external RP).

2.  RP notifies TLaWC of the proposed activity
3. RP negotiates in good faith with TLaWC regarding the activity – whether it may proceed, and on what conditions.

If a State agency or VicForests is the RP, or is issuing a PLA, it also negotiates whether the Community Benefits payable under LUAA Schedule 7 will be paid in cash, in kind, or in some combination.

If the RP is another statutory authority, a local government, or an applicant for an Earth Resources Authority, it negotiates with TLaWC to be provided for the Taungurung community

4. If agreement is reached, the RP provides evidence of the agreement to the DM. The activity can now proceed (in accordance with any standard or agreed conditions).
5. If agreement cannot be reached, after 6 months of negotiation in good faith, the RP may apply to VCAT for an order.
6. RP pays TLaWC’s reasonable costs of negotiating, regardless of the outcome.

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Process for Agreement activities

Agreement activities require notification of TLaWC and good faith negotiations, as for Negotiation activities. However, the activity cannot proceed unless and until TLaWC agrees. There is no appeal to VCAT if agreement cannot be reached.

Notification

The minimum content of the notification is set out in the Traditional Owner Settlement Regulations 2017 (External link)

Document templates are available at the bottom of the page to assist with meeting these requirements, but organisations may develop their own documents that meet the minimum requirements.

Responsibility for negotiation and Community Benefits

For most Agreement activities, the Decision Maker is also the Responsible Person (RP). However, where the activity is the granting of a lease for more than 21 years for commercial purposes, the applicant for the lease is the Responsible Person.

For all Agreement activities where a State agency is the Decision Maker, including where it issues such a lease, it has agreed to provide Community Benefits according to formulas in Schedule 7 of the LUAA. The State may negotiate to provide some or all of the community benefits in non-monetary form, by agreement with TLaWC.

If a local government, statutory authority or other non-State body is the Decision Maker, these formulas do not automatically apply. The Decision Maker and TLaWC must reach agreement about the value of the Community Benefits, and whether they will be provided in monetary or non-monetary form.

Steps in the process

This table suggests a step by step approach that is consistent with the LUAA, the Act and its Regulations.

It sets out the roles of the:

Supporting documents for Agreement activities are available for downloading at the bottom of the page.

Step Process for Agreement activities
1

DM identifies whether it, or another person, is the Responsible Person (RP). 

DM also identifies who is responsible for Community Benefits.

DM explains the RP’s obligations under the LUAA to the relevant person (DM’s employee or external RP).

2 RP notifies TLaWC of the proposed activity.
3 RP negotiates in good faith with TLaWC regarding the activity – whether it may proceed, and on what conditions.

If a State agency is the RP, or is issuing a PLA, it also negotiates whether the Community Benefits payable under LUAA Schedule 7 will be paid in cash, in kind, or in some combination.

If the RP is another statutory authority or a local government, it negotiates with TLaWC the Community Benefits to be provided for the Taungurung community.

4.

If agreement is reached with TLaWC, the RP provides evidence of the agreement to the DM. The activity can now proceed (in accordance with any standard or agreed conditions).

5. If agreement is not reached, the activity cannot proceed.
6. RP pays TLaWC’s reasonable costs of negotiating, regardless of the outcome.

Templates and supporting documents for Negotiation and Agreement activities

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