The Victorian Traditional Owner Settlement Act 2010 (the Act) provides for an out-of-court settlement of native title. The Act allows the Victorian Government to recognise traditional owners and certain rights in Crown land. In return for entering into a settlement, traditional owners must agree to withdraw any native title claim, pursuant to the Native Title Act 1993 (Cth) and not to make any future native title claims.
Under the Act, a settlement package can include:
- a Recognition and Settlement Agreement to recognise a traditional owner group and certain traditional owner rights over Crown land
- a Land Agreement which provides for grants of land in freehold title for cultural or economic purposes, or as Aboriginal title to be jointly managed in partnership with the state
- a Land Use Activity Agreement which allows traditional owners to comment on or consent to certain activities on public land
- a Funding Agreement to enable traditional owner corporations to manage their obligations and undertake economic development activities
- a Natural Resource Agreement to recognise traditional owners' rights to take and use specific natural resources and provide input into the management of land and natural resources.
Under the Act, the State Government decides whether to enter into a settlement with a particular group. The group must meet the definition of 'traditional owner group' under the Act.
Under s78(2) of the Act, the Attorney-General approve payments into the Victorian Traditional Owners Trust
Aboriginal community views
Do Victorian traditional owners support the Act?
The Act was developed in close consultation with Victorian traditional owners through their representative organisation, the Victorian Traditional Owner Land Justice Group.
Victorian traditional owners have long been advocating for an alternative approach to resolving native title claims in Victoria. The Victorian Traditional Owner Land Justice Group was an active participant on the steering committee that developed the foundations of the policy. In February 2009, members of the group unanimously endorsed the recommendations in the steering committee’s report.
The subsequent policies that underpin the legislation have been developed in close collaboration with the Victorian Traditional Owner Land Justice Group and Native Title Services Victoria, the native title representative body in Victoria.
Will Aboriginal groups, for example housing and health cooperatives, lose their rights and responsibilities?
Settlements are only available to groups who can demonstrate they can include all traditional owners for an agreement area. Inclusiveness is important in giving certainty and finality to the resolution of native title.
Other Aboriginal community organisations that deliver services to Aboriginal Victorians, including health and housing cooperatives, will not be affected in any way by settlements.
Consultation with community and business
To inform the steering committee’s report, briefings and consultations were undertaken with a wide range of peak industry stakeholders. These included the Victorian Division of the Minerals Council of Australia, the Victorian Farmers Federation, Tourism Victoria, Victorian Association of Forest Industries and Seafood Industry Victoria. Other stakeholders consulted were the Victorian Equal Opportunity and Human Rights Commission and the Victorian National Parks Association. All of these groups expressed strong support for the steering committee’s recommendations for an alternative, quicker and fairer way to resolve native title in Victoria.
Peak industry groups have been consulted in the subsequent development of key policies that underpin the Act. One of these policies is the Land Use Activity Regime Policy, which is the state’s alternative to the future acts regime outlined in the Native Title Act and affects those wanting to undertake activities on Crown land.
Impacts on business
How does the new Act affect those wanting to undertake activities on Crown land?
In a similar way to the Native Title Act, the Act provides a system for negotiating or consulting about activities on Crown land that is subject to a settlement. These negotiations take place if the government and a traditional owner group have entered into a Land Use Activity Agreement (LUAA) as part of the settlement package.
A LUAA replaces the future acts regime outlined in the Native Title Act. A LUAA defines how public land managers and businesses should negotiate with traditional owners about activities that may have a substantial impact on traditional owner rights as recognised in a settlement. Each LUAA will specify exactly which activities will trigger its application.
The first (and currently only) LUAA between the State and the Dja Dja Wurrung Clans Aboriginal Corporation commenced on 25 October 2013. For further information, go to Dja Dja Wurrung Land Use Activity Agreement.
Will businesses be required to manage two systems: one under the Native Title Act and one under the Traditional Owner Settlement Act?
No. Until a settlement is reached under the Act, the Native Title Act continues to apply. At no time will land be subject to both regimes. The government maintains a Register of Land Use Activity Agreement so businesses can clearly identify which land is covered by a settlement.
Will there be double handling of approvals processes under the Act and the Aboriginal Heritage Act?
No. The Act ensures that those traditional owners that enter into a settlement with the state under the Act are the same traditional owner groups that have cultural heritage responsibilities under the Aboriginal Heritage Act 2006 (Vic). All issues relating to Aboriginal cultural heritage are subject to separate processes established through the Aboriginal Heritage Act.
Do traditional owners need to be notified about activities?
Activities that have little or no impact on the land and traditional owner rights are categorised under a LUAA as 'advisory activities'. Decision-makers or public land managers will need to notify the relevant traditional owner group about any advisory activity before it commences, but there is no obligation for them to negotiate.
Advisory activities include applications for:
- licences for forest produce
- new community leases for 21 years or less
- new commercial leases for 10 years or less
- licences for extractive materials (e.g. gravel, limestone, sand or salt)
- new agricultural leases of 40 hectares or less
- prescribed fire burning and non-emergency fire prevention works
- regeneration works
- bee farming licences
- changes to the status of Crown land
- construction of sports facilities, car parks, jetties and walking tracks.
For a full list of advisory activities, and more information on the application of Land Use Activity Regime, see Schedule 3 of the Draft Land Use Activity Agreement Template.
What activities require negotiation with traditional owners?
Activities that will substantially change the use of land in which traditional owners have a significant interest, or which will impact significantly on traditional owner rights, must be negotiated with traditional owners. These activities are categorised under a LUAA as 'negotiation activities'.
If an agreement cannot be reached through negotiation, either the traditional owner group or the activity’s sponsor can appeal to the Victorian Civil and Administrative Tribunal (VCAT). VCAT will then determine if the activity should proceed and, if so, under what conditions.
Negotiation activities include:
- major activities that affect Crown land (such as new gravel reserves declared by a council under a planning scheme)
- new commercial leases for more than 10 but less than 21 years (excluding major public works and public-private partnerships)
- earth resource or infrastructure authorisations.
There are certain types of negotiation activity that VCAT does not have the authority to stop, but upon which it may place conditions. These activities include new agricultural leases of more than 40 hectares and the construction of:
- major public works that will benefit all Victorians
- new roads, railway track or bridges
- major public recreation facilities
- infrastructure by private utility companies.
For a full list of negotiation activities, or for more information on the application of Land Use Activity Regime, see Schedule 3 of the Draft Land Use Activity Agreement Template.
Do any activities require agreement from traditional owners before they can go ahead?
Some activities that have a significant impact on traditional owner rights cannot go ahead without the consent of the traditional owner group. These are equivalent to those activities that the state could not do on freehold land without the consent of the owner.
Activities which cannot proceed without the consent of the relevant traditional owner group are termed 'agreement activities'. Such activities include:
- the sale of Crown land for private purposes
- new commercial leases for more than 21 years (excluding major public works and utilities and Public Private Partnerships)
- major works or clearing of land for commercial purposes.
For a full list of agreement activities, and more information on the application of the Land Use Activity Regime, see Schedule 3 of the Draft Land Use Activity Agreement Template.
Land Use Activity Regime
The Land Use Activity Regime is a simplified alternative to the future acts regime of the Native Title Act. It provides procedural rights for recognised traditional owner groups over certain activities that occur on public land. The objective is to enable these activities to proceed, while accommodating third party interests and respecting the rights of traditional owners attached to the public land.
The Land Use Activity Regime is enabled by Part 4 of the Act and is 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 or corporation (on behalf of a traditional owner group). A LUAA must be accompanied by an Indigenous Land Use Agreement, which provides for the ‘contracting out’ of Native Title Act processes.
Where does the Land Use Activity Regime apply?
Currently, there are two Land Use Activity Agreements:
- one between the State and the Dja Dja Wurrung Clans Aboriginal Corporation, which commenced on 25 October 2013
- the other between the State and the Taungurung Land and Waters Council Aboriginal Corporation, which commenced on 11 August 2020.
. For detailed maps of these agreement areaa, go to:
A Land Use Activity Agreement (LUAA) applies only over public land as defined in section 3 of the Act. This includes land under the Crown Land (Reserves) Act 1978 (Vic), the Alpine Resorts Act 1983 (Vic), the National Parks Act 1975 (Vic), the Forests Act 1958 (Vic), the Land Act 1958 (Vic), and the Wildlife Act 1975 (Vic). A LUAA does not apply to land vested in a public authority or over freehold land.
Specifically, the procedural rights will apply to public land within the agreement area (as defined in a LUAA), with the exception of a number of exclusions, including:
- land where there is existing infrastructure (as defined in the LUAA Template)
- land where there is a specific planned future use (subject to criteria included in the LUAA Template)
- any other land that the state, at the time of entering into a LUAA, wishes to exclude from the operation of the LUAA (as agreed to by the traditional owner group).
What activities does the Land Use Activity Regime apply to?
The procedural rights under the Land Use Activity Regime will only apply to those activities that are listed in a LUAA. The LUAA Template provides this list and classifies activities into one of four categories (routine, advisory, negotiation [class A or class B], and agreement activities). 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 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 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.
How will I know if my proposal is subject to a Land Use Activity Agreement?
Each LUAA is published on a public register – the Register of Land Use Activity Agreements. Currently, the Dja Dja Wurrung LUAA and the Taungurung LUAA are the only LUAAs entered on the Register. Key information on the Register includes:
- the area of land to which the agreement applies (‘agreement land’, as defined in section 27 of the Act)
- 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 government has established the Register of Land Use Activity Agreements. Information on the register is available at Register of Land Use Activity Agreements.
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 LUAA Template.
Ministerial directions as to advisory activities for the Dja Dja Wurrung LUAA were issued by the Attorney-General on 24 October 2013 and are available at Dja Dja Wurrung Land Use Activity Agreement.
Ministerial directions as to advisory activities for the Taungurung LUAA were issued by the Attorney-General on 7 August 2020 and are available at Taungurung Land Use Activity Agreement.
What are the reasonable costs of negotiating?
Section 50 of the Act requires a person seeking to undertake a negotiation or agreement activity on agreement land to reach agreement with the traditional owner group entity as to whether the activity can proceed. According to section 52(2) of the Act, the reasonable cost of negotiating under a LUAA is to be "...calculated as prescribed by the regulations".
On 29 September 2015, the Governor in Council made the Traditional Owner Settlement (Negotiation Costs) Regulations 2015 (the Regulations) . The Regulations provide that the traditional owner group entity is to calculate the reasonable cost of negotiating by specifying any decision-making costs, professional services costs and travel costs in Form 1 of the Regulations.
Requirements for notifying a Negotiation or Agreement activity; and for enforcement orders
The Traditional Owner Settlement Regulations 2017 prescribe the matters which must be addressed by the Responsible Person in notification of a Negotiation land use activity or an Agreement land use activity.
They also specify that an objection to an application for an enforcement order may be made within 15 business days.
How is the Land Use Activity Regime different to the future acts regime of the Native Title Act?
The Land Use Activity Regime is intended to provide a simpler and more streamlined approach to procedural rights over activities on Crown land that may affect the rights of traditional owners. Under the Land Use Activity Regime:
- land use activities are separated into four categories, where there are 10 categories under the future acts regime
- no assessment is required to determine what category an activity falls into (and, consequently, what procedural rights apply to it)
- 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 are clearly identified and resourced to provide responses to notifications and other requests
- standard terms and conditions are available for low impact earth resource activities (i.e. exploration), removing, in some instances, the need for industry to negotiate
- the state is responsible for negotiating agreement for the sale of Crown land and for paying community benefits for those sales
- the state is responsible for the leasing of Crown land and for some land use activities
- Aboriginal cultural heritage obligations will be dealt with under the Aboriginal Heritage Act 2006 (Vic), 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, in some circumstances, to make a determination.
Will there be any further consultation?
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.