Part 1

The former Attorney-General, the Hon Jill Hennessy, launched the First Principles Review (Review) on 14 February 2020, for the purpose of reviewing the rights, interests and financial payments available to Traditional Owners under the Traditional Owner Settlement Act 2010 (Vic) (Settlement Act). The Review has sought to comprehensively examine the content of Settlement Act agreements, including their associated bundle of rights and financial benefits, for the first time since the commencement of the legislation.
The Review is timely, as the Settlement Act has been in operation for over ten years, resulting in three finalised agreements, and other Traditional Owner groups in active negotiations with the State. As a result, increasing areas of Victoria are becoming subject to binding legal agreements recognising Traditional Owner rights. In addition, the Review has occurred against a changing landscape in both Victoria and across Australia, not least because of the Victorian government’s recent commitment to Treaty and the Yoo-rrook Justice Commission, but also because of the government’s commitment to self-determination as a human right.¹ More broadly, there have been substantial advances in the law associated with the Native Title Act 1993 (Cth) (NTA), including the recognition of commercial rights in Akiba v Commonwealth of Australia [2013] HCA 3, and the establishment of a methodology for calculating native compensation in NT v Mr Griffiths (deceased) and Jones [2019] HCA 7 (Timber Creek decision).
¹ Victorian Aboriginal Affairs Framework 2018 – 2023, p 12.
This report documents the issues considered by the Review and provides various recommendations to the Attorney-General for both legislative and policy change. A summary of the full list of recommendations can be found at Appendix 1. In accordance with the Terms of Reference (discussed further below and included at Appendix 2), recommendations are identified as either:
1. Joint Recommendations, where the parties to the Review reached agreement on the proposal; or
2. Individual Recommendations, where agreement could not be reached.
In this Part 1 of the Report we provide background on the Settlement Act, the standard content of an RSA, and the background and structure of the Review, along with a timeline of relevant events.
Part 2 of the Report contains the Executive Summary, exploring some of the difficulties faced, along with some of the key achievements of the Review.
Part 3 of the Report examines financial payments made under an RSA and provides recommendations as to the appropriate response to the Timber Creek decision and its findings as to the calculation of compensation for the extinguishment of native title rights.
Part 4 of the Report outlines the rights and interests available under the Settlement Act, sets out the changes requested by Traditional Owners in relation to the agreement templates, and records the recommendations made in relation to each of these.
One of the central recommendations of this Report is to establish an ongoing Settlement Act forum to review both emerging Traditional Owner issues, and those issues left without final resolution in this Review (proposed Settlement Act forum). Part 5 of the Report sets out those matters recommended for referral to the proposed Settlement Act forum.
Finally, Part 6 of the Report reflects on the conduct of the Review, the number of meetings held, the particular barriers presented by the Covid-19 pandemic, media interest, as well as proposed interactions with Victoria’s Treaty process, and possible referral of issues to ongoing negotiations with the First Peoples’ Assembly of Victoria.
A glossary of terms at Appendix 3 sets out brief explanations of the key terms used in this report.
The Settlement Act is an alternative to the NTA and is unique to Victoria. It was developed in response to the strong, ongoing advocacy of Traditional Owners, specifically, the Victorian Traditional Owner Land Justice Group (VTOLJG), to address the limitations of the NTA in heavily colonised areas of the country.
Under the Settlement Act, only the right Traditional Owner group for an area can negotiate with the State. Once the group is sufficiently identified, the State and the Traditional Owner group may enter into substantive negotiations for a Recognition and Settlement Agreement (RSA) in accordance with the Settlement Act. The Traditional Owner rights recognised in such RSAs are the focus of this Review.
The Settlement Act is designed to resolve native title claims and to address land justice issues. Accordingly, an RSA will address a wide range of land-related matters.
One of the central functions of an RSA is to provide formal recognition from the State that the Traditional Owners are, in fact, the owners of the area under traditional law and custom, and to acknowledge the historical injustices committed through colonisation. The RSA and associated agreements (or what is also called the Settlement Package) may be thought of as containing two broad components:
1. a financial component, providing funds and land to the Traditional Owner group for various purposes (see further detail under the subheading ‘Payments made under an RSA’, below); and
2. a Traditional Owner rights component, whereby the various rights held by Traditional Owners in Crown land are recognised and made operational, such rights broadly reflecting, and sometimes exceeding, the rights available to native title holders under the NTA. The content of these rights was negotiated between the State and the VTOLJG and recorded in the ‘Report of the Steering Committee for the development of a Victorian Native Title Settlement Framework, December 2008’.
A high-level summary of the content of both the financial component and the Traditional Owner rights component is at Figure 1.
Figure 1
The content of an RSA may be thought of as containing two broad components (note: Figures below are from 2018, and are no longer considered current):
Financial component
- Economic Development Funds: $13.1 million
  - Provided directly to the Traditional Owner Group Entity to invest in business enterprises or economic development initiatives of their choosing.
- Funds placed in trust: $8 million
  - The interest on this investment is designed to meet the core operating costs of the TOGE in perpetuity (such as essential staff salaries, leasing office space and equipment, etc.)
- Implementation Funding: $320,000
  - Funds to support implementation until the annual returns from the trust funds commence.
- Joint Management Funding:
  - In addition, funding is retained by the State to fund the board overseeing Jointly Managed parks, and implement the Joint Management Plan.
- Crown land grants:
  - Some parcels of Crown land that is surplus to State requirements may be transferred for cultural or commercial purposes. The value is deducted from the Economic Development Funds.
Traditional Owner Rights component
- Activities on Crown Land:
  - Traditional Owners have a right to be notified of specified activities that occur on Crown land. For more impactful activities and developments, Traditional Owners have the right to negotiate an agreement, and receive community benefit payments. They can also veto any proposal to sell Crown land.
- Natural Resource Management (NRM):
  - NRM rights fall into two categories:
    Take and Use Rights: Includes the right to access, hunt fish, gather and camp on Crown land.
    Participation: Right to participate in policy development to sustain and maintain Crown land.
- Joint Management of Parks and Reserves:
  - Some National Parks and/or reserves may be transferred as 'Aboriginal Title' and managed by a majority Traditional Owner board.
A Settlement Package, such as that set out at Figure 1, is recorded within a series of legal agreements, each giving effect to various parts of the package. The agreement structure is set out at Figure 2, showing each agreement, and providing a high-level summary of its contents. An RSA is underpinned by these agreements, which are based on standard templates.
The Traditional Owner group is required to nominate a corporate body to enter into the RSA. This corporation, known as a Traditional Owner Group Entity (TOGE), is the legal vehicle used to hold Traditional Owner rights and funds on behalf of the group.
Figure 2: 'The templates' - Agreement structure of the Settlement Package
Recognition and Settlement Agreement
Funding and Land Agreement
- Provides the:
  - Economic Development funds;
  - Implementation funds;
  - Joint Management Funding; and
  - Any Crown land grants.
Participation Agreement
- Provides the funds to be placed into trust and held by the Victorian Traditional Owner Trust.
- This agreement sets out the basis on which the funds are to be held and invested.
Traditional Owner Land Management Agreement
- Provides for:
  - Joint management of parks, Reserves and other Crown land held under Aboriginal Title;
  - Establishment of the Traditional Owner Joint Management Board.
Natural Resources Agreements (NRA)
- Recognises Traditional Owner rights to access natural resources on Crown land and land owned by Traditional Owners (may be for personal or, in limited circumstances, commercial use).
- Contains strategies for increased participation in NRM and policy development.
Land Use Activity Agreement (LUAA)
- Governs activities on all Crown land going forward (replaces the NTA future acts regime). Allows for:
  - Right to comment;
  - Right to negotiate agreement and received Community Benefit payments;
  - Right to veto sale of Crown land.
Indigenous Land Use Agreement (ILUA)
- In addition, Traditional Owners enter into an ILUA, which ties the RSA to the NTA system. It resolves all native title claims associated with agreement area, as Traditional Owners agree not to pursue any further native title claims, including native title compensation claims.
A key element of most RSAs is an Indigenous Land Use Agreement (ILUA), which is a type of agreement under the NTA which may be entered into by a native title group and other people, organisations or governments.
An ILUA may be entered into even where there has been no determination of native title by the Federal Court. Instead, the ILUA goes through a separate registration process with the National Native Title Tribunal, and once registered binds all native title holders. The ILUA applies the non-extinguishment principle to ensure that native title rights are not extinguished. As part of an ILUA, Traditional Owners agree not to pursue any further native title claims or proceedings. The ILUA also states that the Traditional Owner group is foregoing its entitlement to native title compensation in exchange for the funds and rights in the Settlement Package. In this way the RSA resolves all outstanding native title claims for the agreement area, without disturbing underlying native title rights and interests.²
² It is a common misconception that entry into an RSA and registration of an ILUA will extinguish native title rights. This is not correct. Native Title rights pre-date European settlement, and in some circumstances continue to exist to this day. When a native title claim is lodged the Federal Court will undertake an inquiry and make a determination about whether the rights continue to exist or not. In entering an RSA, Traditional Owners agree not to pursue such an inquiry, and instead to rely on the rights as set out in the RSA. The native title rights however remain undisturbed, even though they have not been activated by a court process.
In 2016 in response to advocacy by Traditional Owners the Settlement Act was amended to enhance the natural resources component and include enforcement order powers for the Victorian Civil and Administrative Tribunal (VCAT) on application by Traditional Owners. The template agreements required amendment to give effect to the enhanced legislative rights and fix known implementation issues.
In 2018 the Federation of Victorian Traditional Owner Corporations (Federation) formed the Template Review Committee, which was made up of representatives of all Traditional Owner groups currently in Settlement Act negotiations with the State. The purpose of this committee was to review the Land Use Activity Agreement (LUAA) and Natural Resource Agreement (NRA) templates in light of the 2016 amendments. It also assessed whether changes could be negotiated to better reflect the inherent rights, as well as the aspirations, of Traditional Owner groups. The committee also began to grapple with the implications of the Timber Creek decision, which at that time was still making its way through appellate courts.
The Template Review Committee produced a report to government (Appendix 4) which agreed to implement those changes related to the 2016 Amendment Act. However, it was apparent to both the Template Review Committee and the State that further work would be required to achieve desired outcomes, including new legislation, and to respond to the anticipated changes to native title compensation. Accordingly, the State undertook to establish the Review.
The Review was conducted as a partnership between Traditional Owners and the State, operating through the First Principles Review Committee (FPRC) and the Executive Policy Owners Forum (EPOF).
First Principles Review Committee (FPRC)
The Template Review Committee guided the formation and initial structure and governance of the FPRC, and in October 2019 commenced an Expression of Interest process, calling for any interested Victorian Traditional Owner to join the committee. The FPRC is comprised of Victorian Traditional Owners and individuals who work for Traditional Owner corporations. Secretariat support and advice was provided by the Federation, Legal and Policy Team.
The FPRC wishes to make clear that it is not empowered to make any decisions on behalf of Traditional Owner Groups and respects the individual sovereignty of Traditional Owner groups to speak for their own Country, and to self-determine their own futures. As such, the FPRC has made clear at each stage throughout this process that:
1. it does not represent any Traditional Owner groups in Victoria;
2. it is not authorised to make any agreements or decisions on behalf of any Traditional Owner group; and
3. its role in this review is limited to making recommendations to the State about improving starting positions in Settlement Act negotiations, which individual Traditional Owner groups are free to accept or reject at their complete discretion.
Executive Policy Owners Forum (EPOF)
Government was represented in the Review by the EPOF, comprised of senior executives from all relevant departments and agencies and was chaired by the Deputy Secretary, Aboriginal Justice, Department of Justice and Community Safety (DJCS).
Senior public servants (Deputy Secretaries or equivalents) from all relevant agencies were asked to join the EPOF, and membership included executives from:
1. the Department of Premier and Cabinet;
2. the Department of Treasury and Finance;
3. the Department of Environment, Land, Water and Planning (DELWP);
4. Parks Victoria;
5. the Department of Transport;
6. the Department of Jobs, Precincts and Regions (DJPR); and
7. the Victorian Fisheries Authority.
Secretariat support was provided by the Land Justice Unit (formerly Native Title Unit), DJCS.
A full list of EPOF members can be found at Appendix 5.
A draft Terms of Reference for the Review was produced by the Template Review Committee in 2018. In 2019, the Terms of Reference was revised by the newly formed FPRC, with input from First Nations Legal and Research Services; the Victorian Government Solicitor’s Office, and State agencies that use Crown land or natural resources or promote its use by industry and agencies.
Cabinet endorsed the Terms of Reference in October 2019 (Appendix 2). As set out in the Terms of Reference, the First Principles Review is:
primarily concerned with issues that relate to principles and legislation that underpin, and mandate the content of the template Agreements and the State’s settlement policy.
Through the Terms of Reference the State committed to partner with Traditional Owners through the FPRC, and to undertake the Review based on certain rights and principles, including the:
1. principle of self-determination;
2. right to free, prior and informed consent;
3. rights contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic); and
4. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Further, the State has committed and agreed through the Terms of Reference that:
1. Any Traditional Owner group that has already entered into settlements with the State under the Settlement Act or NTA will be able to benefit from, and update and vary their agreements to reflect improved new standards, policies and processes developed through the Review, if they chose to do so.
2. All Traditional Owner groups remain free to negotiate and make decisions on any aspect of Settlement Act negotiations, in accordance with their own decision-making principles. As such, the State acknowledges that the Review is not a substitute for negotiations with individual Traditional Owner groups.
3. The Review will have reference to developments in Australian native title law and practice, and will draw on the experience of prior settlements, and other developments across the policy spectrum.
4. In conducting the Review, Traditional Owner groups can meet directly with responsible senior officials including, where necessary and relevant, Ministers, Secretaries and Deputy-Secretaries from relevant government departments in relation to any matter associated with the Review.
2010
Commencement of the Traditional Owner Settlement Act 2010 (Vic) (Settlement Act)
2010
October: The Gunaikurnai People achieve a consent determination under the NTA, and enter into the first RSA under the Settlement Act.
2013
Dja Dja Wurrung People enter into the second RSA under the Settlement Act.
2014
Discussion with Traditional Owner groups commence around potential amendments to the Settlement Act streamlining grants of Aboriginal Title, allowing Nature Resource Agreement rights to apply on freehold land owned by Traditional Owners, improving compliance mechanisms for the LUAA, and other changes.
2016
Commencement of the Traditional Owner Settlement Amendment Act 2016.
2016
Federal Ct Timber Creek decision: (80% of land value, plus interest and cultural loss).
2017
Full Federal Ct Timber Creek decision (65% land value, interest & cultural loss).
2018
Template Review Committee forms issues report on changes to standard form documents. Commitment to establish First Principles Review.
2018
Taungurung People enter into third RSA under the Settlement Act.
2019
High Court Timber Creek decision (50% of land value, plus interest and cultural loss).
2019
Designing Terms of Reference, governance and structure of First Principles Review.
2020
First Principles Review launched by Attorney-General.
2021
First Principles Review concludes - Drafting and submission of this report.

Updated 11 April 2024