The Land Titles Validation Act (Vic) validates past acts attributable to Victoria, but does not cover future grants. Partner Scott Langford looks at native title and Aboriginal heritage laws that can impact on resources projects in Victoria.
Last updated August 2007
State native title legislation
Land rights legislation
Mining and petroleum legislation
- Mineral Resources (Sustainable Development) Act 1990 (Vic)
- Extractive Industries Development Act 1995 (Vic)
- Petroleum Act 1998 (Vic)
Heritage legislation
- Heritage legislation – The Aboriginal Heritage Act 2006 (Vic)
- Cultural Heritage Management Plans
- Cultural Heritage Permits
- Protection Declarations, Audits and Stop Orders
Guidelines for proof of native title
State native title legislation
Land Titles Validation Act 1994 (Vic)
This Act:
- validates past and intermediate period acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the NTA);
- confirms the past extinguishment of native title by certain valid or validated acts, including previous exclusive possession acts, in accordance with the NTA; and
- confirms Victoria's existing ownership of any natural resources; Victoria's existing rights to use, control and regulate the flow of water; existing fishing access rights; and existing public access to waterways and public places.
The Victorian Government is liable for any compensation payable as a result of validation of past or intermediate period acts, and the past extinguishment of native title.
The Victorian Act does not contain any provisions dealing with future grants of land or acts in relation to land. As a result, the future act provisions in the NTA govern future acts and grants of land in Victoria.
Mining and exploration titles are considered on a case by case basis and are generally granted. The exception is over land where it appears that native title may exist, in which case titles are being granted on completion of the right to negotiate procedure.
Land rights legislation
Aboriginal land rights legislation does not exist in Victoria. Instead, title to various parcels of Victorian land has been granted to certain Aboriginal Trusts or organisations. Statutory land grants have been made under the following instruments:
- Aboriginal Lands Act 1970 (Vic) (Framlingham, Western Victoria and Lake Tyers, Gippsland);
- Aboriginal Lands (Aborigines' Advancement League) (Watt Street, Northcote) Act 1983 (Vic) (Northcote, metropolitan Melbourne);
- Aboriginal Land (Northcote Land) Act 1989 (Vic) - (Northcote, metropolitan Melbourne);
- Aboriginal Lands Act 1991 (Vic) - (various Aboriginal burial grounds in former mission cemeteries at Coranderrk, Ebenezer, and Ramahyuck);
- Aboriginal Land (Manatunga Land) Act 1992 (Vic) (Robinvale, in the Murray Valley).
Access to this land requires the consent of the relevant Aboriginal community. In relation to some of these parcels of land (for instance, Northcote and Robinvale) the terms of the grant legislation may preclude the granting of a lease, licence, permit or other authority under the Mineral Resources (Sustainable Development) Act 1990 (Vic), the Extractive Industries Development Act 1995 (Vic) or the Petroleum Act 1998 (Vic).
Mining and petroleum legislation
As noted above the Land Titles Validation Act 1994 (Vic) does not contain any provisions dealing with future grants of land or acts in relation to land. Consequently the future act provisions of the NTA will apply in relation to mineral or petroleum licences and authorities sought after 1993 in relation to areas where native title may still exist.
The legislation under which mining and petroleum tenements and exploration permits are granted and minerals can be extracted may restrict access to areas containing Aboriginal cultural relics or sites. As discussed further below, heritage legislation might also impose restrictions on activities and require management plans to be negotiated before approvals or authorities are given to enable operations to commence.
Mineral Resources (Sustainable Development) Act 1990 (Vic) – (the MR(SD) Act)
Licence grants
Exploration and mining licences cannot be granted over land that is an Aboriginal place, covered by a declaration of preservation under the Aboriginal Heritage Act 2006 (Vic).
In addition, the Head of the Department of Primary Industry must give notice of any application for a licence to:
- any person or body nominated by the Minister responsible for administering the Aboriginal Heritage Act 2006 (Vic); and
- any registered Aboriginal parties under the Aboriginal Heritage Act 2006 (Vic) for an area to which the application relates.
With some limited exceptions, a licence holder cannot carry out any works unless it holds an approved work plan under the MR(SD) Act. Fines of up to 1,000 penalty units ($107,430) for a corporation, and 200 penalty units ($21,4862) in any other case, apply. Under the Aboriginal Heritage Act 2006 (Vic) if the mandatory cultural heritage management plan provisions apply in relation to the proposed activity, work plans cannot be approved until the cultural heritage management plan has been approved.
Obligations of licence holders
Exploration and mining licence holders must not do any work within 100 metres of (or below):
- an archaeological site on the Heritage Inventory established under the Heritage Act 1995 or a place or object included in the Heritage Register established under the Heritage Act 1995, without the consent of a person or body nominated by the Minister responsible for administering the Heritage Act 1995 (Vic);
- any Aboriginal place within the meaning of the Aboriginal Heritage Act 2006 (Vic) that is recorded in the Victorian Aboriginal Heritage Register; or
- land in respect of which an ongoing protection declaration is in force under the Aboriginal Heritage Act 2006 (Vic).
The penalty for a contravention is a fine of up to 1,000 penalty units ($107,430) for a corporation, and 200 penalty units ($21,4862) in any other case.
Miners' rights and tourist fossicking authorities
A miner's right entitles the holder to search for minerals on private or Crown land which is not subject to a mining licence for up to two years.
A tourist fossicking authority allows the holder and another person to search for minerals on Crown or private land other than land covered by a mining licence (unless the licensee has granted its consent) for up to two years.
Holders of miner's rights and tourist fossicking authorities must not disturb any Aboriginal place or Aboriginal object on the land. The penalty for a contravention is a fine of up to 100 penalty units ($10,743).
Extractive Industries Development Act 1995 (Vic)
Under the Extractive Industries Development Act 1995 (Vic) it is an offence to search for stone (defined broadly to include sand, gravel, earth, various forms of rock and similar materials) on Crown land without the consent of the Minister, or on private land without the consent of the owner or an authorisation from the Minister. If the land is managed or controlled by an authority or licensee under the Water Act 1989 (Vic) or Melbourne Water Corporation consent of the authority, licensee or Corporation is also required. A maximum penalty of 50 penalty units ($5,371.50) applies to this offence.
Consents to search for stone must not be granted in respect of land that is an Aboriginal place, covered by a declaration of preservation under the Aboriginal Heritage Act 2006 (Vic).
Where the relevant Minister receives an application for consent to search for stone on Crown land, she or he must notify the Minister who is responsible for administering the Aboriginal Heritage Act 2006 (Vic), and any registered Aboriginal party under the Aboriginal Heritage Act 2006 (Vic) for an area to which the application relates. In considering whether to grant consent, the Minister must have regard to comments or submissions from those persons.
It is also an offence to extract stone from Crown land or private land without a current work authority. A maximum penalty of 200 penalty units ($21,486) applies to this offence. Under the Aboriginal Heritage Act 2006 (Vic), if the mandatory cultural heritage management plan provisions apply in relation to the proposed activity, work authorities cannot be granted until the cultural heritage management plan has been approved.
Petroleum Act 1998 (Vic)
Under the Petroleum Act it is an offence to carry out petroleum operations on land (including exploration and production) without an authority (including a production licence or exploration permit). A penalty of up to 240 penalty units ($25,783.20) applies in relation to this offence.
The authority holder must also take reasonable steps to ensure that the operation will not contravene the Aboriginal Heritage Act 2006 (Vic) before commencing any petroleum operation. Where a petroleum operation fails to comply with these Acts the authority holder may be subject to a penalty of up to 240 penalty units ($25,783.20).
Under the Aboriginal Heritage Act 2006 (Vic), if the mandatory cultural heritage management plan provisions apply in relation to the proposed activity, a written consent authorising petroleum operations will not be able to be granted until the cultural heritage management plan has been approved.
Before carrying out any petroleum operation on land the authority holder must prepare an Operation Plan to be approved by the Minister for Resources. The Operation Plan must outline any risks of injury or damage to the land that may occur as a result of the petroleum operations, and provide details as to how the authority holder will seek to eliminate any such risks. It is an offence to fail to prepare an Operation Plan, fail to have the Operation Plan approved by the Minister, or to fail to carry out a petroleum operation in accordance with the Operation Plan. A maximum penalty of 240 penalty units ($25,783.20) applies in relation to each of these offences.
With respect to any of the offences under the Act that are committed by a corporation rather than a person, the court has a discretion to impose a fine up to 5 x 240 penalty units ($128,916).
An authority holder must provide compensation to owners or occupiers of private land or those with native title rights for any loss or damage caused by the petroleum operation.
Heritage legislation
Various statutes protecting Aboriginal cultural heritage may restrict access to Victorian land for the purposes of mineral or petroleum exploration and resource development.
Victorian Aboriginal cultural heritage is now protected by the recent Aboriginal Heritage Act 2006 (Vic). Places and objects with non-Aboriginal heritage significance are protected by the Heritage Act 1995 (Vic).
Heritage legislation – The Aboriginal Heritage Act 2006 (Vic)
The regulatory regime protecting Aboriginal cultural heritage may restrict access to Victorian land for the purposes of mineral or petroleum exploration and resource development, as well as other forms of development. It is a separate regime from the processes under the Native Title Act – both must be complied with.
On 28 May 2007 a new system for protecting Victorian Aboriginal cultural heritage came into force: the Aboriginal Heritage Act 2006 (Vic) (the Act) and the Aboriginal Heritage Regulations 2007 (the Regulations), repealing the Victoria- specific Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (although generally this legislation is capable of operating concurrently with the Act) and the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic).
The new regime is aimed at the protection and management of Aboriginal cultural heritage, which is defined broadly to include places, objects and remains. It aims to integrate protection of Aboriginal heritage with planning and land development approval processes and is aimed at encouraging developers to include Aboriginal cultural heritage considerations at an early stage of project development.
The Act includes a range of offences for knowingly, recklessly, negligently or doing something likely to harm Aboriginal cultural heritage (other than in accordance with a cultural heritage management plan or permit). The penalties range up to $190,000 for an individual (up from $10,000) and $1 million for corporations (up from $50,000).
The Act is administered through the Department of Victorian Communities (primarily by Aboriginal Affairs Victoria (AAV)) and provides new functions for the Secretary of the Department, including the establishment and maintenance of the Victorian Aboriginal Heritage Register which is to record details of Aboriginal cultural heritage, registered Aboriginal parties, cultural heritage management plans, permits, protection orders and agreements, amongst other things. The AAV website contains detailed information and guidelines regarding the new system.
Aboriginal Heritage Council and Registered Aboriginal Parties
A new statutory body, the Aboriginal Heritage Council, has been established to advise the Minister for Aboriginal Affairs in relation to a wide range of cultural heritage matters including in relation to:
- cultural heritage management plans, cultural heritage permits and audits;
- interim and on-going protection orders; and
- compulsory acquisitions of land to protect Aboriginal cultural heritage.
Under the new regime Aboriginal parties can apply to the Council to be registered as cultural heritage decision-makers for an area (Registered Aboriginal Parties). A native title party or a body representing Aboriginal people with a connection to an area may become a Registered Aboriginal Party. More than one group may be registered for an area.
Registered Aboriginal Parties are intended to be a primary source of advice and knowledge for the Minister, Secretary and Council in relation to their area. They will be able to enter voluntary cultural heritage agreements and will be able to approve or reject cultural heritage management plans and permits and to apply for protection declarations.
Cultural Heritage Management Plans
A significant change introduced by the Act is the requirement for cultural heritage management plans (CHM Plans) to be conducted for prescribed activities. CHM Plans are assessments that cover the nature of any Aboriginal cultural heritage in the area and measures to manage and protect that heritage before, during and after the proposed activity.
CHM Plans are mandatory for activities:
- in an area of 'cultural heritage sensitivity' that has not previously been subject to 'significant ground disturbance', where all or part of the activity is 'high impact' (these requirements are set out in the Regulations and are discussed below);
- where an Environment Effects Statement is required; or
- where the Minister directs a Plan is required.
The transitional arrangements in the Regulations exempt certain activities from the CHM Plan requirements including those where a statutory authorisation is in place by, or an application was made for a statutory authorisation was made prior to, 28 May 2007. The provisions regarding offences and permits to disturb cultural heritage will still apply in relation to these activities.
Voluntary cultural heritage agreements can also be entered into with Registered Aboriginal Parties, however they cannot approve activities for which a CHM Plan or cultural heritage permit (Permit) is required.
Areas of cultural heritage sensitivity
The Regulations set out the 'areas of cultural heritage sensitivity'. For example, the following are areas of cultural heritage sensitivity unless they have been subject to 'significant ground disturbance':
- registered cultural heritage places and land within 50 metres of the place;
- current and prior waterways and land within 200 metres of the waterway;
- declared Ramsar wetlands and land within 200 metres of the wetland;
- parks (as defined in the National Parks Act 1975 (Vic));
- coastal Crown land and coastal land within 200 metres of the high water mark; and
- various other specified geographical features including greenstone outcrops, caves and dunes.
'Significant ground disturbance' is disturbance to the topsoil or surface rock layer of the ground, or a waterway, by machinery in the course of grading, excavating, digging, dredging or deep ripping (but does not include ploughing other than deep ripping).
High Impact Activities
To be subject to a CHM Plan, the activity must not only be intended to be carried out in an area of cultural heritage sensitivity, it must also be a high impact activity as defined in the Regulations, for example:
- building or works for specified uses (including service centres, freeways, industry and retail premises and land used for electricity generation) that would result in significant ground disturbance;
- construction of specified infrastructure (such as roads, railways, bicycle tracks, walking tracks in parks and telecommunications lines) that would result in significant ground disturbance;
- certain mining activities that would result in significant ground disturbance (note that the definition of 'significant ground disturbance' does not cover disturbance by drilling thereby excluding at least some forms of exploration);
- use of land for extractive industry if a statutory authorisation is required;
- three or more dwellings on a lot;
- subdivision into three or more lots for use as dwellings or subdivision into two or more lots where at least one of the lots is for industry; and
- various other activities such as timber production over 40 hectares if a planning permit is required and works on certain private dams.
The terms used in the regulations have the same meaning as in the Victorian Planning Provisions.
Exempt Activities
CHM Plans are not required for exempt activities. Exempt activities include one or two dwellings, works ancillary to an existing building (such as pools, sheds, water tanks, fences and driveways), services, minor works, repair and maintenance works, demolition, consolidation of land, development of the sea-bed and emergencies.
Where a CHM Plan is not required, care must still be taken to ensure that Permits (discussed below) are obtained where required and that offences are not committed.
Process
The Act sets out a procedure of early notification of the Registered Aboriginal Parties and co-operation between the sponsor of a CHM Plan (usually the project proponent) and the Registered Aboriginal Parties who elect to be involved in the Plan process. The project proponents are also required to engage cultural heritage advisors to assist with preparation of the Plan.
Once the CHM Plan is finalised the relevant Registered Aboriginal Parties have 30 days to approve or refuse it. A Plan that does not comply with prescribed standards must be refused but otherwise can only be refused by an Aboriginal Party if it is not satisfied that the Plan adequately addresses the assessment criteria.
In circumstances where the Registered Aboriginal Parties elect not to evaluate the CHM Plan, or there are none, the Plan must be approved by Secretary, or the Council (where the Secretary is the sponsor of the Plan).
Proponents who have a CHM Plan refused can apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision to refuse the Plan.
Other Authorisations Suspended Until Mandatory CHM Plan Prepared
If a CHM Plan is required under the Act, other specified statutory authorisations required for the activity cannot be granted until the Plan is approved, and must not be inconsistent with a CHM Plan. The types of statutory authorisations that cannot be granted until a CHM Plan (where required) is approved include:
- permits for land use and development under the Planning and Environment Act 1987 (Vic);
- various 'earth resource authorisations' such as work plans under the Mineral Resources (Sustainable Development) Act 1990 (Vic), written consents under the Petroleum Act 1998 (Vic) and acceptances of Environment Management Plans under the Pipelines Act 2005 (Vic); and
- other approvals required for land development by other Acts or regulations.
Cultural Heritage Permits
If works do not require a CHM Plan but will or are likely to harm Aboriginal cultural heritage a Permit can be applied for. Permits are also required to buy or sell an Aboriginal object or remove Aboriginal cultural heritage from Victoria. Permits cannot be granted in respect of human remains or secret or sacred objects.
Permit applications that relate to an Aboriginal place of object must be referred by the Secretary to relevant Registered Aboriginal Parties who can approve (with or without conditions) or object to the application on any specified ground. The Secretary must refuse to grant a Permit if it is objected to by a Registered Aboriginal Party. Where a permit is approved subject to conditions, the Secretary must also impose all reasonable conditions required by a Registered Aboriginal Party.
Applicants can apply to VCAT for review of a refusal or of any conditions attaching to a Permit approval.
Protection Declarations, Audits and Stop Orders
Other features of the Act include:
- protection declarations: interim and on-going protection declarations to protect places or objects of particular significance can be made on the application of the Council, a relevant Registered Aboriginal Party or on the Minister's own initiative. It is an indictable offence to contravene a declaration, and significant penalties apply;
- cultural heritage audits: the Minister can order an audit where he or she reasonably believes that there is or is likely to be a contravention of a CHM Plan or a Permit or the impact on Aboriginal cultural heritage of an activity approved under a Plan or Permit will be greater than anticipated. The audit report may include recommendations to minimise harm to Aboriginal cultural heritage including that the Plan or Permit be amended. The Minister may approve the report and amend the Plan or Permit; and
- stop orders, which require a person to stop an activity (or not to commence an activity) must be ordered when a cultural heritage audit is ordered. Stop orders may also be ordered in other situations where the Minister or an inspector reasonably believes that the cultural heritage is being, or is likely to be, harmed and there is no other means of properly protecting it. Failure to comply with a stop order is an indictable offence and will attract substantial penalties.
Guidelines for proof of native title
Introduction
In the settlement of many native title claims in Victoria, the State of Victoria will be a stakeholder and a negotiating party. The State's native title policy is set out in the Guidelines for Proof of Native Title Victoria (available from the Department of Justice, Victoria on +61 3 96510857). Essentially the State aims to resolve native title claims by way of mediation and agreement.
As a negotiating party, the State can set standards that native title claimants must satisfy before it will recognise native title rights by agreement. The level of recognition that native title claimants will be entitled to will vary according to the level of traditional connection to the land and/or waters that the claimants can prove. The Guidelines are designed to assist native title claimants by outlining the type of evidence required and the way in which that evidence may be presented in order to satisfy the State's criteria.
Native title agreements to which the State may be a party will mostly involve the recognition of rights that do not equate to full native title rights, but which establish that a particular Indigenous group has a unique cultural association with the claimed land. Native title rights can be 'recognised' according to a range of agreements provided for under the NTA as follows:
- A consent determination by the Federal Court; and/or
- An Indigenous Land Use Agreement (ILUA).
These options are discussed below in greater detail.
The State's approach
As noted above the State's policy for settling native title claims is to mediate and reach agreement between stakeholders. The State has adopted a cooperative approach in the mediation process and has agreed to be flexible in the following ways.
- In accepting evidence of connection to land and/or waters in a variety of formats (connection evidence).
- In providing claimants with ongoing feedback about the strength of their connection evidence.
- In assisting claimants to access information within the government, wherever appropriate.
- In providing independent expert assessment of connection evidence.
Consent determinations
A consent determination of native title is where native title rights over land and/or waters are determined and recognised by the Federal Court under the NTA by way of agreement, rather than by litigation. A consent determination involves the Federal Court recognising that all parties to a native title claim (including the State, miners, farmers and the claimants) have voluntarily agreed that particular native title rights over land and/or waters have been proved according to the strict evidentiary requirements established by the NTA and the common law in Mabo.
The evidentiary burden that native title claimants must satisfy in order to get a consent determination is very high. The State will require that claimants establish:
- That they are an identifiable group who are descended from the original occupiers of the land and/or waters;
- That they continue to observe a system of laws and customs derived from the traditional laws and customs of their ancestors;
- That the particular set of laws and customs connects the claimants with the claimed lands and/or waters; and
- That native title has been proved according to the requirements in the NTA and Mabo.
Indigenous land use agreements (ILUAs)
An ILUA is a voluntary agreement which is binding as a contract between parties with interests in the same land. They can be used to regulate co-existing interests or rights in land, whether or not native title has been determined to exist by the Federal Court. For further information on ILUAs see Native title round up: Commonwealth.
The State's evidentiary requirements for ILUAs will vary according to the outcomes sought. At a minimum the State must be satisfied that the ILUA meets the mainly administrative requirements of the NTA and that the government is entering into an agreement with the right people. At the other end of the spectrum, where ILUAs are used to recognise or regulate significant native title or other rights the State will require proof of the following:
- Group identity: that the claimants constitute an identifiable group and that they are the most suitable group to assert cultural rights over the claim area. This will require the claimants to establish the basis on which they are recognised as the most appropriate group; how the claimants identify themselves; and how they admit members to the group.
- Connection: that the claimants can demonstrate contemporary observance of customs based on traditional practices. This will require the claimants to demonstrate that their association with the area is consistent with any recorded evidence and the views of other Aboriginal people in the region.
- Cultural rights and interests: that the claimants maintain cultural rights and interests in relation to the claim area. This may require claimants to prove by contemporary or historic evidence the exercise of particular rights over specific sites within the claim area.
Evidence
The Guidelines set out the method by which the State will assess evidence presented by claimants. The State will engage independent experts to assess the evidence.
The Guidelines also provide claimants with detailed advice as to how to prepare and present evidence supporting their native title claims.
Native title: Mabo Commonwealth WA Qld NSW SA Tasmania ACT