AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2009 >> [2009] IndigLawB 29

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Gerrard, Emily --- "A New Beginning? Looking at Victoria's Native Title Settlement Framework" [2009] IndigLawB 29; (2009) 7(13) Indigenous Law Bulletin 16

A New Beginning? Looking at Victoria’s Native Title Settlement Framework

By Emily Gerrard

In June 2009, the Victorian Government announced that it had adopted the report of

a joint steering committee[1]

setting out parameters and recommendations for a new native title settlement framework (‘the Framework’)[2]

in Victoria. The committee was established in early 2008 to investigate, negotiate and make recommendations for a state-based mechanism to more effectively process current and future land claims by traditional owners. The committee was chaired by Professor Michael Dodson and was made up of representatives from the Victorian Traditional Owner Land Justice Group, Native Title Services Victoria and the Victorian Government.

The resulting Framework provides direction for new law and policy and is designed to promote the negotiation of broader settlement agreements between Indigenous groups and the State. While the Framework relates to settlement of native title interests, it establishes a separate and alternative process to the NTA for state-based recognition of, and engagement with, traditional owners. Accordingly, it enables traditional owners to negotiate rights and interests recognised within Victoria, without the need for a native title application under the Commonwealth Native Title Act 1993 (‘the NTA’).[3]

Given that certain elements of the Framework will require new or amended legislation,[4] the ultimate form and content of the Framework may be influenced by future debates and amendments as the legislation passes through Parliament, and may not be known for several months. With that in mind, the following note provides a summary of the new initiatives introduced by the Framework and discusses issues relevant to its implementation and operation.

Key Elements of Framework Agreements

The Framework is designed to enable each traditional owner group to negotiate its own individual Framework agreement with the State, drawing from a range of new policy and legal options. Individual Agreements may provide for:

• land access, ownership and management rights, including the transfer of Crown land to traditional owners in conjunction with joint management arrangements and/or freehold land grants;

• the application of a new ‘Land Use Activity Regime' to activities on Crown land, providing for an alternative consultation and negotiation process similar to the NTA future act regime;

• access to and use of natural resources, including statutory recognition of non-commercial customary use;

• recognition and strengthening of culture, including protocols for public events, cultural centres and keeping places, road signage and Indigenous place naming;

• greater alignment with cultural heritage processes, including amendment of the Aboriginal Heritage Act 2006 (Cth) to ensure that Indigenous parties to individual Framework agreements are treated in a manner equivalent to native title holders under that Act;

• compensation for events where they would attract compensation under the NTA; and

• funding to enable Indigenous corporations to meet their obligations under the Framework agreement and to pursue certain business and economic opportunities.[5]

In order to achieve certainty and finality in relation to native title interests, Framework agreements will be included in a registered Indigenous Land Use Agreement (‘ILUA’) under the NTA.[6] Registered ILUAs will also provide for binding commitments from traditional owner groups to withdraw any existing native title claims and to refrain from making any future claims over the agreement area.[7]

Joint Management and Tenure Arrangements

Unlike other States and Territories, Victoria does not currently have a specific legislative mechanism for the ‘hand back and lease back’ (joint management) of Crown land, including national or state parks. The Framework proposes to introduce a model for joint management of Crown land, which:

• enables the conditional transfer of land in perpetuity, under joint management;

• enables joint management arrangements to apply to all Crown land within an agreement area, regardless of tenure; and

• establishes a ‘Board of Management’ as the entity responsible for shared decision making under joint management arrangements (one board of management for all areas under joint management).[8]

In this way, the Framework proposes a flexible model for joint management arrangements and tenure status, importing concepts from Indigenous management agreements under the Cape York Peninsular Heritage Act 2007 (Qld).

Under the Victorian Framework, finalising joint management arrangements will be a two-step process. After the negotiation of an Indigenous Management Agreement (‘IMA’), parties will develop a Joint Management Plan (‘JMP’).[9] An IMA will be a statutory agreement, requiring Ministerial consent, and must be concluded before land can be transferred or joint management can commence.[10] It is proposed that an IMA will be recorded on relevant land titles and will be binding on interest holders in IMA areas. An IMA will set out, among other things:

• the responsibilities of the relevant Minister and the traditional owner group;

• notification and consent requirements for various categories of activity;

• provisions for members of the public, traditional owners and relevant State authorities to access and use the land;

• how authorised and adjacent interests will be protected and managed and how future interests in the land will be created and managed;

• the rights of use and access to natural resources (including hunting and camping); and

• the role and responsibilities of the Board of Management.[11]

The JMP will address strategies for appropriate land management and will be finalised only after public consultation.

Individual Framework agreements will also provide for the transfer of land and changes to tenure in agreement areas. Land transfers subject to joint management arrangements will be conditional on a settled IMA and ILUA between the Victorian Government and traditional owner group. Joint management arrangements can also be negotiated where the State retains ownership of land. In these circumstances, the Framework will allow for joint management in perpetuity unless otherwise agreed. Considerations relevant to determining whether joint management arrangements or changes in tenure will apply include:

• traditional association with the area and heritage of the traditional owner group;

• benefits derived from resolving existing and potential native title claims;

• existing government assets and required future investment; and

• any existing third party interests.[12]

Formalising land transfer processes and management arrangements is an important development in Victoria, where processes to date have been ad-hoc or constrained by an absence of relevant enabling legislation and policy. However, the proposed arrangements have their own limitations, including the introduction of a prescribed and culturally specific governance structure; single Boards of Management may not reflect the underlying governance structures of traditional owner groups. Further, the arrangements enable particular uses to be prescribed for areas in perpetuity, for example, areas operating as national parks.[13] Managing tensions arising from inconsistent governance and land use arrangements will be an important aspect of the long-term sustainability of agreements under the Framework.

The Land Use Activity Regime

The Framework also introduces a new state-based consultation and negotiation process called the Land Use Activity Regime (‘LUAR’). The LUAR is a system for categorising land use activities and enabling negotiation of ‘community benefits’ as compensation for activities with a significant impact on Indigenous rights and interests.[14]

Each individual Framework agreement will set out the terms and conditions under which land use activities may proceed in certain areas, as well as the applicable consultation and negotiation processes applying to certain land within the agreement area. Proposed land use activity categories under the LUAR are:

Routine activities that may proceed on Crown land without needing to meet LUAR procedural requirements. It is proposed that routine activities will include exploration activities that comply with a standard agreement or licence conditions and provide traditional owner groups with community benefits;

Advisory activities, requiring consultation before being carried out on Crown land;

Negotiation activities, requiring the consent of a traditional owner group before they proceed. Depending on the nature of the activity, if consent is not successfully negotiated, an independent body may determine whether the land use activity should be undertaken and the terms and conditions under which it may proceed; and

Agreement activities identified in the agreement as requiring the consent of the traditional owner group. Activities that do not secure the requisite consent cannot proceed under the regime.[15]

The LUAR will also provide ‘grandfather clauses’ which operate to exclude existing licences and leases from new procedural requirements under the Framework. The inclusion of such clauses, and the extent to which the above categories apply to areas of Crown land within an agreement area, will be negotiated by each traditional owner group and the Victorian Government according to local circumstances and priorities.

It is proposed that the Victorian Civil and Administrative Tribunal (‘VCAT’) will be given jurisdiction to resolve disputes and make determinations under the LUAR, performing a similar arbitral role to that played by the National Native Title Tribunal in relation to the right to negotiate under the NTA.[16]

Increased Involvement in Natural Resource Management

Individual Framework agreements are also intended to increase the involvement of traditional owners in natural resource management activities and to recognise their rights in this regard. Implementation of the Framework will involve the statutory recognition of non-commercial access to resources such as water, non-mineral 'stone' artefacts and those used for craft, medicinal, ceremonial and domestic food purposes. This includes statutory recognition of the right to access resources related to cultural, spiritual and ceremonial activities, hunting, gathering, fishing and camping. It is proposed that legislation recognising these traditional owner rights would operate irrespective of whether a Framework agreement is in place,[17] providing broader application and symbolic recognition of the distinct cultural relationship between Indigenous people and traditional country.

The Victorian Government has also indicated that it will encourage and support traditional owner groups in the development and implementation of economic development and employment opportunities associated with natural resource management, including participation in carbon offsetting on Indigenous owned land and Crown land and waters.[18] Traditional owner corporations, established to negotiate and administer the benefits and responsibilities of Framework agreements, will be central to identifying and advancing these economic opportunities.

Framework Agreements and Native Title

Traditional owner groups must still overcome certain threshold requirements before they can gain recognition under the Framework. These are similar to, but arguably less onerous than, requirements for demonstrating native title under the NTA.[19] They include the provision of a 'threshold statement' to the State Attorney General, setting out:

• a description of the traditional owner group;

• a description of the area of association;

• a statement setting out the association of the traditional owner group to the area;

• a statement regarding the negotiation capacity of the traditional owner group; and

• a statement of aspirations (desired outcomes of negotiation).[20]

Identifying the ‘right people for country’ in a way that satisfies non-Indigenous stakeholders requires time, financial and human resources under the NTA. While the Framework places less emphasis on evidencing continuity of connection since white settlement, it nevertheless requires traditional owners to codify their identity in a manner prescribed by the State. This has implications in terms of the allocation of resources, time and dispute resolution processes for groups seeking outcomes under the Framework.

Where threshold requirements are adequately demonstrated, the Framework enables agreements to be negotiated with existing native title holders, current claimants, groups who have been unsuccessful with past claims and groups who have not yet lodged any claim under the NTA. Traditional owner groups who hold legally recognised native title rights will be deemed to have met the initial threshold requirements, provided that the group has largely the same composition and asserts interests over the same area as that of their native title determination.[21] Where a traditional owner group has a native title claim on foot, and threshold requirements have not yet been met, the State and the traditional owner group will seek to fast track the first stages of this process.[22]

The Framework does not set out any review process for decisions made in relation to satisfying threshold requirements. Under the Framework, VCAT will have jurisdiction to determine disputes after the execution of individual Framework agreements.[23] But the Framework is silent on the resolution of disputes during negotiation or pre-negotiation stages, the time when disagreements associated with threshold requirements are most likely to arise. This means that decisions about the ‘right people for country’ will ultimately be matters for the State.[24] While a central objective of the Framework is to minimse litigation, without an external dispute resolution or review process, the Government’s discretion during these early stages is unchecked. It is in the interests of fairness and transparency to ensure that an appropriate external review or arbitration process is available in relation to these initial processes.

The Framework provides both an alternative and potentially complementary process to the current native title application procedures. A traditional owner group may seek a positive determination of native title by consent as part of, or parallel to, individual Framework agreement negotiation.[25] As such, the Framework does not remove the question of native title. Presumably, in making an informed decision about whether to engage only in negotiating a state-based Framework agreement, traditional owner groups will want to consider the merits of making or progressing existing claims concurrently with any Framework negotiation. As such, preparation for negotiation under the Framework will still require extensive collection and analysis of ‘connection evidence’ relevant to group membership and cultural association with areas of country in order to provide any advice sought by groups making this decision.

For traditional owners, decisions about native title claims and Framework negotiations are likely to be strategic ones, involving consideration of the pathways that best preserve legal rights during negotiations, while also maximising the prospect of successful outcomes according to the group’s priorities.

It is unclear if, or to what extent, the Framework provides traditional owner groups with consultation and negotiation rights regarding areas of traditional country before the execution of an agreement. Without protection of these rights, it is understandable that Indigenous groups may continue to pursue native title claims to protect their traditional rights and interests through the NTA future act regime, both prior to and during the negotiation of Framework Agreements.

Consideration of the legal recognition of native title, including under any amended NTA, is also relevant to the final execution of Framework agreements. Once an individual Framework agreement has been executed, and its associated ILUA registered, a traditional owner party will not be able not make any further native title claims over the agreement area and, where relevant, the party will withdraw existing claims.[26] Although agreements may be reviewed in the interests of justice, this binding commitment not to lodge future native title claims provides finality in relation to pending native title interests.

Entitlements to compensation under the NTA will be dealt with in individual Framework agreements. As mentioned above, compensation entitlements arising from future land use activities will be addressed by the negotiation of community benefits and application of the LUAR.

Conclusion

Victoria’s native title claims are among Australia's longest standing under the NTA. The time required to resolve these claims, coupled with a growing recognition by non-Indigenous stakeholders of the need to meaningfully engage with Indigenous communities beyond formal resolution of legal applications, supports the need for a more effective way to make agreements with traditional owners in Victoria.

While the settlement Framework is an important step forward, to be successful, the Victorian Government must develop appropriate measures to address disputes between various stakeholders. Given the existing time and resources needed for dispute resolution in the native title and cultural heritage context, adequately supported, long term access to alternative dispute resolution, and the provision of appropriately trained, culturally competent mediators will influence the integrity of negotiation process. Proper attention to these factors will be critical to the ultimate sustainability of agreements made under the Framework. In this regard it will be interesting to observe how VCAT carries out its new responsibilities, including whether it establishes Indigenous specific processes and services.

The announcement of Victoria’s new Framework signals a new beginning, new challenges and new expectations. However, realising opportunities and achieving the aims of the Framework will require a comprehensive, whole of government approach towards implementation. While key details have not yet been finalised, the Framework holds significant potential as a formal, potentially preferable, alternative to the NTA. Depending on its final form, it may provide a new foundation on which to build better partnerships with Aboriginal people in Victoria.

Emily Gerrard is a lawyer in Victoria with experience working in the native title representative body system and corporate law.



[1] Department of Justice, Report of the Steering Committee for the Development of a Victorian Native Title Settlement Framework, (2008), http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb96a40a0048253/FINAL%20SC%20Report%2013May09.pdf
[2] Premier of Victoria, ‘Victoria Leads The Nation In Native Title Settlement’(Press Release, 3 June 2009), http://www.premier.vic.gov.au/minister-for-aboriginal-affairs/victoria-leads-the-nation-in-native-title-settlement.html
[3] Department of Justice, above n 1.
[4] In addition to new specific legislation, amendments will be needed to the majority of public land management, natural resource and flora and fauna legislation (for example the National Parks Act 1975, Land Act 1958, Crown Land (Reserves) Act 1978, Wildlife Act 1975, Fisheries Act 1995, Forests Act 1958).
[5] Department of Justice, above n 1, 19.
[6] Ibid 63.
[7] Ibid 61.
[8] Ibid 21–24, 26.
[9] Ibid 21.
[10] Ibid 22.
[11] Ibid 22-23.
[12] Ibid 25.
[13] Ibid 24.
[14] Ibid 33-34.
[15] Ibid 31-33.
[16] Ibid 35.
[17] Ibid 42-44.
[18] Ibid 45.
[19] Ibid, see also Appendix 7 for more detailed discussion of threshold requirements.
[20] Ibid, 83.
[21] Ibid 67.
[22] Ibid.
[23] Ibid 35, 70, 77.
[24] Ibid, Appendix 7.
[25] Ibid 68.
[26] Ibid 61 – 64.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2009/29.html