Traditional Owner Settlement Act 2010 (Vic)

On 23 September 2010, the Traditional Owner Settlement Act 2010 (Vic) (the Act) came into effect.

In acknowledgment of the unique difficulties Victorian claimants have experienced in attempting to use the framework of the Native Title Act 1993 (Cth), the Act provides a legislative mechanism for out-of-court settlements of native title, and an alternative legal basis for the Victorian Government to recognise traditional owners and their rights in Crown land. The Act aims to 'advance reconciliation and promote good relations' between Victoria and traditional owners (see s 1 of the Act: Purposes).

Under the Traditional Owner Settlement Act 2010  (Vic), the Victorian Government may enter into a 'recognition and settlement agreement' with a traditional owner group. In return, the traditional owners must agree to withdraw any native title claim under the Native Title Act 1993 (Cth) and agree to not make any future native title claims.

A 'recognition and settlement agreement' may recognise rights to:

• enjoy the culture and identity of the traditional owner group;
• maintain a relationship with the land and the natural resources associated with the land;
• access and remain on the land;
• camp on the land;
• use and enjoy the land;
• take natural resources on the land;
• conduct cultural and spiritual activities on the land; and
• engage in protection of areas of importance on the land.

Ancillary agreements

The agreement may also be supplemented by ancillary agreements which include:

• Land Agreements;
• Land Use Activity Agreements;
• Land Management Co-Operative Agreements;
• Funding Agreements;
• Natural Resource Agreements.

Land Agreements provide for a grant of an estate in fee simple where the land concerned is unreserved public land. Where the land concerned is public land, the Act provides for a grant of Aboriginal Title (which is a conditional interest in the land).

Land Use Activity Agreements under the Act are agreements between the State and traditional owner groups that allow certain kinds of 'land use activities' to be carried out on land that is also the subject of a 'recognition and settlement agreement'. These 'land use activities' include acts such as revegetation, land clearing, controlled burning, works and the granting of public land, earth resource or infrastructure authorisations with respect to the land. A register of Land Use Activity Agreements must be established by the Minister

Land Management Co-Operative Agreements may be entered into under s 69(1) of the Conservation, Forests and Lands Act 1987 (Vic) with a traditional owner group to which land is to be granted. In providing for such agreements to be made, the Act makes an amendment to the Conservation, Forests and Lands Act 1987 (Vic).

Funding Agreements under the Act may be entered into for the purpose of providing funding to a traditional owner group entity in order to give effect to a 'recognition and settlement agreement'.

Natural Resource Agreements under the Act may be entered into to enable members of the traditional owner group to take part or secure employment in the management of the land subject to a 'recognition and settlement agreement' and its natural resources. They may also be entered into to provide for members of the traditional owner group to have access to and use of these resources for traditional purposes.

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