See LUAA Contacts for information about how to contact DJAARA (the Dja Dja Wurrung Clans Aboriginal Corporation).
Process for Routine activities
For Routine activities there is no requirement to notify DJAARA. The activity may proceed immediately.
Decision Makers are encouraged to discuss the categorisation of the activity with DJAARA if there is any doubt, bearing in mind the LUAA principle that If an activity is capable of falling into two categories, the higher level of procedural rights shall apply.
In any case, decision makers are encouraged to keep appropriate records of their assessments that certain activities are Routine. These could be called upon in an audit of LUAA assessments, or if DJAARA were to apply to VCAT for a determination on the classification of a land use activity.
A sample template for recording such assessments is included here:
Process for Advisory activities
Advisory activities require notification of DJAARA and, depending on DJAARA's response, a process of meaningful consultation.
Ministerial Directions as to Advisory activities (made by the Attorney-General on 24 October 2013) specify the minimum content of the notification. These include a 28-day minimum period to allow DJAARA to respond.
Document templates have been developed to assist with meeting these requirements, but use of the templates is not mandatory.
The Directions also encourage Decision Makers to exceed the minimum standards. That is, to go beyond formal procedures and to establish a relationship between Parties that is flexible enough to respect and accommodate the needs of each party.
As with any decision affecting people’s rights, Decision Makers for Advisory activities under the LUAA must also observe the principles of natural justice.
This table suggests a step-by-step approach that meets (and in some steps exceeds) the minimum standards. It is intended as a guide, noting that the steps may be adapted to meet the circumstances of each Advisory process.
See also Engaging with DJAARA, and the Advisory Process Guidelines document below, for information about ways to make the process efficient and effective for both parties.
| Step | Process for Advisory activities |
|---|---|
| 1. | Notify DJAARA of the proposed activity |
| 2. | Await response from DJAARA until the date specified in your notice (minimum 28 days) |
| 3. | If no response received, or a response with no objection or comments: the activity can proceed |
| 4. | If comments or requests received: acknowledge the comments in writing. Consider the comments in the spirit of "a meaningful partnership based on mutual respect", and meet with DJAARA if requested |
| 5. | Make your decision, taking relevant comments into account |
| 6. | Record your decision and notify DJAARA, explaining the reasoning for your decision. |
Templates and supporting documents for Advisory activities
Process for Negotiation activities
Negotiation activities require notification of DJAARA and good faith negotiations. The Victorian Civil and Administrative Tribunal (VCAT) can adjudicate if agreement cannot be reached.
The minimum content of the notification is set out in the Traditional Owner Settlement Regulations 2017(opens in a new window).
Document templates are available below to assist with meeting these requirements, but organisations may develop their own documents that meet the minimum requirements.
See also Engaging with DJAARA, and the Negotiation Guidelines document below, for information about ways to make the process efficient and effective for both parties.
Good faith negotiations
The Traditional Owner Settlement Act 2010 specifies the requirement to negotiate in good faith (s.50).
The term “good faith” is not defined in the Act, but an explanatory guide is available in the downloads section below.
VCAT may make a determination as to whether or not either party has met the requirement for good faith.
Community benefits
The State has agreed to provide Community Benefits for Negotiation activities according to formulas in Schedule 7 of the LUAA whenever the State, or a State agency:
- is the Responsible Person, or
- issues a Public Land Authorisation (PLA) or a new timber release plan.
These formulas calculate the monetary value of the Community Benefits based on a percentage of value of the land, rent received, etc. Land values are determined by the Valuer-General of Victoria. The State may negotiate to provide some or all of the community benefits in non-monetary form, by agreement with DJAARA.
When the Responsible Person is anyone other than the State, and the State is not issuing a PLA, these formulas do not automatically apply. This includes, for example, negotiation by a local government regarding major public works, or negotiation by an applicant for a mining authorisation.
In those negotiations, the Responsible Person and DJAARA may agree to adopt the formulas, or not. They must negotiate the value of any Community Benefits, and whether they will be provided in monetary or non-monetary form.
Role of VCAT
If the parties are unable to reach agreement, after six months of good faith negotiating, either party may apply to VCAT for a variety of orders to resolve the dispute. As of September 2024, no such orders have been sought.
Steps in the negotiation process
This table suggests a step-by-step approach that is consistent with the LUAA, the Act and its Regulations. It sets out the roles of the:
- Decision Maker (DM)
- Responsible Person (RP).
| Step | Process for Negotiation activities |
|---|---|
| 1. | Decision Maker (DM) identifies whether it, or another person, is the Responsible Person (RP). DM also identifies who is responsible for Community Benefits. DM explains the RP’s obligations under the LUAA to the relevant person (DM’s employee or external RP). |
| 2. | RP notifies DJAARA of the proposed activity |
| 3. | RP negotiates in good faith with DJAARA regarding the activity – whether it may proceed, and on what conditions. If a State agency is the RP, or is issuing a PLA or a new timber release plan, it also negotiates whether the Community Benefits payable under LUAA Schedule 7 will be paid in cash, in kind, or in some combination. If the RP is another statutory authority, a local government, or an applicant for an Earth Resources Authority, it negotiates with DJAARA the Community Benefits to be provided for the Dja Dja Wurrung community |
| 4. | If agreement is reached, the RP provides evidence of the agreement to the DM. The activity can now proceed (in accordance with any standard or agreed conditions). |
| 5. | If agreement cannot be reached, after 6 months of negotiation in good faith, either party may apply to VCAT for an order. |
| 6. | RP pays DJAARA’s reasonable costs of negotiating, regardless of the outcome. |
Templates and supporting documents for Negotiation activities
Process for Agreement activities
Agreement activities require notification of DJAARA and good faith negotiations, as for Negotiation activities. However, the activity cannot proceed unless and until DJAARA agrees. There is no appeal to VCAT if agreement cannot be reached.
Notification
The minimum content of the notification is set out in the Traditional Owner Settlement Regulations 2017.
Responsibility for negotiation and Community Benefits
For most Agreement activities, the Decision Maker is also the Responsible Person (RP). However, where the activity is the granting of a lease for more than 21 years for commercial purposes, the applicant for the lease is the Responsible Person.
For all Agreement activities where a State agency is the Decision Maker, including where it issues such a lease, it has agreed to provide Community Benefits according to formulas in Schedule 7 of the LUAA. The State may negotiate to provide some or all of the community benefits in non-monetary form, by agreement with DJAARA.
If a local government, statutory authority or other non-State body is ever the Decision Maker for an Agreement activity, these formulas do not automatically apply. The Decision Maker and DJAARA must reach agreement about the value of the Community Benefits, and whether they will be provided in monetary or non-monetary form.
Steps in the process
This table suggests a step-by-step approach that is consistent with the LUAA, the Act and its Regulations.
It sets out the roles of the:
- Decision Maker (DM)
- Responsible Person (RP).
| Step | Process for Agreement activities |
|---|---|
| 1 | DM identifies whether it, or another person, is the Responsible Person (RP). DM also identifies who is responsible for Community Benefits. DM explains the RP’s obligations under the LUAA to the relevant person (DM’s employee or external RP). |
| 2 | RP notifies DJAARA of the proposed activity. |
| 3 | RP negotiates in good faith with DJAARA regarding the activity – whether it may proceed, and on what conditions. If a State agency is the RP, or is issuing a PLA, it also negotiates whether the Community Benefits payable under LUAA Schedule 7 will be paid in cash, in kind, or in some combination. If the RP is another statutory authority or a local government, it negotiates with DJAARA the Community Benefits to be provided for the Dja Dja Wurrung community. |
| 4. | If agreement is reached with DJAARA, the RP provides evidence of the agreement to the DM. The activity can now proceed (in accordance with any standard or agreed conditions). |
| 5. | If agreement is not reached, the activity cannot proceed. |
| 6. | RP pays DJAARA’s reasonable costs of negotiating, regardless of the outcome. |
Next steps
Continue to LUAA Contacts
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