Background

The Act was passed in 1991 to facilitate the transfer of three Aboriginal burial sites or cemeteries at the former missions at Coranderrk, Ebenezer and Ramahyuck to local Aboriginal organisations. The Act authorised the GIC to grant an estate in fee simple (or freehold title) to the following titleholders:

• Coranderrk Mission Cemetery - to Wurundjeri
• Ebenezer Mission Cemetery - to Goolum Goolum; and
• Ramahyuck Mission Cemetery - to GEGAC

These three titleholders received freehold land, which was subject to two restrictions under the Act:

1. The 'Use Restriction': a condition in each of the Crown grants that the land must be used for Aboriginal cultural and burial purposes (section 6(5)); and
2. The 'Transfer Restriction': a condition that the titleholders must not sell or transfer their ownership of the land (section 7).

On 22 September 2020, DPC circulated a Discussion Paper to the stakeholders. The Discussion Paper was designed to allow stakeholders who are affected by the Act to have their say on its future operation and potential options for reform. On 20 November 2020, DPC issued a Supplement to the Discussion Paper which provided advice around native title considerations arising out of Option 6 and provided as additional Option 8.

The Discussion Paper and Supplement canvassed the below options:

1. amending the Act to remove one or both restrictions for all three cemeteries
2. amending the Act to remove one or both restrictions for only specific cemeteries, as requested by titleholders
3. enacting new legislation which removes the Use Restriction on the title, and repeals the current Act to remove the Transfer Restriction
4. removing only the Transfer Restrictions by repealing the current Act, but leaving the Use Restriction (which will remain on the title)
5. amending the Act to allow the GIC to remove one or both restrictions
6. amending the Act to allow the titleholders to surrender their titles back to the Crown, for them to be re-issued without either of the restrictions
7. do nothing, or
8. amending the Act to empower the Registrar of Titles to remove the Use Restriction upon the making of an application by the titleholder.

Consultation Process

The scope of the consultation process extended to the titleholders and Traditional Owner groups of the land on which the three cemeteries are located.

The breadth of consultation was deemed appropriate, given the Act only governs the use and transfer of cultural burial sites for some Aboriginal Victorians. The principles of self-determination underpinned DPC's decision to engage only with the Aboriginal organisations whose interests are affected by the Act; granting these communities the right to determine how the Act may best serve their interests of Aboriginal self-determination.

The below timeline summarises the key steps in the consultation process:

• June 2018 - The then Minister for Aboriginal Affairs, the Hon. Natalie Hutchins MP, sent letters to the titleholders under the Act to advise the Act would be reviewed.
• Mid 2019 - DPC staff met individually with the titleholders to discuss the review and obtain initial feedback on the goals and aspirations of each titleholder in relation to the cemetery titles.
• December and January 2020 - At BGLC's request, DPC and BGLC met to discuss the matter of Ebenezer Mission Cemetery.
• September 2020 - The acting Deputy Secretary, Social Policy Group, Brigid Monagle, emailed the Discussion Paper to all five stakeholders to support submissions to the review.
• November 2020 - DPC emailed the Supplement to the Discussion Paper to all five stakeholders, to provide native title considerations and canvas an additional option.
• November 2020 to January 2021 - DPC received written submission from all five stakeholders between 13 November 2020 and 20 January 2021.
• July and August 2023 - DPC met with titleholders and Traditional Owners to confirm policy positions and finalise the legislative recommendations.

Summary of Feedback

The below summarises stakeholder submissions and preferred options for the Act's amendment.

Glossary

Executive Summary

Context

The Victorian Government publicly committed to delivering Aboriginal self-determination, through the Victorian Aboriginal Affairs Framework 2018-2023 and Self-Determination Reform Framework by enabling greater transparency, government accountability and meaningful engagement when working with Victorian Aboriginal communities. Part of this commitment involves giving Aboriginal Victorians a lead voice in defining what their self-determination looks like in practice. A review of the Aboriginal Lands Act 1991 (Vic) (the Act) is a government priority to promote Aboriginal self-determination and empower Aboriginal organisations to freely exercise their land rights.

The Act was passed in 1991, facilitating the transfer of the three Aboriginal cemeteries at the former missions of Coranderrk, Ebenezer and Ramahyuck to Wurundjeri, Goolum Goolum and GEGAC, respectively.

Wurundjeri are the Traditional Owners of the land encompassing Coranderrk Mission. The review also engaged BGLC as the entity representing Traditional Owners of the land encompassing Ebenezer Mission, and GLaWAC as the entity representing the Traditional Owners of the land encompassing Ramahyuck Mission. The Traditional Owners and titleholders are considered the stakeholders for the purpose of the review.

Table 1: Stakeholders

The Act places two significant limitations on the rights of titleholders. First, they are prohibited from selling or transferring their respective interests in the land (Transfer Restriction). Secondly, the lands must be used for Aboriginal cultural and burial purposes (Use Restriction). These limitations run counter to the principles of Aboriginal self-determination in that they limit the opportunities of titleholders to freely use and deal with their land as they see fit.

The Use Restriction is set out in the Certificate of Title itself, as well as required by the Act (section 6(5)). By contrast, the other restriction relating to transfer of land (section 7) is only contained in the Act. It is not mentioned in the title.

DPC canvassed options for reform with five stakeholders between 22 September 2020 and 20 November 2020. A Discussion Paper and Supplementary Discussion Paper were circulated to the stakeholders, inviting submissions in response to eight options for reform. The feedback received from all five stakeholders forms the basis of this report's recommendations to reform the Act to meet the aspirations of the stakeholders.

Summary of Recommendations

The key recommendations are:

¹Note: The recommended amendment does not limit the ability of the titleholder to transfer the title to another party at their choosing.

²Note: The recommended amendment permits the titleholder to use the land for purposes other than Aboriginal cultural and burial purposes.

³Note: The recommended amendment does not limit the ability to the titleholder to transfer the title to another party at their choosing.

⁴Note: The recommended amendment permits the titleholder to use the land for purposes other than Aboriginal cultural and burial purposes.

Recommendation 1 - Coranderrk Mission Cemetery

Recommendation 2 - Ebenezer Mission Cemetery

Recommendation 3 - Ramahyuck Mission Cemetery

Implementing the Recommendations

Implementing the recommendations outlined in the review will enable titleholders and Traditional Owners to realise their aspirations for each cemetery by embedding self-determination, and empowering First Peoples to freely exercise their cultural, land and property rights.

The Minister for Treaty and First Peoples is committed to amending the Act and is exploring opportunities to pass amending legislation through the Parliament of Victoria.

Please note that this is subject to the development of the draft reforms and passage via the Victorian Parliament. There is a risk, that exists with all legislative processes, that Parliament may not choose to pass amending legislation.

You can find the Minister's Response to the Review below.

Minister for Treaty and First Peoples' Response to the Review: Aboriginal Lands Act 1991