Traditional Owner Settlement Act 2010

The Act was developed in close consultation with Victorian traditional owners through their representative organisation, the Victorian Traditional Owner Land Justice Group.

Victorian traditional owners have long been advocating for an alternative approach to resolving native title claims in Victoria. The Victorian Traditional Owner Land Justice Group was an active participant on the steering committee that developed the foundations of the policy. In February 2009, members of the group unanimously endorsed the recommendations in the steering committee’s report.

The subsequent policies that underpin the legislation have been developed in close collaboration with the Victorian Traditional Owner Land Justice Group and First Nations Legal & Research Services (formerly Native Title Services Victoria), the native title representative body in Victoria.

Settlements are only available to groups who can demonstrate they can include all traditional owners for an agreement area. Inclusiveness is important in giving certainty and finality to the resolution of native title.

Other Aboriginal community organisations that deliver services to Aboriginal Victorians, including health and housing cooperatives, will not be affected in any way by settlements.

In a similar way to the Native Title Act, the Act provides a system for negotiating or consulting about activities on Crown land that is subject to a settlement. These negotiations take place if the government and a traditional owner group have entered into a Land Use Activity Agreement (LUAA) as part of the settlement package.

A LUAA replaces the future acts regime outlined in the Native Title Act. A LUAA defines how public land managers and businesses should negotiate with traditional owners about activities that may have a substantial impact on traditional owner rights as recognised in a settlement. Each LUAA will specify exactly which activities will trigger its application.

Currently, there are two Land Use Activity Agreements:

• one between the State and the Dja Dja Wurrung Clans Aboriginal Corporation, which commenced on 25 October 2013
• the other between the State and the Taungurung Land and Waters Council Aboriginal Corporation, which commenced on 11 August 2020.

No. Until a settlement is reached under the Act, the Native Title Act continues to apply. At no time will land be subject to both regimes. The government maintains a Register of Land Use Activity Agreements so businesses can clearly identify which land is covered by a settlement.

No. The Act ensures that those traditional owners that enter into a settlement with the state under the Act are the same traditional owner groups that have cultural heritage responsibilities under the Aboriginal Heritage Act 2006 (Vic). All issues relating to Aboriginal cultural heritage are subject to separate processes established through the Aboriginal Heritage Act.

Activities that have little or no impact on the land and traditional owner rights are categorised under a LUAA as 'advisory activities'. Decision-makers or public land managers will need to notify the relevant traditional owner group about any advisory activity before it commences, but there is no obligation for them to negotiate.

Advisory activities include applications for:

• licences for forest produce
• new community leases for 21 years or less
• new commercial leases for 10 years or less
• licences for extractive materials (e.g. gravel, limestone, sand or salt)
• new agricultural leases of 40 hectares or less
• prescribed fire burning and non-emergency fire prevention works
• regeneration works
• bee farming licences
• changes to the status of Crown land
• construction of sports facilities, car parks, jetties and walking tracks.

Activities that will substantially change the use of land in which traditional owners have a significant interest, or which will impact significantly on traditional owner rights, must be negotiated with traditional owners. These activities are categorised under a LUAA as 'negotiation activities'.

If an agreement cannot be reached through negotiation, either the traditional owner group or the activity’s sponsor can appeal to the Victorian Civil and Administrative Tribunal (VCAT). VCAT will then determine if the activity should proceed and, if so, under what conditions.

Negotiation activities include:

• major activities that affect Crown land (such as new gravel reserves declared by a council under a planning scheme)
• new commercial leases for more than 10 but less than 21 years (excluding major public works and public-private partnerships)
• earth resource or infrastructure authorisations.

There are certain types of negotiation activity that VCAT does not have the authority to stop, but upon which it may place conditions. These activities include new agricultural leases of more than 40 hectares and the construction of:

• major public works that will benefit all Victorians
• new roads, railway track or bridges
• major public recreation facilities
• infrastructure by private utility companies.

Some activities that have a significant impact on traditional owner rights cannot go ahead without the consent of the traditional owner group. These are equivalent to those activities that the state could not do on freehold land without the consent of the owner.

Activities which cannot proceed without the consent of the relevant traditional owner group are termed 'agreement activities'. Such activities include:

• the sale of Crown land for private purposes
• new commercial leases for more than 21 years (excluding major public works and utilities and Public Private Partnerships)
• major works or clearing of land for commercial purposes.