Dja Dja Wurrung Land Use Activity Agreement guidance

The following information will help you to understand and carry out your obligations under the Dja Dja Wurrung Land Use Activity Agreement (LUAA). It was originally developed for use by local government, but is now suitable for general use.

These pages provide general information, not legal advice.

For land use activities on Taungurung Country, read about the Taungurung Land Use Activity Agreement.

Overview

Context: The Dja Dja Wurrung Recognition and Settlement Agreement

The Land Use Activity Agreement (LUAA) is part of a broader settlement package called the Recognition and Settlement Agreement (RSA). This agreement came into legal effect on 24 October 2013.

In the RSA, the State of Victoria recognised the Dja Dja Wurrung people as the Traditional Owners of an area of Victoria. A map of this area can be found below.

The RSA is made up of a set of agreements that are legally binding on the State of Victoria, including all government agencies, and on DJAARA (the Dja Dja Wurrung Clans Aboriginal Corporation) as the representative body of the Dja Dja Wurrung people.

These agreements, including the LUAA, recognise and protect the Traditional Owner rights of the Dja Dja Wurrung people. In return, the Dja Dja Wurrung people agreed not to pursue the legal recognition of native title rights that they may hold.

These agreements are complementary with cultural heritage protection – see further information below.

The Land Use Activity Agreement

The LUAA gives procedural rights to the Dja Dja Wurrung people regarding proposed activities on public land (also known as Crown land). The greater the impact of those activities on Traditional Owner rights, the higher the level of procedural rights under the LUAA.

The LUAA replaces the Future Act provisions of the Native Title Act 1993 (Cth) that would otherwise apply. It seeks to provide a simpler and more streamlined approach. Like other parts of the settlement agreement, the LUAA is based on the the Traditional Owner Settlement Act 2010 . Under this Act, proposed activities on public land must comply with the LUAA.

That Act, together with the LUAA, sets out the processes that managers of public land must follow before dealing with public land, or carrying out works on it. Those land managers include departments, statutory authorities, local governments, and committees of management.

Introductory examples

Under the LUAA, each activity on public land needs to be assessed on a case-by-case basis. These hypothetical examples give you some quick illustrations. Please continue reading these pages for a full explanation.

A new picnic area is planned for an existing recreation reserve, including tables and a toilet block.
These works are Advisory activities under the LUAA, so the land manager must consult DJAARA before finalising whether and how to go ahead with the works. DJAARA requests a site visit, and makes some recommendations. The land manager considers and responds to these recommendations. It then makes decisions about (for example) the name of the new picnic area and a sign that explains the significance of that name
The parties also take the opportunity of the LUAA consultation process to note the cultural heritage requirements that will also apply to this project, under the Aboriginal Heritage Act 2006 .
An area of reserved Crown land is to be developed as a football oval, requiring levelling of the surface and construction of a grandstand. This is a Negotiation (Class B) Activity under the LUAA.
The land manager negotiates with Djaara, leading to an agreement to use a Dja Dja Wurrung contractor for some of the works, and to provide community benefits through DJAARA. As a matter of convenience, the parties also use these negotiations to address the cultural heritage protection requirements that will apply to this project.
The government is considering selling a parcel of Crown land. This is an Agreement activity under the LUAA, and cannot proceed without the consent of Djaara.
The Department of Transport and Planning (DTP) notifies DJAARA, and negotiates with DJAARA about whether the sale can proceed. In this case, DJAARA consents.
DTP calculates the payment due to DJAARA under the relevant Community Benefits formula in the LUAA.

The LUAA and Aboriginal Heritage protection

As the examples above illustrate, LUAA processes are separate from any cultural heritage protection requirements under the Aboriginal Heritage Act 2006 (the AHA).

That legislation continues to apply, on both public and private land. Its requirements are independent of those in the LUAA and the Traditional Owner Settlement Act 2010.

DJAARA is both the Dja Dja Wurrung representative body for LUAA purposes and the RAP (Registered Aboriginal Party) under the AHA .

DJAARA's procedural rights under the LUAA and the management of AHA matters are complementary and there will be no duplication of processes. DJAARA may raise cultural heritage matters as part of a response or negotiation under the LUAA. However, any issues raised would be resolved through the mechanisms under the AHA.

A new relationship

Many government agencies regularly consult with stakeholders in their communities, including Aboriginal and Torres Strait Islander people.

However, the RSA established a different kind of relationship between government and the Dja Dja Wurrung people as Traditional Owners:

"This Recognition and Settlement Agreement binds the State of Victoria and the Dja Dja Wurrung People to a meaningful partnership founded on mutual respect.

It is a means by which Dja Dja Wurrung culture and traditional practices and the unique relationship of Dja Dja Wurrung People to their traditional country are recognised, strengthened, protected and promoted, for the benefit of all Victorians, now and into the future.”

- Recognition Statement, 2013 (emphasis added)

The LUAA should be interpreted and applied consistently with this commitment to a "meaningful partnership founded on mutual respect".

For example, public land managers have engaged in dialogue with the Traditional Owners when questions of interpretation have arisen, rather than seeking advice from lawyers on how to minimise their compliance.

Such an approach is also consistent with the principle of ensuring the ‘free, prior and informed consent’ of Indigenous people in matters affecting their rights.

The need for compliance

All Decision Makers in relation to land covered by the LUAA must ensure that they are complying with the LUAA. This includes departments, statutory authorities, local governments and committees of management.

Who exactly is responsible for complying with the LUAA?

Under the Traditional Owner Settlement Act 2010, the responsibility for ensuring LUAA compliance falls on the person or organisation that is the legal Decision Maker for the activity. This includes those who have the statutory responsibility to:
- manage public land,
- issue legal authorisations such as permits, licences, or leases, or
- transfer title to that land, or revoke or change its reservation.
That Decision Maker must determine what (if any) processes the LUAA requires. They must do so before carrying out, or authorising, that activity.
In many cases, the Decision Maker is also responsible for conducting any notification, consultation or negotiation processes that may be required, and paying DJAARA's reasonable negotiating costs.
In some cases, a person or body who is not the Decision Maker will be the Responsible Person. This occurs when a third party proponent is pursuing a Negotiation or Agreement activity. For example, they may be applying for a mining authorisation, or a long term commercial lease/licence/permit (more than 10 years).
Under the LUAA, this person is responsible for carrying out negotiations about the proposed activity, and covering DJAARA's reasonable negotiating costs.
In some instances, the Responsible Person may also be required to negotiate and provide Community Benefits to DJAARA. One example would be when a mining company seeks an authorisation that would allow commercial production.
In most other situations, the State will be responsible for paying Community Benefits according to formulas in the LUAA.
Where a third party is responsible for conducting negotiations about the proposed activity, the Decision Maker remains ultimately responsible for ensuring compliance with the LUAA. The Decision Maker must refuse any application until they are satisfied that the appropriate processes have been followed.
Further information is available on the page What’s the process?

Local Government authorities can download a tailored adaptation of the above information here.

Guidance for local government regarding who is responsible for LUAA compliance

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VCAT can make orders

If DJAARA believes that the LUAA has not been complied with, it can seek orders from the Victorian Civil and Administrative Tribunal (VCAT). VCAT can determine, or order:

whether a land use activity was correctly classified
whether negotiations were in good faith
whether the reasonable costs of negotiation (which must be reimbursed to DJAARA) were correctly calculated
to stop, not start, cancel or suspend a land-use activity (including interim enforcement orders in urgent cases)
to restore land as nearly as practicable to its condition immediately before the land use activity started.

Two key questions

To determine what (if anything) the LUAA requires before a land manager can carry out a “land use activity” on Crown land, there are two main questions:

1. Does the LUAA apply to this land?

Is the land “public land” (reserved or unreserved Crown land)?
Is it within the LUAA area?
Is it excluded from the operation of the LUAA for one of several listed reasons, including the existence of certain kinds of infrastructure?

2. What kind of activity is it?

Routine: No action needed
Advisory: Notification and consultation process
Negotiation: Negotiation process. VCAT and the minister can break deadlocks after 6 months
Agreement: Negotiation process. The activity can only proceed with DJAARA agreement

Read more at What kind of activity is it?

Each type of activity has specific processes to be followed. These are explained on What's the process?, along with recommended templates you can use.

Dja Dja Wurrung RSA and LUAA area

Dja Dja Wurrung Land Use Activity Agreement map

Download 'Dja Dja Wurrung Land Use Activity Agreement map'

Next steps

Continue reading: Does the LUAA apply to this land?