Aboriginal people have occupied what today is known as Victoria since time immemorial. Prior to colonisation they possessed these lands under their own sovereign political systems and systems of law. In Mabo and Others v Queensland (no. 2) (1992) 175 CLR 1, the High Court recognised that, in some circumstances, these systems of laws survive, and can be recognised in Australian law as what we know as native title rights. Notwithstanding this limited recognition, and the inability of the western legal system to recognise in full the rights of First Peoples, Traditional Owner groups continue to assert their rights to their traditional lands.
Under the Settlement Act the State agrees to recognise certain rights which Traditional Owners consider inherent. Within the RSA these rights are recognised and set out in the templates, primarily through the LUAA and NRA. Below, we look at each of the relevant templates, and set out the recommendations made.
The RSA is the overarching agreement that recognises a Traditional Owner group as the owners of the agreement area under Aboriginal law and custom, acknowledges certain Traditional Owner rights over public land, and includes a number of practical mechanisms to assist with implementation of the Settlement Package.16
Inclusion of Traditional Owners in the Whole of Government approach to recycling/utilising public land and assets
Background
When a government department or agency no longer requires public land, the Department of Treasury and Finance will give notice to Victorian Government agencies, local government and the Commonwealth Government of the surplus land. All other Victorian Government agencies, local government and the Commonwealth Government will have a period of 60 days from the date of notification by the Department of Treasury and Finance in which to submit an expression of interest to acquire the surplus land for a public or community purpose, before it is declared surplus and sold on the open market (First Right of Refusal Process).
During the course of the Review, EPOF suggested the Review consider government processes such as the First Right of Refusal Process and consider ways in which Traditional Owner interests are considered in these processes.
Joint or individual recommendation
Joint recommendation.
Recommendation 13
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 proposed Settlement Act forum, including options:
- to ensure that the holding entity is the entity representing the Traditional Owner group, and if that status changes, there be provision for transfer to another entity, recognised as representing the relevant Traditional Owner group; and
- for land and assets to be handed back to Traditional Owners, meaning they are transferred for only nominal or peppercorn consideration.
16 This section sets out only one issue relating to the RSA and discussed in the Review. Note that other issues relating to the RSA are included under their own subheading, ‘Other Recommendations, below.
The NRA is one of the agreements that can be negotiated as part of a Settlement Package under the Settlement Act. This agreement recognises Traditional Owner rights to carry out agreed activities, including to take and use natural resources on public land, consistent with agreed sustainability principles. The NRA also commits the State and Traditional Owner group to work together in partnership to develop strategies for Traditional Owners’ participation and employment in natural resource management in the NRA area.
A range of issues relating to the NRA was raised and considered by the Review. A brief description of each issue is set out below, along with the joint or individual recommendation that was made.
Sustainability principles
Background
This issue was first raised by the Template Review Committee in 2018 and is concerned with requirements in the NRA for Traditional Owner Corporations and their members to ‘comply’ with the Sustainability Principles in accessing natural resources, while the State is not bound by the same obligation.
Request
The FPRC requested that the Sustainability Principles apply equally to the State and Traditional Owners.
Joint or individual recommendation
Joint recommendation.
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’.
Unresolved issues
None.
EPOF notes that principles of sustainability have broad application to both parties to the agreement.
Restrictions on access to flora
Background
This issue was first raised by the Template Review Committee in 2018 and is concerned with item 5.1 of Schedule 1 of the NRA which prohibits Traditional Owners from taking any reserved trees or protected or threatened flora. This restriction is imposed on the inherent rights of Traditional Owners without their free, prior or informed consent.
Request
Traditional Owners have requested that no restrictions on the taking of flora apply to Traditional Owners without their free, prior and informed consent. This would be the same process as currently applies to animals.
Joint or individual recommendation
Joint recommendation.
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.
Unresolved issues
None.
Collection of firewood
Background
First raised by the Template Review Committee in 2018, there was confusion as to the rights of Traditional Owners to collect firewood under the NRA template, both inside and outside Firewood Collection Areas.
Request
Traditional Owners are currently subject to the same firewood collection rules as other members of the public when accessing firewood in designated Firewood Collection Areas. Traditional Owners have requested that no limits be placed on their collection of firewood in designated Firewood Collection Areas, and the terms of the NRA generally be clarified around firewood collection.
Joint or individual recommendation
Joint recommendation.
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.
EPOF notes that natural resource legislation and regulations would also need to be reviewed and amended if necessary to give effect to 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.
Unresolved issues
None.
Definition of Traditional Purposes
Background
This issue was first raised by the Template Review Committee in 2018 and is concerned with section 79 of the Settlement Act. This section defines the term ‘traditional purposes’ in a way that excludes commercial purposes.
Request
Aboriginal tradition included economic and commercial activity, so to define ‘traditional purposes’ as distinct from, and not including ‘commercial purposes’, reflects an inaccurate understanding of Aboriginal tradition. Accordingly, the FPRC requests an accurate definition.
Joint or individual recommendation
Joint recommendation.
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.
Unresolved issues
The FPRC notes that recognition of Traditional Owners’ inherent right to use natural resources for commercial purposes is not sufficiently established in the Settlement Act and remains unresolved.
Commercial use of animals and water
Background
First raised by the Template Review Committee in 2018, this issue is concerned with section 84(b) of the Settlement Act, which states that an NRA:
- may allow for the commercial use of vegetation (including flora and forest produce) and stone; and
- cannot allow the commercial use of animals and water.
With respect to the commercial use of vegetation and stone, while permitted, under the Settlement Act and current NRA template, it may only occur:
- if it is consistent with the purpose for which the land is managed (section 84(b), Item 3.2, Sch 1 NRA); and
- the quantity is no more than the quantity needed for ‘Non-Commercial Purposes’ (Item 3.2(a), Sch 1 NRA).
If a Traditional Owner wanted to take commercial quantities to use for a commercial purpose, this would have to be separately negotiated (Clause 10.2(f)(iv) NRA).
Request
Traditional Owners have requested that section 84(b) of the Settlement Act be amended to accommodate the commercial use of animals and water.
Joint or individual recommendation
Joint and individual recommendations.
Recommendation 18
(a) Joint recommendation
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, stone etc.
(b) Individual FPRC recommendation
That the Settlement Act and the NRA template be amended so as to also accommodate the commercial use of water and animals (including fish).
Note: The two recommendations are the same, except the joint recommendation excludes water and fish. The individual FPRC recommendation would include water and fish.
Unresolved issues
FPRC Comments
While the Settlement Act and NRA purport to permit commercial use of Traditional Owner rights with respect to natural resources, a close reading of the legislation and NRA template makes clear that this is not the case.
For instance, item 3.2 Schedule 1, purports to allow commercial use of vegetation and stone. However, the quantity is limited to that permitted for ‘Non-Commercial Purposes.’ On that basis, the clause does not provide commercial rights as they would ordinarily be understood. Instead, it provides no rights beyond the ability for an individual Traditional Owner to perhaps engage in a micro enterprise, unlikely to derive income to meet even their personal needs.
Should a Traditional Owner wish to rely on their traditional rights for a functional commercial purpose, they would need to separately negotiate that use through the Partnership Forum and require the consent of the State. (Clause 10.2(f)(iv) and 10.4(d)(i) NRA) This decision would be guided by the sustainability principles (which do not apply to non-indigenous people negotiating with the State for the commercial use of natural resources).
This is the current position with respect to vegetation and stone. The adoption of the FPRC individual recommendation would mean this restricted and limited position would also apply to water and animals.
In other words, the FPRC request was conservative and the exclusion of water and fish is a not reasonable exclusion. In doing so, it does not so much prevent Traditional Owners exercising commercial rights over these resources, but instead prohibits even any negotiation or discussion about doing so. The FPRC is disappointed and disagrees with this exclusion, particularly in circumstances where native title commercial rights continue to be explored through the courts. Nevertheless, the FPRC has endorsed the Joint Recommendation in the hope that at least some minor and limited change can be achieved.
EPOF Comments
EPOF supports amending the Settlement Act and the NRA template to enable the commercial use of animals (other than fish), subject to the existing NRA restrictions on the commercial use of natural resources.
Given the restrictions and management arrangements that apply to commercial fishing and aquaculture, the commercial use of fish was not included in the joint recommendation on this issue.
Commercial water rights are being progressed through the Aboriginal Access to Water Roadmap being undertaken by DELWP.
EPOF notes that unless a commercial quantity is negotiated for a specific animal(s), Traditional Owners’ commercial use of animals will be limited to the quantity that can be taken for ‘non-commercial purposes. However, Traditional Owner’s commercial use of specific animals can be negotiated on a case-by-case basis, as part of their settlement agreement, or in their NRA Partnership Forum.
The water entitlement framework does not have provision for the State to provide ‘as of right’ access to water for commercial uses for Traditional Owner Groups within the NRA template. However, the State agrees with FPRC that the matters outlined above are important to progress.
Extending existing rights to take natural resources from private land
Background
During the course of the Review EPOF put forward a suggestion that rights under the NRA could be extended to freehold land, with the landowner’s consent.
Request
The Traditional Owner Land Natural Resource Agreement (TOLNRA) provides for Traditional Owners to undertake ‘agreed activities on freehold land owned by the Traditional Owner Corporation or individual Traditional Owners, subject to landowner permission.
However, these rights cannot currently be extended to other types of freehold land, even with landowner consent.
Joint or individual recommendation
Joint recommendation.
Recommendation 19
That the RSA and TOLNRA templates be amended so that ‘agreed activities’ (as defined in clause 1.1 of the TOLNRA) can be exercised on freehold land within the outer boundaries of a Recognition and Settlement Agreement, subject to a landowner’s permission.
Unresolved issues
The FPRC made additional proposals relating to this matter, which will be explored through the proposed Settlement Act forum. These include consideration of whether consent by a landowner to the exercise of ‘agreed activities’ would:
- run with the land, through a covenant or similar mechanism; or
- is intended to bind only the current landowner and expire upon sale or transfer of the land.
Water rights
Background
The Settlement Act and Settlement Act Agreements provide no rights to Traditional Owners with respect to water, other than those already available to the general public.
The Traditional Owner right to water is included in section 9 of the Settlement Act, which recognises a right to take ‘natural resources’ including water.
However, section 84 of the Settlement Act limits the use of water to Traditional Purposes, which means the purposes providing for:
- any personal or domestic needs of the members of the Traditional Owner group; or
- any non-commercial needs of the members of the Traditional Owner group.
Further, clause 6.2(c) of the NRA, requires that Traditional Owners ‘take or use Water from a waterway or bore in accordance with s8A of the Water Act 1989 (Vic)’. Section 8A provides the same rights available to the general public, that any person has a right to take water, free of charge, for that person’s domestic stock and use from a waterway or bore to which a person has access.
Request
The FPRC considers the current arrangements with respect to water rights to be both inadequate and inappropriate.
Joint or individual recommendation
Joint recommendation.
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.
Unresolved issues
The Review did not consider water rights in any detail, and the recommendation above, while acknowledging the significance of the issue, does not provide any resolution. These issues will be examined more closely through the proposed Settlement Act forum.
However, the State will engage with individual Traditional Owner Groups, at the time of and/or post-settlement, to explore potential opportunities for Traditional Owner access to commercial water in their respective catchment(s) and to negotiate individual access agreements, outside the Settlement Act framework, as necessary.
Additions to 'Natural Resources' for the purpose of a Natural Resource Agreement
Background
The definition of ‘Natural Resources’ in section 79 of the Settlement Act excludes gold, silver, metal or minerals.
Request
Traditional Owners have requested that these resources be added to the definition of ‘Natural Resources’ in the Settlement Act.
Joint or individual recommendation
Joint recommendations.
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.
Unresolved issues
None, except for those matters to be further considered by the proposed Settlement Act forum.
The Land Use Activity Regime (LUAR) is established by the Settlement Act and the LUAA and is a simplified alternative to the future acts regime under the NTA. The objective of the LUAR is to establish a process whereby Land Use Activities, as that term is defined in section 28 of the Settlement Act, may occur whilst respecting Traditional Owner rights attached to Public Land.
A range of issues relating to the LUAA was raised and considered by the Review. A brief description of each issue is set out below, along with the joint or individual recommendation that was made.
Community benefits formulae
Community Benefits are payments for Significant Land Use Activities impacting on Traditional Owner rights where an RSA is in place. Although these payments are calculated in accordance with the Community Benefits Formulae in Schedule 7 of the LUAA, for the purposes of this report, they are dealt with in Part 3: Compensation.
Categorisation of land use activities
Part 4 of the Settlement Act deals with Land Use Activities. Five different categories of Land Use Activity are defined, each intended to reflect the differential impact of Land Use Activities on Traditional Owner rights. Each category gives rise to a different level of Traditional Owner control over the activity (see Figure 4).
The FPRC requested that the several existing categorisations of activities be modified to provide a higher level of rights for Traditional Owners overall.
Figure 4. Five categories of Land Use Activity
Routine
No obligation to notify. Works may proceed with any notice.
Advisory
Must provide notice to the TOGE and allow 28 days for comment.
Negotiation A
Obligation to negotiate an agreement.
If parties fall into dispute can be referred to VCAT. VCAT has the power to stop the project and set payments and conditions.
Negotiation B
Obligation to negotiate an agreement.
If parties fall into dispute can be referred to VCAT. VCAT does not have the power to stop the project but may set payments and conditions.
Agreement
Traditional Owners must consent for the activity to go ahead.
Leases, Permits and Licences
The granting of leases, permits and licences over public land are Land Use Activities captured by the Settlement Act and the LUAA.
The LUAA categorises these activities based on (i) the length of the term; and (ii) whether they are granted for a Community Purpose or a Commercial Purpose.
The current categories are set out below, along with recommended changes. In addition, the recommendations are proposed to be implemented either in accordance with:
- Timeframe One: within 3-6 months following endorsement by Cabinet; or
- Timeframe Two: in a phased approach estimated to take 3-5 years, to enable time for any necessary legislative change, and the development of a new system and new processes to manage the high volume. The elevation of leases and licenses to Negotiation or Agreement activities will have administrative, operational and financial impacts for Traditional Owners Corporations, lessees, licensees, permit holders and state agencies. Timeframe 2 will enable the State to reengineer the existing procedures and systems to automate and streamline LUAA processing, to adequately resource and empower Traditional Owner Corporations and to minimise administrative delays for all LUAA parties.
1.1.1 Community Purpose Permits and Licences
Current categories
Below 10 years: Routine
Above 10 years: Advisory
Above 21 years: Advisory
Joint or individual recommendation
Joint recommendation.
Recommendation 22
To be implemented in accordance with Timeframe 1:
- Above 21 years: Negotiation Class A, with a condition that no Community Benefits are payable.
To be implemented in accordance with Timeframe 2:
- All Community purpose permits and licences: to be categorised as Negotiation Class A with a condition that no Community Benefits are payable.
Unresolved issues
The FPRC notes that this change was first raised in 2018. The FPRC is disappointed that even if this recommendation is accepted, changes for the majority of community purpose permits and licences (those with a term below 21 years) will not occur for a further 3 to 5 years.
1.1.2 Community Purpose Leases
Current categories
Below 21 years: Advisory
Above 21 years: Negotiation Class B
Joint or individual recommendation
Joint recommendation.
Recommendation 23
To be implemented in accordance with Timeframe 1:
- Above 21 years: Negotiation Class A
To be implemented in accordance with Timeframe 2:
- All Community purpose permits and licences: to be categorised as Negotiation Class A
Unresolved issues
The FPRC notes that this change was first raised in 2018. The FRPC is disappointed that even if this recommendation is accepted, changes for the majority of community purpose leases (those with a term below 21 years) will not occur for a further 3 to 5 years.
1.1.3 Commercial Purpose Permits and Licences
Current categories
Below 10 years: Routine
Above 10 years: Negotiation Class B
(NB: this categorisation is subject to the exceptions in item 2.4 of Schedule 3 of the LUAA template).
Joint or individual recommendation
Joint recommendation.
Recommendation 24
To be implemented in accordance with Timeframe 1:
- Above 10 years: Negotiation Class A, not including a licence under Division 2 of Part 5 of the Water Act 1989 to construct any works on a waterway or a bore (“works (Water Act) licences”).
To be implemented in accordance with Timeframe 2:
- All Commercial purpose permits and licences: to be categorised as Negotiation Class A, including works (Water Act) licences as defined in section 27 of the TOS Act.
Unresolved issues
The FPRC notes that this change was first raised in 2018. The FPRC is disappointed that even if this recommendation is accepted, changes for the majority of commercial purpose permits and licences (those with a term below 10 years) will not occur for a further 3 to 5 years.
1.1.4 Commercial Purpose Leases
Current categories
Below 10 years: Advisory
Above 10 years and up to 21 years: Negotiation Class A
Above 21 years: Agreement
Joint or individual recommendation
Joint recommendation.
Recommendation 25
To be implemented in accordance with Timeframe 1:
- Above 10 years: Agreement
To be implemented in accordance with Timeframe 2:
- Below 10 years: Agreement
Unresolved issues
The FPRC notes that this change was first raised in 2018. The FPRC is disappointed that even if this recommendation is accepted, changes for the majority of commercial purpose leases (those with a term below 10 years) will not occur for a further 3 to 5 years.
Major Public Works
Background
Major Public Works are defined at clause 1.1 of the LUAA. In broad terms a Major Public Work involves the clearing or carrying out of works on land of a significant scale for a public purpose, and may involve the construction of infrastructure, road works, and activities having a similar impact on the Agreement Land and Traditional Owner rights.
Major Public Works are currently categorised a Negotiation (Class B), while many other significant activities are categorised as Negotiation (Class A).
The only difference between Negotiation Class A and B is the powers provided to VCAT in the event of a dispute. With respect to Class A, VCAT has the power to determine if the ‘works may or may not proceed.’17 With respect to Class B, VCAT has no such power, and may only set conditions on how the works will proceed.18
17 Section 54(1)(a) Settlement Act
18 Section 55(1)(b) Settlement ActRequest
The Template Review Committee first requested in 2018 that Major Public Works be re-categorised as negotiation (Class A). It was argued that in addition to a more just recognition of Traditional Owner rights over Country, this change will create an administrative efficiency as it will retire the category of Negotiation Class B. This reduces the total number of categories from five to four, simplifying the process, making it easier to understand and comply with.
Current category
Negotiation Class B.
Joint or individual recommendation
Individual recommendation.
Recommendation 26
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.
Unresolved issues
FPRC comments
The FPRC is disappointed that this recommendation, understood to have been committed to by EPOF, and jointly endorsed since at least 14 July 2020, has only in the final drafting of this report not being adopted by the EPOF.
FPRC further note that while EPOF calls for further work to develop principles ‘to provide clear guidance’ to VCAT:
- no such principles are in place for other existing Negotiation A activities; and
- this request was first put in 2018, and there has been a period of at least 3 years during which principles could have been proposed and agreed upon.
Hydraulic fracturing19
19 In this report, hydraulic fracturing (‘fracking’) refers to the method of petroleum (including oil and gas) development that is currently banned in the onshore area of Victoria, and the subject of the Resources Amendment Legislation (Fracking Ban) Act 2017.
Background
In 2017, a state-wide ban on onshore hydraulic fracturing (fracking) for petroleum (including oil and gas) development was enacted through the Resources Amendment Legislation (Fracking Ban) Act 2017, which amended the Petroleum Act 1998 and the Mineral Resources (Sustainable Development) Act 1990. This ban was also entrenched in the Victorian Constitution under the Constitution Amendment (Fracking Ban) Act 2021.
Authorisations that are prerequisites for fracking (were it lawful) are currently categorised as either Routine (if the standard conditions in Schedule 4 of the LUAA are adopted) or Negotiation Class A, under the LUAA.
Request
Despite the ban and entrenchment, the FPRC have requested that fracking be prohibited outright or be categorised as an Agreement activity under the LUAA. Offshore fracking is not yet operational in Victoria, is not covered by the state-wide ban and entrenchment, and therefore is also not captured by the above recommendation to elevate the activity to an Agreement activity.
Current category
Routine / Negotiation Class A.
Joint or individual recommendation
Joint recommendation.
Recommendation 27
That:
- each activity described in subsections 99(a), (b) and (c) of the Constitution Act 1975 (Vic) be categorised as an Agreement activity under the LUAA; and
- the issue of offshore fracking be referred to the proposed Settlement Act forum.
Unresolved issues
None, except for those matters to be further considered by the proposed Settlement Act forum.
Exemption of land in Alpine Resorts
Background
Section 11(1)(a) of the Settlement Act excludes alpine resorts from the definition of Public Land, and Section 32(3A) prohibits a LUAA from specifying any activity within an alpine resort as a negotiation or agreement activity.
Request
The FPRC requested that land with alpine resorts be included in the LUAR.
Joint or individual recommendation
Joint recommendation.
Recommendation 28
That the LUAR 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.
Unresolved issues
None.
Capture of existing Public Land Authorisations (PLAs) upon renewal
Background
Upon entering into a Settlement Act agreement, many leases, licences, permits (PLAs) may already be in operation within the Agreement area. These may be long term interests and have automatic rights of renewal. Under current arrangements Traditional Owners receive no procedural rights or Community Benefits from these interests on their traditional lands.
Issue
The FPRC requested that the First Principles review explore implementing Traditional Owner rights to the renewal of leases, licences or permits that would otherwise be excluded from the LUAA.
EPOF responded with 3 options:
- Option A: Commence ongoing payment
Upon entry into a Settlement Act agreement, the State will pay Community Benefits for PLAs that are in effect as at the time of settlement, from monies otherwise being paid to consolidated revenue.
- Option B: Lump sum payment to Traditional Owners from estimated PLA income
Prior to entry into a Settlement Act agreement, the State will estimate the total amount of future revenue it expects to receive from PLAs and upon settlement pay this as a lump sum.
This option would require a financial impact assessment to be undertaken by the State in order to adequately calculate the projected lump sum amount. Accordingly, this option would need to be explored further in the proposed Settlement Act forum.
- Plus Procedural Rights for both Options A and B
In addition to the provision of community benefits, both Options A and B propose that PLA renewals be categorised as advisory land use activities in 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:
- a broader review of exclusions from the LUAA;
- an examination of whether other exempt PLAs should generate Community Benefits payments and be categorised to allow procedural rights;
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.
Joint or individual recommendation
Joint recommendation.
Recommendation 29
That Option A, as set above, 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.
Unresolved issues
The FPRC notes that this issue will require an audit of existing Public Land Authorisations, which should be undertaken in preparation for the proposed Settlement Act forum.
A land agreement provides for grants of land in freehold title for cultural or economic purposes, or as ‘Aboriginal title’ (a form of title established under section 19 of the Settlement Act) to be jointly managed in partnership with the State.
Broaden the category of Crown land eligible to be granted as Aboriginal Title (i.e. State Game Reserves)
Background
The Settlement Act and Conservation, Forests and Lands Act (1987) exclude land in a State Game Reserve from the definition of public land over which Aboriginal title can be granted and over which joint management arrangements can operate.
Request
Traditional Owners have argued that it should be possible to grant Aboriginal title and to have joint management arrangements over land in a State Game Reserve.
Joint or individual recommendation
Joint and individual recommendations.
Recommendation 30
(a) Joint Recommendation
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) FPRC Individual Recommendation
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.
Unresolved issues
Whilst EPOF agreed to a resolution to include State Game Reserves in the definition of public land over which Aboriginal title can be granted, the FPRC stated that this did not fully capture Traditional Owner aspirations.
EPOF notes that DELWP, Parks Victoria and DJPR are currently progressing co-management pilots with Traditional Owner corporations in State Game Reserves under the Traditional Owner Game Management Strategy.
Expand the categories of Crown land eligible for transfer for economic purposes
Background
There is no policy supporting the freehold transfer of Crown land with current commercial purposes and public value.
Request
Traditional Owners (and DELWP) have suggested exploring the categories of Crown land eligible for freehold transfer and other mechanisms for greater Traditional Owner rights and involvement in Crown land management (such as actively used Crown land/Crown land with assets, i.e. racecourses, golf courses, other commercial sites).
Joint or individual recommendation
Joint recommendation.
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 proposed Settlement Act forum.
Definition of emergency activities
Background
Section 39 of the Settlement Act stipulates that nothing in a LUAA is to be taken to prevent or impose any requirements on the carrying out of any activity in an emergency for the purpose of protecting property or life or for the purposes of protecting the environment.
Under clause 7(c) of the LUAA, if the State carries out an activity pursuant to section 39, it is required to inform the TOGE as soon as is practicable.
Neither the Settlement Act nor LUAA provides a definition of the term ‘emergency.’
Issue
Traditional Owners have requested that the Settlement Act and LUAA be amended to include a definition of ‘emergency’ and an assessment of whether such activities are reasonable or excessive be carried out.
Joint or individual recommendation
Joint and individual recommendations.
Recommendation 32
a. 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.
b. 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:
- provide any Community Benefit Payment owing with respect to the activity; and
- undertake rehabilitation works, as reasonably requested by the Corporation.
Unresolved issues
Traditional Owners are seeking for the State to pay community benefits and undertake rehabilitation works for activities that occur in an emergency.
The proposed Settlement Act forum
Background
The conduct of the Review made clear that there are wide areas of potentially beneficial reform with respect to the operation of Settlement Act agreements, much of which was beyond the scope of this Review. In addition, many issues presented complexities that were unable to be resolved in within the timeframe of the Review.
Request
The FPRC and EPOF jointly propose that outstanding Review issues be resolved via an ongoing Settlement Act forum, which could also broker solutions to emerging issues under the Act.
Joint or individual recommendation
Joint 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.
Unresolved issues
The governance, structure and terms of reference of the proposed Settlement Act forum need to be developed over the coming months, including ensuring the forum’s alignment with Victoria’s treaty process and the First Peoples’ Assembly of Victoria to avoid duplication, and consideration of the potential to streamline these processes.
Crown water frontages
Background
FPRC comments: This issue did not form part of the original terms of reference for the Review. However, during the course of the Review the Victorian Government announced its proposal to enact the Parks and Crown Land Amendment Act 2020 (Amendment Act), which would allow camping and the lighting of campfires on all licenced Crown water frontages. Traditional Owners across the State voiced concerns about the impact this would have on Aboriginal cultural heritage, given that 95 per cent of cultural heritage listed places occur within one kilometre of a waterway.
On 28 September 2020, the FPRC wrote to EPOF requesting that the issue of Crown water frontages and Traditional Owner management be reviewed under the First Principles Review.
On 11 November 2020, the EPOF wrote to the FPRC recommending that the issue be referred to the proposed Settlement Act forum.
On 2 December 2020, the FPRC, unsatisfied with the response from EPOF, elevated the issue and wrote to Ministers Gabrielle Williams, Melissa Horne, and Lily D’Ambrosio, raising concerns over the Amendment Act, and the likely detrimental impacts on Aboriginal cultural heritage, the environment and Traditional Owner rights and interests. The FPRC requested an urgent meeting to discuss the Amendment Act, the corresponding regulations and how the State would ensure the protection of Aboriginal cultural heritage and Traditional Owner rights and interests.
A meeting was scheduled with the Ministers for 27 January 2021. However, the meeting was cancelled “due to unforeseen diary matters” and was required to be rescheduled to a later date. The FPRC were not provided with alternate dates and once again had to actively advocate for their concerns to be heard and a meeting with the Ministers to be scheduled.
On 31 March 2021, nearly four months after the initial meeting request was made, the FPRC met with Ministers Melissa Horne and Lily D‘Ambrosio. The FPRC made a number of written requests (see below).
On 14 April 2021, having received no response to the requests, the FPRC wrote to the Ministers again requesting the State urgently advise how it intended to proceed with the issue.
On 4 June 2021, three months after the meeting with the Ministers and nine months after the issue was first raised by the FPRC, a meeting was held between DELWP, DPC and the VFA to discuss how to proceed and resolve the issue.
At the meeting it was agreed that the corresponding regulations would be re-drafted to ensure that heritage assessment was undertaken by Traditional Owners before camping was allowed on Crown water frontages. The State made this conditional on the affected Traditional Owner groups agreeing to a heritage assessment process and ‘clearing’ a number of sites before the regulations were enacted on 1 September 2021.
On 22 June 2021, the affected Traditional Owner groups were provided a draft heritage assessment process. This provided Traditional Owners around two months to settle a heritage assessment process and ‘clear’ sites.
As the issue was referred to the affected Traditional Owner groups the FPRC did not have oversight of the issue from that date.
Request
The FPRC made a number of requests in relation to cultural mapping/Reading Country, including that:
- Crown water frontages remain closed to camping and campfires until comprehensive cultural mapping of the relevant areas has been undertaken;
- Cultural mapping is to be resourced by the State, and will examine both tangible and intangible heritage, undertaken through a process determined by Traditional Owner groups in the manner they think necessary to protect their cultural heritage; and
- Where cultural mapping reveals area of high cultural value, these areas will not be opened to camping and campfires without Traditional Owner consent, and the Traditional Owner group will be provided a first right of refusal to manage the area.
The FPRC also sought commitments from the State for resourcing and enforcement, and for Traditional Owners to be actively involved in the development of regulations, legislation and policy going forward.
Joint or individual recommendation
Individual recommendation.
Recommendation 34
FPRC recommendation
That FPRC’s 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 recommends that this internal review be tabled along with a status update at the proposed Settlement Act Forum and be provided to Traditional Owner groups for their consideration.
The FPRC also supports the EPOF recommendation below and requests ongoing Traditional Owner oversight of the matter.EPOF recommendation
That DELWP work together with the affected 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.
Unresolved issues
FPRC additional comments
This issue identifies a broader issue around the State failing to consult and cooperate in good faith with Traditional Owners to obtain their free, prior, and informed consent prior to the approval of issues that affect them.
Free, prior, and informed consent is a human right norm grounded in the right to self-determination and the right to be free from racial discrimination, rights which are recognised by the State.
Free, prior, informed consent is more than consultation. The State has an obligation to obtain consent as the objective of consultation.
The FPRC first raised the issue in September 2020. It was not until June 2021, nine months after the issue was raised, that the State engaged Traditional Owners with the objective to resolve the issue.
The affected Traditional Owner groups then had to work to resolve the issue within the States’ two-month timeframe.
The imposition of the timeframe is a clear failure to meet the standard required of ‘prior’. ‘Prior’ in the context of free, prior and informed consent implies that consent is to be sought sufficiently in advance of any authorisation or commencement of acts and respect is shown to the requirements of Traditional Owner internal consultation processes.
Arguably, the standard of ‘free’ and ‘informed’ were not met either. However, the FPRC concede that the breach of these standards is less objectively clear.
Regardless of which individual standards were breached, the right to free, prior and informed consent was not upheld in this instance. Therefore, neither was the right to self-determination.
While the State has made changes to the corresponding regulations and a Traditional Owner heritage assessment process has been devised no measures have been put in place to provide Traditional Owners and Aboriginal Victorians certainty that their free, prior and informed consent will be sought on matters that affect them and that their right to self-determination will not be breached again.
As noted above, the FPRC has not had direct oversight of this matter since late June 2021 and does not have clarity around the current status of the matter.
EPOF additional comments
DELWP is working with Traditional Owner Corporations and Aboriginal Heritage Victoria to undertake extensive cultural heritage mapping along Crown water frontages, to inform any future joint recommendations on sites that are suitable for public camping.
LUAA Avoidance / Dispute Resolution / Review mechanisms / Compliance / Communication
Background
In 2018 the Template Review Committee sought resolution of several issues: (i) LUAA avoidance by government agencies and other developers of Crown lands; (ii) dispute resolution around Land Use Activities; (ii) RSA review mechanisms; (iii) State compliance with RSAs; and (iv) communication of RSA obligations.
These issues span more than one template and are therefore considered separately here.
In April 2021, the FPRC requested that EPOF consider these issues together, and put forward a proposal aimed at collectively addressing these issues.
Request
The FPRC is of the view that there are systemic issues surrounding the operation of the LUAA that require both immediate and longer-term substantive reform. Accordingly, the FPRC proposed that, in the short term, the State engage an independent lawyer to centralise the legal advice received by departments dealing with the RSA, and through the proposed Settlement Act forum develop an independent office or body to oversee the implementation of Settlement Act agreements.
Joint or individual recommendation
Individual recommendation.
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.
Unresolved issues
EPOF comments
EPOF recognises that LUAA avoidance, dispute resolution, review mechanisms and compliance are complex issues requiring extensive engagement and discussion between Traditional Owners and the State.
EPOF is open to further exploration of the FPRC’s proposal but wishes to understand all the elements of that proposal and their workability in greater detail, including how these compare favourably to the existing dispute resolution provisions in the TOS Act.
EPOF recommends that these issues be pursued in good faith through the proposed Settlement Act forum.
EPOF also suggests that consideration of these issues should have regard to elements required under the Advancing the Treaty Process with Aboriginal Victorians Act 2018 to support future treaty negotiations, such as:
- the functions of the Treaty Authority, which will facilitate and oversee treaty negotiations and provide for the resolution of disputes; and
- the treaty negotiation framework, which must include mechanisms for enforcing a treaty and reporting requirements in relation to a treaty or treaties.
FPRC comments
The FPRC notes that these issues have been of concern to Traditional Owner groups operating under an RSA for many years and were directly raised by the Template Review Committee in 2018. EPOF is well aware of the ongoing inadequacies of the current dispute resolution process under the Settlement Act, and these issues could be addressed immediately by adoption of the FPRC recommendation. The FRPC is disappointed these issues were not able to be resolved, or in any way progressed, as part of this review.
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