Recommendation number Terms of Recommendation Page reference Joint or Individual Recommendation Recommendation 1 Settlement Act agreements should represent a fair and just settlement for Traditional Owners, as assessed against the listed criteria. 27 Joint Recommendation 2 Calculation of compensation should not be limited to activities occurring post-1975. 28 Individual (FPRC) Recommendation 3 Money paid under a Settlement Act agreement should include:
Compensation, being payment for loss of rights with no conditions governing its purpose; On-going operational funding for dedicated purposes to support corporations to meet the cost of establishing and operating settlements, including, to participate in natural resource management and joint management; and
Commitment of on-going funding for departments to meet the cost of establishing and operating components of the settlements.29 Joint Recommendation 4 Settlement Act agreements should not be full and final in respect of native title compensation, and instead a method should be adopted to allow for compensation to be increased if developments in the common law would otherwise so entitle Traditional Owners. 30 Individual (FPRC) Recommendation 5 Compensation for historical impairment (along with extinguishment) of native title rights should form part of the Settlement Sum. Compensation for historical impairment should be calculated:
on the basis of newly negotiated Community Benefits formulas, applied retrospectively, where the activity would be compensated in accordance with a Land Use Activity Agreement (LUAA) following settlement; and on the basis of individual negotiation, where the activity would not be compensated under the LUAA, but has otherwise had, or continues to have, a significant impact on the ability of Traditional Owners to exercise Traditional Owner Rights over, or in relation, to the relevant land.32 Individual (FPRC) Recommendation 6 Compensation should include interest on all compensable acts, calculated as compound interest. 33 Individual (FPRC) Recommendation 7 Expert advice should be sought with respect to data issues, and the promotion of data sovereignty within the compensation process. 34 Joint Recommendation 8 Where any issues arise around the availability or accuracy of data, it should be resolved with a presumption in favour of Traditional Owners. 35 Joint Recommendation 9 The State should work with Traditional Owners to advocate for the Commonwealth to (i) meet any native title compensation liabilities it may have; and (ii) contribute to the State’s native title liability, in accordance with previous commitments. 35 Joint Recommendation 10 That a moratorium on all Crown land sales be initiated in all areas where the Traditional Owner groups do not have rights to either provide or withhold consent to the sale. 36 Individual (FPRC) Recommendation 11 FPRC recommendation: The FPRC endorses and recommends the Compensation Model and the Expert Terms of Reference, until such time as negotiations with respect to pre-RDA liability can be progressed.
EPOF recommendation: The EPOF endorses the Expert Terms of Reference and further exploration of the Compensation Model; however, it considers that additional information is required, including in relation to:
the comprehensiveness and reliability of data to be relied upon in the application of a retrospective LUAA;
the feasibility of including Land Use Activities such as major public works and public land authorisations in such a model (for which the data availability is currently unknown).
The EPOF suggests that further exploration of the Compensation Model should have regard to compensation being considered through Victoria’s treaty process, noting the work of the expert should be informed and align with progress in the treaty process.36 Individual (as indicated) Recommendation 12 The Interim Community Benefits Formula (Appendix 9) should be adopted on an interim without prejudice basis. EPOF notes the significant financial and budgetary impacts of the Interim Community Benefits Formulae and considers that the recommendation needs to be accompanied by an enabling revenue model to address the significant cost impacts on providers of essential services. As part of government’s consideration of the First Principles Review recommendations, EPOF will be seeking: a ‘no net loss of retained revenue’ principle for land managers; that Community Benefits liabilities be factored into State Budget funding allocations; and that transitional arrangements be implemented for major public works with approved budgets impacted by the proposed Interim Community Benefits Formulae. 38 Joint Recommendation 13 That Traditional Owner Corporations (including Registered Aboriginal Parties) should be part of the First Right of Refusal process. At minimum, Corporations should be notified of proposed surplus public land and have the option to purchase this land under full or restricted title, before it goes to public auction. The ways in which this recommendation can be given effect are to be further explored in the Settlement Act forum, including looking at options for processes to ensure assets are held by entities representing all Traditional Owners. 40 Joint Recommendation 14 That the term ‘comply with’ be removed from item 4.1 of Schedule 1 of the Natural Resource Agreement template where this refers to the Sustainability Principles and replaced with the term ‘give proper consideration to’. 41 Joint Recommendation 15 That prohibitions on taking protected or threatened flora should not apply to Traditional Owners without their consent. That the Natural Resource Agreement template be amended so that any such prohibitions are removed from the template and are instead assessed and negotiated in accordance with the UNDRIP principle of free prior and informed consent, through the Partnership Forum. 42 Joint Recommendation 16 Item 5.3 of Schedule 1 in the NRA template should be removed in order to facilitate greater Traditional Owner access to firewood, by allowing for the cutting down of trees or branches (outside firewood collection areas) for this purpose. The lifting of this restriction would create greater consistency between firewood and other vegetation in the Natural Resource Agreement template.
It is EPOFs view that other natural resource legislation and regulations would also need to be reviewed to ensure it supported the proposed policy change.
The parties agree that items 5.4 and 5.5 of Schedule 1 only regulate collection of firewood within a Firewood Collection Area, and outside such areas, Traditional Owners may collect firewood as an Agreed Activity, and in accordance with the relevant clauses in the NRA template, including the Public Land conditions in Schedule 1 of the NRA. The NRA should be amended so this position is more clearly stated.42 Joint Recommendation 17 The term ‘traditional purposes’ in Section 79 of the TOS Act should be replaced with ‘non-commercial purposes’ but retain the same definition.
The FPRC and EPOF note that this is an interim measure until the Traditional Owner rights to use natural resources for commercial purposes is recognised.43 Joint Recommendation 18 a) That the Settlement Act and the NRA template be amended so as to accommodate the commercial use of animals (other than fish) to create parity with the provisions providing for commercial use of vegetation and stone.
b) That the Settlement Act and the NRA template be amended so as to also accommodate the commercial use of water and animals (including fish).44 a) Joint
b) Individual (FPRC)
Recommendation 19 That the Settlement Act and TOLNRA template be amended so that ‘agreed activities’ can be exercised on freehold land within the outer boundaries of a Recognition and Settlement Agreement, subject to a landowner’s permission. 46 Joint Recommendation 20 The EPOF and FPRC agree the State should acknowledge that Settlement Agreements do not provide sufficient recognition of Traditional Owner rights and interests in water. The EPOF and FPRC recommend that substantive reform be pursued as a priority in the proposed Settlement Act forum. 47 Joint Recommendation 21 DJPR commits to developing a policy to offer Miner’s Right permits to members of Traditional Owner Corporations under the Mineral Resources Sustainable Development Act 1990. This would be a temporary solution designed to address the exclusion of gold, silver, metal and minerals in the definition of ‘natural resources’ in the Settlement Act. EPOF recommends that options for legislative change be explored through the proposed Settlement Act forum. 48 Joint Recommendation 22 Community Purpose Permits and Licences be re-categorised as Negotiation Class A, with a condition that no Community Benefits are payable, this change occurring for permits and licences:
• with a term above 21 years, in accordance with Timeframe 1;20 and
• all other Community purpose permits and licences, in accordance with Timeframe 2.2120 Timeframe One means within 3-6 months following endorsement by Cabinet.
21 Timeframe Two means a phased approach estimated to take 3-5 years.
50 Joint Recommendation 23 Community Purpose Leases to be re-categorised as Negotiation Class A, this change occurring for leases:
• with a term above 21 years, in accordance with Timeframe 1; and
• all other Community Purpose Permits and Licences, in accordance with Timeframe 2.50 Joint Recommendation 24 Commercial Permits and Licences to be re-categorised as Negotiation Class A, this change occurring for permits and licences:
• with a term above 10 years (not including water licences) in accordance with Timeframe 1; and
• all other Commercial Purpose Permits and Licences, including works (Water Act) licences as defined in s 27 of the TOS Act.51 Joint Recommendation 25 Commercial Purposes Leases to be re-categorised as Agreement activities, the change occurring for leases:
• with a term above 10 years, in accordance with Timeframe 1; and
• all other Commercial Purposes Leases, in accordance with Timeframe 2.51 Joint Recommendation 26 Major Public Works:
FPRC recommendation
That Major Public Works are categorised as Negotiation (Class A) activities in the template LUAA.
EPOF recommendation
That the proposed re-categorisation of Major Public Works from Negotiation B to Negotiation A take effect after provisions have been included in the TOS Act to provide clear guidance on the factors VCAT may take into account in its decision making, and the grounds upon which VCAT may decide that a Major Public Work does not proceed. The proposed recategorisation will therefore take place in accordance with Timeframe 2.52 Individual (as indicated) Recommendation 27 That:
• each activity described in subsections 99(a), (b) and (c) of the Constitution Act 1975 (Vic) be categorised as Agreement activities under the LUAA; and
• the issue of offshore fracking be referred to the proposed Settlement Act forum.53 Joint Recommendation 28 That the Land Use Activity Regime should not treat differently land that is within the boundaries of an alpine resort, which will require the repeal of section 32(3A) of the Settlement Act. 54 Joint Recommendation 29 That with respect to the capture of existing Public Land Authorisations upon renewal, Option A should be implemented as an interim measure, while the issue be referred to the proposed Settlement Act forum, in accordance with Option C, for final resolution. The detail of each relevant option is as follows:
• Option A: Commence ongoing payment: Upon entry into a Settlement Act agreement, the State will starting paying Community Benefits for PLAs that are in effect as at the time of settlement, from monies otherwise being paid to consolidated revenue, plus where any right of renewal for these PLA’s is exercised, it will be categorised as an Advisory activity under the LUAA.
• Option C: Refer this issue to the proposed Settlement Act Forum: While Option B requires a specific proposal be referred to the proposed Settlement Act forum, Option C proposes that this issue be referred in its entirety to allow for:
o a broader review of exclusions from the LUAA;
o an examination of whether other exempt PLAs should generate Community Benefits payments and be categorised to allow procedural rights;
o an exploration of revenue sharing for PLAs in existence at the time of settlement. For example, the proposed Settlement Act forum could consider whether PLA revenue sharing should be extended to include public land with existing community and/or commercial infrastructure at the time of settlement.54 Joint Recommendation 30 a) That the Settlement Act and Conservation, Forests and Lands Act (1987) be amended in order to allow for the grant of Aboriginal title and joint management arrangements over land within the boundaries of a State Game Reserve.
b) The amendments to the Settlement Act and the Conservation, Forests and Lands Act 1987 (Vic) should go further than providing for joint management and should also allow for sole management of State Game Reserves.56 a) Joint
b) Individual (FPRC)
Recommendation 31 That the Settlement Act and other relevant legislation be reviewed and amended to allow for transfers of Crown land with existing commercial leases to Traditional Owner corporations, along with a commitment to develop a supplementary policy to support the change. This proposed legislative change and policy development should be progressed by the Settlement Act forum. 56 Joint Recommendation 32 Joint EPOF and FPRC recommendation
That the Settlement Act be amended to include the following definition of the term ‘emergency’: ‘emergency’ has the same meaning as in Section 3 of the Emergency Management Act 2013 (Vic)’.
That clause 7(c) of the template LUAA be amended to strengthen engagement with Traditional Owners following the carrying out of an emergency activity by the State, by incorporating the following:
“In an emergency situation where the State carries out a Land Use Activity as permitted by s 39 of the Act, the State will inform and, upon request, meet with the Corporation as soon as is practicable.
Individual FPRC recommendation
That clause 7(c) of the template LUAA be amended to strengthen engagement with Traditional Owners following the carrying out of an emergency activity by the State, by incorporating the following:
“In an emergency situation where the State carries out a Land Use Activity as permitted by s 39 of the Act, the State will:
a) provide any Community Benefit Payment owing with respect to the activity; and
b) undertake rehabilitation works, as reasonably requested by the Corporation.57 a) Joint
b) Individual (FPRC)
Recommendation number Terms of Recommendation Page reference Joint or Individual Recommendation Recommendation 33 That a Traditional Owner Settlement Act Forum, comprised of both Traditional Owners and State representatives, be established to build on the work of the First Principles Review. It is intended that the new Settlement Act forum will finalise those issues not resolved in the current Review, as well as work towards solutions for emerging issues under the Settlement Act. The First Peoples – State Relations group will need to work closely with the new Settlement Act forum to ensure its work aligns with treaty progress, including through engagement with the First Peoples’ Assembly of Victoria. 58 Joint Recommendation 34 With respect to Crown Water Frontages:
FPRC Recommendation
The FPRC recommend that its requests, as stated in its correspondence of 31 March 2021, be implemented in full. The FPRC also recommends the State undertake an internal review to ascertain how this legislation was able to be developed without Traditional Owner consultation and free, prior and informed consent, or consideration of potential impacts on Aboriginal cultural heritage or Traditional Owner rights and interests.
The FPRC recommend that this internal review be tabled along with a status update at the proposed Settlement Act Forum and provided to Traditional Owner groups for their consideration.
The FPRC also support the EPOF recommendation below and request ongoing Traditional Owner oversight of the matter.
EPOF Recommendation
That DELWP work together with the effected Traditional Owner groups, the Department of Premier and Cabinet and the Victorian Fisheries Authority to discuss a way forward with an approach that includes an assessment of Crown water frontage sites for Aboriginal cultural heritage values.58 Joint Recommendation 35 FPRC recommends that as an outcome of this review:
the State appoints an independent lawyer to provide advice to the State and local governments on LUAA matters, and will initiate a penalty regime for failure to comply with the LUAA; and
the State agrees to establish an independent office or body to oversee the implementation of Settlement Act agreements (and other agreements between Traditional Owners and the State) to oversee not just disputes and compliance, but also ongoing review and implementation. This role would be something akin to an ombudsman, with exact nature of its role and enforcement powers to be determined through the proposed Settlement Act forum.62 Individual Recommendation number Terms of Recommendation Page reference Joint or Individual Recommendation Recommendation 36 The FPRC recommends that where any issue raised in this report is referred to the Minister for Aboriginal Affairs (Minister), the Assembly, or otherwise sought to be progressed through the Treaty process, that:
a) Those matters should be raised with the Assembly and the Minister in writing, and they should both be provided a copy of this report in full; and
b) Unless the Assembly confirms that they intend to actively negotiate and pursue each issue within 12 months of receiving notice in writing, the issue will be automatically referred to the proposed Settlement Act forum to be further progressed.73 Individual
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