Traditional Owner Settlement Amendment Act 2013

Traditional Owner Settlement Amendment Act 2013

No. 4 of 2013

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of the Traditional Owner Settlement Act 2010

Division 1—Preliminary

3Principal Act

4Definitions—Part 1

5Relationship with indigenous land use agreements

10Relationship with indigenous land use agreements

Division 2—Land Provisions

6Effect of granting of estate in land

7New section 17A inserted

17ANative title rights not affected

8Grant of aboriginal title

9Transfer of rights to the State

Division 3—Land Use Activities

10Definitions of public land authorisation and significant land
use activity

11Definition of land use activity

12Definition of decision maker

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

14Requirements for land use activity agreements

15New section 31A inserted

31AConditions as to Aboriginal cultural heritage

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

17Specification of activities as routine activities

18Section 34 substituted

34Ministerial direction as to advisory activities

19New section 40A inserted

40AConditions as to community benefits

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

Division 4—Funding Agreements

21Power to enter into funding agreement

Division 5—Natural Resource Agreements

22Definitions—Part 6

23Power to enter into natural resource agreements

24Evidence of membership

25Natural resource flora and fauna authorisation

26Natural resource hunting authorisation

27Natural resource forest authorisation

28Natural resource water authorisation

29Natural resource camping authorisation

Part 3—Amendment of the Planning and Environment Act 1987

30Definitions—Planning and Environment Act 1987

Part 4—Consequential Amendments

31Climate Change Act 2010

32Flora and Fauna Guarantee Act 1988

33Forests Act 1958

34Water Act 1989

35Wildlife Act 1975

Part 5—Repeal of Amending Act

36Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Traditional Owner Settlement Amendment Act 2013[†]

No. 4 of 2013

[Assented to 19 February 2013]

Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013

The Parliament of Victoriaenacts:

Part 5—Repeal of Amending Act

Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

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

(i) clarify the definition of traditional owner group and the relationship between certain agreements entered into in relation to a traditional owner group;

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

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

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

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

s. 1

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

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

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

2Commencement

s. 2

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

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

______

Part 2—Amendment of the Traditional Owner Settlement Act 2010

Division 1—Preliminary

3Principal Act

s. 3

See:
Act No.
62/2010
and amending
Act Nos
10/2010, 62/2010 and 29/2011.
LawToday:
www.
legislation.
vic.gov.au

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

4Definitions—Part 1

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

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

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

"(a)a group of Aboriginal persons whomay authorise (within the meaning in section251A of the Native Title Act) the making of an indigenous land use agreement with the Minister, on behalf of the State—

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

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

5Relationship with indigenous land use agreements

s. 5

For section 10 of the Principal Act, substitute—

"10 Relationship with indigenous land use agreements

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

(a)an indigenous land use agreement—

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

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

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

Division 2—Land Provisions

6Effect of granting of estate in land

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

7New section 17A inserted

s. 7

After section 17 of the Principal Act, insert—

"17A Native title rights not affected

A grant of an estate in fee simple in land under section 14 does not extinguish native title rights to the extent that they exist in relation to that land, whether the grant was made before, on or after the commencement of section 7 of the Traditional Owner Settlement Amendment Act2013.".

8Grant of aboriginal title

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

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

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

9Transfer of rights to the State

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

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

Division 3—Land Use Activities

10Definitions of public land authorisation and significant land use activity

s. 10

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

"(f)consent for the use or development of coastal Crown land under section 40 of the Coastal Management Act1995;

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

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

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

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

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

11Definition of land use activity

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

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

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

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

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

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

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

s. 11

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

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

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

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

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

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

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

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

12Definition of decision maker

s. 12

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

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

(i) if the authorisation is a Carbon Sequestration Agreement under section45 of the Climate Change Act 2010, the Secretary within the meaning of that section; or

(ii)if the authorisation is a licence under Division 2 of Part 5 of the Water Act 1989 to construct any works on a waterway or bore, the Minister responsible for administering section 67 of that Act; or

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

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

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

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

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

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

s. 12

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

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

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

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

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

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

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

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

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

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

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

s. 13

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

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

14Requirements for land use activity agreements

s. 14

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

(2)After section 31(3) of the Principal Act, insert—

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

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

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

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

15New section 31A inserted

After section 31 of the Principal Act, insert—

"31A Conditions as to Aboriginal cultural heritage

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

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

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

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

s. 16

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

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

17Specification of activities as routine activities

In section 33(2) of the Principal Act—

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

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

18Section 34 substituted

For section 34 of the Principal Act, substitute—

"34 Ministerial direction as to advisory activities

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

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

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

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

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

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

19New section 40Ainserted

s. 19

After section 40 of the Principal Act, insert—

"40A Conditions as to community benefits

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

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

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

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

s. 20

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

Division 4—Funding Agreements

21Power to enter into funding agreement

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

Division 5—Natural Resource Agreements

22Definitions—Part 6

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

23Power to enter into natural resource agreements

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

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

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

(2)After section 80(2) of the Principal Act, insert—

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

24Evidence of membership

s. 24

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

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

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

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

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

25Natural resource flora and fauna authorisation

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

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

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

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

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

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

26Natural resource hunting authorisation

s. 26

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

27Natural resource forest authorisation

In section 84(1) of the Principal Act—

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

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

28Natural resource water authorisation

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