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First Principles Review of the Traditional Owner Settlement Act 2010

The First Principles Review comprehensively reviewed the policy underpinnings of Victoria’s Traditional Owner Settlement Act 2010 (the TOS Act) with the aim to bring it in line with recent federal High Court rulings on Native Title.

In responding to the Review, the Victorian Government is committed to ensuring that agreements under the Act are fair and just for Traditional Owners but needs to undertake further work to consider the implications of some recommendations.

About the Act

The TOS Act enables Traditional Owner groups in Victoria to seek out-of-court settlement of native title by allowing for the Victorian Government to recognise Traditional Owners and certain rights in Crown land. 

Under the TOS Act, Traditional Owners can enter into Recognition and Settlement Agreements (Agreements) with the Victorian State Government. These Agreements enable Traditional Owner groups to secure benefits such as

  • the grant of freehold land
  • joint management of public lands 
  • a range of other measures to build economically sustainable Traditional Owner groups. 

Well-resourced Traditional Owner Groups make positive contributions to their region’s economic, cultural and social outcomes.   

In return for the benefits of a settlement, Traditional Owners agree to withdraw any native title claim under the Native Title Act 1993 (Cth) and not make any future native title claims. 

There are 11 Recognised Aboriginal Parties across the state. Four are recognised by Agreements under the TOS Act. Other groups are in active negotiations with the State. 

About the Review

In February 2020, the Victorian Government launched the First Principles Review of the Traditional Owner Settlement Act. This was the first comprehensive review of the TOS Act since it was introduced in 2010. The purpose of the Review was to consider the implications of the High Court of Australia’s 2019 decision in the Timber Creek case. It also looked at the broader rights, interests and financial payments available to Traditional Owners under the TOS Act. 

The Review was undertaken as a partnership between Traditional Owners and the Victorian Government. It operated through a committee of Traditional Owner representatives and a forum of government representatives.  

The report provides 36 recommendations to the government for both legislative and policy change to enhance Traditional Owners’ rights under the TOS Act. Most recommendations were jointly agreed between the Traditional Owner and Government review parties. However, some were individual recommendations not supported by the other party. 

The Categories of Review Recommendations link below provides the government’s response to each of the recommendations. The Victorian Government fully supports Recommendation 1 of the Review Report which states that TOS Act agreements should represent a fair and just settlement for Traditional Owners, measured against defined criteria.  The Victorian Government agrees in principle to 28 recommendations which are subject to further consultation and consideration.  The 7 recommendations made by the Traditional Owner party to the Review are not supported by the Victorian Government.

Next steps

More work is needed before the recommendations agreed to in-principle can be implemented. An interdepartmental committee has been established to oversee this work. The committee will work in partnership with Traditional Owner representatives in a new forum, which is still to be established.

The Victorian Government will seek feedback from local governments and affected stakeholders about the impacts of certain recommendations on their business and interests. The Department of Premier and Cabinet will provide further information on this in due course.

First Principles review of the Traditional Owner Settlement Act 2010 - final report

Categories of Review Recommendations