Traditional Owner Settlement Amendment Act 2016
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Traditional Owner Settlement Amendment
Act 2016
No. 67 of 2016
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purpose 1
2 Commencement 2
3 Principal Act 2
Part 2—Amendment of Traditional Owner Settlement Act 2010 3
4 Definitions 3
5 Heading to Division 2 of Part 2 substituted 3
6 Definitions 4
7 Grant of aboriginal title 4
8 Transfer of rights to the State 4
9 Repeal of definition of prescribed purposes 5
10 Section 22 substituted 5
11 Definitions—Part 4 6
12 Definition of land use activity 7
13 Listing and classification of land use activities to which
agreement applies 7
14 Responsible person to notify traditional owner group entity 7
15 Application for VCAT determination 7
16 New sections inserted after section 57 8
17 New Subdivision 4 inserted in Division 4 of Part 4 11
18 Heading to Part 6 substituted 18
19 Definitions 18
20 Power to enter into natural resource agreements 20
21 New sections inserted after section 80 21
22 Evidence of membership 26
23 New Division 2A inserted in Part 6 26
24 Division 3 substituted in Part 6 29
25 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 36
29 Fisheries Act 1995 38
30 Flora and Fauna Guarantee Act 1988 39
31 Forests Act 1958 40
32 Land Act 1958 41
33 National Parks Act 1975 42
34 Prevention of Cruelty to Animals Act 1986 43
35 Water Act 1989 43
36 Wildlife Act 1975 44
Part 5—Repeal of amending Act 46
37 Repeal of amending Act 46
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Endnotes 47
1 General information 47
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Traditional Owner Settlement
Amendment Act 2016 †
No. 67 of 2016
[Assented to 15 November 2016]
The Parliament of Victoria enacts:
Part 1—Preliminary
1 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.
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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" .
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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 orders
66A 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—
(a) the responsible person in relation to the
land use activity;
(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—
(a) the responsible person in relation to the
land use activity;
(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—
(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;
(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.
(2) In this section—
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
(b) the day specified in the agreement.
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(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.
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
(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.
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
(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.
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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 activities
82 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 provisions
26 New Part 8 inserted
After Part 7 of the Principal Act insert—
"Part 8—Transitional provisions,
Traditional Owner Settlement
Amendment Act 2016
92 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.
(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.".
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Part 4—Amendments to other Acts
27 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.
(2) In this section—
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—
(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.
(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—
(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.".
(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
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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—
"3D 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—
(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) 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—
(a) who is bound by the agreement; and
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(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.".
33 National Parks Act 1975
After section 4C of the National Parks Act 1975
insert—
"4D 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—
(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.
(2) For the purpose of subsection (1) the
following provisions are specified—
(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) 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.
(2) For the purpose of subsection (1) the
following provisions are specified—
(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 Act
37 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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Endnotes
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
† 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."
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