The Review was largely concerned with two broad concerns. The first was attempting to develop a response to the Timber Creek decision and exploring methods by which principles of native title compensation could be incorporated within the Settlement Act framework. The second was examining the Traditional Owner rights recognised under a Settlement Agreement, to assess if the level and extent of those rights was set appropriately.
The Timber Creek decision provides a method to calculate compensation for the extinguishment of native title rights. Compensation will consist of payments for:
- Economic loss: being 50% of the freehold value of the land;
- Interest: payable from the date of the act;
- Cultural loss: for the spiritual hurt arising from the loss of Country.
While the Timber Creek decision is a significant development in native title law, it poses some challenges for the Settlement Act framework. In large part, this is because the Timber Creek decision was decided in the context of the NTA, and therefore adopts the processes of that legislation, including a requirement to identify individual acts of extinguishment, with compensation assessed on the basis of a case by case, lot by lot, examination. Under an NTA claim, this is done through a detailed process of tenure analysis, where the history of each lot across the claim area is examined back to first contact, in an attempt to identify acts of extinguishment.
However, the Settlement Act was developed as an alternative to the NTA, and one of its principal achievements was to dispense with processes that are not appropriate for Victoria, or do not serve the interests of Victorians or Victorian Traditional Owners.
In doing so, the Settlement Act aims to reach comprehensive agreements between the State and Traditional Owner groups, agreements which are expansive and all-encompassing in nature. Rather than investigating the minutia of each individual rights breach that occurred across the settlement area, outcomes are currently assessed against a set of broad compensation principles, with a focus on issues of both fairness and sustainable resourcing. Rather than undertaking a time and resource intensive tenure analysis, in an attempt to find the extinguishment of Traditional Owner rights, the Settlement Act simply acknowledges and recognises Traditional Owner rights over the entire Crown land estate, dispensing with the need for the intricate collection of data.
The challenge before the Review, was to consider a method that takes account of the principles in the Timber Creek decision, while not adopting some of the more taxing and inequitable processes associated with the NTA.
An additional challenge lay with the concept of ‘cultural loss’, as the Timber Creek decision does not provide a quantitative method by which it can be calculated. Instead, cultural loss is to be assessed through an examination of the spiritual relationship between Indigenous peoples and their Country, following which the Court is to apply a ‘social judgement’3 seeking “to translate the spiritual hurt from compensable acts into compensation”.4
How this subjective and intricate process may be applied to calculating the Settlement Sum under a comprehensive agreement is a difficult and complex problem. Equally difficult is how it may be incorporated into compensation payments for future impacts arising from the ongoing use and development of Crown land, currently addressed through standardised formulae in Schedule 7 of the LUAA.
Faced with these challenges, the Review first sought to articulate and agree underlying principles, to help shape and build further discussion between the parties. The principles considered are now recorded in this Report as Recommendations 1 to 10.
Of these ten recommendations, five are agreed as Joint Recommendations, and five are put forward as Individual Recommendations of the FPRC, perhaps illustrating that reaching agreement on these complicated issues was not always straightforward.
Nevertheless, some significant agreement was reached on important issues.
For instance, Recommendation 1 re-considers the State’s current compensation principles, which assess whether a settlement proposal offers ‘an attractive and fair alternative’ to settling claims through the NTA. Recommendation 1 reframes this position, and the parties now agree that proposed settlements should instead be measured against an overall assessment of what is fair and just, evaluated against a criteria that assesses whether the settlement promotes self-determination, meets or exceeds rights and compensation available through the NTA, and complies with, and in practice implements, UNDRIP as it relates to land justice.
Additionally, Recommendation 3 formally recognises that Traditional Owners should receive compensation informed by the principles of the Timber Creek decision, as well as, and separate to, ongoing operational funding for the cost of establishing, implementing, and operating Settlement Act agreements. The recognition of this important distinction makes clear that a Settlement Act agreement both compensates Traditional Owners for past losses, and builds a potential pathway for a shared future, to the benefit of Traditional Owners, and all Victorians.
Following the development of underlying principles, the FPRC developed a proposed process for the calculating of Settlement Sum compensation under the Settlement Act framework, known as the ‘Draft Compensation Model’ (Appendix 6). The attempt of developing the mechanics of this process, or indeed any detailed discussion of the issue, makes clear that independent advice, as well as data as to the extent of extinguishment throughout Victoria, is required. As this was not available to the Review the parties have sought to identify with some precision what is needed, and have developed and endorsed a Terms of Reference for instructing experts (Appendix 7) and Terms of Reference for an interim scoping study to assess available State data (Appendix 8).
While the Review has not finally resolved the many issues associated with articulating the principles of the Timber Creek decision within a comprehensive agreement framework, it is hoped that the recommendations provided, and the further research to be commissioned, will provide the building blocks towards a final, mutually agreeable position.
Finally, and in recognition that while this work is ongoing, the current compensation settings do not meet the standard set by the Timber Creek decision, the parties agreed on Interim Community Benefits Formulas (Appendix 9), to replace the formulas contained in Schedule 7 of the LUAA, until such a time as a final resolution is achieved.
3 Northern Territory v Griffiths [2019] HCA 7, 237.
4 Ibid, 155.
Under the Settlement Act the State agrees to recognise certain rights which Traditional Owners consider inherent. These rights are similar, and sometimes in excess, of the rights native title holders may have recognised through a positive non-exclusive NTA determination, including things like the right to access land for traditional purposes, to take and use natural resources, and to have a say, or in some circumstances negotiate an agreement, when the further development or use of the land will impact upon those rights.
The rights are set out in the Settlement Act, and further articulated and made operational through a series of template agreements. This report provides a total of 22 recommendations (Recommendations 13 to 35) dealing with Traditional Owner rights, which range from suggested amendments to the template agreements or the Settlement Act, to the adoption of new processes or practices around the exercise of such rights.
A number of these 22 Recommendations relate to issues first raised by the Template Review Committee in 2018, and the FPRC has some concerns about the timeliness of the proposed reforms (discussed below in ‘FPRC comments’). Nevertheless, these recommendations, if adopted, will deliver some welcome changes, and provide further and appropriate recognition of Traditional Owner rights over Country.
Some of the key achievements set out in this section of the Report, where the EPOF and the FPRC were able to reach agreement and provide a Joint Recommendation, are listed below:
- Recommendation 15: provides that no restrictions should be placed upon Traditional Owners right to take and use natural resources, for non-commercial purposes, without their free, prior and informed consent, in accordance with the principles set out in the UNDRIP.
- Recommendation 18(a): that the Settlement Act and the NRA template be amended to allow for the negotiation of commercial use of animals (other than fish), a provision already in place with respect to the commercial use of vegetation and stone.
- Recommendation 20: that the State should formally acknowledge that Settlement Agreements do not provide sufficient recognition of Traditional Owner rights and interests in water, and that this should be pursued as a reform priority.
- Recommendation 27: that should the State-wide ban on on-shore fracking ever be lifted, it only be allowed to occur on Country with the consent of Traditional Owners.
- Recommendation 28: that the Settlement Act be amended, so as to allow the LUAA to apply within the boundaries of alpine resorts.
- Recommendation 30(a): that the Settlement Act and Conservation, Forests and Lands Act (1987) be amended in order to allow for the grant of Aboriginal title and joint management arrangements over land within the boundaries of a State Game Reserve.
In addition, Recommendation 35 provides a jointly endorsed position in support of establishing an ongoing Settlement Act Forum, comprised of both Traditional Owners and State representatives, to build on the work of the First Principles Review. It is hoped that this Forum will finalise those issues not resolved in the current Review, both with respect to Traditional Owner rights and Compensation, as well as be able to deal with issues as they emerge.
While the FPRC is grateful for the work of all EPOF members, and the commitment shown by the Attorney-General in implementing the Review, the FPRC remains of the view that the pace of reform around Settlement Act processes is too slow, and at times unambitious.
The FPRC wishes to make clear that these comments are provided, not to diminish the real advances achieved from this review, but in a spirit of reflection, to improve the joint undertaking of Traditional Owners and the State, as they work towards the implementation of self-determination in Victoria. Furthermore, these comments are particularly directed to the recognition of Traditional Owner rights, and the 22 recommendations made in Part 4 of this Report.
With respect to these 22 Recommendations, it is notable that 13 address issues that were first formally raised by the Template Review Committee in 2018. That is, these are longstanding issues for which the State has been on notice for at least three years, although in some cases longer as they have been raised previously by Traditional Owners in other forums. Despite this, much of the Review was expended on EPOF coming to internal final positions on these issues. While the inner workings of the EPOF are unknown to the FPRC, at several points during the Review there were long delays while EPOF considered positions put forward by the FPRC. Presumably this time was spent in internal debate, and while it is understood that whole-of-government decision making is complex, viewed externally from the position of the FPRC, an excessive amount of time was spent on issues long articulated by Traditional Owners, and for which it was assumed EPOF members would be well versed, and ready to propose alternatives. Indeed, it is notable that some departments sought to amend recommendations, and add last minute conditions, up to and during the final drafting of the report, when there was no time for further discussion or debate.
While these comments do not detract from the achievements of the Review, we nevertheless wish to record some examples of what the FPRC perceive as slowness to engage or act, or reluctance to engage in anything other than limited and overly cautious reform. Such examples, drawn from issues first raised in 2018, are set out below:
Recommendation 18(a) and (b): The NRA template currently provides a process for Traditional Owners to negotiate with the State to utilise their Traditional Owner rights for the commercial use of vegetation and stone. Any decision or agreement to use Traditional Owner rights in this way, must be guided by the sustainability principles, and the proposal must be consistent with the purposes for which the land is managed. However, the Settlement Act currently prohibits any such negotiation with respect to the commercial use of water and animals.
The recommendation put forward by the FPRC sought to remove the prohibitions on water and animals, so that negotiation would be permitted for the commercial use of all natural resources. EPOF supported lifting the prohibition only with respect to animals, but excluded fish. It did not support any lifting of the prohibition with respect to water. It is notable that this recommendation did not seek to convey commercial rights, only the ability to enter into negotiations with respect to such rights.
Recommendations 22, 23, 24, and 25: The FPRC sought to elevate the LUAA category, and thereby increase Traditional Owner rights, with respect to the grant of various commercial and non-commercial leases, licence and permits.
While the recommendation was jointly endorsed, EPOF support is conditional upon a phased approach to implementation, so that this change will only come into effect for the majority of leases, licences and permits, in an estimated three to five years. This means that the changes may occur as late as 2026, eight years after first being raised by Traditional Owners.
Recommendation 26: The recommendation put forward by FPRC sought to re-categorise ‘Major Public Works’ in the LUAA from a Negotiation (Class B) activity, to a Negotiation (Class A) activity. The only difference between these two categories are the powers provided to VCAT in the event of a dispute. With respect to (Class A), VCAT has the power to determine if the ‘works may or may not proceed.’ With respect to (Class B), the VCAT has no such power, and may only set conditions on how the works will proceed.
First raised in 2018, EPOF confirmed by correspondence dated 14 July 2020, that it agreed to the recommendation, subject to the views of a single department which was yet to provide its position. No further comments from this department were received, and the FPRC proceeded on the assumption the recommendation was jointly endorsed, until 23 September 2021. On this date, EPOF informed FPRC it had withdrawn its support until such time as the Settlement Act could be amended to provide ‘clear guidance on the factors VCAT may take into account in its decision making, and the grounds upon which VCAT may decide that work cannot proceed.’ On that basis, EPOF now recommends the re-categorisation not occur for a further period of three to five years. This is despite the fact that:
- no such guiding principles are in place for other existing Negotiation (Class A) activities, in which case VCAT is presumably trusted to apply ordinary legal principles;
- Section 54(2) of the Settlement Act already provides that unless VCAT is satisfied that the activity would ‘substantially impact’ on Traditional Owner rights, they must allow the activity to proceed, which already seems to apply a very high standard; and
- this request was first put in 2018, allowing a period of at least three years during which any guiding principles thought necessary could have been proposed and agreed upon.
Recommendation 35: The recommendation put forward by FPRC sought to deal with several ongoing issues raised by the Template Review Committee. These were (i) avoidance of LUAA obligations by the government departments, agencies and other public land managers; (ii) dispute resolution; (iii) review mechanisms contained within the RSA; (iv) compliance with RSA obligations more generally; and (v) communication to government departments, agencies, and other public land manages about their obligations under the RSA and LUAA.
The recommendation suggests that, in the first instance, the State appoint an independent lawyer to provide centralised advice to departments, agencies and other public land managers, so that legal advice is readily accessible, and the advice is consistent among those interacting with Settlement Act obligations. Additionally, it is sought that a penalty regime of some kind is initiated for departments, agencies and other public land managers that fail to comply with the LUAA. The recommendation also suggests longer term reforms, such as the establishment of an independent body or office to oversee implementation and disputes, but concedes this could be deferred to the proposed Settlement Act Forum.
This recommendation was not endorsed by EPOF, who requires more time to consider the proposal, and suggests no action other than referral of all issues to the proposed Settlement Act forum. Accordingly, no progress has been made on these issues as a result of this Review.
- Finally, the FPRC note that the above does not take into account other issues raised in 2018, for which this Report provides no recommendations, such as:
- the renegotiation of Schedule 4 of the LUAA, which contains the standard terms and conditions with respect to the grant of leases licence and permits for mineral, oil and gas exploration and production;
- Traditional Owner concerns with the standard ‘Participation Strategies’, meant to enable Traditional Owner participation and employment in the management of natural resources; and
- the failure of the LUAA to provide sufficient procedural rights or compensation in relation to timber harvesting due to its reliance on the gazettal of Timber Release Plans, a process not utilised by VicForests for several years.
The FPRC posits that the reasons for delay, as well as at times overly cautious reform, are multi-faceted. However, one reason may be, that faced with numerous complex issues, and a broad terms of reference, there was simply too much to do, and too little time. This arises because outside of a formal review process, reform of any sought is difficult to achieve, leading to the accumulation of unresolved issues. Indeed, the difficulty in achieving changes within individual Traditional Owner group negotiations was the driving force behind the Template Review Committee, this Review, and now the proposed Settlement Act forum. As we hope our comments above illustrate, achieving timely and even modest reform remains difficult even within a collective process. Indeed, many of the issues first raised in 2018, are now referred, in whole or in part, to their third review process.
It is hoped that the establishment of an ongoing forum will lessen these concerns, and allow for the thorough examination of both longstanding issues, and the ability to address problems as they emerge.
The FPRC also acknowledges that the State has, for many years, being pursuing reform on multiple fronts, including the Joint Management Implementation Project, Victorian Aboriginal and Local Government Action Plan, Victorian Traditional Owner Cultural Fire Strategy and Aboriginal Access to Water Roadmap. The State is also separately considering components of the Settlement Act, through independent reviews of the Gunai Kurnai and Dja Dja Wurrung Settlement Agreements. In addition to this, Traditional Owners have developed, and continue to advocate for their own policy proposals such as the Native Food and Botanicals Strategy and the Cultural Landscapes Strategy.
Traditional Owners have contributed to this policy development in many forums, and collectively this work, along with the recommendations in the report, represents their aspirations for the further realisation of their inherent rights. Currently, and while meaningful recognition through Treaty still remains distant, reaching agreement through the Settlement Act is the sole method by which these aspirations can be advanced and achieved. On that basis, it remains important that the State not defer the legitimate reforms sought by Traditional Owners, and recognise that while the Settlement Act retains it central position in advancing the rights of Traditional Owners, the State must honour the work we have done together, both in this Review and other forums.
Finally, the FPRC wish to reiterate that the above should not detract from the progress that was made during the course of this Review, and to acknowledge that in committing to open consideration and dialogue of these issues, the State is seeking to begin a journey towards self-determination, for which it is to be commended and encouraged.
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