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Traditional Owner Settlement
Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Traditional Owner Settlement Act 2010 (the Principal
Act) and other legislation to manage the State's liabilities, streamline
processes for industry, increase the chances of reaching native title
settlements and facilitate economic development. The Bill will also clarify
and correct inconsistencies in the Principal Act.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which include: amending the
Traditional Owner Settlement Act 2010 to--
clarify the definition of traditional owner group and the
relationship between certain agreements entered into in
relation to a traditional owner group;
enable land use activity agreements to specify certain
standard conditions;
provide that a land use activity on land within an alpine
resort cannot be a negotiation or agreement activity;
include a wider range of permits, licences and
agreements in the definition of land use activities,
enabling them to be included in a land use activity
agreement;
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allow natural resource agreements to include
commercial uses of natural resources by traditional
owner groups;
provide for Orders to authorise some commercial uses
of flora and forest produce by traditional owner groups;
provide for the Minister to make directions regarding
consultation with traditional owner group entities; and
making related and consequential amendments to the Climate
Change Act 2010, Flora and Fauna Guarantee Act 1988,
Forests Act 1958, Planning and Environment Act 1987,
Water Act 1989 and Wildlife Act 1975.
Clause 2 provides for the commencement of the Bill. The provisions of
the Bill come into operation on 30 April 2013, unless they are
proclaimed earlier.
PART 2--AMENDMENT OF THE TRADITIONAL OWNER
SETTLEMENT ACT 2010
Part 2 provides for the amendment of the Traditional Owner Settlement
Act 2010.
Division 1--Preliminary
Clause 3 provides that the Traditional Owner Settlement Act 2010 is
called the Principal Act.
Clause 4 amends the definition of traditional owner group in section 3 of
the Principal Act, to more specifically refer to a group that is
capable of having a settlement under the Principal Act.
This clause substitutes subsection (a) of the definition of
traditional owner group in section 3 of the Principal Act.
Subsections (b) and (c) of that definition are not affected.
Subsection (a) of the definition in the Principal Act defines the
traditional owner group by reference to section 24CD of the
Native Title Act 1993 of the Commonwealth. Reliance on that
section of the Native Title Act lacks clarity and may
unintentionally exclude legitimate members of a traditional
owner group from being considered members of that group for
the purposes of the Principal Act. This clause clarifies that it is
the group of Aboriginal persons who are able to enter into an
indigenous land use agreement with the Minister on behalf of the
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State for the purposes of making a final and comprehensive
settlement of all native title applications capable of being made
under the Native Title Act.
This clause clarifies that the group who enter into this indigenous
land use agreement must be inclusive and the correct group of
Aboriginal persons in relation to the land, in order for the
agreement to be registered pursuant to section 24CK or 24CL of
the Native Title Act 1993. The registration process includes
public notification and consideration by the Native Title
Registrar (under the Native Title Act 1993) of the process for
identifying the persons who should be party to the agreement and
any objections to that agreement. Clause 4 also inserts a
definition of Aboriginal person.
Clause 5 clarifies the relationship between the agreements able to be
entered into under the Principal Act, an indigenous land use
agreement entered into under the Native Title Act 1993 and a
traditional owner land management agreement entered into under
the Conservation, Forests and Lands Act 1987.
A settlement under the Principal Act will include a recognition
and settlement agreement and may also include an indigenous
land use agreement for the purpose of settling any existing native
title applications (claims) and preventing the making of native
title applications in the future and a traditional owner land
management agreement. These agreements, when entered into in
relation to the same traditional owner group, comprise a
"settlement package".
Division 2--Land Provisions
Clause 6 amends section 17 of the Principal Act (regarding the effect of
the grant of an estate in land) so that it is subject to section 17A
(to be inserted by clause 7).
Clause 7 inserts new section 17A, which provides that the grant of an
estate in fee simple in land to a traditional owner group entity is
not to be taken to extinguish native title in that land.
Clause 8 inserts new section 19(3A), which provides that the grant of
aboriginal title in land to a traditional owner group entity is not to
be taken to extinguish native title in that land.
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Clause 9 inserts new section 20(4), which clarifies that the State may enter
into a Carbon Sequestration Agreement, under section 45 of the
Climate Change Act 2010, in relation to land that is granted in
fee simple in aboriginal title.
Division 3--Land Use Activities
Clause 10 inserts additional authorisations into the definition of public land
authorisation, so that they can be included in a land use activity
agreement. These additional authorisations are--
a consent for the use or development of coastal Crown
land;
a lease for a surf life saving association;
a licence to construct any works on a waterway or bore;
a Carbon Sequestration Agreement.
It is intended that these authorisations would be included in a
land use activity as advisory activities, with the exception of
Carbon Sequestration Agreements.
Subclause (2) amends the definition of significant land use
activity so that a Carbon Sequestration Agreement may be
included in a land use activity agreement as a negotiation or
agreement activity. A Carbon Sequestration Agreement is a
long-term authorisation that may significantly impact traditional
owner rights. Under Commonwealth legislation, the grant of
carbon rights over native title lands is subject to the consent of
the native title holder. This amendment aligns procedural rights
available under the Principal Act with those available under
Commonwealth legislation.
Clause 11 inserts additional activities within the definition of land use
activity, so that those activities can be included in a land use
activity agreement as routine activities or advisory activities.
These activities are--
the issuing of a new fisheries authorisation that is a
commercial access licence, aquaculture licence or
general permit;
the classification of a State Wildlife Reserve under the
Wildlife Act 1975;
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the dedication, declaration or proclamation of land
under the Forests Act 1958;
the preparation of a management plan for coastal Crown
land, the preparation of a draft management plan for a
water supply protection area or the preparation of a
working plan for an area of State forest.
Clause 12 amends the definition of decision maker in relation to the new
public land authorisations and land use activities included by
clauses 11 and 12. The decision maker is the person or body
responsible for carrying out particular activities or allowing them
to proceed.
Clause 13 amends section 30(4) to clarify the relationship between a
recognition and settlement agreement (of which a land use
activity agreement is a part) and an indigenous land use
agreement, consistent with clause 5.
Clause 14 inserts new section 31(3A) to provide that a land use activity
agreement may include standard conditions in relation to work
under a prospecting licence, which may be accepted by an
applicant for an earth resource or infrastructure authorisation that
is a prospecting licence. This means that those licences, which
allow low-impact activities only, can be treated in the same way
as an earth resource or infrastructure authorisation that is for the
purpose of exploration. That is, there is no requirement to
negotiate with a traditional owner group entity if the applicant
accepts the standard conditions.
Clause 15 inserts new section 31A, which provides that a land use activity
agreement may include standard conditions in relation to
Aboriginal cultural heritage that must be accepted by the parties
to the agreement and any person who seeks to carry out the
negotiation or agreement activity. Section 31A(2) requires that
those conditions must not duplicate or be inconsistent with any
provision of the Aboriginal Heritage Act 2006. It is intended
that any standard conditions that are included in a land use
activity agreement will streamline processes and reduce the
potential for duplication. The Aboriginal Heritage Act 2006
provides that a traditional owner group entity that has a
recognition and settlement agreement will, upon application, be
appointed as the registered Aboriginal party in relation to the area
covered by that recognition and settlement agreement.
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A corporation that is both a traditional owner group entity and a
registered aboriginal party will be able to utilise the processes of
the Aboriginal Heritage Act 2006 in order to ensure appropriate
management of Aboriginal heritage places, objects and human
remains within its agreement area.
Clause 16 inserts new section 32(3A), which provides that a land use
activity in an alpine resort cannot be a negotiation or agreement
activity. Some land use activities in alpine resorts may be
advisory activities.
Clause 17 supports clause 15 by amending section 33(2) of the Principal
Act, so that, if the standard conditions for prospecting licences
are accepted by the applicant, the grant of that authorisation is
treated as a routine activity.
Clause 18 substitutes section 34 of the Principal Act, requiring the Minister
to issue directions as to the actions that must be taken by the
decision maker for an advisory activity in relation to notification
of and consultation with a traditional owner group entity.
These directions must be issued following the entering into of a
land use activity agreement that specifies advisory activities, but
before that agreement comes into effect. A land use activity
agreement cannot operate as intended unless there are Ministerial
directions in place.
New subsections (3) and (4) provide that the Minister may
revoke, amend or reissue the directions. However, the Minister
must first consult with the relevant traditional owner group
entity. If the Minister revokes a direction, he or she must give
further directions as soon as possible, to ensure the ongoing
proper functioning of a land use activity agreement.
Clause 19 inserts a new section 40A, which provides that a land use activity
agreement may include standard conditions in relation to
community benefits that are payable for land use activities
where--
the State is the responsible person (project proponent);
the State is issuing a public land authorisation.
Community benefits are payable in relation to negotiation and
agreement activities. It is intended that a land use activity
agreement will include a formula for assessing the amount of
community benefits payable for an activity of the type mentioned
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above. This formula would be agreed upfront by a traditional
owner group entity and the Minister, on behalf of the State.
The formula would be binding on the parties to the land use
activity agreement.
Clause 20 clarifies the information requirements for a decision maker in
section 51(2) prior to undertaking or allowing a negotiation or
agreement activity. The decision maker must be notified that
agreement has been reached between a traditional owner group
entity and a responsible person, however, the decision maker
does not need a copy of that agreement. This clause ensures that
notice of an agreement, rather than the agreement itself, must be
provided to the decision maker.
Division 4--Funding Agreements
Clause 21 amends section 78 of the Principal Act to provide that a trust into
which money is paid under a funding agreement with a
traditional owner group entity is charitable. It is intended that the
distributions of a trust referred to in section 78 are able to be
invested by a traditional owner group entity in businesses and
economic development opportunities, so long as the proceeds of
those investments are re-applied towards a charitable purpose.
Division 5--Natural Resource Agreements
Clause 22 amends the definition of traditional purposes in section 79 of the
Principal Act so that it relates to a traditional owner group and
the needs of its members, rather than of the members of the
traditional owner group entity only. Not all members of a group
will be members of an entity. This amendment supports the
broadening of eligibility to access and use natural resources in
accordance with an authorisation issued pursuant to Part 6 of the
Principal Act, which is addressed by subsequent clauses.
Clause 23 amends section 80(1) of the Principal Act so that a natural
resource agreement can include strategies relating to natural
resources that apply to all members of a traditional owner group,
rather than only those group members who are also members of
the traditional owner group entity.
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Subclause (1)(b) amends section 80(1)(b) so that a natural
resource agreement may provide for uses of, and access to,
natural resources that are for commercial purposes as well as
traditional purposes.
Subclause (2) inserts new section 80(3), which prevents a natural
resource agreement providing for the use of, or access to, natural
resources for commercial purposes if that commercial use is
inconsistent with the purpose of the reservation of the land (for
example a national park).
Clause 24 amends section 81 of the Principal Act. Subclause (1) broadens
the eligibility to access and use natural resources under an
authorisation order from members of a traditional owner group
entity to members of the traditional owner group. The natural
resource agreement must include an agreed means of verification
or evidence of membership of the traditional owner group.
Subclauses (2) and (3) expand the definition of authorised
officer in section 81 of the Principal Act. Specifically,
subclause (3) adds authorised officers within the meaning of the
Crown Land (Reserves) Act 1978 and the National Parks Act
1975, because officers performing duties under these Acts will be
responsible for ensuring compliance with a camping
authorisation issued pursuant to section 86 of the Principal Act.
Clause 25 amends section 82(1) of the Principal Act to enable the Governor
in Council to authorise members of a traditional owner group to
access and use protected flora for a commercial purpose.
Previously, only members of a traditional owner group entity
could exercise their traditional owner rights in accordance with a
flora and fauna authorisation.
Clause 26 amends section 83(1) so that all members of the traditional owner
group (not just those who are members of the entity) may
exercise their traditional owner rights in accordance with a
hunting authorisation.
Clause 27 amends section 84(1) so that all members of the traditional owner
group (not just those who are members of the entity) may
exercise their traditional owner rights in accordance with a forest
authorisation. This clause also enables a forest authorisation to
authorise access and use of forest produce for commercial
purposes as well as traditional purposes.
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Clause 28 amends section 85(1) so that all members of the traditional owner
group (not just those who are members of the entity) may
exercise their traditional owner rights in accordance with a water
authorisation.
Clause 29 amends section 86(1), (7) and (9) so that all members of the
traditional owner group (not just those who are members of the
entity) may exercise their traditional owner rights in accordance
with a camping authorisation.
PART 3--AMENDMENT OF THE PLANNING AND
ENVIRONMENT ACT 1987
Clause 30 amends the definition of owner in the Planning and
Environment Act 1987 so that in certain circumstances a
traditional owner group entity that has a land use activity
agreement will receive notification of and the opportunity to
comment on planning scheme amendments that affect Crown
land that is covered by that land use activity agreement.
PART 4--CONSEQUENTIAL AMENDMENTS
Clause 31 inserts a note into the Climate Change Act 2010 so that a reader
is aware that entry into a Carbon Sequestration Agreement may
be subject to procedural rights enlivened by a land use activity
agreement. This is consistent with notes already included within
relevant legislation where a land use activity is a significant land
use activity or a limited land use activity, as per the definitions in
Part 4 of the Principal Act.
Clause 32 amends the Flora and Fauna Guarantee Act 1988 so that all
members of a traditional owner group (not just those who are
members of a traditional owner group entity) can exercise their
traditional owner rights in accordance with a flora and fauna
authorisation. Specifically, it means that certain offences under
that Act will not apply to a member of a traditional owner group
if he or she is acting in accordance with an authorisation given
under the Principal Act.
Clause 33 amends the Forests Act 1958 so that all members of a traditional
owner group (not just those who are members of a traditional
owner group entity) can exercise their traditional owner rights in
accordance with a forest authorisation. Specifically, it means that
certain offences under that Act will not apply to a member of a
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traditional owner group if he or she is acting in accordance with
an authorisation given under the Principal Act.
Clause 34 amends the Water Act 1989 so that all members of a traditional
owner group (not just those who are members of a traditional
owner group entity) can exercise their traditional owner rights in
accordance with a water authorisation. Specifically, it means that
certain offences under that Act will not apply to a member of a
traditional owner group if he or she is acting in accordance with
an authorisation given under the Principal Act.
Clause 35 amends the Wildlife Act 1975 so that all members of a
traditional owner group (not just those who are members of a
traditional owner group entity) can exercise their traditional
owner rights in accordance with a hunting authorisation.
Specifically, it means that certain offences under that Act will not
apply to a member of a traditional owner group if he or she is
acting in accordance with an authorisation given under the
Principal Act.
PART 5--REPEAL OF AMENDING ACT
Clause 36 provides for the repeal of the amending Act on 30 April 2014.
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