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After you have determined whether the Dja Dja Wurrung Land Use Activity Agreement (LUAA) applies to the land in question, you must then determine how the LUAA categorises your intended activity.
The following questions will help you to work out how the LUAA classifies the activity you are interested in. Work your way through the questions from top to bottom. For each question, click on the heading to see an explanation. In some sections there are references to detailed definitions found near the end of this page.
If you are unsure how an activity is classified in the LUAA, after reading the LUAA and these guidance materials, consult with others in your organisation and with DJAARA (the Dja Dja Wurrung Clans Aboriginal Corporation).
If an activity is capable of falling into two categories, the LUAA states that the higher level of procedural rights shall apply.
Preliminary questions
First consider these preliminary questions.
A project or program of works may include several LUAA ‘activities’. If so, assess each activity separately and follow the LUAA process for each one.
It may be convenient, when planning such a program, to notify DJAARA of the scope of activities in that program. You can then discuss when and how best to manage the formal notifications required by the LUAA.
For some Major Public Works, a grant or variation of a Public Land Authorisation (PLA) is required. The LUAA clarifies that in these cases, the PLA is not treated as a separate matter for negotiation and Community Benefits. It is treated as a component of the Major Public Works.
In all other cases, if a single project or enterprise includes multiple Negotiation or Agreement activities, then Schedule 6 of the LUAA sets out a joint process to be followed for all activities forming that project.
An activity can proceed without prior notification if:
- it is during an 'emergency situation', and
- the activity is for the purpose of protecting life, property or the environment.
'Emergency situation' is not defined, but clearly this category does not include planned controlled burning or other activities carried out to prevent emergencies.
The decision maker must inform DJAARA of what has been done during the emergency, as soon as practicable afterwards.
Any works or other activities conducted after the emergency has passed are classified by the LUAA in the usual way.
Activities under existing legal authorisations
Activities carried out within the terms of a Public Land Authorisation (a lease, licence or permit) are exempt from the LUAA if the PLA was granted either:
- before 25 October 2013, or
- in compliance with Part 4 of the Traditional Owner Settlement Act (which gives legal effect to the LUAA).
Activities authorised by an ILUA (an Indigenous Land Use Agreement under the Native Title Act) are exempt from the LUAA. There are several site-specific ILUAs on the ILUA register(opens in a new window) within Dja Dja Wurrung country, all dating from before, or just after, the commencement of the LUAA. Most relate to mining activities or to leases for specific purposes.
Activities under a Joint Management Plan
The Dja Dja Wurrung RSA provides for certain National Parks (together with State Parks, a Regional Park and a Flora & Fauna Reserve) to be returned to DJAARA as Aboriginal Title. These areas are managed by the Dhelkunya Dja Land Management Board.
Where this has occurred, and the Board has created a Joint Management Plan for that land, the LUAA authorises activities if they:
- occur wholly on the land subject to the Plan
- are consistent with that Plan, and
- would otherwise have been Advisory activities.
Management and working plans under listed Acts
The creation of management plans or working plans made under the following Acts are Advisory activities:
- Fisheries Act 1995 (s.28)
- National Parks Act 1975 (s.17, 17B, 17D, 18)
- Wildlife Act 1975 (s.18, 32)
- Water Act 1989 (s.31)
- Forests Act 1958 (s.22).
Other plans
In all other cases, the LUAA does not affect the creation of a plan. There is no obligation to consult or negotiate with DJAARA when preparing zoning plans or other kinds of plans not listed above.
That said, it is both efficient and appropriate (in the spirit of ‘a meaningful partnership based on mutual respect’) to engage informally with DJAARA early in the course of any planning.
Although the planning itself may not be regulated by the LUAA, your plan may include a number of specific activities that will be. When you create such a plan, you could then formally notify DJAARA of those activities well in advance. This would allow plenty of time to work through any Advisory, Negotiation or Agreement processes required for each activity.
Then consider the type of works involved, checking the information provided below and the definitions provided at the bottom of this page.
Works on public land
Maintenance and other low impact works are Routine activities.
These include:
- the erection or maintenance of fences, gates and signage
- maintenance of infrastructure
- maintenance of grounds, roads and tracks, including weed control or grass cutting.
The following land management activities are defined as Advisory activities:
- the planned controlled burning of the land
- regeneration works and associated activities
- the rehabilitation of vegetation, river, creek or stream
- the destruction of rabbit warrens.
These activities are not defined any further in the LUAA or the Traditional Owner Settlement Act 2010.
Note that some large scale programs of works may include a number of different LUAA activities. If so, each activity should be assessed separately for its LUAA requirements (see ‘Are there multiple activities?’ above).
Public Works that are listed in the LUAA (Specified Public Works) are divided into two categories:
- Major Public Works are Negotiation Class B activities
- Minor Public Works are Advisory activities
The LUAA’s classification may differ from other ways of classifying 'major' works, such as in planning schemes or budgeting processes. The following information shows related kinds of works to aid your assessment.
Negotiation
Advisory
Major public works are: Minor Public Works are, or are similar to, the construction of: Construction of a new vehicular road, track, railway or bridge where there is no existing footprint
Walking track
Other track where there is an existing footprint
Car park
Road improvement from one class to another (see Does the LUAA apply)Construction of public recreation or sports facilities where earthmoving is required
Sport and recreation facility where no earthmoving is required
Lighting of public places
Toilet block
Picnic facility
Jetty or wharfConstruction of new educational, health or emergency service facilities, or similar
Storage shed
Navigation marker or navigational facility
Automatic weather station or tower
Fish ladder
Pump, bore or other works on a waterway
Tide gaugeA project declared to be a major project (or similar) in legislation, or enabled through an Act of Parliament
The construction of infrastructure through a public–private partnership
A project for a public purpose that involves:
- the alienation of public land by a grant in fee simple
- a commercial lease for more than 10 years
- a community-purpose lease for more than 21 years.
Specified Public Work undertaken by a Utility, including:
- an electricity transmission or distribution facility
- a gas transmission or distribution facility
- a cable, antenna, tower or other communications facility
- a pipeline or other water supply or reticulation facility
- a drainage facility. Or a levee or device for the management of water flows
- an irrigation channel or other irrigation facility
- a sewerage facility.
Work by telecommunications carriers of the type described in the Schedule to the Telecommunications (Low Impact Facilities) Determination 2018 (Cth), this includes:
- certain kinds of cables, antennas, small radio tower extensions, in specified kinds of areas
- pits, pillars, pedestals and other equipment shelters in specified kinds of areas.
Any other works carried out by, or on behalf of, the Crown that will require the exclusion of the public for effective operation
Other minor works carried out by or on behalf of the Crown which fall within the definition of a Specified Public Work
Land clearing or Major Works for a commercial purpose (see definition below), without a Public Land Authorisation (lease, licence or permit), are generally Agreement activities.
‘Major Works’ is defined in the LUAA, but not in the same way as ‘Major Public Works.’ It means any works which have a substantial impact on the physical quality of the land, having regard to the size and scale of the activity.
Other land clearing or major works
In many cases, land clearing or major works for a commercial purpose cannot be conducted on public land without a lease, licence or permit. Where such a Public Land Authorisation (PLA) is being granted or varied, see below for its classification under the LUAA.
Activities conducted pursuant to a valid PLA are authorised under the LUAA.
Where land clearing is part of a Specified Public Work, see above for the LUAA classification of that public work.
Authorisations, approvals and consents
Many, but not all, kinds of leases, licences, permits, and consents are Public Land Authorisations (PLA) that the LUAA regulates.
One notable exception is Planning Permits under the Planning and Environment Act 1987. Issuing such permits is not a land use activity regulated by the LUAA.
If a lease, licence or permit is for a Specified Public Work the nature of the work (major or minor) determines the activity category, not the lease.
See Is it a specified public work? above.
Agricultural Leases
Where a lease is an Agricultural Lease (including leases for plantations and aquaculture), its classification under the LUAA depends on the amount of land included.
Size of agricultural lease Type of LUAA activity Less than 40 hectares Advisory activity 40 hectares or more Negotiation (Class B) activity Specific types of Public Land Authorisations
The LUAA also classifies certain other types of PLA according to their purpose or type.
Type of PLA Type of LUAA activity Licence over an unused road (paper road) Routine activity Licences for:
- bee farming
- grazing or stock
- forest produce
(e.g., the taking of tree ferns, leaves, flowers, sleepers, eucalyptus oil, seed, posts, poles and timber), or - extractive materials (e.g., the taking or use of gravel, limestone, sand, or salt)
Advisory activity Recreation or event permits (for example, car rallies, rave parties, rogaining/orienteering or mountain biking) Advisory activity Carbon Sequestration Agreement Agreement activity Other types of Public Land Authorisations
The LUAA's treatment of all other Public Land Authorisations is determined by:
- the term of the PLA (its duration, including any extensions or options); and
- in some cases, the purpose of the PLA.
Use the following tables to categorise any lease, licence or permit not listed above. Please read the definitions of ‘commercial’ and ‘community’ purposes below, as they have specific meanings in the LUAA.
Licences or Permits Licence or permit term
Community purpose
Commercial
Up to 10 years
Routine
Routine
More than 10 years
Advisory
Negotiation (Class B)
Leases Lease term
Community purpose
Commercial
Up to 10 years
Advisory
Advisory
10-21 years
Advisory
Negotiation (Class A)
More than 21 years
Negotiation (Class B)
Agreement
The LUAA groups mining and energy related authorisations under the general term Earth Resource or Infrastructure Authorisation (ERIA).
The following table shows how the LUAA categorises each ERIA activity. Please read the hyperlinked definitions for key terms.
Type of ERIA activity Type of LUAA activity Exploration, retention or prospecting authorisation, if the applicant agrees in writing to comply with the current ERIA Conditions.
Note that these conditions create ongoing responsibilities for the holder of the authorisation or licence. Breach of these conditions would expose that person to sanctions.
Routine activity Licence for extractive materials (e.g. gravel, limestone, sand, salt) Advisory activity Stone extraction authorisation, from an existing quarry or reserve recommended for that purpose. Advisory activity Pre-licence survey under Part 4 Division 2 of the Pipelines Act 2005 (Vic) for a proposed pipeline that is for the purposes of the establishment, use or operation of any Specified Public Work Advisory activity Exploration, retention or prospecting authorisation, if the applicant does not agree in writing to comply with the current ERIA Conditions Negotiation (Class A) activity Authorisations for commercial development or production, other than those listed above Negotiation (Class A) activity Most authorisations under the Fisheries Act 1995 are either:
- Routine activities under the LUAA, or
- not mentioned in the LUAA, and therefore not regulated by it.
Note that leases for aquaculture are covered above under "Public Land Authorisation".
Change to legal status of land
Changes to reservations as listed below are Advisory activities.
- New reservation of public land, proclamation of an area as Protected Forest, or classification of a State Wildlife Reserve
- Change of reservation boundaries, Gazetted change of reservation purpose, or Gazetted declaration that land within a reserved forest is set aside for a specific purpose
- Revocation of reservation, or excision of land from a reserved forest.
In general, the grant of freehold title to parcels of public land covered by the LUAA (e.g., the sale of public land) is an Agreement activity. It cannot proceed without DJAARA's consent.
The only exceptions are:
- a grant of Aboriginal Title (freehold title subject to certain conditions) to the Traditional Owners
- a grant made to facilitate a project that is for a public purpose
- transfers of land between statutory authorities.
In these three cases, there are no LUAA requirements for the grant or transfer.
The transfer of title to existing freehold land is not subject to the LUAA.
Important definitions
Specified Public Works are any of the following works, providing they are for a public purpose:
- a road, railway, bridge or other transport facility (other than an airport or port)
- a jetty or wharf
- a navigation marker or other navigational facility
- an electricity transmission or distribution facility
- a gas transmission or distribution facility
- lighting of streets or other public places
- a well or bore for obtaining water
- a pipeline or other water supply or reticulation facility
- a drainage facility, or a levee or other device for the management of water flows
- an irrigation channel or other irrigation facility
- a sewerage facility other than a treatment facility
- a cable, antenna, tower or other communication facility
- an automatic weather station
- a public recreation facility
- any other works carried out by or on behalf of the Crown.
They can be carried out by the State or on behalf of the State, like those works carried out by a utility.
Specified Public Works are either major or minor.
In the LUAA, DJAARA has accepted lesser procedural rights for community purpose activities. This is reflected in the definitions of the terms “community” and “commercial” in the LUAA.
'Commercial' doesn’t necessarily mean business or for-profit. “Commercial” is defined in the LUAA to mean anything that doesn’t fit within the strict definition of “community purpose” or “specified public work”.
To qualify as being for a 'Community' purpose under the LUAA, a lease, licence or permit must meet two criteria: one for its actual purpose, and another for the organisation generally:
- Purpose: the lease, licence or permit must be:
- solely or primarily for community, social, religious, educational, health, charitable or sporting purposes, or
- for services aimed at improving community safety or welfare and not of a commercial nature.
AND
- Organisation - the organisation must:
- be not-for-profit, and
- not operate gaming equipment under the Gambling Regulation Act 2003 (poker machines), and
- not have, or plan to have, a turnover of $1 million in operating the leased premises.
A lease, licence or permit would be considered “commercial” if it failed any of the above limitations on what is considered “community purpose”.
- Purpose: the lease, licence or permit must be:
Next steps
Now that you have determined what kind of activity is being proposed, read What’s the process? to see the steps you need to follow.
If you are still uncertain about how the activity is classified, contact DJAARA to discuss it with them.
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