Appendix 2: Terms of Reference: First Principles Review

The 2016 amendments to the Traditional Owner Settlement Act 2010 (TOS Act), and the experience of implementing the first natural resource agreement (NRA) and land use activity agreement (LUAA) necessitated a review of these template agreements (Template Review). Through the Template Review, it became apparent that (i) the LUAA and NRA could not accommodate certain aspirations of Traditional Owner groups; and (ii) the issues being raised by Traditional Owner groups required a discussion about the fundamental underpinnings of the templates and the TOS Act framework; and (iii) the issues and potential solutions being raised by Traditional Owner groups were beyond the time-frame and scope of the then Template Review. Accordingly, the State undertook to conduct a further review to address the outstanding matters (First Principles Review), in partnership with all participating Traditional Owner groups.

The First Principles Review will be primarily concerned with issues that relate to principles and legislation that underpin, and mandate the content of the template Agreements and the State’s settlement policy.

The State will adopt a whole-of-government approach and will partner with Traditional Owners in the First Principles Review, through the ‘First Principles Review Committee’. The parties to the Review will be the State and the First Principles Review Committee. The parties will undertake the review in good faith and will adhere to the agreed terms of reference and timeframes. Traditional Owner groups who have already entered into settlements with the State under the Act will be able to benefit from, and update their agreements to reflect, new standards, policies and processes developed through the First Principles Review.

The First Principles Review will:

1. be conducted as a partnership between the State and all participating Traditional Owner groups as represented by the First Principles Review Committee;
2. both in its process and in its outcomes, uphold the principle of self-determination;
3. have reference to developments in Australian native title law and practice, and will draw on the experience of prior settlements, and other developments across the policy spectrum;
4. comply with the right to free prior and informed consent, and also adhere to the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the United Nations Declaration on the Rights of Indigenous Peoples; and
5. allow for, and the State will ensure, that Traditional Owner groups meet directly with responsible senior officials, including, where necessary and relevant, s, Secretaries and Deputy-Secretaries, from relevant government departments in relation to any matter associated with the First Principles Review.

Step 1

Jun-Aug 19

Draft TOR agreed by FPRC and State agencies

Step 2

Sept 19

Attorney-General takes TOR to Cabinet for endorsement

Step 3

Sept 19

Attorney-General launches review

Step 4

Sept-Dec 19

Exploration of Issues (by FPRC/Exec Policy Owners' Forum and FPRC Advisers/Government Officers)

Step 5

Feb 20

FPRC & Exec policy owners Forum - draft initial report & recommendations

Step 6

March 20

FPRC/Exec Policy Owners' Forum present draft Review Report to relevant senior executives

Step 7

April 20

Internal Govenrment briefings (attended by representatives of the FPRC) and consultation with relevant organisations

Dep Secs/Secretaries meet with FPRC.

State agencies resolve any issues arising from the meeting and report back to FPRC

Step 8

August 20 or otherwise determined as part of step 7

FInal Review Report, finalised by FPRC & Exec Policy Owners Forum, and provided to Attorney-General (by 1 August 2020)

Step 9

6-8 weeks after step 8

Attorney General accepts/reviews the Final Review Report and takes it to Cabinet

Step 10

Cabinet considers and Attorney-General provides response to the FPRC including proposed legislative changes.

Legend

FP Review: First Principles Review

FPRC: First Principles Review Committee

FPRC Advisers: First Nations Legal and Research Services' and FVTOC lawyers; policy officers; and Traditional Owner Corporation staff

Exec Policy Owners' Forum: government executives with responsibility for a relevant policy area including policies within the remit of DJC, DELWP, DJPR, DoT, DTF, DPC, relevant statutory authorities (chaired by DJCS's executive)

Government Officer: officers from DJCS, DELWP, DJPR, DoT, DTF, DPC, relevant statutory authorities (including PV, VicRoads, VFA, GMA) VicForests, VSGO.

TOR: Terms of Reference

Government Officers and FPRC Advisers

1. Take instructions on any concerns, aspirations or aims of the FPRC and Exec Policy Owners’ Forum;
2. Share any concerns, aspirations or aims with FPRC advisers and Government Officers and the FPRC and Exec Policy Owners’ Forum;
3. Bring those instructions and information to regular and scheduled meetings between the FPRC advisers and Government Officers, at which responses, strategies or amendments, with respect to both policy and legislation, can be developed;
4. Establish timelines for decision making, including setting reasonable deadlines for responses on established issues; and
5. Propose responses, strategies, or amendments (relating to policy or legislation) to the FPRC and Exec Policy Owners’ Forum for consideration, refinement and decision.

FPRC and Exec Policy Owners' Forum

1. Confirm the appropriate FPRC Advisers and Government Officers, and facilitate their engagement in the Review;
2. Instruct the FPRC Advisers and Government Officers;
3. Receive regular briefings on the work of the FPRC Advisers and Government Officers;
4. Properly inform themselves about current policy and legislative provisions the subject of the Review, so as to provide useful and timely instructions to the FPRC Advisers and Government Officers;
5. Make decisions in a transparent and timely manner;
6. Attend decision making meetings of the FPRC Advisers and Government Officers; and
7. Agree the final version of the report, to be provided to the Attorney-General.

In the event that the final report is not ready to be presented to the Attorney-General by 1 August 2020, then the Exec Policy Owners’ Forum Chair and FPRC:

1. Will meet, and discuss the reason for the delay;
2. The party responsible for the delay must explain the cause, and provide a plan for how it will be addressed; and
3. may resolve to extend the date.

The requirement to provide any reports under this Review does not prohibit any agreed changes, amendments, additions to legislation, practices, policy or procedure from being immediately adopted and implemented during the course of the Review. This Review will also not inhibit the progress, resolution or implementation resulting from any other concurrent reviews (without the consent of the parties to the relevant review). All parties to the Review commit to carrying out their duties and providing responses in a reasonable and timely fashion, and will meet agreed timelines, or in the event timelines cannot be met, will immediately provide reasons, and updates as to progress in overcoming the delay.

Records of all meetings between the FPRC and Exec Policy Owners’ Forum and the FPRC Advisers and Government Officers will be maintained, and available to all parties to the Review.

The State will meet the reasonable costs of holding meetings between the FPRC and Exec Policy Owners’ Forum and the FPRC Advisers and Government Officers, secretariat services and report production. The State will consider and respond to a request for funding from the FVTOC to assist the FPRC to participate in the Review.

Nothing in these Terms of Reference is to be taken to detract from ordinary parliamentary processes, or the primacy of Cabinet in determining its legislative agenda. The Attorney-General is to provide a response to the FPRC regarding the Review recommendations within 3 months of being provided with the final Review report. The Attorney-General will provide a statement of reasons in the event that any aspect of the Final Review report is not adopted. The First Principles Review, its recommendations and any subsequent action taken in response to the Review, will be included in templates that represent Government policy. The State’s expectation is that the revised templates will form the content of the agreements to be offered to a Traditional Owner group in negotiations under the TOS Act. A Traditional Owner group remains free to negotiate and make decisions on any aspect of the settlement negotiations, in accordance with their own decision-making principles.

Following the Attorney-General’s response to the Final Review Report, the FPRC will conduct an evaluation of the review report and process, and at the FPRC’s discretion may provide it the chair of the Exec Policy Forum.

The First Principles Review will consider the issues below:

Natural Resource Agreement and Traditional Owner Land Natural Resource Agreement

The Review will examine the policy and legislative underpinnings of the NRA template, including but not limited to those issues related to:

• The application of the sustainability principles
• The restrictions on access to flora and fauna (including how these relate to self-determination principles, and the principle of free, prior and informed consent)
• The collection of firewood
• The TOS Act definition of ‘traditional purposes’
• The commercial use of natural resources
• The participation strategies (including the procurement policy)

Land Use Activity Agreement

The Review will examine the policy and legislative underpinnings of the LUAA template, including but not limited to those issues related to:

• The Community Benefits formulae, in light of the Timber Creek High Court Judgment (including payment of cultural loss and solatium)
• The categorisation of land use activities (in the LUAA template and the TOS Act)
• Avoiding LUAA requirements by amendments to regulations and by-laws, or other means;
• The capture of existing Public Land Authorisations upon renewal;
• The treatment of Hydraulic Fracturing (fracking)
• The treatment of Alpine resort land
• Outcomes from Schedule 4 and other negotiations between Traditional Owner groups and industry bodies
• The treatment of Timber Release plans/ timber harvesting
• The adoption of a dispute resolution process with respect to the categorisation of Land Use Activities, valuations and other matters.

Recognition and Settlement Agreement

The Review will examine other aspects of the RSA (in addition to the NRA and LUAA), including but not limited to issues related to:

• Review mechanisms
• Communication regarding the settlement and the obligations and compliance requirements associated with individual agreements (to Traditional Owners, the general public and State officers)
• Compliance with obligations
• Enforcement of compliance
• Funding Agreement
• Implications of Timber Creek with respect to negotiation of settlement packages
• The State’s principles for Settlement Offers (including resources allocated to achieve the objectives of the RSA)
• The Review can incorporate as recommendations any findings of the Joint Management
• Implementation Project where these are applicable to the template agreements or state-wide policy.

Taking into account the findings on the above issues, the Review will make appropriate recommendations to the Attorney-General (relating to policy or legislative amendment) to ensure that the TOS Act continues to be effective and capable of meeting the aspirations of Traditional Owner Groups for agreements under the TOS Act to be just, to foster self-determination, and to uphold and comply with human rights, including United Nations Declaration on the Rights of Indigenous Peoples. If the FPRC and Executive Policy Owners’ Forum agree that additional matters should be considered as part of the Review, approval to amend the TOR will be sought.