Appendix 4: Report of the Template Review Committee Workshop, December 2018

The Traditional Owner Template Review Committee (the Committee) seeks various amendments to the standard documentation to be used in the forthcoming round of settlements under the Traditional Owner Settlement Act 2010 (Settlement Act). The Committee has also identified a number of other aspirations for the settlement process which may take longer to implement, but for which it now seeks the commitment of the State.

Each of these matters is set out below.

The Committee identified the following general principles which should apply to the ongoing development of the LUAA, NRA and settlement framework as a whole, and requests that the State commit to these principles:

1. Traditional Owners are to be allowed access, and to speak directly, with any person or body that is responsible for making decisions, or otherwise shaping government policy, about any matter that will impact upon the LUAA, NRA or their traditional rights more generally; and
2. The LUAA, NRA, and the settlement framework more generally, should keep pace with advances in native law and practice, to ensure that the Settlement Act remains both an attractive, and a progressive alternative to native title out comes.

The following amendments are requested to be made or incorporated into the standard template LUAA for all current negotiations.

The Committee requests that :

Community Benefits

1. The State adopt the Community Benefit formulas put forward by First Nations Legal and Research Services, as a minimum, and the State should consider further increases so that Traditional Owners are justly compensated for the deprivation of  their  rights, which  will most often occur without the State obtaining their free, prior and informed consent.
2. Solatium should be paid in addition to any economic loss incurred, and should be paid on a case by case basis following an assessment of the pain and suffering inflicted, with no arbitrary cap.

Categorisation of Land Use Activities

3. Any petroleum exploration or production involving the use  of hydraulic  fracturing (commonly referred to as 'fracking') should, at the election of the Traditional Owner Group,  be either prohibited outright, or be categorised as an Agreement Activity.
4. That the Land Use Actvities below be amended in accordance with the following table:

The following changes are sought, which may require amendment to the LUAA documents, or general changes in policy and implementation. Where these cannot be immediately adopted, the Committee requests that the State make an ongoing commitment to their implementation.

The Committee requests that:

Communication

5. Better and more accessible explanatory material is prepared with respect to  the LUAA, for use by Traditional Owners, the general public, and State officers. This could take the form of the State funding development of a new User Manual, which reflects the new version of the

settled   document,   and   the  development  of   an   online   platform   for   both  determining categories of Land Use Activities, and issuing notifications. It would be expected that this material be developed in consultation with the Committee.

Compliance

5. The State needs to ensure better compliance with LUUA processes, which should be achieved by:
   1. Providing greater funding directly to Traditional Owner to monitor and enforce LUAA provisions;
   2. Providing greater training and education to State and Local Government officers;
   3. Investigating alternate enforcement regimes and remedies for breaches, including new regulations and the issuing of fines; and
   4. With respect to Schedule 4 exploration and prospecting licences, making compliance a condition of the licence, breach of which will result in cancellation of the licence .

Policy

7. Where a limited number of licences may be granted for a particular commercial activity (for instance within a National Park) a certain number should be withheld, and allocated to Traditional Owners.

The following amendments are requested to be made or incorporated into the standard  template NRA for all current negotiations.

The Committee requests that:

Take and Use of Resources

1. The Sustainability Principles apply equally to both parties, including the issuing of permits or authorities by the State to the general public to take natural resources.

2. The prohibitions on taking protected or threatened flora or fauna should not apply to Traditional Owners without their consent . Traditional Owners are not responsible for the vulnerable state of these resources, and the State should not unilaterally infringe on their traditional rights to access them. On or before the commencement of the NRA, the State should meet with Traditional Owners , and provide evidence as to why these species should be added to Agreed Lists with conditions restricting their take and use . In this manner Traditional Owners could adopt these conditions, on the basis of their own free prior and informed consent. Such an approach is necessary to establish a relationship of equal trust and partner ship.

3. The definition of "Traditional Use" within the NRA should be amended so as to include commercial uses, pending legislative change to the Settlement Act adopting the same changes to this definition.

4. The NRA needs to be clear that Traditional Owners have the ability to negotiate commercial use over and above personal or domestic quantities, and should set out a process for doing so.

Implementation and review

5. The State adopts stronger implementation and review provisions including:
   1. The introduction of an independent process of review to assess whether the State and other land managers are meeting objectives under the NRA;
   2. clear and objective deliverables in the participation strategies; and
   3. repercussions   and consequences for non-compliance with the participation strategies and procurement policy.
6. In addition, the State's obligations within the  participation strategies  and  procurement policy should be mandated with clear deliverables and outcomes,  for instances requirements to meet set objectives by certain deadlines, rather than aspirational  open­ ended obligations to use best endeavours or take reasonable steps. This would enable the parties (and any independent reviewer) to track performance and better assess whether outcomes of agreements are being achieved.

Procurement

7. Adopt the procurement method put forward by Dja Dja Wurrung, which would allocate a specific dollar amount for Natural Resource Management spend within the region each financial year, which must be allocated to, and through, the  relevant Traditional  Owner Group Entity.

The following changes are sought, which may require amendment to the NRA documents, or general changes in policy and implementation. Where these cannot be immediately adopted, the Committee requests that the State make an ongoing commitment to their implementation.

The Committee requests that:

8. An explanatory document be developed that clearly sets out what rights the NRA delivers in addition to rights already held or available to the general public.
9. Adequate resources be allocated to the State, land managers and Local Governments in order to achieve objectives of the NRA.