Traditional Owner Settlement Amendment Bill 2016

Written on the 11 November 2016

 

8 November 2016

COUNCIL 

Second reading 

GEORGIE CROZIER

 

Document resumed from 13 October; motion of Ms PULFORD (Minister for Agriculture).

Ms CROZIER (Southern Metropolitan)

I rise to speak on the Traditional Owner Settlement Amendment Bill 2016. Over many, many years there has been a bipartisan approach to many of the issues in relation to native title, understanding the importance of those very concerns. Indeed there has been a lot done both at a national and state level.

The bill does a number of things and amends a number of acts, and I will go to that later in my contribution. In the explanatory memorandum, the primary purpose of the bill is to amend the Traditional Owner Settlement Act 2010 and other legislation to reduce the administrative and compliance burden on relevant state agencies and traditional owner groups, address technical matters relating to land agreements, improve the operation of land use activity agreements and better facilitate the exercise of traditional owner rights in relation to natural resources.

The explanatory memorandum goes on, and I want to make note of some language in the final wording of the general explanation, where it says that it provides 'an attractive framework for resolving native title claims in Victoria'. I am not quite sure why we need to have the word 'attractive'; I would have thought a framework that was agreed upon and acknowledged would suffice, because there has been significant work done in the past, and I want to refer to that if I can. As members will know, and as I mentioned at the outset, much work has been done over many years in recognition of native land rights and titles, and of course there was the historic Mabo case in the early 1990s, which then enabled some commonwealth legislation to be passed in relation to looking at individual native title claims in many parts of Australia.

In looking at those claims it has often been a protracted process, and a series of Victorian governments have looked at how this process can be remedied to ensure that the proper process is undertaken. The Traditional Owner Settlement Act 2010, which this bill amends, looked at

Mr Barber interjected.

Ms CROZIER I am just speaking to this bill, Mr Barber, and I was not in the Parliament when that act came in, so I will just say this, and I think there are some concerns in this bill that I would also like to raise in the committee stage, because this act offers an alternative to costly litigation under the commonwealth regime, and if we look at what happened and if we look at how that is viewed, there have been a number of traditional owner corporations that have had input and other stakeholders have had input into the affairs that this bill goes to the heart of.

I was researching the bill and I thank the library for providing the information they have and the peak body for the Victorian traditional owner corporations, the Federation of Victorian Traditional Owner Corporations, has a fact sheet on many of these issues. If you look at what they have responsibility for, heritage management is recognised through a series of acts, and I just want to refer to them because it goes to the extent of how far this extends and what we are looking at in relation to the Victorian landscape.

The Heritage Act 1995 protects all archaeological sites and lists all non-Aboriginal historic places and objects of state significance. The Aboriginal Heritage Act 2006 protects Aboriginal places in Victoria, amongst other things. The National Parks Act 1975 creates national parks and other parks for the protection and preservation of features, including those of historic scenic, archaeological or scientific interest. The Forests Act 1958 provides for the management of state forests. The Minerals Resources Sustainable Development Act 1990 prohibits work without the consent of the relevant authority within 100 metres of a place on the Victorian Aboriginal Heritage Register. The Crown Land (Reserves) Act 1978 allows for the reservation of land for public purposes, including conservation of areas of historic, aesthetic, archaeological or scientific interest. The Environment Protection Biodiversity Conservation Act 1999 leases and protects cultural heritage places of outstanding national significance. The Planning and Environment Act 1987 provides planning controls for places or precincts of local significance, amongst other things. The point of referring to all those acts is there are a number of acts already in place that give protection, and as I said, a number of governments have been looking over many years to a way forward on the issue that we are speaking about.

The traditional owner corporations, as I said, have a legislative basis, and I note that in the fact sheet here they refer to a number of pieces of legislation that I have also listed, including the Traditional Owners Settlement Act and the Aboriginal Heritage Act, as well as looking at a number of other pieces of commonwealth legislation that they also fall within. I note that in this fact sheet they do refer to the fact that under the Traditional Owners Settlement Act and native title they say:

Over time it is expected that close to 100 per cent of the state will be covered by native title determinations and/or traditional owner settlement agreements that provide recognition of the special relationships of Aboriginal peoples with their land and waters, and in particular confer a range of procedural rights in relation to activities on Crown land, including consent and negotiation rights, recognition as the registered Aboriginal party under Aboriginal heritage legislation and rights to natural resources.

That is a statement in the fact sheet, and I do want to know what 'over time' means in relation to that 100 per cent coverage, but if we look at the various elements of this particular piece of legislation as I say, there have been some concerns raised I am not going to go through all the clauses of the bill, but I did want to make note of a number of areas that it amends. The current act allows the Victorian government to recognise traditional owners and certain rights in Crown land, and in return for a settlement being undertaken, all the traditional owners must agree to withdraw any native title claim pursuant to the Native Title Act 1993, which is that commonwealth act that I was referring to.

The bill we are discussing today amends the act in a number of ways. I spoke about the settlement package. Under the current act a recognition and settlement agreement can recognise a traditional owner group and certain traditional rights over Crown land. A settlement package can also include a land agreement which provides for grants of land in freehold title for cultural or economic purposes or as Aboriginal title to be jointly managed in partnership with the state; a land use activity agreement which allows traditional owners to comment on or consent to certain activities on public land; a funding agreement which enables traditional owner corporations to manage their obligations and undertake economic development activities; and a natural resource agreement which recognises traditional owner rights to take and use specific natural resources and provide input into the management of the land and natural resources.

I know that when the coalition was in government a land agreement was negotiated. That was undertaken by the former Attorney-General, Robert Clark. It was deemed a historic settlement of the Dja Dja Wurrung native title claim, and it was fully achieved in 2013. I am reading that it covered approximately 266 532 hectares of Crown land, which encompasses about 3 per cent of the Crown land in Victoria, and it led to full and final resolution of native title claims to that area. At the time that was a significant financial value of around $9.65 million. That funding allowed the Dja Dja Wurrung Clans Aboriginal Corporation to meet its settlement obligations and allow for the cultural and economic aspirations of the Dja Dja Wurrung people. At the time the settlement was seen to be a very constructive process detailed and constructive negotiations went on and indeed it was welcomed by the local community. As was recognised at the time, it was seen to be giving certainty and opportunities to enable the Dja Dja Wurrung people to make their own determinations and to have a sustainable future in relation to those issues that were important to them.

There has been some progress in relation to native title claims, and of course this bill goes a little bit further. As I said, I am not going to go through each clause; I just want to make note of a number of clauses. Clauses 4 and 6 amend and insert new definitions in sections 3 and 11 of the act. Of particular note is the new definition of 'alpine resort' and 'Alpine Resort Management Board'. The definition of public land in section 11 of the principal act is also amended by substituting 'under the Alpine Resorts Act 1983' with 'in any alpine resort'.

Clause 7 repeals section 19(3) and amends section 19(5) of the principal act. It ensures that all existing statutory authorities, contracts, arrangements and agreements relating to public land survive a grant of Aboriginal title and enables the granting of Aboriginal title over land which is depth limited. This allows for Aboriginal title to be granted over parks which may be depth limited for the purpose of enabling the possibility of underground mining to occur. I note that this does take into consideration some areas in northern Victoria for example, the Greater Bendigo National Park land. As I have just spoken about, the Dja Dja Wurrung corporation was involved in this process and the settlement negotiations back in 2012 and 2013. It was ongoing before that, but it certainly was settled in 2013 under the previous coalition government.

Clause 8 amends section 20 and clause 10 provides for new sections 22 and 22A in the principal act. They clarify that the state is only able to lease or license Aboriginal title land in a way that is consistent with the act under which the land was occupied, used, controlled or managed immediately prior to the grant of Aboriginal title. They also ensure that pre-existing leases, arrangements or agreements survive a grant of Aboriginal title.

Moving to clause 12, which I think needs to be also noted, it provides clarity that grants of Aboriginal title are excluded from the definition of land use activity, while grants of fee simple under section 14 are not.

Clause 16 inserts a number of new sections into the act. This relates to the involvement of the Victorian Civil and Administrative Tribunal (VCAT). The provision relates to VCAT's involvement in making determinations relating to land use activity agreements and issuing enforceability and compliance orders in relation to these agreements. Of particular note is VCAT's function to make a determination in relation to negotiations related to land use activity agreements and also that determinations of the correct classification of land use activity agreements are undertaken. I note this function is restricted to resolving ambiguity through interpretation and application of land use activity agreement classifications.

The next area I want to make note of is clause 17, which goes to the mechanisms of compliance with land use activity agreements. These new provisions will allow the traditional owner groups to make applications for interim enforcement orders to stop or not start land use activities and also to cancel the land use activity in question if it is so needed. Third parties subject to these applications have provision to make objections, and obviously they would have to go through the VCAT process.

In clauses 18 to 25 there are a number of areas that relate to the natural resource agreements. I am not going to go through each one, but the authorisation orders will be repealed and a new mechanism will now allow the taking and using of natural resources provided for under the principal act. Natural resource agreements made by the government and traditional owner groups will now set the scope limit and agreed activities allowed under those agreements. The minister must consult with relevant ministers in relation to how this may apply and receive their consent in undertaking this particular provision. This will replace the consultation requirement in section 82 of the principal act. The minister must also adhere to the principles of sustainability.

These clauses allow for a discretionary authority under these new arrangements. The definition of 'natural resources' has been amended to allow for a broader interpretation of items that can be classified as being natural resources. I think questions need to be asked and I will be asking some around these particular elements when we get into the committee stage.

Clauses 27 to 36 amend a number of acts specifically relating to this piece of legislation. I will get to the alpine act in a moment. Clause 27 amends the Aboriginal Heritage Act 2006; clause 28 amends the Crown Land (Reserves) Act 1978; clause 29 amends the Fisheries Act 1995; clause 30 amends the Flora and Fauna Guarantee Act 1988; clause 31 amends the Forests Act 1958; clause 32 amends the Land Act 1958; clause 33 amends the National Parks Act 1975; clause 34 amends the Prevention of Cruelty to Animals Act 1986; clause 35 amends the Water Act 1989; and clause 36 amends the Wildlife Act 1975. You can see that a number of acts will be amended in relation to having an exemption from traditional owners carrying out any agreed activities or a number of things that this new act will cover off. I think there are some implications here and I hope the government has thought through all the unintended consequences that those amendments might make in relation to each of the acts that I just read out, because a number of them could potentially be exempt. I am not sure that all of the unintended consequences have been thought through. But again, I will be asking about some of those issues in the committee stage.

I will just go to the amended definition of alpine resort, which I referred to earlier. That certainly is an area of concern. I note it has been an area of concern for those people who have an interest in snow sports especially, and I believe there has been some media commentary around that in relation to how it will actually affect the alpine resorts, how it might be applied in future years and how those particular individuals who will be directly affected by this will have the surety that their existing businesses and any other compensation claims or the like are not impacted. They have raised concerns that the users of those snow sports businesses who are directly affected in the alpine resorts may bear the brunt of costs that may be incurred due to the change in the legislation.

I hope the government has undertaken extensive consultation and given those various stakeholders the reassurance they require in relation to the fact that any costs that may be incurred will not be passed on to the users, in particular if it is snow sports users who are directly affected through the change in definition of alpine resorts in the bill.

I understand there has been some consultation with a number of groups and obviously the traditional owner groups are particularly supportive of this. They have been working with government to ensure there is a sustainable and appropriate settlement and agreement that can be made on some of the issues that have been raised throughout the consultation process. But again, I hope those other stakeholders that do have concerns might have those significant concerns allayed and that they are not get caught up by the bill.

There are obviously a number of other parts of the bill that I am not going to go through. I just wanted to raise the particular clauses in the bill that have an impact and make the points around the amendments to the various current pieces of legislation that could be impacted by this legislation. As others have said, I think they are very important matters to raise in debate and I will be looking forward to asking the government in more detail through the committee stage about some of the specifics that I mentioned in my contribution. I will conclude my remarks here and note that the opposition will not be opposing the bill.

 

 


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