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Australia – The Traditional Owner Settlement Act 2010 (Vic) Moves Closer To Implementation On Victoria’s Public Land.

31 May 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment 

 

The release by the Department of Justice of an exposure draft template land use activity agreement signifies that Victoria is one step closer towards the commencement of a new land use regime for public land (the "Land Use Activity Regime") arising from the Traditional Owner Settlement Act 2010 (Vic) ("Settlement Act").

 

The Land Use Activity Regime will affect how land users acquire new interests in and undertake activities on public land covered by a land use activity agreement between the State of Victoria and a traditional owner group.

 

The first land use activity agreements are proposed to be rolled out in 2013. They will cover the Gunai Kurnai native title area in Gippsland, lands around Bendigo subject to the Dja Dja Wurrung Peoples native title claim and areas in north west Victoria claimed by the Wamba Wamba Barapa Barapa and Wadi Wadi Peoples.

 

Introduction

 

Victoria is moving towards the implementation of the new Land Use Activity Regime contemplated in the Settlement Act. The Regime will change the way land users access public land in areas covered by a land use activity agreement forming part of a recognition and settlement agreement made under the Settlement Act. With the publication of a draft template land use activity agreement, it is timely review the Land Use Activity Regime, to assist land users understand how their existing and future interests and activities on public land in Victoria may be affected.

 

To advance reconciliation and the recognition of the special relationship Aboriginal peoples have with their land, the Victorian Parliament enacted the Settlement Act in 2010. Both the Government and the traditional owner representatives who participated in its development envisaged the Settlement Act as an alternative to the Commonwealth's Native Title Act 1993 (Cth) ("Native Title Act"). The Settlement Act establishes a framework for the negotiation of recognition and settlement agreements between the State of Victoria and relevant traditional owner groups. It is intended that native title claims in Victoria will be settled through the agreement making processes under the Settlement Act.

 

A recognition and settlement agreement can include, amongst other elements, an agreement about the use of public land, known as a land use activity agreement, which reflects both the provisions of the Settlement Act and the Land Use Activity Regime policy.

 

The Department of Justice has released a draft template land use activity agreement ("Draft Land Use Activity Agreement "). As expected it prescribes the procedural rights of traditional owner groups in respect of certain activities on the public land to which agreement relates. The procedures established in a land use activity agreement are intended to be simpler and clearer than the future act process under the Native Title Act. A land use activity agreement will be implemented through an indigenous land use agreement so that it is integrated into the Native Title Act scheme.

 

1. What is a land use activity agreement?

 

A land use activity agreement identifies land and activities to which the procedures in the agreement apply. The Draft Land Use Activity Agreement classifies land use activities into four categories of increasing impact. The procedural obligations that apply to the doing of a particular land use activity are determined by the category into which the particular land use activity falls.

 

2. Where will the Land Use Activity Regime apply?

 

The Land Use Activity Regime will apply to public land in Victoria that is covered by a land use activity agreement that forms part of a recognition and settlement agreement made between the State of Victoria and a traditional owner group.

 

"Public land" includes land under the Crown Land (Reserves) Act 1978, Alpine Resorts Act 1983, National Parks Act 1975, Forests Act 1958, Land Act 1958 and Wildlife Act 1975. Land is not excluded from the scheme on the basis of extinguishment of native title. However, a land use activity agreement will not apply to land which, at the date the land use activity agreement comes into effect, is covered by larger scale infrastructure, an exclusive possession lease or is set aside for a planned future use.

 

The first land use activity agreements are intended to apply to the Gunai Kurnai native title area in Gippsland, lands around Bendigo subject to the Dja Dja Wurrung Peoples native title claim and areas in North-West Victoria claimed by the Wamba Wamba Barapa Barapa and Wadi Wadi Peoples.

 

3. What activities will the Land Use Activity Regime apply to?

 

The types of activities to which a land use activity agreement would apply, include:

  • the granting, amendment or variation of a public land authorisation. This includes the grant of a lease, licence or other authority under the under the Crown Land (Reserves) Act 1978, National Parks Act 1975, Forests Act 1958, Land Act 1958 and Wildlife Act 1975 ("Public Land Authorisation");
  • the granting or variation of specific licences, authorities and approvals under Victorian resources legislation, including the Mineral Resources (Sustainable Development) 1990; Petroleum Act 1998; Pipelines Act 2005; Geothermal Energy Resources Act 2005; the Offshore Petroleum and Greenhouse Gas Storage Act 2010 and Greenhouse Gas Geological Sequestration Act 2008 ("Earth Resource or Infrastructure Authorisation");
  • certain land management activities, such as the declaration of a management plan under the Fisheries Act 1995 and the preparation of a management plan under the National Parks Act 1975 or Wildlife Act 1975;
  • land clearing;
  • controlled burning;
  • carrying out works on the land; and
  • revegetation of land.

 

However, a land use activity agreement will not apply to these land use activities if they commenced before the land use activity agreement comes into effect. This means, for example, that a land use activity agreement will not apply to a lease or licence (that is a Public Land Authorisation), or a consent or approval (that is an Earth Resource or Infrastructure Authorisation) in place before the land use activity agreement commences.

 

4. What procedural obligations apply to land use activities?

 

The Draft Land Use Activity Agreement classifies activities into four categories: "Routine Activities", "Advisory Activities", "Negotiation Activities" (Class A and Class B) and "Agreement Activities". Different procedural obligations apply to each category.

 

4.1 Routine Activities – no procedural obligations

 

Routine Activities are land use activities that have little impact on land use. Examples of Routine Activities include erecting fences, gates and signage, and maintenance works. No procedural obligations apply to Routine Activities.

 

4.2 Advisory Activities – notification and consultation with the traditional owner group

 

Notification and consultation obligations will need to be complied with before Advisory Activities are undertaken. Ministerial Directions made under section 34 of the Settlement Act will provide further detail as to the notification and consultation obligations. Examples of Advisory Activities include a Public Land Authorisation for the construction of "Minor Public Works", which includes facilities such as a car park, toilet block, road improvement, navigational facility or storage shed.

 

4.3 Negotiation Activities – consent of traditional owner group, with ability to refer to VCAT after six months of good faith negotiations

 

Land users will be required to seek the consent of the relevant traditional owner group before Negotiation Activities can be undertaken. The negotiation period will commence when a land user notifies the traditional owner group of its intent to undertake a Negotiation Activity. The payment of "Community Benefits" also forms part of the negotiation process. Community Benefits are essentially compensation entitlements that provide an incentive for consent.

 

If the consent of the traditional owner group has not been obtained within six months of good faith negotiation, then then land user or the traditional owner group may apply to the Victorian Civil and Administrative Tribunal ("VCAT") for a determination. The type of determination VCAT is empowered to make in respect of Negotiation Activities, differs according to whether it is a Negotiation Activity Class A or Class B. In respect of a Negotiation Activity Class A, VCAT may determine whether or not the land use activity may proceed, and if so, on what conditions (including the amount of Community Benefits payable by a land user to a traditional owner group). In contrast, VCAT has no discretion to in relation to whether a Negotiation Activity Class B can proceed. It may only determine the conditions that apply to the Negotiation Activity Class B (including the amount of Community Benefits payable).

 

Examples of Negotiation Activities include:

 

Negotiation Activity Class A:

 

A Public Land Authorisation for a commercial lease on public land for between 10 and 21 years which is not associated with "Major Public Works".

An Earth Resource or Infrastructure Authorisation that allows for the mining, extraction, injection or processing of an earth resource for commercial purposes.

 

Negotiation Activity Class B:

 

Many of the activities categorised as a Negotiation Activity Class B are associated with Major Public Works, and include installation of:

specified water infrastructure by a licensee under the Water Industry Act 1994 or an authority under the Water Act 1989;

a gas transmission or distribution facility by a gas transmission or distribution company under the Gas Industry Act 2001;

an electricity transmission or distribution facility by a distribution transmission or generation company under the Electricity Industry Act 2000; and

a communications facility by a carrier under the Telecommunications Act 1997 (Cth).

 

4.4 Agreement Activities – consent of traditional owner group required

 

Agreement Activities require the consent of the traditional owner group and will be subject to any conditions that apply to such consent, including but not limited to the payment of Community Benefits. There is no recourse to VCAT if agreement cannot be reached. Examples of Agreement Activities include a Public Land Authorisation for a commercial lease on public land for more than 21 years or land clearing for commercial purposes (if not associated with Major Public Works).

 

5. When will the Land Use Activity Regime commence?

 

The roll out of the first land use activity agreements is proposed for 2013, commencing in areas that are or have been the subject of priority native title claims in Victoria.

 

The Settlement Act, which is the framework for the Land Use Activity Regime, commenced operation under the previous Brumby Government, on 23 September 2010, just in time for the first Recognition and Settlement Agreement to coincide with the Gunai Kurnai Peoples native title determination. The current Baillieu Government agreed to honour the commitments made to parties

 

in the native title claim proceedings in the Federal Court to negotiate land use activity agreements. Therefore, negotiations for land use activity agreements with the Gunai Kurnai Peoples, the Dja Dja Wurrung Peoples and the Wamba Wamba Barapa Barapa and Wadi Wadi Peoples are progressing. However, it remains to be seen whether additional recognition and settlement agreements and therefore, the Land Use Activity Regime, will eventually apply to other areas of the State. Much depends on whether the Land Use Activity Regime achieves the aim of providing a more workable system than that offered by the Native Title Act.

 

Actions

 

  • Land users will need to understand when and where the Land Use Activity Regime will commence, and how it will affect their current and future interests.
  • Be prepared, land users should consider reviewing their policies and procedures in preparation for the commencement of the Land Use Activity Regime.

 

 

For further information, please contact:

 

Clare Lawrence, Ashurst

clare.lawrence@ashurst.com

 

Megan Barnett-Smith, Ashurst

megan.barnett-smith@ashurst.com

 

 

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