Traditional Owner Settlement Amendment Act Web view · 2016-11-15Traditional Owner Settlement Amendment Act 2016. ... On application under section 66A, ... (b), (c), (d) or (e). (2)

Traditional Owner Settlement Amendment Act 2016

No. 67 of 2016

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purpose 12 Commencement 23 Principal Act 2

Part 2—Amendment of Traditional Owner Settlement Act 2010 3

4 Definitions 35 Heading to Division 2 of Part 2 substituted 36 Definitions 47 Grant of aboriginal title 48 Transfer of rights to the State 49 Repeal of definition of prescribed purposes 510 Section 22 substituted 511 Definitions—Part 4 612 Definition of land use activity 713 Listing and classification of land use activities to which

agreement applies 714 Responsible person to notify traditional owner group entity 715 Application for VCAT determination 716 New sections inserted after section 57 817 New Subdivision 4 inserted in Division 4 of Part 4 1118 Heading to Part 6 substituted 1819 Definitions 1820 Power to enter into natural resource agreements 2021 New sections inserted after section 80 2122 Evidence of membership 2623 New Division 2A inserted in Part 6 2624 Division 3 substituted in Part 6 2925 Regulations 32

Part 3—Transitional provisions 33

26 New Part 8 inserted 33

Part 4—Amendments to other Acts 36

27 Aboriginal Heritage Act 2006 36

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28 Crown Land (Reserves) Act 1978 3629 Fisheries Act 1995 3830 Flora and Fauna Guarantee Act 1988 3931 Forests Act 1958 4032 Land Act 1958 4133 National Parks Act 1975 4234 Prevention of Cruelty to Animals Act 1986 4335 Water Act 1989 4336 Wildlife Act 1975 44

Part 5—Repeal of amending Act 46

37 Repeal of amending Act 46═══════════════

Endnotes 47

1 General information 47

Traditional Owner Settlement Amendment Act 2016†

No. 67 of 2016

[Assented to 15 November 2016]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purpose

The purpose of this Act is—

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

(i) to further provide for grants of aboriginal title under land agreements under Part 3; and

Victoria

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(ii) to revise the operation of land use activity agreements under Part 4 and further provide for compliance with those agreements; and

(iii) to revise the operation of natural resource agreements as they apply to the carrying out of certain activities on land that is subject to the agreements and to provide for agreements about natural resources for land owned by traditional owners; and

(b) to amend the Crown Land (Reserves) Act 1978, the Fisheries Act 1995, the Flora and Fauna Guarantee Act 1988, the Forests Act 1958, the Land Act 1958, the National Parks Act 1975, the Prevention of Cruelty to Animals Act 1986, the Water Act 1989 and the Wildlife Act 1975, to provide for agreements about natural resources with traditional owners; and

(c) to make a minor amendment to the Aboriginal Heritage Act 2006; and

(d) to provide for other minor and related matters.

2 Commencement

(1) This Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 May 2017, it comes into operation on that day.

3 Principal Act

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

Section Page

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Part 2—Amendment of Traditional Owner Settlement Act 2010

4 Definitions

(1) Insert the following definitions in section 3 of the Principal Act—

"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;".

(2) For the definition of Department in section 3 of the Principal Act substitute—

"Department means the Department of Justice and Regulation;".

(3) In the definition of public land in section 3 of the Principal Act—

(a) in paragraph (a), for "land under the Alpine Resorts Act 1983" substitute "land in any alpine resort";

(b) paragraph (f) is repealed.

(4) In the definition of unreserved public land in section 3 of the Principal Act omit "or (f)".

5 Heading to Division 2 of Part 2 substituted

For the heading to Division 2 of Part 2 of the Principal Act substitute—

"Division 2—General provisions for recognition and settlement agreements".

Part 5—Repeal of amending Act

Traditional Owner Settlement Amendment Act 2016No. 67 of 2016

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6 Definitions

In paragraph (a) of the definition of public land in section 11(1) of the Principal Act, for "under the Alpine Resorts Act 1983" substitute "in any alpine resort".

7 Grant of aboriginal title

(1) Section 19(3) of the Principal Act is repealed.

(2) In section 19(5) of the Principal Act, after "under section 339 of the Land Act 1958" insert ", but may be limited as to depth if so agreed in an agreement under this Part".

8 Transfer of rights to the State

(1) For section 20(1)(b) of the Principal Act substitute—

"(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) In section 20(2) of the Principal Act—

(a) in paragraph (a) omit "(the relevant Act)";

(b) for paragraph (b) substitute—

"(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";



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(c) in paragraph (c)(ii), for "the relevant Act" substitute "the Act under which the land is taken to be occupied, used, controlled and managed".

9 Repeal of definition of prescribed purposes

Section 21 of the Principal Act is repealed.

10 Section 22 substituted

For section 22 of the Principal Act substitute—

"22 Saving 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;



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

22A Saving 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.".

11 Definitions—Part 4

Insert the following definitions in section 27(1) of the Principal Act—

"enforcement order means an order made under section 66B;

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



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12 Definition of land use activity

In the definition of land use activity in section 28(g) of the Principal Act, for "other than a grant made under this Act" substitute "other than a grant made under section 19".

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

(1) In section 32(3)(b) of the Principal Act omit "as a".

(2) In section 32(3A) of the Principal Act omit ", within the meaning of the Alpine Resorts Act 1983".

14 Responsible person to notify traditional owner group entity

For section 49(2) of the Principal Act substitute—

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

15 Application for VCAT determination

(1) For the heading to section 53 of the Principal Act substitute—

"Application for VCAT determination—land use activities".

(2) In section 53(1) of the Principal Act, for "under this Subdivision" substitute "under section 54 or 55".



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16 New sections inserted after section 57

After section 57 of the Principal Act insert—

"57A Application for VCAT determination—negotiation in good faith

(1) Either or both of a traditional owner group entity and a responsible person may apply to VCAT for a determination that the responsible person or traditional owner group entity (as the case requires) has not complied with section 50 for the purposes of reaching agreement as to the carrying out of a land use activity that is specified in the agreement as a negotiation activity.

(2) An application must not be made under subsection (1) after the day that is 8 months after the notice date for the negotiation without leave of VCAT.

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

57B VCAT determination, negotiation in good faith

(1) On application under section 57A, VCAT must determine whether or not the responsible person or traditional owner group entity about whom the application is made has complied with section 50 for the purposes of reaching agreement as to the carrying out of the land use activity.

(2) If VCAT determines under subsection (1) that the responsible person has not complied with section 50, the responsible person must not proceed with the land use activity unless—



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(a) the responsible person notifies the traditional owner group entity that the responsible person still proposes to carry out that activity; and

(b) the responsible person and the traditional owner group entity reach agreement under Division 3 as to the carrying out of the activity.

(3) If VCAT determines under subsection (1) that the responsible person has not complied with section 50 and the traditional owner group entity and the responsible person do not reach agreement under Division 3 as to the carrying out of the activity, the traditional owner group entity may apply under section 53(1) to VCAT for a determination under section 54 or 55.

(4) Section 49(2) applies to a notice required under subsection (2)(a) as if that notice were required under section 49(1).

(5) Sections 50, 51 and 52 apply to an agreement referred to in subsection (2)(b) as if that agreement were an agreement referred to in section 50(1).

(6) If VCAT determines under subsection (1) that a traditional owner group entity has not complied with section 50—

(a) the responsible person is not liable under section 52(1) to pay the reasonable costs of negotiating under section 50; and

(b) the responsible person may apply under section 53(1) to VCAT for a determination under section 54 or 55.



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57C VCAT determination—classification of land use activity

(1) On application under subsection (2), VCAT may determine that a land use activity set out in a land use activity agreement should be specified as—

(a) a routine activity; or

(b) an advisory activity; or

(c) a negotiation activity, class A; or

(d) a negotiation activity, class B; or

(e) an agreement activity.

(2) Either or both of a traditional owner group entity and a responsible person may apply for a determination under subsection (2).

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

57D VCAT determination—reasonable costs

(1) On application under subsection (3), VCAT may determine that the reasonable costs of negotiating under section 50 have not been correctly calculated in accordance with regulations made under this Act.

(2) If VCAT determines that the costs have not been correctly calculated, VCAT may determine the amount of costs that is liable to be paid to the traditional owner group entity under the regulations.

(3) Either or both of a traditional owner group entity and the responsible person may apply to VCAT for a determination under subsection (1).".



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17 New Subdivision 4 inserted in Division 4 of Part 4

After Subdivision 3 of Division 4 of Part 4 of the Principal Act insert—

"Subdivision 4—Enforcement orders66A Application for enforcement order

(1) A traditional owner group entity may apply to VCAT for an enforcement order if—

(a) a land use activity contravenes or has contravened this Act; or

(b) a land use activity is likely to contravene this Act.

(2) A traditional owner group entity that makes an application under subsection (1) must notify the following persons of the application—

(a) the responsible person in relation to the land use activity;

(b) the decision maker in relation to the land use activity;

(c) the body responsible under the Act under which the agreement land is managed for the management of the agreement land.

(3) A notice under subsection (2) must—

(a) be in writing; and

(b) state that the person may lodge an objection to the enforcement order with VCAT within the prescribed period.

66B Enforcement orders

(1) On application under section 66A, VCAT may make an order directing a person to do any one or more of the following—



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(a) to stop the land use activity within a specified period;

(b) not to start the land use activity;

(c) to cancel or suspend the land use activity;

(d) do anything specified in the order within a specified period—

(i) to restore the agreement land as nearly as practicable to its condition immediately before the land use activity started; or

(ii) to otherwise ensure compliance with this Act.

(2) An order under subsection (1) must specify—

(a) the land use activity that contravenes, has contravened or is likely to contravene this Act; and

(b) the agreement land affected or likely to be affected by the contravention; and

(c) any other prescribed information.

(3) An order under subsection (1) may be made against one or more of the following persons—


(b) if the decision maker in relation to the activity is not an individual, the decision maker;

(c) if the decision maker in relation to the activity is an individual, the body responsible under the Act under which



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the agreement land is managed for the management of the agreement land.

66C VCAT may notify persons of applications for enforcement orders

(1) Before making an enforcement order under section 66B, VCAT may notify a person that the person may lodge an objection to the enforcement order if—

(a) VCAT considers that the person may be adversely affected by the making of the enforcement order; and

(b) the person has not been notified of the application for the enforcement order under section 66A(2).

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

(a) be in writing; and

(b) state that the person may lodge an objection to the application for an enforcement order with VCAT within the prescribed period.

66D Submissions on enforcement order

If VCAT receives an objection to an application for an enforcement order within the prescribed period, VCAT must give the following persons a reasonable opportunity to be heard or to make written submissions in respect of the application—

(a) the responsible person;

(b) the decision maker;

(c) the body responsible under the Act under which the agreement land is managed for the management of the agreement land;



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(d) a person whom—

(i) VCAT considers may be adversely affected by the making of the enforcement order; and

(ii) has been notified under section 66C(1) of the application for the enforcement order.

66E Application for interim enforcement order

(1) Any traditional owner group entity who has applied for an enforcement order may apply to VCAT for an interim enforcement order.

(2) An application under subsection (1) must specify the grounds on which the traditional owner group entity considers it desirable, because of circumstances of urgency, to make the interim enforcement order before the application for an enforcement order is determined to prevent serious or irreversible damage to—

(a) the agreement land; or

(b) the interests of the traditional owner group entity under the agreement.

(3) An application under subsection (1) may be made without notice to any party.

66F Interim enforcement orders

(1) On application under section 66E(1), VCAT may make an order directing the person against whom the order is made to do any one or more of the following—

(a) to stop the land use activity immediately or within the period specified in the order;

(b) not to start the land use activity;



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(c) to suspend the land use activity;

(d) to do anything specified in the order within a specified period to ensure compliance with the land use activity agreement or this Act.

(2) An order under subsection (1) may be made against one or more of the following—


(b) if the decision maker in relation to the activity is not an individual, the decision maker;

(c) if the decision maker in relation to the activity is an individual, the body responsible under the Act under which the agreement land is managed for the management of the agreement land.

(3) Before making an order under subsection (1), VCAT must consider—

(a) whether, because of circumstances of urgency, it is desirable to make the order before the application for the enforcement order is determined to prevent serious or irreversible damage to—

(i) the agreement land; or

(ii) the interests of the traditional owner group entity under the agreement; and

(b) whether VCAT should hear any other person before the interim enforcement order is made; and



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(c) whether the interests of fairness require that the interim enforcement order be made.

66G Opportunity to be heard on making of interim enforcement order

(1) VCAT must give a person or body a reasonable opportunity to be heard by VCAT with respect to the interim enforcement order within 7 days after making the order if VCAT considers that the person or body may be adversely affected by the making of the interim enforcement order.

(2) After hearing any person or body under subsection (1), VCAT may continue, amend, or cancel the interim enforcement order.

(3) If VCAT continues, amends or cancels an interim enforcement order under subsection (2), VCAT must notify the following persons of that action—

(a) the person against whom the interim order is made;

(b) the traditional owner group entity.

66H Amendment or cancellation of enforcement order or interim enforcement order

(1) VCAT may amend or cancel any enforcement order or interim enforcement order if—

(a) the following persons and bodies agree to the amendment or cancellation—

(i) the traditional owner group entity;

(ii) the responsible person in relation to the land use activity;



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(iii) the decision maker in relation to the land use activity;

(iv) the body responsible under the Act under which the agreement land is managed for the management of the agreement land; or

(b) VCAT has made a determination under this Division that the land use activity may proceed.

(2) If VCAT amends or cancels an enforcement order or interim enforcement order under subsection (1), VCAT must notify the following persons of the amendment or cancellation—


(b) the decision maker in relation to the land use activity;

(c) the body responsible under the Act under which the agreement land is managed for the management of the agreement land;

(d) the traditional owner group entity;

(e) a person or body notified of the enforcement order or interim enforcement order under section 66C(1) or 66G(3).

66I Date on which interim enforcement order ceases to have effect

An interim enforcement order ceases to have effect on the earlier of the following—

(a) the date or the happening of an event specified in the order;



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(b) the determination of the application under section 66A.".

18 Heading to Part 6 substituted

For the heading to Part 6 of the Principal Act substitute—

"Part 6—Natural resource agreements and related

agreements".

19 Definitions

(1) The definition of authorisation order in section 79 of the Principal Act is repealed.

(2) For the definition of forest produce in section 79 of the Principal Act substitute—

"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;".

(3) For the definition of natural resources in section 79 of the Principal Act substitute—

"natural resources means—

(a) land; and



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(b) in relation to land the following—

(i) vegetation, including flora and forest produce (other than timber resources), 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;".

(4) For the definition of traditional purposes in section 79 of the Principal Act substitute—

"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;".

(5) Insert the following definitions in section 79 of the Principal Act—

"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;



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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;

timber resources has the same meaning as in the Sustainable Forests (Timber) Act 2004;".

20 Power to enter into natural resource agreements

(1) In section 80(1) of the Principal Act, for paragraphs (b), (c) (d) and (e) substitute—

"(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) For section 80(2) and (3) of the Principal Act substitute—

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



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(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.".

21 New sections inserted after section 80

After section 80 of the Principal Act insert—

"80A Consent 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.



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(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.

80B Binding 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.


agreement under 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.



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80C Subsidiary 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




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(5) An agreement under this section—



(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.

80D Temporary 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



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(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.

80E Steps 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.

80F Delegation

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.".



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22 Evidence of membership

For section 81(1) of the Principal Act substitute—

"(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.".

23 New Division 2A inserted in Part 6

After Division 2 of Part 6 of the Principal Act insert—

"Division 2A—Traditional owner land natural resource agreements

81A Power 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.



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(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


(4) An agreement under subsection (1)—



(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.

81B Subsidiary 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.



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(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


(4) An agreement under this section—



(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.



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81C Application 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.

81D Consent 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.".

24 Division 3 substituted in Part 6

For Division 3 of Part 6 of the Principal Act substitute—

"Division 3—Agreed activities82 Agreed 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



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(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.



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83 Agreement 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.

84 Purposes 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.

85 Camping

(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.



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(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.

86 Property 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.".

25 Regulations

For section 91(1)(b) of the Principal Act substitute—

"(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.".



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Part 3—Transitional provisions26 New Part 8 inserted

After Part 7 of the Principal Act insert—

"Part 8—Transitional provisions, Traditional Owner Settlement

Amendment Act 201692 Definition

In this Part—

2016 Act means the Traditional Owner Settlement Amendment Act 2016.

93 Transitional 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.

94 Land 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.



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(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.

95 Transitional 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.

96 Transitional 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.



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(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.


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



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Part 4—Amendments to other Acts27 Aboriginal Heritage Act 2006

For section 187A(6) of the Aboriginal Heritage Act 2006 substitute—

"(6) This section does not apply to an officer performing a statutory function for or on behalf of a public land manager—

(a) referred to in paragraph (a), (b), (d) or (g) of the definition of public land manager in section 4(1); or

(b) that is a municipal council, when the municipal council is acting as a committee of management under the Crown Land (Reserves) Act 1978.".

28 Crown Land (Reserves) Act 1978

(1) After section 3C of the Crown Land (Reserves) Act 1978 insert—

"3D Traditional owner agreement for natural resources

If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision of this Act that provides for an offence for carrying out an agreed activity does not apply to a member of the traditional owner group—

(a) who is bound by the agreement; and

(b) who is carrying out an agreed activity to which the offence applies in accordance with the agreement and on land to which the agreement applies.".



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(2) After section 34 of the Crown Land (Reserves) Act 1978 insert—

"34A Transitional provision—Traditional Owner Settlement Amendment Act 2016

(1) If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, section 13(5) and (6), as in force immediately before the commencement of section 9(6) of the Crown Land Legislation Amendment Act 2016, do not apply to the carrying out of an activity that would be a contravention of a saved regulation if—

(a) the activity is an agreed activity that is being carried out by a member of the traditional owner group who is bound by the agreement; and

(b) the member of the traditional owner group is carrying out the agreed activity in accordance with the agreement and on land to which the agreement applies; and

(c) the saved regulation is not for the purpose of—

(i) ensuring public safety; or

(ii) prohibiting public access to an area of land in order to manage the land.


saved regulation means a regulation to which section 34 applies.".



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29 Fisheries Act 1995

After section 11 of the Fisheries Act 1995 insert—

"11AA Traditional owner agreement for natural resources

(1) If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision of this Act that provides for an offence for carrying out an agreed activity (other than a provision specified in subsection (2)) does not apply to a member of the traditional owner group—


(b) who is carrying out an agreed activity to which the offence applies in accordance with the agreement and on land to which the agreement applies.

(2) For the purpose of subsection (1) the following provisions are specified—

(a) section 53;

(b) section 68B;

(c) section 76;

(d) section 84;

(e) section 139.".



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30 Flora and Fauna Guarantee Act 1988

(1) After section 6 of the Flora and Fauna Guarantee Act 1988 insert—

"6A Traditional owner agreement for natural resources

If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision of this Act that provides for an offence for carrying out an agreed activity (other than section 36) does not apply to a member of the traditional owner group—



(2) After section 26(4) of the Flora and Fauna Guarantee Act 1988 insert—

"(4A) Subsection (4B) applies if the Minister is proposing to make an order in relation to a critical habitat and—

(a) some or all of the critical habitat is within an area of land that is the subject of an agreement under Part 6 of the Traditional Owner Settlement Act 2010; and

(b) the order will affect the carrying out of an agreed activity under the agreement.

(4B) The Minister must not make the order—

(a) unless before making the order the Secretary takes all reasonable steps to reach agreement with the



39

relevant traditional owner group entity on alternative measures for the conservation, protection or management of the critical habitat; and

(b) either of the following applies—

(i) agreement is reached by the Secretary and the traditional owner group entity on alternative measures;

(ii) a reasonable time is allowed for agreement to be reached by the Secretary and the traditional owner group entity on alternative measures.".

(3) Sections 48A and 52A of the Flora and Fauna Guarantee Act 1988 are repealed.

31 Forests Act 1958

(1) After section 3C of the Forests Act 1958 insert—







40

(2) For the purposes of subsection (1) the following provisions are specified—

(a) section 63(1), (2), (4) and (6);

(b) section 64(2) and (4)(c);

(c) section 65(1) and (3);

(d) section 66;

(e) section 66A;

(f) section 66B;

(g) section 67;

(h) section 68;

(i) section 75;

(j) section 95(2);

(k) section 95A.".

(2) Sections 57Q(5), 59(1B) and 96C of the Forests Act 1958 are repealed.

(3) In section 57ZF of the Forests Act 1958—

(a) in subsection (1) omit "(1)";

(b) subsection (2) is repealed.

32 Land Act 1958

After section 2A of the Land Act 1958 insert—

"2B Traditional owner agreement for natural resources

If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision of this Act that provides for an offence for carrying out an agreed activity (other than section 409) does not apply to a member of the traditional owner group—




41


33 National Parks Act 1975

After section 4C of the National Parks Act 1975 insert—






(a) section 32N;

(b) section 37;

(c) section 44;

(d) section 45.".



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34 Prevention of Cruelty to Animals Act 1986

After section 6(1B) of the Prevention of Cruelty to Animals Act 1986 insert—

"(1C) If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, nothing in this Act prevents any member of the traditional owner group who is bound by the agreement from carrying out an agreed activity in accordance with the agreement and on land to which the agreement applies.".

35 Water Act 1989

For section 8A of the Water Act 1989 substitute—

"8A Traditional owner agreement for natural resources

If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, a person who is a member of a traditional owner group bound by the agreement has the right to take and use water on the land that is subject to the agreement—

(a) in accordance with the agreement; and

(b) if the water is to be taken from a place from which water may be taken under section 8(1).".



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36 Wildlife Act 1975

(1) After section 4B of the Wildlife Act 1975 insert—

"4C Traditional owner agreement for natural resources

(1) If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision of this Act that provides for an offence for carrying out an agreed activity (other than a provision specified in subsection (2)) does not apply to any member of the traditional owner group—




(a) section 49;

(b) section 54;

(c) section 56;

(d) section 58D;

(e) section 58E;

(f) section 58J;

(g) section 58L;

(h) section 58O;

(i) section 58Q;

(j) section 60A;

(k) section 60D;



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(l) section 61;

(m) section 62;

(n) section 62A.".

(2) Sections 47B and 58C(1A)(b) of the Wildlife Act 1975 are repealed.



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Part 5—Repeal of amending Act37 Repeal of amending Act

This Act is repealed on 1 May 2018.Note

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

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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Endnotes


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http://www.legislation.vic.gov.au/

† Minister's second reading speech—

Legislative Assembly: 31 August 2016

Legislative Council: 13 October 2016

The long title for the Bill for this Act was "A Bill for an Act to amend the Traditional Owner Settlement Act 2010, to amend the Crown Land (Reserves) Act 1978, the Fisheries Act 1995, the Flora and Fauna Guarantee Act 1988, the Forests Act 1958, the Land Act 1958, the National Parks Act 1975, the Prevention of Cruelty to Animals Act 1986, the Water Act 1989 and the Wildlife Act 1975 to provide for agreements about natural resources with traditional owners, to make a minor amendment to the Aboriginal Heritage Act 2006 and for other purposes."

Documents

Traditional Owner Settlement Amendment Act Web view · 2016-11-15Traditional Owner Settlement Amendment Act 2016. ... On application under section 66A, ... (b), (c), (d) or (e). (2)