Traditional Owner Settlement Act 2010 (Vic)

Version No. 026

Traditional Owner Settlement Act 2010

No. 62 of 2010

Version incorporating amendments as at

1 July 2024

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

Part 2—Recognition and settlement agreements

Division 1—Recognition and settlement agreements

4Minister may enter into recognition and settlement agreements

5Land agreements in recognition and settlement agreements

6Land use activity agreements in recognition and settlement agreements

7Funding agreements in recognition and settlement agreements

8Natural resource agreements in recognition and settlement agreements

9Recognition of traditional owner rights

Division 2—General provisions for recognition and settlement agreements

10Relationship with indigenous land use agreements

Part 3—Land provisions

Division 1—Definitions

11Definitions

Division 2—Land agreements

12Land agreements

Division 3—Grant of estate in land

13Minister to recommend grant of land

14Grant of land by Governor in Council

15Reservations, exceptions and conditions which may be imposed on grant

16Registrar to make necessary amendments

17Effect of granting of estate in land

17ANative title rights not affected

Division 4—Grant of aboriginal title

18Minister to recommend grant of land

19Grant of aboriginal title

20Transfer of rights to the State

22Saving pre-existing statutory authorities

22ASaving pre-existing contracts and other arrangements

23Requirements as to agreement under Part 8A of the Conservation, Forests and Lands Act 1987

24Registrar to record caveat

25Registrar to make necessary amendments

26Division not affected by other Acts

Part 4—Land use activities

Division 1—Definitions

27Definitions

28Definition of land use activity

29Definition of decision maker

Division 2—Land use activity agreements

30Power to enter into an agreement as to land use activities

31Requirements for land use activity agreements

31AConditions as to Aboriginal cultural heritage

32Listing and classification of land use activities to which agreement applies

33Specification of activities as routine activities

34Ministerial direction as to advisory activities

35Requirement to comply with directions

36Effect of direction

37Process as to multiple activities

38Variation of agreements

39Application in emergency situations

Division 3—Particular requirements for negotiation and agreement activities

40Requirements for person seeking public land authorisation

40AConditions as to community benefits

41Decision maker may determine to undertake compliance in place of person seeking authorisation

42Obligations of decision maker to ascertain compliance

43Requirements for earth resource or infrastructure authorisations

44Obligations of decision maker to ascertain compliance

45Requirements for clearing of land, carrying out of works

46Requirements for persons seeking alienation of land

Division 4—Negotiation and determination processes

Subdivision 1—General provisions

49Responsible person to notify traditional owner group entity

50Requirement to negotiate in good faith

51Requirements as to agreement as to carrying out of land use activity

52Fees for costs of negotiating

Subdivision 2—Negotiation activities, referral to VCAT

53Application for VCAT determination—land use activities

54VCAT determination, negotiation activities, class A

55VCAT determination, negotiation activities, class B

56Matters VCAT must take into account in making determination

57Effect of VCAT determination as to conditions

57AApplication for VCAT determination—negotiation in good faith

57BVCAT determination, negotiation in good faith

57CVCAT determination—classification of land use activity

57DVCAT determination—reasonable costs

Subdivision 3—Negotiation activities, Ministerial powers

58Report to Minister where determination not made in specified time

59Minister may request determination in urgent cases

60Minister may make determination

61Notice by Minister to VCAT

62Notification to parties

63Procedure for determining matter

64Matters to be taken into account

65Notice of Ministerial determination and stay of VCAT determination

66Power of Minister to substitute determination

Subdivision 4—Enforcement orders

66AApplication for enforcement order

66BEnforcement orders

66CVCAT may notify persons of applications for enforcement orders

66DSubmissions on enforcement order

66EApplication for interim enforcement order

66FInterim enforcement orders

66GOpportunity to be heard on making of interim enforcement order

66HAmendment or cancellation of enforcement order or interim enforcement order

66IDate on which interim enforcement order ceases to have effect

Division 5—Register of land use activity agreements

67Land use activity agreement register

68Employment of registrar of land use activity agreements

69Staff of the registrar

70Delegation

71Registrar to maintain register

72Registration of land use activity agreements

73Coming into effect of agreement

74Information that is recorded on the register

75Information that is available from the register

76Right to search the register

77Evidentiary provisions

Part 5—Funding agreements

78Power to enter into funding agreement

Part 6—Natural resource agreements and related agreements

Division 1—Definitions

79Definitions

Division 2—Natural resource agreements

80Power to enter into natural resource agreements

80AConsent of Ministers to natural resource agreements

80BBinding effect of natural resource agreements and other agreements under this Part

80CSubsidiary decision making powers under natural resource agreements

80DTemporary suspension of part of natural resource agreement

80ESteps to be taken before making suspension

80FDelegation

81Evidence of membership

Division 2A—Traditional owner land natural resource agreements

81APower to enter into natural resource agreements for land owned by traditional owners

81BSubsidiary decision making powers under agreements under section 81A

81CApplication of provisions to agreements under section 81A

81DConsent required for carrying out of activity

Division 3—Agreed activities

82Agreed activities

83Agreement may specify scope of agreed activity

84Purposes for which agreed activity may be carried out

85Camping

86Property in forest produce

Part 7—General

91Regulation making powers

Part 8—Transitional provisions, Traditional Owner Settlement Amendment Act 2016

92Definition

93Transitional provision for aboriginal title land

94Land use activity agreements

95Transitional provision for existing natural resource agreements

96Transitional provision for authorisation orders

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 026

Traditional Owner Settlement Act 2010

No. 62 of 2010

Version incorporating amendments as at

1 July 2024

Preamble

Aboriginal peoples have lived for more than a thousand generations in this State.  They maintained complex societies with many languages, kinship systems, laws, polities and spiritualities.  They enjoyed a close spiritual connection with their country and developed sustainable economic practices for their lands, waters and natural resources.  Land formed the basis of their existence and identity and was owned and managed according to traditional laws and customs.  They had a special relationship with their lands, which held great meaning to them.

The arrival of Europeans in this State ruptured the spiritual, political and economic order of the Aboriginal peoples.  They faced the loss of their ancestral land and grave threats to their culture, but the Aboriginal peoples have survived.

The Constitution Act 1975 now recognises the unique status of the Aboriginal peoples as descendants of Australia's first peoples.  It recognises that Aboriginal peoples have made a unique and irreplaceable contribution to the identity and well-being of this State.

It is now expedient, as a means of reconciliation, to provide for agreements to be negotiated between the State and traditional owner groups to enable Aboriginal cultures to be recognised, in particular the recognition of the special relationship of Aboriginal peoples with their land, to recognise traditional owner rights and for rights to be conferred on identified traditional owner groups.

The Parliament of Victoria therefore enacts:

PART 1—PRELIMINARY

1Purposes

The purposes of this Act are to advance reconciliation and promote good relations between the State and traditional owners and to recognise traditional owner groups based on their traditional and cultural associations to certain land in Victoria by—

(a)providing for the making of agreements between the State and traditional owner groups—

(i)to recognise traditional owner rights and to confer rights on traditional owner groups as to access to or ownership or management of certain public land; and

(ii)as to decision making rights and other rights that may be exercised in relation to the use and development of the land or natural resources on the land; and

(b)making any amendments to other Acts that are necessary to ensure the agreements are effective; and

(c)making any related and consequential amendments to other Acts.

2Commencement

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

(2)If this Act does not come into operation before 1 July 2011, it comes into operation on that day.

3Definitions

In this Act—

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

aboriginal title means a grant of an estate in fee simple in land that is subject to Division 4 of Part 3;

alpine resort has the same meaning as in the Alpine Resorts Act 1983;

Alpine Resort Management Board has the same meaning as Board has in the Alpine Resorts (Management) Act 1997;

campmeans—

(a)to erect, occupy or use, for accommodation, a tent, tarpaulin or any similar form of accommodation, shelter or temporary structure; or

(b)to occupy or use a swag or sleeping bag; or

(c)to occupy or use for accommodation purposes a vehicle, vessel or other moveable form of accommodation;

Department means the Department of Justice and Regulation;

funding agreement means an agreement under Part 5;

indigenous land use agreement has the same meaning as in Division 3 of Part 2 of the Native Title Act;

joint management plan has the same meaning as in the Conservation, Forests and Lands Act 1987;

land agreement means an agreement under Division 2 of Part 3;

land management co-operative agreement means an agreement under Part 8 of the Conservation, Forests and Lands Act 1987;

land use activity agreement means an agreement under Division 2 of Part 4;

land use activity agreement register means the register established under section 67;

native title has the same meaning as in the Native Title Act;

Native Title Act means the Native Title Act 1993 of the Commonwealth;

natural resource agreement means an agreement under Division 2 of Part 6;

Parks Victoria has the same meaning as in the Parks Victoria Act 2018;

public land means the following—

(a)land under the Crown Land (Reserves) Act 1978 including

land in any alpine resort;

(b)land in any park within the meaning of the National Parks Act 1975;

(c)reserved forest within the meaning of the Forests Act 1958;

(d)unreserved Crown land under the Land Act 1958;

(e)land in any State Wildlife Reserve or Nature Reserve, within the meaning of the Wildlife Act 1975;

*                *                *                *                *

recognition and settlement agreement means an agreement under section 4;

relevant land Minister, in relation to public land, means the Minister administering the Act under which the land is managed;

traditional owner group, in relation to an area of public land, means—

(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—

(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

(b)if there are native title holders (within the meaning of the Native Title Act) in relation to the area, the native title holders; or

(c)in any other case, a group of persons who are recognised by the Attorney-General, by notice published in the Government Gazette as the traditional owners of the land, based on Aboriginal traditional and cultural associations with the land;

traditional owner group entity, in relation to an area of public land, means—

(a)a corporation within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 of the Commonwealth; or

(b)a company limited by guarantee that is registered under the Corporations Act; or

(c)a body corporate—

that a traditional owner group for the area of public land has appointed to represent them in relation to that area, for the purposes of this Act;

traditional owner land management agreement has the same meaning as in the Conservation, Forests and Lands Act 1987;

traditional owner rights, in relation to a recognition and settlement agreement, means the traditional owner rights recognised in the agreement;

unreserved public land means land to which paragraph (d) of the definition of public land applies.

PART 2—RECOGNITION AND SETTLEMENT AGREEMENTS

Division 1—Recognition and settlement agreements

4Minister may enter into recognition and settlement agreements

(1)The Minister, on behalf of the State, may enter into an agreement with the traditional owner group entity for an area of public land as to any one or more of the matters set out in the following sections of this Division.

(2)A recognition and settlement agreement may include provision for any matter which is required or permitted by this Act or which is necessary or convenient to give effect to the agreement.

5Land agreements in recognition and settlement agreements

A recognition and settlement agreement may include a land agreement with the traditional owner group entity in relation to land that is the subject of the agreement.

6Land use activity agreements in recognition and settlement agreements

A recognition and settlement agreement may include a land use activity agreement with the traditional owner group entity in relation to land that is the subject of the agreement.

7Funding agreements in recognition and settlement agreements

A recognition and settlement agreement may include a funding agreement with the traditional owner group entity for the purpose of giving effect to the recognition and settlement agreement.

8Natural resource agreements in recognition and settlement agreements

A recognition and settlement agreement may include a natural resource agreement with the traditional owner group entity in relation to land that is the subject of the agreement.

9Recognition of traditional owner rights

(1)A recognition and settlement agreement may, in relation to land that is the subject of the agreement, provide for the recognition of rights of the traditional owner group in relation to any one or more of the following—

(a)the enjoyment of the culture and identity of the traditional owner group;

(b)the maintenance of a distinctive spiritual, material and economic relationship with the land and the natural resources on or depending on the land;

(c)the ability to access and remain on the land;

(d)the ability to camp on the land;

(e)the ability to use and enjoy the land;

(f)the ability to take natural resources on or depending on the land;

(g)the ability to conduct cultural and spiritual activities on the land;

(h)the protection of places and areas of importance on the land.

(2)Any recognition of a right in an agreement under subsection (1) is not to be taken to have any greater effect than is consistent with the law of Victoria.

Division 2—General provisions for recognition and settlement agreements

10Relationship 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.

PART 3—LAND PROVISIONS

Division 1—Definitions

11Definitions

(1)In this Part, public land means—

(a)land under the Crown Land (Reserves) Act 1978, other than land in any alpine resort;

(b)land in any park within the meaning of the National Parks Act 1975;

(c)reserved forest within the meaning of the Forests Act 1958;

(d)unreserved Crown land under the Land Act 1958;

(e)land in any Nature Reserve or State Wildlife Reserve, within the meaning of the Wildlife Act 1975, other than land in a State Game Reserve (within the meaning of that Act).

(2)Words and phrases used in this Part that are defined in the Transfer of Land Act 1958 have the same meaning as in that Act.

Division 2—Land agreements

12Land agreements

(1)The Minister, on behalf of the State, may enter into a land agreement with a traditional owner group entity for any part of the land that is the subject of the recognition and settlement agreement as to any one or more of the matters set out in this section.

(2)A land agreement may provide that if land that is the subject of the agreement is unreserved public land, an estate in fee simple in the land is to be granted to the traditional owner group entity in accordance with Division 3.

(3)A land agreement may provide that if land that is the subject of the agreement is public land, aboriginal title in the land is to be granted to the traditional owner group entity in accordance with Division 4.

(4)A land agreement—

(a)must not make provision under subsection (2) unless the consent of the Minister administering Division 6 of Part I of the Land Act 1958 has first been obtained; and

(b)must not make provision under subsection (3) unless the consent of the relevant land Minister has first been obtained.

(5)If a land agreement provides for the grant of aboriginal title in land that is the subject of the agreement, the agreement must provide that the grant of aboriginal title is subject to the Minister administering Part 8A of the Conservation, Forests and Lands Act 1987 entering into a traditional owner land management agreement as to the management of the land that is the subject of the grant with the traditional owner group entity.

(6)If a land agreement makes provisions for the management of public land (that is not land that is provided for under subsection (5)), the agreement may provide that the provisions are subject to the Minister administering Part 8A of the Conservation, Forests and Lands Act 1987 entering into a traditional owner land management agreement with the traditional owner group entity as to the management of the land.

(7)If a land agreement provides for the grant of an estate in fee simple under Division 3 in land that is the subject of the agreement the agreement may provide that the grant of the estate in fee simple is subject to—

(a)the conditions agreed to in the agreement as conditions to be set out in the grant; and

(b)the Secretary (within the meaning of section 69 of the Conservation, Forests and Lands Act 1987) entering into a land management co-operative agreement as to the management of the land that is the subject of the grant with the traditional owner group entity.

(8)If a land agreement makes provision under subsection (3) and the land is—

(a)land under the Crown Land (Reserves) Act 1978, the agreement may provide that the land is to be reserved for the purpose specified in the agreement; or

(b)land under the Forests Act 1958, the agreement may provide that the land is to be set aside and declared for the purpose specified in the agreement.

(9)If a land agreement has a provision under—

(a)subsection (8)(a), the provision is conditional on the land being reserved for the purpose specified in the agreement under sections 11A and 11B of the Crown Land (Reserves) Act 1978; or

(b)subsection (8)(b), the provision is conditional on the land being set aside and declared under section 50AA of the Forests Act 1958 for the purpose specified in the agreement.

Division 3—Grant of estate in land

13Minister to recommend grant of land

If a land agreement provides for the grant of an estate in fee simple in land that is the subject of the agreement, the Minister must take all reasonable steps to recommend to the Governor in Council that—

(a)an estate in fee simple be granted to the traditional owner group entity that is the party to the agreement; and

(b)the grant be subject to the conditions that, in accordance with this Division, are agreed to in the agreement as conditions to be set out in the grant.

14Grant of land by Governor in Council

The Governor in Council may grant the land that is the subject of the Minister's recommendation to the traditional owner group entity in accordance with the recommendation of the Minister.

15Reservations, exceptions and conditions which may be imposed on grant

The conditions that a land agreement may specify as conditions to which the grant of an estate in fee simple in land under section 14 may be subject are the following—

(a)the condition that the estate and any legal or equitable interest in the estate is not able to be sold, transferred, disposed of, encumbered or otherwise dealt with;

(b)the condition that, subject to this Act, the leasing or licensing of an estate or of any legal or equitable interest in the estate is prohibited or is restricted as specified in the limitation;

(c)the condition that the estate is to be held by the traditional owner group entity on trust for the traditional owner group.

16Registrar to make necessary amendments

The Registrar of Titles must make any amendments to the Register under the Transfer of Land Act 1958 that are necessary because of the operation of this Division.

17Effect of granting of estate in land

Subject to section 17A, on the grant of an estate in land under section 14, the land is deemed to be discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests that applied to the land immediately before the making of the grant.

17ANative 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 Act2013.

Division 4—Grant of aboriginal title

18Minister to recommend grant of land

If a land agreement provides for the grant of aboriginal title in land that is the subject of the agreement, the Minister must take all reasonable steps to recommend to the Governor in Council that an estate in fee simple that is subject to this Division be granted to the traditional owner group entity that is the party to the agreement.

19Grant of aboriginal title

(1)In accordance with a recommendation of the Minister under section 18, the Governor in Council may grant an estate in fee simple in land to a traditional owner group entity that is—

(a)subject to this Division; and

(b)any other terms, conditions, limitations and restrictions set out in the grant.

(2)The following provisions apply to the grant of the estate in fee simple under subsection (1)—

(a)the grant is subject to the limitation that the traditional owner group entity is not able to sell, transfer, dispose of, encumber or otherwise deal with the estate or any legal or equitable interest in the estate; and

(b)the grant is subject to the limitation that the traditional owner group entity is not able to lease or licence the estate or any legal or equitable interest in the estate; and

(c)the grant is subject to the condition that the State holds a right transferred in accordance with section 20.

*                *                *                *                *

(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.

(4)Despite subsection (2)(a), the traditional owner group entity who holds the estate in fee simple may transfer or dispose of the estate the entity has in the land to another traditional owner group entity if—

(a)the traditional owner group entity that holds the estate has first obtained the written consent of the Minister; and

(b)section 23 has been complied with.

(5)The grant of an estate in fee simple under subsection (1) is not subject to any limit as to depth directed by the Governor in Council under section 339 of the Land Act 1958, but may be limited as to depth if so agreed in an agreement under this Part.

(6)Despite section 42(2)(a) of the Transfer of Land Act 1958, a folio of the Register or registered instrument that relates to land that is the subject of the grant of an estate in fee simple under subsection (1) is subject to the provisions of this Division.

20Transfer of rights to the State

(1)The grant of an estate in fee simple under section 19 must not be made unless the traditional owner group entity has entered into a contract for the transfer to the State of a right (to which this section applies) to occupy, use, control and manage the land, being a right that is subject to the limitation that—

(a)the State is not able to sell, transfer, dispose of, encumber or otherwise deal with any legal or equitable interest in the land; and

(b)the State is not able to lease or licence any legal or equitable estate or interest in the land, unless the State does so consistently with the Act under which (under subsection (2)(a)) the land is taken to be occupied, used, controlled and managed.

(2)On the transfer of a right to occupy, use, control and manage land under a contract under subsection (1)—

(a)the land is taken to be land under the Act under which the land was occupied, used, controlled and managed immediately before the grant of the estate in fee simple; and

(b)the land is taken to be occupied, used, controlled and managed for the same purpose (whether or not specified in an Act or legislative or other instrument) as that which applied to the land immediately before the transfer of the right; and

(c)in relation to the land, any reference in any other Act or legislative or other instrument—

(i)to "Crown land" generally or words of similar import; or

(ii)to land under the Act under which the land is taken to be occupied, used, controlled and managed—

however described, is taken to include the land.

(3)For the avoidance of doubt, a contract under this section may be entered into by the traditional owner group entity even though the grant of the estate in fee simple under section 19 has not been made.

(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.

*                *                *                *                *

22Saving pre-existing statutory authorities

(1)The making of a grant of aboriginal title in land under section 19 does not affect any statutory authority that was issued, granted or given over the land and that was in force immediately before the making of the grant of aboriginal title.

(2)A statutory authority to which subsection (1) applies is taken to continue in force on and from the making of the grant of aboriginal title as if—

(a)even though aboriginal title is granted, the person or body who granted the statutory authority continues to have the authority to grant the statutory authority; and

(b)the statutory authority is subject to the same terms and conditions as those that applied to it immediately before the grant of aboriginal title.

(3)In this section—

statutory authority means any of the following—

(a)a lease, licence or permit that was issued or granted under any Act or regulations made under any Act;

(b)any other type of authority or consent (however described) that was given under any Act or regulations made under any Act.

22ASaving pre-existing contracts and other arrangements

(1)The making of a grant of aboriginal title in land under section 19 does not affect any contract, agreement or arrangement relating to the management of the land that was in force immediately before the making of the grant.

(2)A contract, agreement or arrangement to which subsection (1) applies is taken to continue in force on and from the making of the grant of aboriginal title as if—

(a)even though aboriginal title is granted, the parties to the contract, agreement or arrangement are the same parties as those that were the parties to the contract, agreement or arrangement immediately before the grant of aboriginal title; and

(b)the contract, agreement or arrangement is subject to the same terms and conditions as those that applied to it immediately before the grant of aboriginal title.

23Requirements as to agreement under Part 8A of the Conservation, Forests and Lands Act 1987

Before aboriginal title in land is—

(a)granted to a traditional owner group entity; or

(b)transferred or otherwise disposed of under section 19(4)—

the traditional owner group entity, to whom the land is to be granted, transferred or otherwise disposed of must enter into an agreement under section 82P of the Conservation, Forests and Lands Act 1987 with the Minister administering that section and with the relevant land Minister.

24Registrar to record caveat

(1)On the grant of aboriginal title under this Part, the Minister must notify the Registrar of Titles of the grant.

(2)On receiving a notice under subsection (1), the Registrar, on behalf of the Crown, must, in respect of any land registered in the Register in the name of a traditional owner group entity as land over which aboriginal title is granted, record a caveat prohibiting any transfer or dealing with the land, except in accordance with this Act.

25Registrar to make necessary amendments

The Registrar of Titles must make any amendments in the Register that are necessary because of the operation of this Division.

26Division not affected by other Acts

This Division has effect despite anything to the contrary in the Heritage Rivers Act 1992.

PART 4—LAND USE ACTIVITIES

Division 1—Definitions

27Definitions

(1)In this Part—

advisory activity, in relation to a land use activity agreement, means a land use activity that is specified in the agreement as an advisory activity for the purposes of section 32(2)(b);

agreement activity, in relation to a land use activity agreement, means a land use activity that is specified in the agreement as an agreement activity for the purposes of section 32(2)(d);

agreement land, in relation to a land use activity agreement, means the land that is the subject of the agreement;

community benefit means an economic, cultural or social benefit provided to a traditional owner group entity;

community benefit payment means a payment made to the traditional owner group entity as compensation for the impact of the land use activity on the traditional owner rights of the traditional owner group;

earth resource or infrastructure authorisation means any of the following—

(a)a licence granted under section 25 of the Mineral Resources (Sustainable Development) Act 1990;

(b)an extractive industry work authority granted under section 77I of the Mineral Resources (Sustainable Development) Act 1990;

(c)a written consent for petroleum operation given under section 138 of the Petroleum Act 1998;

(d)the acceptance under Division 3 of Part 9 of the Pipelines Act 2005 of an Environment Management Plan;

(e)a written consent given for geothermal energy operation under section 80 of the Geothermal Energy Resources Act 2005;

(f)the acceptance by the Minister of an environment plan under the regulations made under the Offshore Petroleum and Greenhouse Gas Storage Act 2010;

(g)an approval for greenhouse gas operation under section 193 of the Greenhouse Gas Geological Sequestration Act 2008;

enforcement order means an order made under section 66B;

interim enforcement order means an order made under section 66F;

limited land use activity, in relation to agreement land, means a land use activity that is for the purpose of the establishment, use or operation of any specified public works;

negotiation activity, in relation to a land use activity agreement, means a land use activity that is specified in the agreement as a negotiation activity for the purposes of section 32(2)(c);

negotiation activity, class A, in relation to a land use activity agreement, means a land use activity that is specified in the agreement as a negotiation activity, class A for the purposes of section 32(2)(c);

negotiation activity, class B, in relation to a land use activity agreement, means a land use activity that is specified in the agreement as a negotiation activity, class B for the purposes of section 32(2)(c);

notice date means the date on which a notice given under section 49 comes into effect;

public land authorisation means any of the following—

(a)a lease, licence, permit or other authority under the National Parks Act 1975;

(b)a lease, licence, permit or other authority under the Crown Land (Reserves) Act 1978;

(c)a lease, licence, permit or other authority under the Forests Act 1958;

(d)a lease, licence, permit or other authority under the Land Act 1958;

(e)a tour operator licence under Part IIA of the Wildlife Act 1975;

(f)a consent within the meaning of the Marine and Coastal Act 2018;

(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;

relevant Minister, in relation to a land use activity, means the Minister administering the Act under which the activity is being carried out;

responsible person, in relation to the carrying out of a limited land use activity or a significant land use activity, means the person required to reach agreement with the traditional owner group entity under Division 3 in relation to the activity;

routine activity, in relation to a land use activity agreement, means a land use activity that is specified in the agreement as a routine activity for the purposes of section 32(2)(a);

significant land use activity, in relation to any agreement land, means a land use activity which is one of the following—

(a)the granting of a public land authorisation (other than a specified agricultural lease) which confers a right on any person to use, occupy or otherwise access the land for a period of more than 10 years;

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

(b)the clearing of the land or the carrying out of any works on the land which has a substantial impact on the physical quality of the land, having regard to the size and scale of the activity;

(c)the grant of any earth resource or infrastructure authorisation in respect of the land, being an approval—

(i)that allows for the extraction, injection, utilisation, treatment or processing of an earth resource above, on or below the surface of the land; or

(ii)for the purposes of commercial development and production of an earth resource; or

(iii)for the purposes of exploration for an earth resource, if the exploration is not to be carried out in accordance with the conditions for carrying out such exploration that are set out in the agreement;

(d)any land use activity described in paragraph (g) of the definition of land use activity;

(e)any other land use activity which has been declared to be a significant land use activity under subsection (2);

specified agricultural lease means a lease of an area of public land of less than 40 hectares, where the primary purpose of the lease is to use the land for—

(a)cultivation for the purpose of selling the produce of the cultivation (whether in a natural, processed or converted state); or

(b)the maintenance of animals or poultry for the purpose of selling the animals or poultry or their natural increase or bodily produce; or

(c)the cultivation or propagation for sale of plants; or

(d)land used to keep or breed aquatic animals or to cultivate or propagate aquatic plants;

specified public works means any of the following works if provided for a public purpose—

(a)a road, railway, bridge or other transport facility (other than an airport or port);

(b)a jetty or wharf;

(c)a navigation marker or other navigational facility;

(d)an electricity transmission or distribution facility;

(e)a gas transmission or distribution facility;

(f)lighting of streets or other public places;

(g)a well or bore for obtaining water;

(h)a pipeline or other water supply or reticulation facility;

(i)a drainage facility, or a levee or other device for the management of water flows;

(j)an irrigation channel or other irrigation facility;

(k)a sewerage facility, other than a treatment facility;

(l)a cable, antenna, tower or other communication facility;

(m)an automatic weather station;

(n)a public recreation facility;

(o)any other works carried out by or on behalf of the Crown.

*                *                *                *                *

(2)The Governor in Council may, by Order in Council, declare a land use activity to be a significant land use activity.

(3)A declaration under subsection (2) must be made on the joint recommendation of the Minister and the relevant Minister in relation to the activity.

(4)In this Act, a reference to the granting of a public land authorisation or the granting of an earth resource or infrastructure authorisation, includes a reference to—

(a)the issuing of such an authorisation; and

(b)if the authorisation is by way of approving, the giving of approval.

(5)In this Act a reference to the granting of a public land authorisation does not include, in the case of a lease or licence over land, the issuing of a further term of the lease or licence where the lease or licence confers a right on the lessee or licensee to a further term.

28Definition of land use activity

In this Act land use activity, in relation to agreement land or any part of agreement land, means any of the following—

(a)the—

(i)granting of a public land authorisation over the land; or

(ii)amendment to or variation of a public land authorisation over the land, if the amendment or variation allows a change to an activity authorised by that authorisation;

(b)the—

(i)granting of any earth resource or infrastructure authorisation in respect of the land; or

(ii)amendment to or variation of an earth resource or infrastructure authorisation in respect of the land, if the amendment or variation allows a change to an activity authorised by that authorisation;

(c)the clearing of the land;

(d)the planned controlled burning of the land;

(e)the carrying out of works on the land;

(f)the revegetation of the land;

(g)in relation to land under the Land Act 1958, any alienation of the land by the granting of an estate in fee simple, other than a grant made under section 19;

(h)the reservation of land under the Crown Land (Reserves) Act 1978 or the revocation of any reservation of the land under the Crown Land (Reserves) Act 1978;

*                *                *                *                *

(k)the declaration of a management plan under section 28 of the Fisheries Act 1995;

(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;

(l)the preparation of a management plan under section 17, 17B, 17D or 18 of the National Parks Act 1975;

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

(m)the preparation of a management plan under section 18 of the Wildlife Act 1975;

(ma)the making of a land management plan under section 46 of the Parks Victoria Act 2018 and the amending of a land management plan under section 47 of that Act;

(n)the preparation of a working plan for Wildlife Management Co-operative Areas under section 32 of the Wildlife Act 1975;

(o)the preparation of a coastal and marine management plan under Division 1 of Part 7 of the Marine and Coastal Act 2018;

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

(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;

(v)the preparation of a Yarra Strategic Plan under Part 4 of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017;

(w)the preparation of a Statement of Planning Policy under Part 3AAB of the Planning and Environment Act 1987;

(x)the preparation of a Great Ocean Road strategic framework plan under Part 4 of the Great Ocean Road and Environs Protection Act 2020.

29Definition of decision maker

In this Act decision maker means—

(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 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;

(b)in relation to the granting of an earth resource or infrastructure authorisation in respect of the land, the person authorised to grant the authorisation by the Act under which the authorisation is granted or the regulations under which the authorisation is granted;

(c)in relation to the clearing of public land, the planned controlled burning of public land, the carrying out of works on public land and the revegetation of public land, the person or body responsible under the Act under which the land is managed for the management of the land;

(d)in relation to the alienation of land under the Land Act 1958 by the granting of an estate in fee simple, the Minister responsible for the administration of the provision under which the land may be alienated by the grant of the estate;

(e)in relation to the reservation of land under the Crown Land (Reserves) Act 1978 or the revocation of any reservation of land under the Crown Land (Reserves) Act 1978, the Minister administering section 4 of that Act;

*                *                *                *                *

(g)in relation to the declaration of a management plan under section 28 of the Fisheries Act 1995, the Minister responsible for making the declaration under the Fisheries Act 1995;

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

(h)in relation to the preparation of a management plan under section 17, 17B, 17D or 18 of the National Parks Act 1975, Parks Victoria within the meaning of those sections;

(i)in relation to the preparation of a management plan under section 18 of the Wildlife Act 1975, the land manager within the meaning of section 3 of the Wildlife Act 1975;

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

(j)in relation to the preparation of a working plan for Wildlife Management Co-operative Areas under section 32 of the Wildlife 1975, the land manager within the meaning of section 3 of the Wildlife Act 1975;

(ja)in relation to the making of a land management plan under section 46 of the Parks Victoria Act 2018, Parks Victoria;

(k)in relation to the preparation of a coastal and marine management plan under Division 1 of Part 7 of the Marine and Coastal Act 2018, 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 section, the Minister administering that section;

(r)in relation to the preparation of a Yarra Strategic Plan under Part 4 of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017, the lead agency responsible for the preparation of the plan;

(s)in relation to the preparation of a Statement of Planning Policy under Part 3AAB of the Planning and Environment Act 1987, the Minister responsible for the preparation of the Statement;

(t)in relation to the preparation of a Great Ocean Road strategic framework plan under Part 4 of the Great Ocean Road and Environs Protection Act 2020, the Minister responsible for the preparation of the plan.

Division 2—Land use activity agreements

30Power to enter into an agreement as to land use activities

(1)The Minister, on behalf of the State, may enter into an agreement with a traditional owner group entity for the whole or any part of the land that is the subject of the recognition and settlement agreement as to the carrying out of land use activities on or in relation to that land.

(2)A land use activity agreement must not make any provision for—

(a)the granting, amending or varying of a public land authorisation or an earth resource or infrastructure authorisation that is inconsistent with the Act under which the authorisation is being granted, amended or varied or any regulations or management plan made under that Act;

(b)the carrying out of any other land use activity that is inconsistent with the Act under which the activity is being carried out or any regulations or management plan made under that Act.

(3)The Minister must not enter into a land use activity agreement unless, if the agreement is to list—

(a)any public land authorisation or earth resource or infrastructure authorisation, the consent of the Minister administering the provision of the Act under which the authorisation may be granted has first been obtained; and

(b)a land use activity specified in paragraph (c), (d), (e) or (f) of the definition of land use activity, the consent of the Minister administering the Act under which the land is managed has first been obtained; and

(c)a land use activity specified in paragraph (g) of the definition of land use activity, the consent of the Minister administering Division 6 of Part I of the Land Act 1958 has first been obtained.

(4)The Minister must not enter into a land use activity agreement unless the Minister is satisfied—

(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

(b)that the Federal Court has determined that native title does not exist in relation to the land that is the subject of the agreement.

31Requirements for land use activity agreements

(1)A land use activity agreement must be expressed to be a land use activity agreement.

(2)A land use activity agreement must—

(a)clearly identify the land to which it applies; and

(b)set out any traditional owner rights recognised in the recognition and settlement agreement in which the land use activity agreement is included.

(3)A land use activity agreement may, in relation to earth resource or infrastructure authorisations that are for exploration only, specify conditions as to exploration that may be accepted by persons applying for such authorisations.

(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.

(4)Any conditions specified in a land use activity agreement under subsection (3) or (3A) that are accepted by an applicant for an authorisation have effect despite anything to the contrary in the Act or regulations under which the authorisation is granted.

31AConditions as to Aboriginal cultural heritage

(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.

32Listing and classification of land use activities to which agreement applies

(1)A land use activity agreement must specifically list the land use activities, the carrying out of which is subject to the agreement.

(2)A land use activity agreement must specify—

(a)which of the land use activities set out in the agreement are routine activities;

(b)which of the land use activities set out in the agreement are advisory activities;

(c)which of the land use activities set out in the agreement are negotiation activities and which of these are negotiation activities, class A and which of these are negotiation activities, class B;

(d)which of the land use activities set out in the agreement are agreement activities.

(3)A land use activity agreement must not specify a land use activity as a—

(a)negotiation activity, class B unless that activity is—

(i)a limited land use activity; or

(ii)a significant land use activity;

(b)negotiation activity, class A or an agreement activity unless that activity is a significant land use activity.

(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.

(4)A land use activity agreement may specify that any land use activity or any class of land use activity that is consistent with a joint management plan for the land is not subject to the agreement.

(5)A land use activity agreement may specify that a land use activity that is for the same activity that is a proposal to which Subdivision P of Division 3 of Part 2 of the Native Title Act applies is not subject to the agreement.

33Specification of activities as routine activities

(1)Subject to subsection (2), if a land use activity agreement specifies an activity as a routine activity, the agreement may not specify any requirements in relation to the carrying out of the activity on the agreement land.

(2)The granting of an earth resource or infrastructure authorisation that is for the purpose of exploration or an activity allowed under a prospecting licence for an earth resource is taken to be a routine activity for the purposes of a land use activity agreement if the person who is applying for the authorisation agrees to accept the conditions that are specified in the land use activity agreement in accordance with section 31(3) or (3A).

34Ministerial direction as to advisory activities

(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.

35Requirement to comply with directions

A decision maker who is carrying out an advisory activity on any agreement land to which a direction under section 34 applies, must give effect to the direction in carrying out the activity.

36Effect of direction

A direction of the Minister under section 34 has effect despite anything to the contrary in the Act or regulations under which the land use activity is being carried out.

37Process as to multiple activities

The agreement may provide a process that enables the negotiations and decisions by the traditional owner group entity under the agreement in relation to the carrying out of a number of activities on the land to be conducted as a joint process where each of the activities to be negotiated and decided on relates to a single enterprise.

38Variation of agreements

The provisions of this Part apply to the variation of a land use activity agreement as if the varying of the agreement were the entering into of a new agreement.

39Application in emergency situations

A land use activity agreement is not to be taken to prevent or impose any requirements on the carrying out of any activity by a decision maker in an emergency for the purpose of protecting property or life or for the purposes of protecting the environment.

Division 3—Particular requirements for negotiation and agreement activities

40Requirements for person seeking public land authorisation

(1)If a provision of a land use activity agreement specifies that the grant of any public land authorisation over any agreement land is a negotiation activity, any person who is seeking to be the holder of such an authorisation must reach agreement with the traditional owner group entity as to—

(a)the granting of the authorisation; and

(b)the conditions to which the agreement to grant the authorisation is subject, including the provision of community benefits, if any.

(2)In reaching agreement under subsection (1), regard must be had to the nature of the activity and its impact on the traditional owner rights of the traditional owner group.

(3)The person seeking the authorisation is not entitled to the grant of the authorisation until the person has complied with subsection (1) or VCAT or the Minister has determined under this Part that the authorisation may be granted.

(4)If a provision of a land use activity agreement specifies that the grant of any public land authorisation over any agreement land is an agreement activity, any person who is seeking to be the holder of such an authorisation must reach agreement with the traditional owner group entity as to—

(a)the granting of the authorisation; and

(b)the conditions to which the agreement to grant the authorisation is subject, including the provision of community benefits, if any.

(5)In reaching agreement under subsection (4), regard must be had to the nature of the activity and its impact on the traditional owner rights of the traditional owner group.

(6)The person seeking the authorisation is not entitled to the grant of the authorisation unless the person has complied with subsection (4).

(7)The provisions of this section have effect despite anything to the contrary in the Act or regulations under which the authorisation is being granted.

Notes

1The processes set out in Division 4 of this Part apply to the granting of public land authorisations to which this section applies.

2Section 32(3) provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class B unless the activity is a limited land use activity or a significant land use activity. The provision also provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class A or an agreement activity unless the activity is a significant land use activity.

40AConditions 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;

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

41Decision maker may determine to undertake compliance in place of person seeking authorisation

(1)In the case of the grant of a particular public land authorisation over any agreement land, the decision maker may determine that he or she is to be responsible, in place of the person seeking the authorisation, for complying with those requirements of section 40(1)(a) or (b) or section 40(4)(a) or (b) that are specified by the decision maker in the determination.

(2)A decision maker must not make a determination under subsection (1) unless the decision maker is satisfied that it is in the interests of the State or the area in which the authorisation is being issued for the decision maker to do so.

(3)A determination made under subsection (1) must—

(a)be made by instrument published in the Government Gazette; and

(b)specify the requirements that he or she is to be responsible for complying with.

(4)The Minister may make guidelines about the making of determinations under this section.

(5)Guidelines made by the Minister under subsection (4) must be published in the Government Gazette and on the Department's website.

42Obligations of decision maker to ascertain compliance

If, in the case of the grant of a particular public land authorisation over any agreement land, the person seeking the authorisation is required to comply with section 40, the decision maker must not decide to grant the authorisation unless—

(a)the decision maker has received a notice signed by the traditional owner group entity and the responsible person stating that an agreement that complies with section 51 has been reached; or

(b)in the case of the grant of an authorisation in respect of which VCAT has made a determination under Subdivision 2 of Division 4 that the authorisation should be granted, the decision maker has received a copy of the VCAT determination; or

(c)in the case of the grant of an authorisation in respect of which the Minister has made a determination under Subdivision 3 of Division 4 that the authorisation should be granted, the decision maker has received a copy of that determination.

43Requirements for earth resource or infrastructure authorisations

(1)If a provision of a land use activity agreement specifies that the grant of any earth resource or infrastructure authorisation in relation to any agreement land is a negotiation activity, any person who is applying for such an authorisation must reach agreement with the traditional owner group entity as to—

(a)the granting of the authorisation; and

(b)the conditions to which the agreement to grant the authorisation is subject, including the provision of community benefits, if any.

(2)In reaching agreement under subsection (1), regard must be had to the nature of the activity and its impact on the traditional owner rights of the traditional owner group.

(3)The applicant for the authorisation is not entitled to the grant of the authorisation until the applicant has complied with subsection (1) or VCAT or the Minister has determined under this Part that the authorisation may be granted.

(4)The provisions of this section have effect despite anything to the contrary in the Act or regulations under which the authorisation is being granted.

Notes

1The processes set out in Division 4 of this Part apply to the granting of earth resource or infrastructure authorisations to which this section applies.

2Section 32(3) provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class B unless the activity is a limited land use activity or a significant land use activity. The provision also provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class A or an agreement activity unless the activity is a significant land use activity.

44Obligations of decision maker to ascertain compliance

If, in the case of the grant of a particular earth resource or infrastructure authorisation over any agreement land, the person seeking the authorisation is required to comply with section 43, the decision maker must not decide to grant the earth resource or infrastructure authorisation unless—

(a)the decision maker has received a notice signed by the traditional owner group entity and the responsible person stating that agreement that complies with section 51 has been reached; or

(b)in the case of the grant of an authorisation in respect of which VCAT has made a determination under Subdivision 2 of Division 4 that the authorisation be granted, the decision maker has received a copy of the VCAT determination; or

(c)in the case of the grant of an authorisation in respect of which the Minister has made a determination under Subdivision 3 of Division 4 that the authorisation be granted, the decision maker has received a copy of that determination.

45Requirements for clearing of land, carrying out of works

(1)If a decision maker for any agreement land proposes to—

(a)clear any of the land; or

(b)carry out works on any of the land—

and that clearing of land or carrying out of works is specified as a negotiation activity in the land use activity agreement, the decision maker must reach agreement with the traditional owner group entity as to—

(c)the clearing of the land or the carrying out of works; and

(d)the conditions to which the agreement to clear the land or carry out works is subject, including the provision of community benefits, if any.

Note

In this section the decision maker is the person or body responsible for the management of the land under the Act under which the land is managed, see the definition of decision maker.

(2)In reaching agreement under subsection (1), regard must be had to the nature of the activity and its impact on the traditional owner rights of the traditional owner group.

(3)The decision maker must ensure that the clearing of the land or the carrying out of the works does not take place until the decision maker has complied with subsection (1) or VCAT or the Minister has determined that the activity may be carried out.

(4)If a decision maker for any agreement land proposes to—

(a)clear any of the land; or

(b)carry out works on any of the land—

and that clearing of land or carrying out of works is specified as an agreement activity in the land use activity agreement, the decision maker must reach agreement with the traditional owner group entity as to—

(c)the clearing of the land or the carrying out of works; and

(d)the conditions to which the agreement to clear the land or carry out works is subject, including the provision of community benefits, if any.

(5)In reaching agreement under subsection (4), regard must be had to the nature of the activity and its impact on the traditional owner rights of the traditional owner group.

(6)The decision maker must ensure that the clearing of the land or the carrying out of the works does not take place until the decision maker has complied with subsection (4).

(7)The provisions of this section have effect despite anything to the contrary in the Act under which the land is managed or regulations under that Act.

Notes

1The processes set out in Division 4 of this Part apply to the clearing of land and the carrying out of works on the land to which this section applies.

2Section 32(3) provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class B unless the activity is a limited land use activity or a significant land use activity. The provision also provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class A or an agreement activity unless the activity is a significant land use activity.

46Requirements for persons seeking alienation of land

(1)If a decision maker proposes to alienate any agreement land by the granting of an estate in fee simple in the land and that alienation is specified as a negotiation activity in the land use activity agreement, the decision maker must reach agreement with the traditional owner group entity as to—

(a)the alienation of the land; and

(b)the conditions to which the agreement to alienate the land is subject, including the provision of community benefits, if any.

Note

In this section the decision maker is the Minister responsible for the administration of the provision under which the land may be alienated by the grant of the estate, see the definition of decision maker.

(2)In reaching agreement under subsection (1), regard must be had to the nature of the activity and its impact on the traditional owner rights of the traditional owner group.

(3)The decision maker must ensure that the alienation of the land does not take place until the decision maker has complied with subsection (1) or VCAT or the Minister has determined under this Part that the alienation may take place.

(4)If a decision maker proposes to alienate any agreement land by the granting of an estate in fee simple in the land and that alienation is specified as an agreement activity in the land use activity agreement, the decision maker must reach agreement with the traditional owner group entity as to—

(a)the alienation of the land; and

(b)the conditions to which the agreement to alienate the land is subject, including the provision of community benefits, if any.

(5)In reaching agreement under subsection (4), regard must be had to the nature of the activity and its impact on the traditional owner rights of the traditional owner group.

(6)The decision maker must ensure that the alienation does not take place until the decision maker has complied with subsection (4).

(7)The provisions of this section have effect despite anything to the contrary in the Act or regulations under which the alienation of the land is being carried out.

Notes

1The processes set out in Division 4 of this Part apply to the alienation of land to which this section applies.

2Section 32(3) provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class B unless the activity is a limited land use activity or a significant land use activity. The provision also provides that a land use activity agreement must not specify a land use activity as a negotiation activity, class A or an agreement activity unless the activity is a significant land use activity.

*                *                *                *                *

*                *                *                *                *

Division 4—Negotiation and determination processes

Subdivision 1—General provisions

49Responsible person to notify traditional owner group entity

(1)Before proceeding with a limited land use activity or significant land use activity that is specified as a negotiation activity or agreement activity in a land use activity agreement and that is an activity in respect of which agreement must be reached under Division 3, the responsible person must notify the traditional owner group entity of the proposal to carry out the activity.

(2)A notice under subsection (1) must set out the prescribed matters.

50Requirement to negotiate in good faith

(1)For the purposes of reaching agreement under Division 3 as to the carrying out of the activity, the responsible person and the traditional owner group entity must negotiate with each other in good faith.

(2)For the purposes of subsection (1)—

(a)a refusal to negotiate about matters that are not related to the impact on the traditional owner rights of the proposed land use activity; or

(b)a refusal to negotiate about aboriginal cultural heritage within the meaning of the Aboriginal Heritage Act 2006—

is not a failure to negotiate in good faith.

51Requirements as to agreement as to carrying out of land use activity

(1)An agreement as to the carrying out of a land use activity under Division 3—

(a)must be in writing, signed by all parties to the agreement; and

(b)must be binding on all parties to it.

(2)If—

(a)the responsible person and the traditional owner group entity reach an agreement that complies with subsection (1); and

(b)the responsible person is not also the decision maker in relation to the activity—

the responsible person and the traditional owner group entity must 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.

(3)An agreement as to the carrying out of a land use activity under Division 3 must not make any provision for—

(a)the granting, amending or varying of a public land authorisation or an earth resource or infrastructure authorisation that is inconsistent with the Act under which the authorisation is being granted, amended or varied or any regulations or management plan made under that Act; or

(b)the carrying out of any other land use activity that is inconsistent with the Act under which the activity is being carried out or any regulations or management plan made under that Act.

52Fees for costs of negotiating

(1)Subject to subsection (3), the responsible person is liable to pay to the traditional owner group entity the reasonable costs of negotiating under section 50.

(2)For the purposes of subsection (1), reasonable costs are costs calculated as prescribed by the regulations.

(3)Costs are not liable to be paid where the traditional owner group entity is the applicant for a determination of VCAT in relation to a negotiation activity.

Subdivision 2—Negotiation activities, referral to VCAT

53Application for VCAT determination—land use activities

(1)Either or both of a traditional owner group entity and a responsible person who has or have complied with section 50 as to the carrying out of an activity that is specified in a land use activity agreement as a negotiation activity may apply to VCAT for a determination under section 54 or 55.

(2)An application must not be made under subsection (1) by either the traditional owner group entity or a responsible person acting alone until 6 months or more after the notice date for the negotiation.

(3)An application under subsection (1) may be made in relation to the carrying out of more than one activity.

(4)If an application is made for more than one activity, the application must not be made until 6 months or more after the last notice date for a negotiation for an activity to which the application applies.

54VCAT determination, negotiation activities, class A

(1)On application under section 53, in relation to an activity that is a negotiation activity, class A, VCAT may determine—

(a)where the activity is the grant of a public land authorisation or an earth resource or infrastructure authorisation that the granting of the authorisation may or may not proceed; or

(b)where the activity is the clearing of land or the carrying out of works on land that the clearing or carrying out of works may or may not proceed; or

(c)where the activity is the alienation of land by the Crown by the granting of an estate in fee simple in the land that the alienation may or may not proceed.

(2)If VCAT is satisfied that the land use activity will not substantially impact on the traditional owner rights of the traditional owner group, VCAT must determine that the land use activity may proceed.

(3)If VCAT determines that an activity may proceed under subsection (1), VCAT may determine whether a community benefit payment must be made to the traditional owner group entity.

(4)If VCAT determines that a community benefit payment must be made under subsection (3), VCAT must determine the amount of the payment.

(5)If VCAT determines that an activity may proceed, VCAT may determine that the activity is to proceed subject to any conditions that VCAT determines being complied with by the responsible person and the traditional owner group entity.

(6)In making a determination under this section, VCAT must not provide for any matter dealt with under the Aboriginal Heritage Act 2006.

55VCAT determination, negotiation activities, class B

(1)On application under section 53, in relation to an activity that is a negotiation activity, class B, VCAT may determine—

(a)whether a community benefit payment must be made to the traditional owner group entity; and

(b)whether the activity is to proceed subject to any conditions that VCAT determines being complied with by the responsible person and the traditional owner group entity.

(2)If VCAT determines that a community benefit payment must be made, VCAT may determine whether or not the benefit is to be paid to the traditional owner group entity before the activity may proceed.

(3)If VCAT determines that a community benefit payment must be made, VCAT must determine the amount of the payment.

(4)In making a determination under this section, VCAT must not provide for any matter dealt with under the Aboriginal Heritage Act 2006.

70Delegation

The registrar, by instrument, may delegate to a person employed under section 69 any of the registrar's powers under this Act other than this power of delegation.

71Registrar to maintain register

The registrar must maintain the land use activity agreement register.

72Registration of land use activity agreements

(1)On entering into a land use activity agreement, the Minister must lodge the agreement with the registrar for registration.

(2)On an agreement being lodged, the registrar must—

(a)register the agreement; and

(b)publish notice of the registration of the agreement in the Government Gazette; and

(c)give written notice of the agreement to—

(i)in the case of any public land authorisation or earth resource or infrastructure authorisation that is a land use activity specified in the agreement, the Minister administering the provision of the Act under which the authorisation may be granted; and

(ii)in the case of any land use activity, within the meaning of paragraph (c), (d), (e) or (f) of the definition of land use activity, that is specified in the agreement, the Minister administering the Act under which the land is managed; and

(iii)in the case of any land use activity, within the meaning of paragraph (g) of the definition of land use activity, that is specified in the agreement, the Minister administering Division 6 of Part I of the Land Act 1958.

73Coming into effect of agreement

(1)A land use activity agreement comes into effect on the publication of the notice of the registration of the agreement in the Government Gazette or on any later date that is specified in the agreement.

(2)Despite the coming into effect of a land use activity agreement, the agreement is taken not to apply to—

(a)any public land authorisation or earth resource or infrastructure authorisation in existence before the coming into effect of the agreement; and

(b)any other land use activity, that had commenced before the coming into effect of the agreement.

(3)Despite the coming into effect of a land use activity agreement, the agreement is taken not to apply to a land use activity within the meaning of paragraph (b) of the definition of land use activity if—

(a)in relation to the land that would be the subject of the activity, there was in force immediately before the coming into effect of the agreement an old earth resource approval granted on the basis that the activity to which the approval relates was valid or had been validated under the Native Title Act; and

(b)the land use activity is subsequent on the granting of the old earth resource approval to which paragraph (a) applies and the activity to be authorised is the same activity as that to which the old earth resource approval relates.

(4)In this section, old earth resource approval means any lease, licence, permit or other authority under the following—

(a)the Mineral Resources (Sustainable Development) Act 1990;

(b)the Petroleum Act 1998;

(c)the Pipelines Act 2005;

(d)the Geothermal Energy Resources Act 2005;

(e)the Petroleum (Submerged Lands) Act 1982;

(f)the Greenhouse Gas Geological Sequestration Act 2008.

74Information that is recorded on the register

The registrar must ensure that the following details in relation to a land use activity agreement are recorded on the land use activity agreement register—

(a)the area of land to which the agreement applies;

(b)the date of initial registration of the agreement;

(c)a copy of the initial registered agreement as at the initial registration;

(d)the date of registration of any variation of the agreement;

(e)a copy of any registered variation of the agreement.

75Information that is available from the register

All information in the land use activity agreements register is publicly available.

76Right to search the register

(1)Any person may, on application to the registrar, search the land use activity agreements register and inspect any information on the register.

(2)An application under subsection (1) must be in the form approved by the registrar.

77Evidentiary provisions

(1)In any proceedings in a court or tribunal, a document that is purported to be certified by the registrar as a copy of a land use activity agreement or as a copy of an extract from a land use activity agreement is evidence of the contents of the agreement.

(2)In any proceedings in a court or tribunal, a certificate purporting to be signed by the registrar, that there is no land use activity agreement for an area of public land is evidence that there is no land use activity agreement in force for that area, and in the absence of evidence to the contrary is proof of that fact.

PART 5—FUNDING AGREEMENTS

78Power to enter into funding agreement

(1)The Minister on behalf of the State, may enter into an agreement with a traditional owner group entity for an area of public land as to the provision of funding to the entity for the purpose of giving effect to the recognition and settlement agreement of which the funding agreement is a part.

(2)An agreement under subsection (1) may provide for money to be paid to a charitable trust approved by the Minister.

PART 6—NATURAL RESOURCE AGREEMENTS AND RELATED AGREEMENTS

Division 1—Definitions

79Definitions

In this Part—

agreed activity means an activity that a member of a traditional owner group may carry out under provisions of an agreement under this Part made under section 82;

*                *                *                *                *

fauna has the same meaning as in the Flora and Fauna Guarantee Act 1988;

fish has the same meaning as in section 5 of the Fisheries Act 1995;

flora has the same meaning as in the Flora and Fauna Guarantee Act 1988;

forest produce means the following—

(a)all parts of trees or plants, including any parts below the ground;

(b)the products of trees or plants, whether or not those products have become separated from those trees or plants before being harvested and includes the following—

(i)honey;

(ii)beeswax;

(iii)oil distilled from any species of eucalypt;

(iv)firewood;

natural resources means—

(a)land; and

(b)in relation to land the following—

(i)vegetation, including flora and forest produce, on or depending on the land;

(ii)animals, including fauna and fish, whether of any taxon or community and whether wildlife or introduced animals, on or depending on the land;

(iii)water (whether or not it contains impurities) that is in, on or under the land;

(iv)stone, gravel, limestone, lime salt, sand, loam, clay, brick, earth, salt, guano, shell grit, soil and other similar materials, but not gold, silver, metals or minerals;

relevant Minister—

(a)in relation to land that is the subject of a natural resource agreement, means the Minister administering the Act under which the land is occupied, used, controlled and managed; and

(b)in relation to any natural resource (other than land) that is the subject of a natural resource agreement, means—

(i)the Minister administering the provisions of the Act under which the natural resource is managed; and

(ii)for animal welfare, the Minister administering section 9 of the Prevention of Cruelty to Animals Act 1986;

*                *                *                *                *

traditional purposes, in relation to a traditional owner group, means the purposes of providing for—

(a)any personal or domestic needs of the members of the traditional owner group; or

(b)any non-commercial communal needs of the members of the traditional owner group;

wildlife has the same meaning as in the Wildlife Act 1975.

Division 2—Natural resource agreements

80Power to enter into natural resource agreements

(1)The Minister, on behalf of the State, may enter into a natural resource agreement with a traditional owner group entity for the whole or any part of the land that is the subject of the recognition and settlement agreement, which may provide for any of the following—

(a)strategies to enable members of the traditional owner group to participate in or obtain employment in the management of the natural resources of the land;

(b)the carrying out of agreed activities on the land for the purposes set out in section 84;

(c)the principles of sustainability that apply to the carrying out of agreed activities;

(d)any matter related to paragraph (a) or (c).

*                *                *                *                *

(2)A natural resource agreement must be published in the Government Gazette.

(3)A natural resource agreement has effect on whichever is the later of—

(a)the day it is published in the Government Gazette; or

(b)the day specified in the agreement.

(4)A natural resource agreement—

(a)may be revoked, amended or varied as agreed in the agreement; and

(b)remains in force until—

(i)another natural resource agreement dealing with the same land has effect; or

(ii)it is revoked as agreed in the agreement; or

(iii)it lapses or ceases to have effect according to the terms of the agreement.

80AConsent of Ministers to natural resource agreements

(1)The Minister must not enter into a natural resource agreement unless the Minister has first obtained the consent of—

(a)any relevant Minister—

(i)for any land that is the subject of the agreement; and

(ii)for any natural resource that is the subject of the agreement; and

(b)any other Minister whom the Minister considers relevant.

(2)Before a Minister consents under subsection (1), the Minister must have regard to the principles of sustainability that are proposed for the agreement.

(3)If a natural resource agreement provides for camping in relation to—

(a)land that is managed by a committee of management, the relevant Minister for that land must not consent to the agreement without first consulting the committee of management; or

(b)land that is in an alpine resort, the relevant Minister for that land must not consent to the agreement without first consulting the Alpine Resort Management Board for the land.

80BBinding effect of natural resource agreements and other agreements under this Part

(1)An agreement under this Part binds all persons who are members of the traditional owner group represented by the traditional owner group entity that enters into the agreement.

(2)In this section—

agreementunder this Part means the following—

(a)a natural resource agreement;

(b)an agreement under section 80C;

(c)an agreement under section 81A;

(d)an agreement under section 81B.

80CSubsidiary decision making powers under natural resource agreements

(1)A natural resource agreement may contain a provision that gives discretionary authority to a representative of the traditional owner group entity and a representative of a relevant Minister in relation to a natural resource, from time to time, to enter into further agreements on matters dealt with in the natural resource agreement.

(2)For the purpose of the entering into further agreements under subsection (1)—

(a)any representative of the traditional owner group entity must be a person authorised by the traditional owner group entity in a manner determined by the entity; and

(b)the natural resource agreement may set out—

(i)any terms and conditions on which the power to enter into any further agreement is exercised; and

(ii)any terms and conditions that must be or may be included in any further agreement.

(3)An agreement under this section must be published in the Government Gazette.

(4)An agreement under this section has effect on whichever is the later of—

(a)the day it is published in the Government Gazette; or

(b)the day specified in the agreement.

(5)An agreement under this section—

(a)may be revoked, amended or varied as agreed in the agreement; and

(b)remains in force until—

(i)it is revoked as agreed in the agreement; or

(ii)it lapses or ceases to have effect according to the terms of the agreement.

80DTemporary suspension of part of natural resource agreement

(1)A relevant Minister may suspend the operation of the provisions of a natural resource agreement dealing with a particular natural resource for a period of no longer than 6 months if the relevant Minister reasonably believes that there is an urgent need to do so because the natural resource is suffering a significant detrimental impact.

Example

An example of the circumstances in which provisions of a natural resource agreement might be suspended is when there is a sudden unforeseen and material decline of a particular species or ecosystem in the area covered by the agreement because of a significant event such as an outbreak of disease.

(2)A suspension under subsection (1) must—

(a)be made in writing; and

(b)specify—

(i)the period for which the suspension lasts; and

(ii)the provisions of the natural resource agreement to which it applies; and

(iii)the day on which the suspension comes into effect; and

(c)be published in the Government Gazette.

(3)A suspension under subsection (1) comes into effect—

(a)on the day that it is published in the Government Gazette; or

(b)if a later day is specified in the suspension, that day.

(4)A copy of a suspension under subsection (1) must be given to the traditional owner group entity before the day on which the suspension comes into effect together with reasons why the suspension has been made.

80ESteps to be taken before making suspension

Before making a suspension under section 80D(1)—

(a)if time permits, the Minister must take reasonable steps to seek agreement with the traditional owner group entity; and

(b)the Minister must give written notice of the proposal to make the suspension to the traditional owner group entity.

80FDelegation

A relevant Minister, by instrument, may delegate any of the relevant Minister's powers and duties under section 80D or 80E to a person who is employed under the Public Administration Act 2004 in the Department of the relevant Minister.

81Evidence of membership

(1)An agreement under this Part must include an agreed means by which an authorised officer, who is acting in the course of the authorised officer's duties, is able to verify that a person, who is purporting to act under the agreement, is a member of the traditional owner group who is bound by the agreement.

(2)In this section—

authorised officer has the same meaning—

(a)as in the Flora and Fauna Guarantee Act 1988, for a person performing duties under that Act;

(b)as in the Fisheries Act 1995, for a person performing duties under that Act;

(c)as in the Wildlife Act 1975, for a person performing duties under that Act;

(d)as in the Forests Act 1958, for a person performing duties under that Act;

(e)as authorised water officer has in the Water Act 1989;

(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.

Division 2A—Traditional owner land natural resource agreements

81APower to enter into natural resource agreements for land owned by traditional owners

(1)The Minister, on behalf of the State, may enter into an agreement with a traditional owner group entity as to the carrying out of activities referred to in section 82 on land—

(a)which is within the external boundaries of an area of land in respect of which a recognition and settlement agreement entered into by the traditional owner group entity is in force; and

(b)in which the traditional owner group entity or a member of the traditional owner group bound by the agreement has an estate in fee simple, other than land over which aboriginal title has been granted.

(2)An agreement under subsection (1) may provide for any matter that may be provided for in a natural resource agreement, so far as the provision is consistent with the tenure of the land as land in which an estate in fee simple has been granted.

(3)An agreement under subsection (1) has effect on whichever is the later of—

(a)the day on which it is made; or

(b)the day specified in the agreement.

(4)An agreement under subsection (1)—

(a)may be revoked, amended or varied as agreed in the agreement; and

(b)remains in force until—

(i)another agreement under subsection (1) dealing with the same land has effect; or

(ii)it is revoked as agreed in the agreement; or

(iii)it lapses or ceases to have effect according to the terms of the agreement.

81BSubsidiary decision making powers under agreements under section 81A

(1)An agreement under section 81A may contain a provision that gives discretionary authority to a representative of the traditional owner group entity and a representative of a relevant Minister in relation to a natural resource, from time to time, to enter into further agreements on matters dealt with in the agreement.

(2)For the purpose of the entering into further agreements under subsection (1)—

(a)any representative of the traditional owner group entity must be a person authorised by the traditional owner group entity in a manner determined by the entity; and

(b)the agreement under section 81A may set out—

(i)any terms and conditions on which the power to enter into any further agreement is exercised; and

(ii)any terms and conditions that must be or may be included in any further agreement.

(3)An agreement under this section has effect on whichever is the later of—

(a)the day on which it is made; or

(b)the day specified in the agreement.

(4)An agreement under this section—

(a)may be revoked, amended or varied as agreed in the agreement; and

(b)remains in force until—

(i)it is revoked as agreed in the agreement; or

(ii)it lapses or ceases to have effect according to the terms of the agreement.

81CApplication of provisions to agreements under section 81A

Sections 80D, 80E and 80F apply to an agreement under section 81A as if a reference in those sections to a natural resource agreement were a reference to an agreement under section 81A.

81DConsent required for carrying out of activity

It is a condition of each agreement under this Division that an activity must not be carried out under the agreement unless the person carrying out the activity has first obtained the consent of the owner of the land to the carrying out of the activity.

Division 3—Agreed activities

82Agreed activities

(1)A natural resource agreement under this Part may provide for members of the traditional owner group who are bound by the agreement to carry out any of the following activities on land that is subject to the agreement—

(a)access, occupy and use the land;

(b)as to a natural resource on or depending on the land—

(i)access, hunt, take, use or interfere with the natural resource; or

(ii)cut, dig up or remove the natural resource; or

(iii)sell or give away any of the natural resource; or

(iv)any other similar activity in relation to the natural resource;

(c)take or use water from a waterway or bore;

(d)enter, remain on and camp on the land;

(e)gather together to conduct cultural activities on the land;

Examples

Examples of cultural activities include public meetings, festivals, entertainment activities, sporting events, recreational activities, ceremonies, demonstrations and classes.

(f)possess or use any animal or any equipment, vehicle or other thing on the land for the purpose of carrying out an activity specified in paragraph (a), (b), (c), (d) or (e).

(2)For the purpose of carrying out an agreed activity a natural resource may be—

(a)approached, damaged, destroyed, fished, killed, injured, obstructed, released or otherwise interfered

with; or

(b)possessed, kept, moved or processed; or

(c)felled, ringbarked or sapringed; or

(d)otherwise similarly dealt with.

83Agreement may specify scope of agreed activity

An agreement under this Part may set out, in relation to an agreed activity—

(a)the extent to which the activity may be carried out under the agreement; and

(b)any terms and conditions on which the activity may be carried out.

84Purposes for which agreed activity may be carried out

An agreed activity may be carried out under an agreement under this Part for—

(a)traditional purposes; and

(b)in the case of a natural resource to which paragraph (b)(i) or (iv) of the definition of natural resources in section 79 applies, commercial purposes that are consistent with the purpose for which the land is managed, if the agreement so provides.

85Camping

(1)A member of a traditional owner group who is bound by a natural resource agreement and who is acting in accordance with the agreement is not required to do the following—

(a)obtain any permit to camp on land that is subject to the agreement;

(b)pay any fee to camp on land that is subject to the agreement.

(2)Camping under a natural resource agreement is subject to the right of a person who holds a permit issued or granted under the Act or regulations under which the land is managed to camp on the land when the permit holder is exercising that right.

(3)In a natural resource agreement, camping does not include using or occupying a vehicle or other accommodation on the land that is subject to the agreement, if, under the Act or regulations under which the land is managed, a permit is required to do so on the land.

86Property in forest produce

Despite section 4(2) of the Forests Act 1958, property in forest produce (within the meaning of that Act) passes to a member of a traditional owner group if the member of the traditional owner group has taken the forest produce in accordance with an agreement under this Part.

PART 7—GENERAL

91Regulation making powers

(1)The Governor in Council may make regulations for or with respect to—

(a)the form and contents of the land use activity agreement register and processes to be followed with respect to the land use activity agreement register;

(b)any other matter or thing required or permitted to be prescribed by this Act or necessary to be prescribed to give effect to this Act.

(2)The regulations—

(a)may be of general or of specially limited application; and

(b)may differ according to differences in time, place or circumstance; and

(c)may require a matter affected by the regulations to be—

(i)in accordance with a specified standard or specified requirement; or

(ii)approved by or to the satisfaction of a specified person or a specified class of person; or

(iii)as specified in both subparagraphs (i) and (ii); and

(d)may apply, adopt or incorporate any matter contained in any document whether—

(i)wholly or partially or as amended by the regulations; or

(ii)as in force at a particular time or as in force from time to time; and

(e)may confer a discretionary authority or impose a duty on a specified person or a specified class of person; and

(f)may provide in a specified case or class of case for the exemption of activities or operations from all or any of the provisions of this Act, whether unconditionally or on specified conditions, and either wholly or to such an extent as is specified; and

(g)may be expressed as requiring the achievement of a specified object in relation to any particular subject matter.

PART 8—TRANSITIONAL PROVISIONS, TRADITIONAL
OWNER SETTLEMENT AMENDMENT ACT 2016

92Definition

In this Part—

2016 Act means the Traditional Owner Settlement Amendment Act 2016.

93Transitional provision for aboriginal title land

Part 3 as amended by sections 7, 8, 9 and 10 of the 2016 Act applies to any grant of aboriginal title under section 19, whether made before, on or after the commencement of those sections of the 2016 Act.

94Land use activity agreements

(1)Sections 57A, 57B, 57C and 57D, as inserted by section 16 of the 2016 Act, do not apply to permit a traditional owner group entity or a responsible person to apply to VCAT for a determination in relation to a land use activity if the responsible person notified the traditional owner group entity under section 49(1) of that land use activity before the commencement of section 16 of the 2016 Act.

(2)Subdivision 4 of Division 4 of Part 4, as inserted by section 17 of the 2016 Act, does not apply to permit a traditional owner group entity or a responsible person to apply to VCAT for an enforcement order or an interim enforcement order in relation to a land use activity if the responsible person notified the traditional owner group entity under section 49(1) of that land use activity before the commencement of section 17 of the 2016 Act.

95Transitional provision for existing natural resource agreements

The amendments made to this Act by sections 19, 20, 21 and 24 of the 2016 Act do not apply to a natural resource agreement that was in force immediately before the commencement of those sections.

96Transitional provision for authorisation orders

(1)Despite the commencement of sections 19(1) and 24 of the 2016 Act, an authorisation order that was in force immediately before that commencement continues to apply in respect of any natural resource agreement in respect of which it applied immediately before that commencement.

(2)For the purpose of subsection (1)—

(a)the authorisation order continues in force until it expires or is revoked; and

(b)Division 3 of Part 6 as in force before that commencement continues to apply to the order.

(3)In relation to an authorisation order to which subsection (1) applies—

(a)despite the commencement of section 30(3) of the 2016 Act, sections 48A and 52A of the Flora and Fauna Guarantee
Act 1988, as in force immediately before that commencement, continue to apply in relation to the authorisation order; and

(b)despite the commencement of section 31(2) and (3) of the 2016 Act, sections 57Q(5), 57ZF(2), 59(1B) and 96C of the Forests Act 1958, as in force immediately before that commencement, continue to apply in relation to the authorisation order; and

(c)despite the commencement of section 35 of the 2016 Act, section 8A of the Water Act 1989, as in force immediately before that commencement, continues to apply in relation to the authorisation order; and

(d)despite the commencement of section 36(2) of the 2016 Act, sections 47B and 58C(1A)(b) of the Wildlife Act 1975,

as in force immediately before that commencement, continue to apply in relation to the authorisation order.

(4)In this section—

authorisation order has the same meaning as in section 79 as in force immediately before the commencement of section 19 of the 2016 Act.

*                *                *                *                *

═══════════════

ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 28 July 2010

Legislative Council: 12 August 2010

The long title for the Bill for this Act was "A Bill for an Act to recognise traditional owner groups based on their traditional and cultural associations to certain land in Victoria, to provide for the making of agreements between the State and traditional owner groups, to recognise and confer rights on traditional owner groups as to access to or ownership or management of certain public land and as to decision making rights and other rights that may be exercised in relation to the use and development of the land or natural resources on the land, to make any amendments that are necessary to other Acts to ensure the agreements are effective, to make any related and consequential amendments to other Acts and for other purposes."

The Traditional Owner Settlement Act 2010 was assented to on 21 September 2010 and came into operation on 23 September 2010: Special Gazette (No. 382) 22 September 2010 page 1.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Traditional Owner Settlement Act 2010 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Offshore Petroleum and Greenhouse Gas Storage Act 2010, No. 10/2010 (as amended by No. 62/2010)

Assent Date:	23.3.10
Commencement Date:	S. 800(Sch. 6 item 13) on 1.1.12: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Traditional Owner Settlement Act 2010, No. 62/2010

Assent Date:	21.9.10
Commencement Date:	S. 147 on 1.7.12: s. 147
CurrentState:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Statute Law Revision Act 2011, No. 29/2011

Assent Date:	21.6.11
Commencement Date:	S. 3(Sch. 1 item 96) on 22.6.11: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Traditional Owner Settlement Amendment Act 2013, No. 4/2013

Assent Date:	19.2.13
Commencement Date:	Ss 4–29 on 8.3.13: Special Gazette (No. 70) 5.3.13 p. 1
CurrentState:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Sustainable Forests (Timber) Amendment Act 2013, No. 42/2013

Assent Date:	28.6.13
Commencement Date:	Ss 35–39 on 1.10.13: Special Gazette (No. 337) 24.9.13 p. 1
CurrentState:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Traditional Owner Settlement Amendment Act 2016, No. 67/2016

Assent Date:	15.11.16
Commencement Date:	Ss 4−10, 25, 26 on 28.2.17: Special Gazette (No. 44) 28.2.17 p. 1; ss 11–24 on 1.5.17: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Victorian Fisheries Authority Act 2016, No. 68/2016

Assent Date:	15.11.16
Commencement Date:	S. 173 on 1.7.17: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Yarra River Protection (Wilip-gin Birrarung murron) Act 2017, No. 49/2017

Assent Date:	26.9.17
Commencement Date:	Ss 86, 87 on 1.12.17: s. 2(3)
Current State:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Planning and Environment Amendment (Distinctive Areas and Landscapes) Act 2018, No. 17/2018

Assent Date:	29.5.18
Commencement Date:	Ss 23, 24 on 30.5.18: s. 2
Current State:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Parks Victoria Act 2018, No. 19/2018

Assent Date:	5.6.18
Commencement Date:	S. 250 on 12.9.18: Special Gazette (No. 386) 21.8.18 p. 1
Current State:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Marine and Coastal Act 2018, No. 26/2018

Assent Date:	26.6.18
Commencement Date:	S. 98 on 1.8.18: Special Gazette (No. 337) 17.7.18 p. 1
Current State:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Great Ocean Road and Environs Protection Act 2020, No. 19/2020

Assent Date:	23.6.20
Commencement Date:	Ss 105, 106 on 1.12.20: s. 2(2)
Current State:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

Sustainable Forests (Timber) Repeal Act 2024, No. 24/2024

Assent Date:	25.6.24
Commencement Date:	Ss 63–68 on 1.7.24: Special Gazette (No. 345) 25.6.24 p. 1
Current State:	This information relates only to the provision/s amending the Traditional Owner Settlement Act 2010

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3   Explanatory details

No entries at date of publication.