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Traditional Owner Settlement Amendment Act 2013

No. 4 of 2013

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 3

PART 2—AMENDMENT OF THE TRADITIONAL OWNER SETTLEMENT ACT 2010 4

Division 1—Preliminary 4

3 Principal Act 44 Definitions—Part 1 45 Relationship with indigenous land use agreements 5

10 Relationship with indigenous land use agreements 5

Division 2—Land Provisions 5

6 Effect of granting of estate in land 57 New section 17A inserted 6

17A Native title rights not affected 68 Grant of aboriginal title 69 Transfer of rights to the State 6

Division 3—Land Use Activities 7

10 Definitions of public land authorisation and significant land use activity 7

11 Definition of land use activity 712 Definition of decision maker 913 Power to enter into an agreement as to land use activities 1114 Requirements for land use activity agreements 1215 New section 31A inserted 12

31A Conditions as to Aboriginal cultural heritage 1216 Listing and classification of land use activities to which

agreement applies 1317 Specification of activities as routine activities 1318 Section 34 substituted 13

34 Ministerial direction as to advisory activities 13

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19 New section 40A inserted 1440A Conditions as to community benefits 14

20 Requirements as to agreement as to carrying out of land use activity 15

Division 4—Funding Agreements 15

21 Power to enter into funding agreement 15

Division 5—Natural Resource Agreements 15

22 Definitions—Part 6 1523 Power to enter into natural resource agreements 1524 Evidence of membership 1625 Natural resource flora and fauna authorisation 1626 Natural resource hunting authorisation 1727 Natural resource forest authorisation 1728 Natural resource water authorisation 1729 Natural resource camping authorisation 17

PART 3—AMENDMENT OF THE PLANNING AND ENVIRONMENT ACT 1987 19

30 Definitions—Planning and Environment Act 1987 19

PART 4—CONSEQUENTIAL AMENDMENTS 21

31 Climate Change Act 2010 2132 Flora and Fauna Guarantee Act 1988 2133 Forests Act 1958 2134 Water Act 1989 2135 Wildlife Act 1975 22

PART 5—REPEAL OF AMENDING ACT 23

36 Repeal of amending Act 23═══════════════

ENDNOTES 24

Traditional Owner Settlement Amendment Act 2013†

No. 4 of 2013

[Assented to 19 February 2013]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to amend the Traditional Owner Settlement Act 2010 to—

(i) clarify the definition of traditional owner group and the relationship between certain agreements entered

Victoria

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into in relation to a traditional owner group;

(ii) enable land use activity agreements to specify conditions as to prospecting, community benefits and Aboriginal cultural heritage;

(iii) provide that a land use activity agreement cannot specify a land use activity as a negotiation or agreement activity if the activity is to take place in an alpine resort;

(iv) include a wider range of permits, licences and agreements, including carbon sequestration agreements, in the definition of land use activities;

(v) allow natural resource agreements to authorise some commercial uses of natural resources by traditional owner groups;

(vi) provide for Orders authorising the commercial use of flora and forest produce under a natural resource agreement;

(vii) provide for the Minister to make directions regarding consultation with traditional owner group entities;

(b) to make consequential changes to the Climate Change Act 2010, the Flora and Fauna Guarantee Act 1988, the Forests Act 1958, the Water Act 1989 and the Wildlife Act 1975.

Section Page

2

s. 1

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 30 April 2013, it comes into operation on that day.

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Section Page

3

s. 2

PART 2—AMENDMENT OF THE TRADITIONAL OWNER SETTLEMENT ACT 2010

Division 1—Preliminary

3 Principal Acts. 3

See:Act No.62/2010and amendingAct Nos10/2010, 62/2010 and 29/2011.LawToday:www.legislation.vic.gov.au

In this Part, the Traditional Owner Settlement Act 2010 is called the Principal Act.

4 Definitions—Part 1

(1) In section 3 of the Principal Act, insert the following definition—

"Aboriginal person has the same meaning as in the Aboriginal Heritage Act 2006;".

(2) In section 3 of the Principal Act, for paragraph (a) of the definition of traditional owner group, substitute—

"(a) a group of Aboriginal persons who may authorise (within the meaning in section 251A of the Native Title Act) the making of an indigenous land use agreement with the Minister, on behalf of the State—

Part 5—Repeal of Amending Act

Traditional Owner Settlement Amendment Act 2013No. 4 of 2013

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(i) for the purposes of the settlement of any application of a kind listed in the Table to section 61 of the Native Title Act or in which the group agrees not to make an application of that kind; and

(ii) that is capable of being registered under section 24CK or 24CL of the Native Title Act; or".

5 Relationship with indigenous land use agreements

For section 10 of the Principal Act, substitute—

"10 Relationship with indigenous land use agreements

A recognition and settlement agreement may form a settlement package alone or together with any of the following entered into in relation to the same traditional owner group—

(a) an indigenous land use agreement—

(i) for the purposes of the settlement of any application of a kind listed in the Table to section 61 of the Native Title Act or in which the traditional owner group agrees not to make an application of that kind; and

(ii) that is capable of being registered under section 24BI, 24CK or 24CL of the Native Title Act;

(b) a traditional owner land management agreement.".

Division 2—Land Provisions

6 Effect of granting of estate in land

s. 5Part 5—Repeal of Amending Act


5

In section 17 of the Principal Act, for "On the grant" substitute "Subject to section 17A, on the grant".

7 New section 17A inserted

After section 17 of the Principal Act, insert—

"17A Native title rights not affected

A grant of an estate in fee simple in land under section 14 does not extinguish native title rights to the extent that they exist in relation to that land, whether the grant was made before, on or after the commencement of section 7 of the Traditional Owner Settlement Amendment Act 2013.".

8 Grant of aboriginal title

(1) In section 19(3) of the Principal Act, for "On the grant" substitute "Subject to subsection (3A), on the grant".

(2) After section 19(3) of the Principal Act, insert—

"(3A) A grant of an estate in fee simple in land under subsection (1) does not extinguish native title rights to the extent that they exist in relation to that land, whether the grant was made before, on or after the commencement of section 8 of the Traditional Owner Settlement Amendment Act 2013.".

9 Transfer of rights to the State

After section 20(3) of the Principal Act, insert—



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"(4) For the avoidance of doubt, nothing in subsection (1) prevents the Secretary entering into a Carbon Sequestration Agreement under section 45 of the Climate Change Act 2010 in relation to land that is subject to the grant of an estate in fee simple under section 19.".

Division 3—Land Use Activities

10 Definitions of public land authorisation and significant land use activity

(1) In section 27(1) of the Principal Act, after paragraph (e) of the definition of public land authorisation, insert—

"(f) consent for the use or development of coastal Crown land under section 40 of the Coastal Management Act 1995;

(g) a lease under section 3 of the Land (Surf Life Saving Association) Act 1967;

(h) a licence under Division 2 of Part 5 of the Water Act 1989 to construct any works on a waterway or a bore;

(i) a Carbon Sequestration Agreement under section 45 of the Climate Change Act 2010;".

(2) In section 27(1) of the Principal Act, after paragraph (a) of the definition of significant land use activity, insert—

"(ab) the granting of a public land authorisation that is a Carbon Sequestration Agreement under section 45 of the Climate Change Act 2010;".



7

11 Definition of land use activity

(1) In the definition of land use activity in section 28 of the Principal Act, after paragraph (k), insert—

"(ka) the issuing of an access licence under section 38 of the Fisheries Act 1995 in respect of the land, but does not include the transfer or renewal of an access licence under section 56 or 57 of that Act;

(kb) the issuing of an aquaculture licence under section 43 of the Fisheries Act 1995 in respect of the land, but does not include the transfer or renewal of an aquaculture licence under section 56 or 57 of that Act;

(kc) the issuing of a general permit under section 49 of the Fisheries Act 1995 in respect of the land;".

(2) In the definition of land use activity in section 28 of the Principal Act, after paragraph (l), insert—

"(la) the classification of a State Wildlife Reserve under section 15(2) of the Wildlife Act 1975;".

(3) In the definition of land use activity in section 28 of the Principal Act, in paragraph (n), for "Wildlife Act 1975." substitute "Wildlife Act 1975;".

(4) In the definition of land use activity in section 28 of the Principal Act, after paragraph (n), insert—

"(o) the preparation of a management plan under section 30 of the Coastal Management Act 1995;

(p) the preparation of a draft management plan under section 31 of the Water Act 1989;



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(q) the preparation of a working plan under section 22 of the Forests Act 1958;

(r) the dedication of the land as a reserved forest under section 45 of the Forests Act 1958;

(s) the excision of the land from a reserved forest under section 49 of the Forests Act 1958;

(t) the setting aside and declaration of the land under section 50(1) of the Forests Act 1958 or the revocation or variation of a declaration under that section;

(u) the proclamation of the land to be a protected forest under section 58 of the Forests Act 1958 or the alteration or revocation of a proclamation under that section.".

12 Definition of decision maker

(1) In the definition of decision maker in section 29 of the Principal Act, for paragraph (a) substitute—

"(a) in relation to the granting of a public land authorisation over the land—

(i) if the authorisation is a Carbon Sequestration Agreement under section 45 of the Climate Change Act 2010, the Secretary within the meaning of that section; or

(ii) if the authorisation is a licence under Division 2 of Part 5 of the Water Act 1989 to construct any works on a waterway or bore, the Minister



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responsible for administering section 67 of that Act; or

(iii) in any other case, the person or body authorised by the Act under which the land is managed, or regulations made under that Act, to grant the authorisation;".

(2) In the definition of decision maker in section 29 of the Principal Act, after paragraph (g), insert—

"(ga) in relation to the issuing of an access licence under section 38 of the Fisheries Act 1995, the Secretary, within the meaning of that section;

(gb) in relation to the issuing of an aquaculture licence under section 43 of the Fisheries Act 1995, the Secretary, within the meaning of that section;

(gc) in relation to the issuing of a general permit under section 49 of the Fisheries Act 1995, the Secretary, within the meaning of that section;".

(3) In the definition of decision maker in section 29 of the Principal Act, after paragraph (i), insert—

"(ia) in relation to the classification of a State Wildlife Reserve under section 15 of the Wildlife Act 1975, the Minister administering that section;".

(4) In the definition of decision maker in section 29 of the Principal Act, in paragraph (j) for "the meaning of that section." substitute "the meaning of that section;".



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(5) In the definition of decision maker in section 29 of the Principal Act, after paragraph (j), insert—

"(k) in relation to the preparation of a management plan under section 30 of the Coastal Management Act 1995, the Secretary or committee of management responsible for the preparation of the plan;

(l) in relation to the preparation of a draft management plan under section 31 of the Water Act 1989, the Minister or consultative committee responsible for the preparation of the plan;

(m) in relation to the preparation of a working plan under section 22 of the Forests Act 1958, the Secretary, within the meaning of that section;

(n) in relation to a dedication under section 45 of the Forests Act 1958, the Minister administering that section;

(o) in relation to the excision of land from a reserved forest under section 49 of the Forests Act 1958, the Minister administering that section;

(p) in relation to a setting aside and declaration of land under section 50(1) of the Forests Act 1958 or the revocation or variation of a declaration under that section, the Minister administering that section;

(q) in relation to a proclamation that land is protected forest under section 58 of the Forests Act 1958 or the alteration or variation of a proclamation under that



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section, the Minister administering that section.".

13 Power to enter into an agreement as to land use activities

For section 30(4)(a) of the Principal Act, substitute—

"(a) that the agreement forms part of a settlement package that includes an indigenous land use agreement capable of being registered under section 24BI, 24CK or 24CL of the Native Title Act; or".

14 Requirements for land use activity agreements

(1) In section 31(3) of the Principal Act, for "earth resource of infrastructure" substitute "earth resource or infrastructure".


"(3A) A land use activity agreement may, in relation to earth resource or infrastructure authorisations that are prospecting licences under the Mineral Resources (Sustainable Development) Act 1990, specify conditions as to activities allowed under a prospecting licence that may be accepted by persons applying for such authorisations.".

(3) In section 31(4) of the Principal Act—

(a) for "subsection (3)" substitute "subsection (3) or (3A)";

(b) for "authority" substitute "authorisation".



"31A Conditions as to Aboriginal cultural heritage

s. 13s. 14Part 5—Repeal of Amending Act


12

(1) Subject to subsection (2), a land use activity agreement may, in relation to agreement activities and negotiation activities, specify conditions as to Aboriginal cultural heritage that must be accepted by the parties to the agreement and any person seeking to carry out those activities on the agreement land.

(2) A land use activity agreement must not contain any condition that duplicates or is inconsistent with any provision of the Aboriginal Heritage Act 2006.

(3) In this section, Aboriginal cultural heritage has the same meaning as in the Aboriginal Heritage Act 2006.".

16 Listing and classification of land use activities to which agreement applies

After section 32(3) of the Principal Act, insert—

"(3A) A land use activity agreement must not specify a land use activity as a negotiation activity or an agreement activity if that activity is to be carried out on any land that is within the boundaries of an alpine resort, within the meaning of the Alpine Resorts Act 1983.".

17 Specification of activities as routine activities

In section 33(2) of the Principal Act—

(a) after "exploration" insert "or an activity allowed under a prospecting licence";

(b) after "section 31(3)" insert "or (3A)".

18 Section 34 substituted

For section 34 of the Principal Act, substitute—

"34 Ministerial direction as to advisory activities



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(1) If a land use activity agreement specifies a land use activity as an advisory activity, the Minister must give written directions as to the actions that must be taken by the decision maker for that activity to—

(a) notify the traditional owner group entity of any proposal to carry out the activity on agreement land; and

(b) consult with the traditional owner group entity on the proposal.

(2) Any direction given under subsection (1) must set out the land use activities to which it applies.

(3) The Minister may, after consulting the traditional owner group entity, vary or revoke a direction given under subsection (1).

(4) If the Minister revokes a direction given under subsection (1), the Minister must, as soon as possible after doing so, give further written directions as to the matters covered by the revoked direction.".



"40A Conditions as to community benefits

A land use activity agreement may specify the amount and method of payment of any community benefits payable by the State in relation to—

(a) any land use activity that the agreement specifies is a negotiation activity or an agreement activity and for which the responsible person is the State;



14

(b) any land use activity that is a public land authorisation and that the agreement specifies is a negotiation activity or an agreement activity.".

20 Requirements as to agreement as to carrying out of land use activity

In section 51(2) of the Principal Act, for "provide a copy of the agreement to the decision maker" substitute "give the decision maker a notice signed by the traditional owner group entity and the responsible person to the effect that an agreement that complies with subsection (1) has been reached".

Division 4—Funding Agreements

21 Power to enter into funding agreement

In section 78(2) of the Principal Act, for "a trust" substitute "a charitable trust".

Division 5—Natural Resource Agreements

22 Definitions—Part 6

In section 79 of the Principal Act, in the definition of traditional purposes, omit "entity" (wherever occurring).

23 Power to enter into natural resource agreements

(1) In section 80(1) of the Principal Act—

(a) in paragraphs (a) and (b), omit "entity" (wherever occurring);



15

(b) in paragraph (b), after "traditional purposes" insert "or commercial purposes".


"(3) A natural resource agreement must not provide for use of or access to the natural resources of land for commercial purposes under subsection (1)(b) if that commercial purpose is inconsistent with the purpose for which the land is reserved under any Act.".

24 Evidence of membership

(1) In section 81(1) of the Principal Act, omit "entity".

(2) In section 81(2) of the Principal Act, in paragraph (e) of the definition of authorised officer, for "1989." substitute "1989;".

(3) In section 81(2) of the Principal Act, after paragraph (e) of the definition of authorised officer, insert—

"(f) as in the National Parks Act 1975, for a person performing duties under that Act;

(g) as in the Crown Land (Reserves) Act 1978, for a person performing duties under that Act.".

25 Natural resource flora and fauna authorisation

For section 82(1) of the Principal Act, substitute—

"(1) The Governor in Council may, by Order and on the recommendation of the Minister administering the Flora and Fauna Guarantee Act 1988, authorise the members of a traditional owner group in relation to which a natural resource agreement has been entered into to do any of the following—



16

(a) take (except for the purposes of controlling), keep, move or process protected flora (within the meaning of the Flora and Fauna Guarantee Act 1988) for traditional purposes;

(b) take (except for the purposes of controlling), trade in, keep, move or process protected flora (within the meaning of the Flora and Fauna Guarantee Act 1988) for a commercial purpose provided for in the natural resource agreement;

(c) take or keep fish which are members of a listed taxon or community of fauna (within the meaning of the Flora and Fauna Guarantee Act 1988) for traditional purposes—

in so far as is authorised by the Order.".

26 Natural resource hunting authorisation

In section 83(1) of the Principal Act, for "entity that has a natural resource agreement" substitute "in relation to which a natural resource agreement has been entered into".

27 Natural resource forest authorisation

In section 84(1) of the Principal Act—

(a) for "entity that has a natural resource agreement" substitute "in relation to which a natural resource agreement has been entered into";

(b) after "traditional purposes" insert "or a commercial purpose provided for in the natural resource agreement".

28 Natural resource water authorisation



17

In section 85(1) of the Principal Act, for "entity that has a natural resource agreement" substitute "in relation to which a natural resource agreement has been entered into".

29 Natural resource camping authorisation

(1) In section 86(1) of the Principal Act, for "entity that has a natural resource agreement" substitute "in relation to which a natural resource agreement has been entered into".

(2) In section 86(7) and (9) of the Principal Act, omit "entity".

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18

PART 3—AMENDMENT OF THE PLANNING AND ENVIRONMENT ACT 1987

30 Definitions—Planning and Environment Act 1987s. 30

See:Act No.45/1987.Reprint No. 10as at27 April 2012and amendingAct Nos38/2012 and 43/2012.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Planning and Environment Act 1987, for paragraphs (c) and (d) of the definition of owner, substitute—

"(c) in relation to Crown land reserved under the Crown Land (Reserves) Act 1978 and managed or controlled by a committee of management, means—

(i) in Part 3, if the land is agreement land within the meaning of the Traditional Owner Settlement Act 2010, each of the following—

(A) the traditional owner group entity within the meaning of Traditional Owner Settlement Act 2010 for the land;

(B) the Minister administering the Crown Land (Reserves) Act 1978;

(ii) in any other case, the Minister administering the Crown Land (Reserves) Act 1978; and

(d) in relation to any other Crown land, means—



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(i) in Part 3, if the land is agreement land within the meaning of the Traditional Owner Settlement Act 2010, each of the following—

(A) the traditional owner group entity within the meaning of Traditional Owner Settlement Act 2010 for the land;

(B) the Minister or public authority that manages or controls the land;

(ii) in any other case, the Minister or public authority that manages or controls the land;".

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20

PART 4—CONSEQUENTIAL AMENDMENTS

31 Climate Change Act 2010

At the end of section 45 of the Climate Change Act 2010, insert—"Note

The entry into a Carbon Sequestration Agreement under this section may be a land use activity under the Traditional Owner Settlement Act 2010 if it relates to public land to which a land use activity agreement under that Act applies.".

32 Flora and Fauna Guarantee Act 1988

(1) In section 48A of the Flora and Fauna Guarantee Act 1988, omit "entity".

(2) In section 52A of the Flora and Fauna Guarantee Act 1988, omit "entity".

33 Forests Act 1958

(1) In section 3(1) of the Forests Act 1958, in the definition of traditional owner group entity, omit "entity".

(2) In section 57Q(5) of the Forests Act 1958, omit "entity".

(3) In section 57ZF(2) of the Forests Act 1958, omit "entity".

(4) In section 59(1B) of the Forests Act 1958, omit "entity".

(5) In section 96C of the Forests Act 1958, omit "entity".

34 Water Act 1989

(1) In section 3(1) of the Water Act 1989, insert the following definition—

"traditional owner group has the same meaning as in the Traditional Owner Settlement Act 2010;".



21

(2) In section 8A(1) of the Water Act 1989, for "any member of the entity" substitute ", any member of the traditional owner group that appointed the entity to represent the group in relation to that area".

(3) In section 8A(2) of the Water Act 1989, omit "entity".

35 Wildlife Act 1975

(1) In section 3(1) of the Wildlife Act 1975, in the definition of traditional owner group entity, omit "entity".

(2) In section 47B of the Wildlife Act 1975, omit "entity".

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22

PART 5—REPEAL OF AMENDING ACT

36 Repeal of amending Act

This Act is repealed on 30 April 2014.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


24

† Minister's second reading speech—

Legislative Assembly: 12 September 2012

Legislative Council: 13 December 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Traditional Owner Settlement Act 2010 and the Planning and Environment Act 1987, to make consequential amendments to other Acts and for other purposes."

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