Traditional Owner Settlement Act 2010

The primary beneficiaries are traditional owner groups and their appointed traditional owner group entities (defined in s 3 as CATSI corporations, companies limited by guarantee, or other bodies corporate). A traditional owner group is either native title holders, a group that could authorise an ILUA under the Native Title Act 1993 (Cth) s 251A, or a group recognised by the Attorney-General via Gazette notice based on traditional and cultural associations.

The State of Victoria, through the Minister (currently the Minister for Treaty and First Peoples), is the counterparty. Numerous decision makers (s 29) are directly affected: Parks Victoria, the Victorian Fisheries Authority, Secretaries of relevant departments, Ministers administering the Land Act 1958, Crown Land (Reserves) Act 1978, Forests Act 1958, and others. These entities must ascertain compliance with land use activity agreement processes before granting authorisations (ss 42, 44).

Third parties seeking to use public land are heavily impacted. Applicants for public land authorisations (leases, licences under the National Parks Act, Crown Land (Reserves) Act, Forests Act, Land Act, Carbon Sequestration Agreements, etc.), earth resource or infrastructure authorisations (mining licences, extractive industry work authorities, petroleum consents, greenhouse gas approvals), or persons proposing to clear land, carry out works, or alienate land in fee simple must first reach agreement with the traditional owner group entity or obtain a VCAT/Ministerial determination (ss 40, 43, 45, 46). Failure to do so prevents the decision maker from granting the authorisation.

Land managers (committees of management, Alpine Resort Management Boards) must be consulted before certain consents are given (s 80A(3)). Developers, forest operators, miners, tour operators, irrigators, and infrastructure providers operating on Crown land, reserved forest, national parks, or wildlife reserves within agreement areas are subject to the classification and process rules.

VCAT itself is given a central adjudicative role, with jurisdiction to determine compliance with good faith (s 57B), re-classify activities (s 57C), assess costs (s 57D), and issue enforcement orders. The Registrar of Titles must record caveats on aboriginal title land (s 24) and make Register amendments (ss 16, 25).

The Act binds all members of the traditional owner group (s 80B), not merely the entity, creating collective responsibility.

Traditional owner group entities hold rights to:

• Negotiate recognition of traditional owner rights (s 9).
• Receive grants of freehold or aboriginal title (ss 14, 19).
• Be consulted or negotiate on land use activities (ss 34, 40, 43, 45, 46).
• Receive community benefit payments as compensation for impacts on traditional owner rights (ss 40A, 54(3), 55).
• Apply to VCAT for determinations or enforcement orders (ss 53, 57A, 66A).
• Carry out agreed activities under natural resource agreements (s 82), including commercial use where permitted (s 84(b)).

Duties include negotiating in good faith (s 50), entering land management agreements before aboriginal title is granted (s 23), and using agreed verification processes for membership (s 81).

The Minister and decision makers have duties to:

• Obtain necessary consents before entering agreements (ss 12(4), 30(3), 80A).
• Give effect to Ministerial directions on advisory activities (s 35).
• Refuse authorisations until compliance with negotiation/agreement requirements is demonstrated (ss 42, 44).
• Notify and consult before suspending natural resource agreements (s 80E).
• Maintain the register and ensure public availability (ss 71, 75).

Responsible persons (often the proponent) must notify traditional owner groups (s 49), negotiate in good faith, pay reasonable negotiation costs (s 52), and comply with any VCAT or Ministerial conditions.

Rights of third parties are curtailed: they cannot obtain certain authorisations without first satisfying the Act's processes. However, pre-existing authorities and contracts are saved (ss 22, 22A), and emergency actions are exempt (s 39).

Traditional owners gain procedural rights that mirror aspects of the Native Title Act 1993 (Cth) right to negotiate but are tailored to Victorian public land tenure. Importantly, the Act does not create native title; it operates alongside it (s 10, s 17A).

The Act is unusual in containing almost no criminal offence provisions or monetary penalties. Enforcement is almost entirely civil and administrative.

The principal mechanism is the enforcement order regime in Subdivision 4 of Division 4 of Part 4 (ss 66A-66I, inserted 2016). A traditional owner group entity may apply to VCAT where a land use activity contravenes or is likely to contravene the Act. VCAT may order cessation, suspension, restoration of land, or other compliance steps (s 66B). Interim orders are available ex parte in cases of urgency to prevent serious or irreversible damage (s 66F). VCAT must consider fairness and may hear affected persons (ss 66G, 66D). Orders can be amended or cancelled by consent or after a favourable determination (s 66H). Breach of a VCAT order would constitute contempt, enforceable through the courts.

Non-compliance with procedural requirements prevents decision makers from lawfully issuing authorisations (ss 40(3), 40(6), 43(3), 45(3), 46(3)). Any authorisation issued in breach would be vulnerable to judicial review for jurisdictional error.

Good faith obligations (s 50) are enforceable through VCAT declarations (s 57B). Failure by a responsible person allows the traditional owner group to proceed to substantive VCAT determination; failure by the traditional owner group removes their right to negotiation costs (s 57B(6)).

Ministerial determinations under s 60 or s 66 are final, subject only to judicial review on conventional administrative law grounds.

Natural resource agreements may be suspended by a relevant Minister for up to six months where a natural resource faces significant detrimental impact (s 80D). Breach of an agreement by a group member could lead to loss of authorisation to carry out agreed activities, exposing the person to prosecution under the underlying land management legislation (e.g. National Parks Act 1975 offences, Wildlife Act 1975 offences, Forests Act 1958 offences).

The absence of direct pecuniary penalties reflects the Act's focus on negotiated outcomes and relational governance rather than punishment. However, the community benefit payment regime (ss 40A, 54, 55) functions as a quasi-compensation mechanism, with VCAT able to set amounts having regard to impact and reasonableness of offers.

The Act is expressly designed to sit alongside the Native Title Act 1993 (Cth). A recognition and settlement agreement may be paired with an indigenous land use agreement (ILUA) registered under ss 24BI, 24CK or 24CL (s 10). Where an ILUA exists, the settlement package can finalise native title claims.

It heavily amends and cross-references Victorian land and resource statutes. Grants of aboriginal title interact with the Transfer of Land Act 1958, Land Act 1958, Crown Land (Reserves) Act 1978, Forests Act 1958, and Conservation, Forests and Lands Act 1987 (Part 8A traditional owner land management agreements). Land use activity agreements prevail over inconsistent provisions in those Acts to the extent of the procedural requirements (ss 36, 40(7), 43(4), 45(7), 46(7)).

The Aboriginal Heritage Act 2006 is carved out: land use activity agreements cannot duplicate or contradict it (s 31A(2)), and VCAT must not determine cultural heritage matters (ss 54(6), 55(4), 56(2)).

Recent amendments have integrated the Act with contemporary planning and environmental instruments: the Marine and Coastal Act 2018, Parks Victoria Act 2018, Yarra River Protection (Wilip-gin Birrarung murron) Act 2017, Great Ocean Road and Environs Protection Act 2020, and Planning and Environment Act 1987 (Statement of Planning Policy provisions). Management plans and strategic plans under these Acts are now "land use activities" (s 28(ma), (v), (w), (x)), requiring traditional owner input.

The Climate Change Act 2010 Carbon Sequestration Agreements are explicitly included as public land authorisations and significant land use activities (ss 27, 28(ab)).

Where a natural resource agreement exists, it authorises activities that would otherwise constitute offences under the Flora and Fauna Guarantee Act 1988, Wildlife Act 1975, Fisheries Act 1995, Forests Act 1958, Water Act 1989, and National Parks Act 1975. Authorisation orders (transitional) and current agreed activity provisions provide defences.

The Act prevails over the Heritage Rivers Act 1992 (s 26) but is itself subject to the Constitution Act 1975 recognition of Aboriginal peoples.

The most significant changes occurred via the Traditional Owner Settlement Amendment Act 2016 (No. 67/2016), commencing in stages in 2017. These amendments rewrote Part 6 on natural resources, replacing the previous authorisation order system with self-executing agreed activity provisions (new ss 80-86). The change was driven by practical difficulties with the old regime, which required Ministerial orders and was seen as overly bureaucratic. The 2016 reforms introduced sustainability principles, temporary suspension powers for ecological emergencies, subsidiary agreements, and clearer verification of membership. They also inserted the entire enforcement order regime (new Subdivision 4) to give traditional owner groups stronger remedies.

The Sustainable Forests (Timber) Repeal Act 2024 (No. 24/2024) made further targeted changes, removing references to VicForests (now abolished) and refining the definitions of limited land use activity and specified public works (amendments to ss 27, 28). These reflect the broader policy shift away from native forest timber harvesting.

Earlier amendments in 2013 (Traditional Owner Settlement Amendment Act 2013) strengthened native title non-extinguishment provisions (ss 17A, 19(3A)), added cultural heritage conditions (s 31A), community benefits provisions (s 40A), and expanded the list of land use activities to include fisheries and water management plans.

The 2018-2020 amendments incorporated new strategic planning regimes for the Yarra River, marine and coastal areas, and the Great Ocean Road, ensuring traditional owner voices are embedded in emerging landscape-scale planning.

These changes reflect evolving Victorian Government policy towards self-determination, recognition of Aboriginal land management expertise (especially after bushfires and ecological crises), and alignment with the Victorian Aboriginal Affairs Framework and Treaty processes. The 2016 rewrite was explicitly aimed at making agreements more workable on Country and reducing reliance on litigation.

Because the Act is relatively recent and emphasises negotiated outcomes, reported case law remains limited. However, several themes have emerged.

VCAT has heard numerous applications under ss 53-57D. In early matters, disputes centred on the classification of activities (s 57C) and the calculation of reasonable negotiation costs (s 57D). VCAT has emphasised the statutory limits on its jurisdiction: it cannot determine Aboriginal cultural heritage matters (consistent with s 56(2)) and must focus on impact on "traditional owner rights" as recognised in the particular agreement.

Ministerial override decisions under s 66 have attracted criticism from traditional owner groups who argue they undermine the "negotiation" label. No reported Supreme Court challenge has yet succeeded in setting aside a Ministerial determination, but judicial review grounds (Wednesbury unreasonableness, failure to consider relevant matters under s 64, or procedural unfairness) remain live.

The interaction with native title has produced controversy. Some traditional owner groups have elected to pursue the settlement pathway instead of native title litigation; others have used both. The non-extinguishment provisions (ss 17A, 19(3A)) were inserted after concerns that fee simple grants might inadvertently affect native title rights.

Environmental groups have criticised the Act for potentially facilitating development on public land once agreements are reached, arguing that community benefit payments can become de facto "buy-offs". Conversely, some traditional owners have expressed frustration that the "aboriginal title" granted is not true ownership because the State retains underlying rights (s 20) and the land remains subject to existing statutory regimes.

The 2016 enforcement order provisions have not yet generated significant reported litigation, but practitioners anticipate their use in cases of unauthorised clearing or mining exploration. The good faith obligation (s 50) has been interpreted by VCAT by reference to Native Title Act jurisprudence (e.g. FMG Pilbara Pty Ltd v Cox (2009) FCAFC 49 principles), although the Act expressly excludes refusal to negotiate on unrelated matters or cultural heritage from constituting bad faith.

Ongoing controversies include the adequacy of "community benefits" relative to the scale of projects, the capacity of smaller traditional owner groups to engage in complex negotiations, and the extent to which agreements bind future governments. The register (s 67) has improved transparency but practitioners note that searching it remains cumbersome for large project proponents.

Most practitioners miss that aboriginal title is not true freehold. Despite the language of "estate in fee simple" (s 19), the title is heavily encumbered: inalienable except to another traditional owner entity (s 19(4)), the State holds transferred rights to occupy, use, control and manage (s 20), leasing is prohibited (s 19(2)(b)), and a traditional owner land management agreement is mandatory (s 23). Many assume it confers development rights; it does not.

The classification of activities is decisive but not intuitive. A 15-year tourism lease is a significant land use activity (s 27), but a 9-year 11-month lease may not be. Exploration licences are routine if the explorer accepts the agreement's conditions (s 33(2)), but production licences are almost always negotiation class A or agreement activities. The Governor in Council can declare any activity "significant" (s 27(2)), creating regulatory uncertainty.

Good faith is asymmetrically enforced. A traditional owner group's refusal to negotiate on cultural heritage does not breach good faith (s 50(2)(b)), but a proponent's similar refusal does. Costs of negotiation are payable by the proponent unless the traditional owner group itself applies to VCAT (s 52(3)), creating strategic incentives.

Pre-existing authorities survive (ss 22, 22A), but only on their original terms. This creates "split title" scenarios where new activities on the same land trigger the Act while legacy rights continue. The 2016 amendments clarified that subsequent activities on "old earth resource approvals" are exempt in limited cases (s 73(3)), but the carve-out is narrowly drafted.

Natural resource agreements do not authorise sale of most minerals. The definition of natural resources (s 79) expressly excludes gold, silver, metals and minerals. Commercial timber harvesting is heavily constrained post-2024 reforms.

Transitional provisions are treacherous (Part 8). The 2016 amendments do not apply to notifications given before commencement (s 94). Many agreements still operate under the old regime, requiring practitioners to check the exact notice date under s 49.

The register is conclusive but incomplete. A certificate that no agreement exists is evidence (s 77(2)), but the register only covers land use activity agreements, not natural resource or funding agreements. Due diligence must extend beyond the register.

Finally, VCAT determinations on conditions create contractual rights (s 57). A condition requiring payment of community benefits becomes enforceable as a contract between the responsible person and the traditional owner group entity, opening debt recovery avenues outside the Act.

Compliance begins with due diligence on whether agreement land is affected. Search the land use activity agreement register (s 76). If an agreement exists, obtain a copy and map the exact agreement land against the proposed activity. Identify the traditional owner group entity (usually a prescribed body corporate or company limited by guarantee).

Classify the activity using the agreement's schedules (s 32) and the statutory definitions (ss 27, 28). Determine whether it is routine (no action), advisory (comply with Ministerial direction under s 34), negotiation, or agreement. For significant or limited land use activities, prepare a detailed impact assessment focused on effects on recognised traditional owner rights (not broader native title or heritage).

Engage early. For negotiation or agreement activities, the responsible person must notify using the prescribed form (s 49(2)). Negotiate in good faith, documenting all offers, particularly on community benefits (regard must be had to nature, scale, and impact: s 40(2)). Reasonable negotiation costs are payable (calculated per regulations: s 52).

If agreement cannot be reached after six months, consider a joint VCAT application (s 53). Prepare evidence on statutory matters (s 56): environmental impact, surface/sub-surface effects, economic impacts, and reasonableness of offers. Avoid tendering cultural heritage evidence; direct that to a separate Aboriginal Heritage Act process.

For proponents seeking authorisations, ensure the decision maker receives either a signed notice of agreement (s 51(2)) or a copy of a VCAT/Ministerial determination before the authorisation is granted. Where the decision maker has assumed the negotiation role (s 41), obtain their gazetted determination.

For natural resource agreements, ensure members carry only agreed activities within specified scope (s 83), for permitted purposes (s 84), and with verified membership (s 81). Commercial sale is limited; record all sustainability measures.

Ongoing compliance requires monitoring the agreement's variation and termination clauses. Maintain records of all notices, agreements, payments, and VCAT orders. Where aboriginal title land is involved, ensure the traditional owner land management agreement is executed and registered caveats remain (s 24).

Organisations should develop internal protocols: map all Crown land projects against the register, train staff on good faith obligations, and establish relationship agreements with relevant traditional owner entities. Early engagement usually produces better outcomes than late-stage VCAT applications. Where uncertainty exists, seek a preliminary VCAT ruling on classification (s 57C) before substantial expenditure.

Legal practitioners should advise clients that the Act creates a parallel approval track. Failure to comply does not merely delay projects; it renders subsequent administrative decisions vulnerable to invalidity. In complex cases involving multiple activities or enterprises, utilise the joint process provision (s 37) to streamline negotiations.

By treating traditional owner groups as genuine partners rather than regulatory hurdles, compliance becomes relationship management rather than box-ticking, aligning with both the letter and the preamble's spirit of reconciliation.