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Focus: New Victorian 'Aboriginal title' and negotiation regime

20 September 2010

In brief: New Victorian legislation enables the granting of a new 'Aboriginal title' and the creation of a state-based negotiation regime for conducting activities on public land. Senior Associate Emily Gerrard and Partner Chris Schulz (view CV) explain the new regime.

How does it affect you?

  • The Traditional Owner Settlement Bill 2010 (Vic) (the Bill) enables a regime for new agreement-based processes and rights to apply to public land areas in Victoria.
  • New traditional owner recognition and settlement agreements can require negotiation and agreement making to take place between future proponents and traditional owner groups for significant projects or activities within agreement areas.
  • While the new processes and requirements will not affect interests and arrangements in place immediately before an agreement is made, public land users, managers and developers will need to be aware of any changes and/or additional steps required to be taken in seeking new interests in relation to public land once an agreement is in place. 

Overview

The Bill is intended to implement policy commitments and outcomes proposed in the Report of the Steering Committee for the Development of a Victorian Native Title Settlement Framework1 (the Settlement Framework Report). On 14 September 2010, the Bill passed through the Victorian Parliament. It creates a framework for the State Government to make a series of agreements with specific entities that represent traditional owner groups in Victoria. The principal agreement under the Bill is a recognition and settlement agreement (RSA). The RSA may contain other 'component' agreements:

  • land agreements;
  • land use activity agreements;
  • funding agreements; and/or
  • natural resource agreements. 

Key aspects of the 'component agreements' are discussed in more detail below.

The Bill is intended to provide an alternative to the resolution of native title under the Native Title Act 1993 (Cth) (the NTA). The Bill creates a state-based mechanism for recognition of 'traditional owner' groups, based on their traditional and cultural associations with certain land in Victoria. The Bill defines a 'traditional owner group' for an area of public land to include persons who hold native title in relation to that area, or who the Attorney-General recognises as the traditional owners based on Aboriginal traditions and cultural associations with the land. Therefore, a group will need to demonstrate a degree of connection evidence in order to negotiate an agreement under the new legislation. While the Bill is silent on these connection requirements, the Victorian Government's Settlement Framework Report sets out the likely process and requirements for establishing a traditional connection or association with land.

To create certainty in relation to the operation or resolution of native title within an agreement area, the Bill proposes that all or part of an RSA can be included in an Indigenous land use agreement executed and registered in accordance with the NTA.

Land agreements

Land agreements may provide for the grant of an estate in fee simple for the benefit of a traditional owner group where the land is unreserved public land, or for the grant of a new 'Aboriginal title' over public land. A grant of fee simple under the proposed legislation may be subject to conditions that restrict the creation of, or dealing with, any legal or equitable interest in the land, including encumbrances, leases or licences of an estate in the land granted. 

'Aboriginal title' is an estate in fee simple subject to the following statutory conditions and limitations:

  • the traditional owner group entity is not able to sell, transfer, dispose of, encumber or otherwise deal with the estate or any legal or equitable interest in the estate;
  • the grant is subject to the limitation that the traditional owner group is not able to lease or license the estate or any legal or equitable interest in the estate; and
  • is subject to a condition that the state is provided with rights to occupy, use, control and manage the land. 

The grant of Aboriginal title will operate similarly to principles of 'hand back / lease back' of land elsewhere in Australia. That is, it will provide for areas to effectively remain public land despite granting an underlying form of Aboriginal title, as a transfer of Aboriginal title will be conditional on an agreement with the state. According to the Explanatory Memorandum accompanying the Bill, beneficial use and enjoyment of the land will remain with the Crown as if it were Crown land. Rights over Aboriginal title transferred to the state by agreement will be subject to the limitation that the state is not able to sell, transfer, dispose of, encumber or otherwise deal with any legal or equitable interest in the land and, except as provided for in the relevant legislation, the state is not able to lease or license any legal or equitable estate or interest in the land.

A land agreement providing for grants in fee simple or of Aboriginal title will not affect existing leases, licences, permits or other authorities or any contract agreement or management arrangements in force immediately before the grant was made. However, future interests may be subject to new procedures under any land use activity agreement executed between the state and a traditional owner group (see below).

Land use activity agreements

The Bill creates a 'land use activity' (LUA) regime, through registrable LUA agreements. This regime is intended to establish a streamlined consultation and negotiation framework for land use activities on public land, which is conceptually similar to the operation of the NTA future Act regime. Land use activities are defined to include, among other activities:

  • the granting or variation of a 'public land authorisation';
  • the granting or variation of an 'earth resource or infrastructure authorisation';
  • land clearing;
  • controlled burning;
  • carrying out of works on land; and
  • revegetation of land.

An 'earth resource or infrastructure authorisation' will include specific licences, consents, approvals and authorisations under the Mineral Resource (Sustainable Development) Act 1990 (Vic), Petroleum Act 1998 (Vic), Pipelines Act 2005 (Vic), Geothermal Energy Resources Act 2005 (Vic), Petroleum (Submerged Lands) Act 1992 (Vic) and Greenhouse Gas Geological Sequestration Act 2008 (Vic), such as an extractive industry work authority, consent for a petroleum operation, consent for a geothermal energy operation and approval for a greenhouse gas operation.

A 'public land authorisation' will include any lease, licence, permit or other authority granted under the National Parks Act 1975 (Vic), Crown Land (Reserves) Act 1978 (Vic), Forests Act 1958 (Vic) or Land Act 1958 (Vic), or a tour operator licence under the Wildlife Act 1975 (Vic).

Where any of these 'land use activities' are carried out on public land within a LUA agreement area, land use activity agreement provisions will need to be complied with. Accordingly, land use activity agreements must specifically list the land use activities subject to the agreement and classify them according to one of the following five 'procedural' categories:

  • routine activity;
  • advisory activity;
  • negotiation activity (class A);
  • negotiation activity (class B); or
  • agreement activity.

The above categories attract different requirements for consultation or negotiation with the relevant traditional owner group. 

At the broadest level, routine activities can be any type of land use activity and may be undertaken without any change to current processes (ie as if the LUA agreement had not been made). Similarly, advisory activities can be any type of land use activity. However, the proposed legislation creates a discretion for the Minister to give directions about actions that must be taken to notify the relevant traditional owner group entity of a proposal to carry out an advisory activity. Therefore, specific notification requirements may need to be complied with in carrying out an advisory activity. 

Negotiation activities are further split into two classes, A and B, both of which require attempts to negotiate and reach agreement with a traditional owner group entity. If the parties fail to reach agreement, either or both parties may apply to the Victorian Civil and Administrative Tribunal (VCAT) to determine whether the activity:

  • can proceed at all and, if so, what conditions (if any) will apply to the carrying out of that activity (for class A activities); or
  • can proceed ordinarily or with conditions (for class B activities). 

Where VCAT has not determined the matter within six months (or earlier, if requested by the Minister), the Minister may become involved and determine it. Further, in certain circumstances, the Bill enables the Minister to make a determination in substitution of a VCAT determination.

Agreement activities (significant land use activities) can only be carried out where the parties have reached agreement about the land use activity. Effectively, this affords a consent right to traditional owner groups, as the activity cannot proceed if the parties fail to reach an agreement about the carrying out of that activity.

Once negotiated, details of a LUA agreement will be registered and available to the public to search or inspect. Therefore, proponents will be able to search the register to confirm whether there is a LUA agreement that imposes particular requirements for advisory, negotiation or agreement activities. 

It is understood the State Government intends to develop policy guidelines to assist the classification of activity categories.

Natural resource agreements

Natural resource agreements will provide access and use rights for members of traditional owner groups to take and use natural resources for traditional purposes (domestic, non-commercial and personal needs). 

The Bill enables 'authorisation orders' by the Governor in Council, which allow members of a traditional owner group entity to take, keep, move or process protected flora and listed fish under the Flora and Fauna Guarantee Act 1988 (Vic) and/or to hunt, take or destroy wildlife for traditional purposes, or cut and remove timber for traditional purposes. An authorisation order may provide for members of the traditional owner group to take water from a waterway or bore for traditional purposes and/or to camp for traditional purposes on any area of public land to which an agreement applies. These natural resource authorisation orders are aimed at preserving the Aboriginal people's rights to natural and biological resources in a similar way to the operation of section 211 of the NTA (which enables native title holders to continue to exercise native title rights for the purposes of personal, domestic and non-commercial use). 

Funding agreements

Finally, the Bill empowers the Minister to enter into a funding agreement to provide for funding of the traditional owner group entity for the purposes of giving effect to the recognition and settlement agreement. 

Implications

In practice, the Bill proposes new powers, requirements and processes that proponents, local government, land and waterway managers and the community will need to be aware of in using and/or developing areas of public land in Victoria. 

These new procedures and requirements serve as a reminder to all stakeholders of the importance of early engagement with communities, and early planning for approvals, permits and authorisation processes for land use and development projects. 

Please contact any of the people below if you have any questions or would like to discuss the Bill.

Footnotes
  1. Steering Committee Report available at: http://www.justice.vic.gov.au/wps/wcm/connect/1d97d700404a43e5ae77fff5f2791d4a/FINALSCReport13May09.pdf?MOD=AJPERES.

For further information, please contact:

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