The Land Use Activity Regime is a simplified alternative to the future Acts regime of the Native Title Act. It provides procedural rights for recognised traditional owner groups over certain activities that occur on public land. The objective is to enable these activities to proceed, while accommodating third party interests and respecting the rights of traditional owners attached to the public land.
The Land Use Activity Regime is enabled by Part 4 of the Act and is given effect through a Land Use Activity Agreement (LUAA). A LUAA is a sub-agreement under a Recognition and Settlement Agreement. It can be entered into by the Minister for Treaty and First Peoples and a traditional owner group entity or corporation (on behalf of a traditional owner group). A LUAA must be accompanied by an Indigenous Land Use Agreement, which provides for the ‘contracting out’ of Native Title Act processes.
Download the Land Use Activity Regime Policy and Regulations.
Where does the Land Use Activity Regime apply?
Currently, there are two Land Use Activity Agreements:
- one between the State and the Dja Dja Wurrung Clans Aboriginal Corporation, which commenced on 25 October 2013.
- the other between the State and the Taungurung Land and Waters Council Aboriginal Corporation, which commenced on 11 August 2020.
. For detailed maps of these agreement areas, go to:
A Land Use Activity Agreement (LUAA) applies only over public land as defined in section 3 of the Act. This includes land under the Crown Land (Reserves) Act 1978 (Vic), the Alpine Resorts Act 1983 (Vic), the National Parks Act 1975 (Vic), the Forests Act 1958 (Vic), the Land Act 1958 (Vic), and the Wildlife Act 1975 (Vic). A LUAA does not apply to land vested in a public authority or over freehold land.
Specifically, the procedural rights will apply to public land within the agreement area (as defined in a LUAA), with the exception of a number of exclusions, including:
- land where there is existing infrastructure (as defined in the LUAA Template)
- land where there is a specific planned future use (subject to criteria included in the LUAA Template)
- any other land that the state, at the time of entering into a LUAA, wishes to exclude from the operation of the LUAA (as agreed to by the traditional owner group).
What activities does the Land Use Activity Regime apply to?
The procedural rights under the Land Use Activity Regime will only apply to those activities that are listed in a LUAA. The LUAA Template provides this list and classifies activities into one of four categories (routine, advisory, negotiation [class A or class B], and agreement activities). The final listing and classification is subject to negotiation.
To be listed in a LUAA, an activity must be defined as a land use activity in section 28 of the Traditional Owner Settlement Act. Some subsets of these land use activities are excluded from the operation of the regime as a matter of policy. These are listed in the LUAA Template, and include:
- commercial Crown land leases in the alpine resorts
- activities or classes of activities that are consistent with a joint management plan
- activities that are undertaken pursuant to an existing authorisation (e.g. Crown land lease, mining licence), or pursuant to an authorisation that has been carried out in accordance with the requirements of a LUAA.
Existing interests will not be affected by a LUAA, for example, an existing Crown land lease.
How will I know if my proposal is subject to a Land Use Activity Agreement?
Each LUAA is published on a public register – the Register of Land Use Activity Agreements. Currently, the Dja Dja Wurrung LUAA and the Taungurung LUAA are the only LUAAs entered on the Register. Key information on the Register includes:
- the area of land to which the agreement applies (‘agreement land’, as defined in section 27 of the Act)
- the list of land use activities to which the LUAA applies, and their classification
- contact details for the traditional owner group entity (corporation) for the purpose of notification, consultation or negotiation (as applicable).
The requirements for the negotiation and agreement categories of land use activities are detailed in Division 3 of Part 4 of the Act. The requirements for advisory activities will be detailed in ministerial directions, a draft of which is included in the LUAA Template.
Ministerial directions as to advisory activities for the Dja Dja Wurrung LUAA were issued by the Attorney-General on 24 October 2013 and are available at Dja Dja Wurrung Land Use Activity Agreement.
Ministerial directions as to advisory activities for the Taungurung LUAA were issued by the Attorney-General on 7 August 2020 and are available at Taungurung Land Use Activity Agreement.
What are the reasonable costs of negotiating?
Section 50 of the Act requires a person seeking to undertake a negotiation or agreement activity on agreement land to reach agreement with the traditional owner group entity as to whether the activity can proceed. According to section 52(2) of the Act, the reasonable cost of negotiating under a LUAA is to be "...calculated as prescribed by the regulations".
On 29 September 2015, the Governor in Council made the Traditional Owner Settlement (Negotiation Costs) Regulations 2015 (the Regulations).The Regulations provide that the traditional owner group entity is to calculate the reasonable cost of negotiating by specifying any decision-making costs, professional services costs and travel costs in Form 1 of the Regulations.
View and download Form 1 of the Regulations
Requirements for notifying a Negotiation or Agreement activity and for enforcement orders
The Traditional Owner Settlement Regulations 2017 prescribe the matters which must be addressed by the Responsible Person in notification of a Negotiation land use activity or an Agreement land use activity.
They also specify that an objection to an application for an enforcement order may be made within 15 business days.
How is the Land Use Activity Regime different to the future acts regime of the Native Title Act?
The Land Use Activity Regime is intended to provide a simpler and more streamlined approach to procedural rights over activities on Crown land that may affect the rights of traditional owners. Under the Land Use Activity Regime:
- land use activities are separated into four categories, where there are 10 categories under the future acts regime
- no assessment is required to determine what category an activity falls into (and, consequently, what procedural rights apply to it)
- the procedural rights for an activity are not affected by the tenure of the land
- there is no need to assess whether or not native title has been extinguished
- the traditional owners and their representative organisation are clearly identified and resourced to provide responses to notifications and other requests
- standard terms and conditions are available for low impact earth resource activities (i.e. exploration), removing, in some instances, the need for industry to negotiate
- the state is responsible for negotiating agreement for the sale of Crown land and for paying community benefits for those sales
- the state is responsible for the leasing of Crown land and for some land use activities
- Aboriginal cultural heritage obligations will be dealt with under the Aboriginal Heritage Act 2006 (Vic), and there will be no duplication or inconsistency
- parties to a 'negotiation activity' can seek a determination from the Victorian Civil and Administrative Tribunal, and the minister has powers to require a decision by a certain time, or, in some circumstances, to make a determination.
Will there be any further consultation?
Yes. As part of the negotiation of any LUAA, the state will consult with affected industries and other third parties to ensure that transitional arrangements are appropriate.