What kind of activity is it? - WJJWJ LUAA

A project or program of works may include several LUAA ‘activities’. If so, assess each activity separately and follow the LUAA process for each one.

It may be convenient, when planning such a program, to notify BGLC of the scope of activities in that program. You can then discuss when and how best to manage the formal notifications required by the LUAA.

For some Major Public Works, a grant or variation of a Public Land Authorisation (PLA) is required. The LUAA clarifies that in these cases, the PLA is not treated as a separate matter for negotiation and Community Benefits. It is treated as a component of the Major Public Works.

In all other cases, if a single project or enterprise includes multiple Negotiation or Agreement activities, then Schedule 6 of the LUAA sets out how a joint process can be agreed for all activities forming that project.

An activity can proceed without prior notification if:

• it is undertaken during an emergency, and
• the activity is for the purpose of protecting life, property or the environment.

The decision maker must inform BGLC of what has been done during the emergency, as soon as practicable afterwards. On request, the State must meet with BGLC.

Any works or other activities conducted after the emergency has passed are classified by the LUAA in the usual way.

Further guidance

‘Emergency’ has the same meaning as in section 3 of the Emergency Management Act 2013 (Vic).

‘Planned controlled burning’ is an Advisory activity (see below), so the Advisory process must be followed before the activity commences. Occasionally, a planned burn gets out of control and develops into an emergency situation. In that emergency, additional activities undertaken for the purpose of protecting life, property or the environment would not require advance notification to BGLC.

Activities under existing legal authorisations

Activities carried out within the terms of a Public Land Authorisation or other authorisations described in the LUAA, are exempt from the LUAA if the authorisation was granted either:

• before the commencement date, or
• in compliance with the Traditional Owner Settlement Act 2010 (which gives legal effect to the LUAA).

However, Major Public Works that were contemplated by such an authorisation, but which had not commenced construction by the commencement date, are subject to the LUAA.

Activities under a Joint Management Plan

The WJJWJ Peoples' RSA provides for certain Parks and Reserves to be returned to BGLC as Aboriginal Title. These areas are managed by the Yity Yity Land Management Board.

Where this has occurred, and the Board has created a Joint Management Plan for that land, the LUAA authorises activities if they:

• occur wholly on the land subject to the Plan
• are consistent with that Plan, and
• would otherwise have been Advisory activities,

unless BGLC has notified the State that the LUAA will apply to particular activities or a particular class of activities that would otherwise be subject to this exception. 

Management and working plans under listed Acts

The creation of management plans or working plans made under the following Acts are Advisory activities:

• Fisheries Act 1995
• National Parks Act 1975
• Wildlife Act 1975
• Water Act 1989
• Forests Act 1958.

Making or amending a land management plan under the Parks Victoria Act 2018 is also an Advisory activity.

The preparation of a 'Statement of Planning Policy' under Part 3AAB of the Planning and Environment Act 1987 (Distinctive Areas and Landscapes) is an Advisory Activity.

Other plans

In all other cases, the LUAA does not affect the creation of a plan. There is no obligation to consult or negotiate with BGLC when preparing zoning plans, for example, or other kinds of plans not listed above.

That said, it is both efficient and appropriate (in the spirit of ‘a relationship...based on mutual trust and cooperation, good faith and respect’) to engage informally with BGLC early in the course of any planning.

Although the planning itself may not be regulated by the LUAA, your plan may include a number of specific activities that will be. When you create such a plan, you could then formally notify BGLC of those activities well in advance. This would allow plenty of time to work through any Advisory, Negotiation or Agreement processes required for each activity.

The LUAA classifies ‘maintenance and other low impact works with a similar impact as maintenance’ as Routine activities.

These activities include, but are not limited to:

• maintenance of minor public works or other infrastructure
• maintenance of grounds, roads and tracks (e.g. weed control or grass cutting)
• the maintenance or replacement of existing fences, gates and signage (not including the erection of new fences, gates or signage that prohibits access by WJJWJ people wishing to exercise Traditional Owner Rights).
• firewood cutting by State personnel for community use.

The term ‘low impact works’ is not defined in the LUAA or the Traditional Owner Settlement Act 2010. It does not include the construction of Minor Public Works (see below).

The LUAA classifies the following land management activities as Advisory activities:

• the planned controlled burning of the land
• revegetation, regeneration or rehabilitation (and associated activities) in relation to vegetation, lakes, rivers, creeks or streams
• the destruction of rabbit warrens
• sand bypassing and dredging.

These activities are not defined any further in the LUAA or the Traditional Owner Settlement Act 2010.

Note that some large scale programs of works may include a number of different LUAA activities. If so, each activity should be assessed separately for its LUAA requirements (see ‘Are there multiple activities?’ above).

Major Public Works are Negotiation Class B activities.

Minor Public Works are Advisory activities. If a Public Land Authorisation (lease, licence or permit) is issued for the Minor Public Works, then issuing that PLA - and not the works themselves - is an Advisory activity.

The LUAA’s classification may differ from other ways of classifying ‘major’ works, such as in planning schemes or budgeting processes. This table shows related kinds of works side by side, to aid your assessment. Where key terms are underlined, check their definitions in the Glossary then return to this page.

Land clearing or Major Works for a commercial purpose, where a Public Land Authorisation (lease, licence or permit) is not required, are Agreement activities.

‘Major Works’ means the clearing of land or works which have a substantial impact on the physical quality of the land, having regard to the size and scale of the activity, and which are not Major Public Works.

Other land clearing or major works

In many cases, land clearing or major works for a commercial purpose cannot be conducted on public land without a lease, licence or permit. Where such a Public Land Authorisation (PLA) is being granted or varied, see below for its classification under the LUAA.

Activities conducted pursuant to a valid PLA are authorised under the LUAA.

Where land clearing is part of a Specified Public Work see above for the LUAA classification of that public work.

Many, but not all, kinds of leases, licences, permits, and consents are Public Land Authorisations (PLA) that the LUAA regulates.

One notable exception is Planning Permits under the Planning and Environment Act 1987. Issuing such permits is not a land use activity regulated by the LUAA.

If a lease, licence or permit is for a Specified Public Work, the nature of the public works (major or minor) becomes significant. For Major Public Works, it is the works and not the PLA that is the relevant LUAA activity (Negotiation, Class B). For Minor Public Works, the PLA itself is the LUAA activity (Advisory).

See Is it a specified public work? above.

Agricultural Leases

Where a lease is an Agricultural Lease, its classification under the LUAA depends on the amount of land included as well as the term of the lease.

Specific types of Public Land Authorisations

The LUAA also classifies certain other types of PLA according to their purpose or type.

Other types of Public Land Authorisations

The LUAA's treatment of all other Public Land Authorisations is determined by:

• the term of the PLA (its duration, including any extensions or options); and
• in some cases, the purpose of the PLA.

Use the following tables to categorise any lease, licence or permit not listed above. Please read the definitions of ‘commercial’ and ‘community’ purposes, as they have specific meanings in the LUAA.

Permit or licence

Lease (commercial purpose)

Lease (community purpose)

Variations to permits, licences and leases

An amendment or variation of a Public Land Authorisation that allows a change to an activity authorised by that PLA is categorised as follows:

The LUAA groups mining and energy related authorisations under the general term Earth Resource or Infrastructure Authorisation (ERIA).

The following table shows how the LUAA categorises each ERIA activity. Please read the hyperlinked definitions for key terms.

Note that renewing or transferring the above licences are not Advisory activities. The LUAA does not regulate such renewals or transfers.

Other authorisations under the Fisheries Act 1995 are not mentioned in the LUAA, and therefore are not regulated by it.

Changes of status of reservation land as listed below are Advisory activities.

• New reservation of public land, proclamation of an area as Protected Forest, or classification of a State Wildlife Reserve
• Change of reservation boundaries, Gazetted change of reservation purpose, or Gazetted declaration that land within a reserved forest is set aside for a specific purpose
• Revocation of reservation, or excision of land from a reserved forest.

In general, the grant of freehold title to parcels of public land covered by the LUAA (e.g., the sale of public land) is an Agreement activity. It cannot proceed without the consent of BGLC.

Exceptions:

Where a grant of freehold is made to facilitate a project that is for a public purpose, that is a Negotiation (Class B) Activity.

There are no LUAA requirements for:

• a grant of Aboriginal Title (freehold title subject to certain conditions) to the Traditional Owners, or
• a transfer of land between statutory authorities.

The transfer of title to existing freehold land is not subject to the LUAA.