There was a number of issues raised as part of the Review that did not result in any recommendations, either because the Review ran short of time to consider them in any detail, or because they were particularly complex and could not be resolved before the finalisation of this report. Additionally, the parties jointly recommended that some issues examined in this Review required a lengthier period of detailed consideration. These issues are proposed for further consideration via a Settlement Act Forum.
The background as well as an articulation of each of unexamined issue is outlined below, with each recommended to form part of the work of the proposed Settlement Act forum.
Background
In the LUAA, procedural rights and compensation in relation to timber harvesting are triggered by the gazettal of a new Timber Release Plan (TRP), or the modification of an existing TRP. The gazettal of a new TRP is categorised as a Negotiation Class B activity. The modification of an existing TRP is categorised as an advisory activity. Formula C of the Community Benefits formulae stipulates that compensation for timber harvesting is payable from the annual VicForests dividend.
Issue
In practice, new TRPs are not published. Rather, existing TRPS are amended, with the consequence that only lower level, ‘advisory’ Traditional Owner rights are triggered, rather than the full range of rights and compensation accorded by Negotiation Class B. Additionally, VicForests has not been required by the Treasurer to pay a dividend to the State and is unlikely to be in a position to be able to do so. Therefore, Traditional Owners are unable to exercise their procedural rights or receive the compensation they are entitled to under the current categorisation in the LUAA.
EPOF notes that Forest Policy is continuing to work with VicForests on a solution to the issues raised by the FPRC. FPRC notes its view that there is an incorrect assumption that TRPs are VicForests’ only obligations under the LUAA. The activities under the TRP should also be assessed for impact on Traditional Owner land and rights.
Background
Schedule 4 of the LUAA sets out the standard terms and conditions (including payment terms) with respect to Earth Resource or Infrastructure Authorisations, defined to mean:
- exploration licences, prospecting licences and retention licences granted under the Mineral Resources (Sustainable Development) Act 1990 (Vic);
- exploration permits and retention leases granted under the Petroleum Act 1998 (Vic), Geothermal Energy Resources Act 2005 (Vic), or Greenhouse Gas Geological Sequestration Act 2008 (Vic);
- special access authorisations and special drilling authorisations granted under the Petroleum Act 1998 (Vic);
- greenhouse gas assessment permits, greenhouse gas holding leases, petroleum exploration permits and petroleum retention leases granted under the Offshore Petroleum and Greenhouse Gas Storage Act 2010 (Vic); and
- any other authorisation granted under the above Acts for the purpose of exploration.
If a proponent accepts the standard terms and conditions, the grant of their authorisation is treated as a Routine activity under the LUAA. If they do not accept, then separate terms and conditions may be negotiation as a Negotiation (Class A) activity.
Issue
In 2018 the Template Review Committee sought to renegotiate Schedule 4, to ensure it was in keeping with the terms and conditions achieved in NTA agreements across Australia.
In August 2019, the State invited the Federation of Victorian Traditional Owner Corporations, as a representative body for Traditional Owner groups, to participate in the renegotiation of the Schedule 4 conditions and rates with earth resource industry representatives. It was proposed that the renegotiation take place in as part of the First Principles Review.
The FPRC has approved parts of a redrafted Schedule 4 and looks forward to progressing its negotiation in the proposed Settlement Act forum.
The EPOF agrees that Schedule 4 conditions be reviewed, and associated rates be adjusted to align with compensation potentially available under Native Title Act 1993 (Cth) agreements across Australia. These proposed changes should be negotiated with the Minerals Council of Australia and relevant industry stakeholders. Work has begun towards the redrafting of Schedule 4, and it is intended this work will be further progressed in the proposed Settlement Act forum.
The FPRC acknowledges that work has commenced within the Department of Jobs, Precincts and Regions (DJPR) on the following issues. The FPRC proposes these issues be considered by the proposed Settlement Act Forum:
- the process for monitoring and enforcing payments to Traditional Owner corporations under Schedule 4, including:
- the potential for fees and other payments owed under schedule 4 to be collected by the Department of Jobs, Precincts and Regions, as part of their ongoing management and regulation of the relevant Earth Resource or Infrastructure Authorisation (at the election of the Traditional Owner corporations);
- consequences for licence holders if they do not pay fees or other payments owing under schedule 4;
- online access for Traditional Owner groups to all relevant information about exploration and mining activities on Country
- examining Traditional Owner rights to Earth Resource or Infrastructure Authorisations granted prior to the Settlement Act agreement, or otherwise excluded from the LUAA.
Background
The Settlement Act provides that an NRA can contain strategies to enable Traditional Owner participation and employment in the management of natural resources.
Issue
The Template Review Committee stated that current strategies were not working and requested that the participation strategies and procurement method proposed by Dja Dja Wurrung be mandated with clear deliverables and outcomes.
Issues raised in this report
- Commissioning an expert or experts to advise on compensation issues
- Raised under Recommendation 11
- Negotiation of final community benefits formulae and the calculation model
- Raised under Recommendation 11
- Hydraulic fracturing (fracking)
- Raised under Recommendation 27
- Water rights
- Raised under Recommendation 20
Issues not raised in this report
- Further consideration of the resolution relating to the extension of existing rights to take natural resources from private land as outlined in Part 4 of this report
- Inclusion of Traditional Owners in the Whole of Government approach to recycling/utilising public land and assets
- Whether a Traditional Owner Group Entity (TOGE) should act as the Traditional Owner Land Management Board for jointly or solely managed land
- Inclusion of freehold land held by State owned entities in the LUAA to allow for future compensation (changing the definition of ‘public land’)
- Review of the Threshold Guidelines
- Whether Traditional Owner rights and interests can be assigned, or undertaken with, people who are not members of a TOGE
- Overseeing the legislative reform and implementation of the Review report recommendations (subject to Cabinet approval)
- The provision of funding / resourcing for Traditional Owner groups
- Commissioning an expert or experts to advise on compensation issues
Several other reviews and negotiations occurred in parallel with the First Principles Review. FPRC and EPOF agreed that any outcomes of these processes, where relevant to the Terms of Reference of the Review, should be referred to the proposed Settlement Act forum for further discussion and consideration. These parallel processes included:
- Findings of the Joint Management Implementation Project
- Findings of the LUAA audit
- Dja Dja Wurrung Initial Outcomes Review/renegotiations
At the time of finalising this report, none of these parallel processes has concluded. However, the Review proposes that those engaging in the negotiations on this issue report to the proposed Settlement Act Forum on their progress.
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