Aboriginal Lands Act 1991

The Act’s core concepts are narrow but operationally significant. Revocation of reservations means the formal removal of the status imposed under the Crown Land (Reserves) Act 1978 that dedicated these parcels for specific public purposes (Protection of Aborigines' Graves, conservation of area of historic interest, or use of the Aborigines). Once revoked under s 3, the land becomes unalienated Crown land - that is, land the Crown can freely grant. Fee simple grant is the highest private estate in land, here conferred by the Governor in Council under s 6. The grants are subject to terms, conditions, covenants, exceptions, reservations and limitations determined by the Governor in Council, and must include a condition that the land be used for Aboriginal cultural and burial purposes - though that condition now ceases to apply for Ebenezer and Ramahyuck from 1 January 2025 (s 7A). Restrictions on disposal differ by site: Coranderrk cannot be sold or otherwise disposed of at all (s 7(1)); Ebenezer and Ramahyuck may only be sold to a traditional owner as defined in the Aboriginal Heritage Act 2006 (s 7(2)-(3)). The term traditional owner is not further defined in this Act; it cross-references to the Aboriginal Heritage Act 2006 definition. Unalienated Crown land is a status created by s 3(3)(b) and s 4(5)(b) - it means the land is no longer subject to any prior interests and is available for grant. Native title non‑affectation (s 7B) provides that the 2024 amendments are not intended to affect native title rights and interests in the scheduled lands, but this does not apply where native title is affected or authorised to be affected under the Commonwealth Native Title Act 1993. That section uses the defined term affect as in the Commonwealth Act, and native title rights and interests also adopts the Commonwealth definition. Closure of roads under s 4 terminates all public and private rights, easements and privileges in the cross‑hatched access roads, with the land becoming unalienated Crown land; before closure, the Minister must grant a reasonable right of access to any fee simple owner abutting the Ramahyuck access road (s 4(2)).

The Act directly affects three organisations: the Wurundjeri Tribe Land and Compensation Cultural Heritage Council Incorporated (Coranderrk land), Goolum Goolum Aboriginal Co‑operative Limited (Ebenezer land), and Gippsland and East Gippsland Aboriginal Co‑operative Limited (Ramahyuck land). These entities become the fee simple owners of cemetery land and associated access roads. For the Coranderrk grantee, the restriction on sale or disposal is absolute - it cannot sell or otherwise dispose of its interest in fee simple (s 7(1)), and the land must be used for Aboriginal cultural and burial purposes in perpetuity (s 6(5) as preserved by s 7A(2)). For the Ebenezer and Ramahyuck grantees, after 1 January 2025 the use restriction no longer applies, but they may only sell or dispose of their fee simple to a traditional owner under the Aboriginal Heritage Act 2006 (s 7(2)-(3)). This creates a restricted class of eligible purchasers: any entity that qualifies as a traditional owner under that Act. The Crown (Victoria) is also affected: the Minister makes recommendations for Orders; the Governor in Council issues Orders revoking reservations, closing roads and making grants; the Minister administering the Crown Land (Reserves) Act 1978 must grant access rights to abutting owners before road closure (s 4(2)). The Registrar of Titles is directed to make any necessary amendments to the Register under the Transfer of Land Act 1958 (s 8). Persons with prior interests - committees of management, licensees, lessees, permit holders, and trustees - have those interests extinguished on publication of the Orders (s 5), but they receive no compensation (s 9). Aboriginal people who may have native title rights and interests in the scheduled lands are indirectly affected: s 7B states the 2024 amendments are not intended to affect native title, but any effect is subject to the Commonwealth Native Title Act 1993, which may authorise future actions. The public and any body with rights, easements or privileges in the closed roads lose those rights on closure (s 4(5)). Lawyers, conveyancers and land registries advising Aboriginal organisations or potential purchasers must understand the site-specific restrictions and the effect of the 2024 amendments.

The Act imposes specific duties and confers specific rights on the Crown, the grantee organisations and abutting landowners. The Minister has a duty under s 3(1) to recommend to the Governor in Council on receiving survey plans signed by the Surveyor-General; the Minister may recommend road closure under s 4(1). The Minister administering the Crown Land (Reserves) Act 1978 must grant a reasonable right of access to any person holding fee simple in land abutting the Ramahyuck access road (s 4(2)); that right may be granted and exercised despite any other Act or law or any Crown Grant issued after commencement (s 4(3)). The Governor in Council determines the terms, conditions, covenants, exceptions, reservations and limitations (not inconsistent with the required condition) for grants under s 6(4). The grantee organisations have the right to receive fee simple grants under s 6, but they are subject to ongoing duties as to use and disposal. For Coranderrk: must use land for Aboriginal cultural and burial purposes (s 6(5), s 7A(2)); must not sell or otherwise dispose of the fee simple (s 7(1)). For Ebenezer and Ramahyuck (from 1 Jan 2025): the use condition no longer applies (s 7A(1)); may sell or dispose only to a traditional owner (s 7(2)-(3)). These duties run with the land; any successor-in-law is also bound (s 7(1)-(3)). The Registrar of Titles must amend the Register under the Transfer of Land Act 1958 to give effect to the Act (s 8). The Crown has a right to refuse compensation for anything done under or arising out of the Act (s 9). The Act does not create any right of appeal or review for persons whose interests are extinguished. Native title holders (if any) retain their rights to the extent not affected by the 2024 amendments or authorised under the Commonwealth Native Title Act (s 7B). The organisations also have the practical right to possess, control and manage the granted land (subject to title conditions), but for Coranderrk, the use restriction may limit development or commercial use.

The Act contains no express penalty provisions for breach of its restrictions. Enforcement mechanisms are indirect, relying on title registration and property law. The restriction on sale or disposal under s 7 is a condition of the grant recorded on title; any transfer that breaches the prohibition (Coranderrk) or that is to a non‑traditional owner (Ebenezer, Ramahyuck) would likely be void or unregistrable. The Registrar of Titles, under s 8, must make necessary amendments to the Register; a transfer in breach would not satisfy the requirements for registration, and the Registrar would likely refuse to register it. For Coranderrk, the use condition (s 6(5)) is also a covenant running with the land; if the land is used for other purposes, the Crown (as grantor) or an interested party could seek an injunction or specific performance, though no statutory remedy is specified. The Act’s preamble and purpose (s 1) frame it as authorising grants for Aboriginal cultural and burial purposes, so a court would likely interpret the conditions strictly. The absence of penalties does not mean the restrictions are unenforceable; property law principles apply. Additionally, any dealing with the land that purports to transfer the fee simple in breach of s 7 may be ineffective as a matter of law; the land cannot be alienated to anyone other than the permitted class. The 2024 amendments (s 7A, 7B) do not add penalty provisions. Compensation is expressly excluded (s 9), so no damages remedy is available for loss arising from the Act’s operation. The practical enforcement lever is the Torrens system: the Registrar will not register a prohibited dealing. For conduct that violates the use condition (Coranderrk), the Crown could potentially take action for breach of a condition subsequent, but the Act does not provide for forfeiture or re-entry. The Act relies on the integrity of title registration and the self-executing nature of the restrictions.

The Aboriginal Lands Act 1991 overrides several other statutes. Section 3(3)(b) provides that once reservations are revoked, the land is deemed unalienated Crown land “despite any Act or law to the contrary”. This displaces the Crown Land (Reserves) Act 1978 and any other legislation that might claim an interest. Section 4(3) allows access rights to be granted despite any Act or law or any Crown Grant. Section 5 extinguishes appointments, licences, leases, rights or permits granted over the land. The Crown Land (Reserves) Act 1978 is directly affected: the Act revokes reservations created under that Act for the scheduled lands. The Transfer of Land Act 1958 is engaged via s 8, requiring the Registrar to amend the Register. The Aboriginal Heritage Act 2006 is cross-referenced in s 7(2) and (3), defining “traditional owner” as the permitted class of purchasers for Ebenezer and Ramahyuck. The Native Title Act 1993 (Cth) is incorporated by reference in s 7B, which provides that the 2024 amendments are not intended to affect native title rights and interests, except where those rights are affected or authorised under the Commonwealth Act. This means any future action under the Act (e.g. a sale to a traditional owner) that might affect native title must comply with the Commonwealth regime (e.g. future act provisions). The Interpretation of Legislation Act 1984 governs this Act’s style changes and interpretation of headings, examples and punctuation (see Endnote 1). The Act also implicitly interacts with the Planning and Environment Act 1987 because the land use condition (Coranderrk) or its removal (Ebenezer, Ramahyuck) affects permissible uses under local planning schemes; however, the Act does not grant planning exemptions. The Road Management Act 2004 may be relevant to the closed roads once they become unalienated Crown land. No interaction with the Taxation Acts is mentioned; the grants are fee simple transfers from the Crown and may have stamp duty or land tax implications (subject to any exemptions in other legislation). The Act does not interact with the Local Government Act 1989 directly, but the granted land would be subject to council rates and regulations. The Victorian Aboriginal Heritage Register under the Aboriginal Heritage Act 2006 may have records on these cemeteries. The Act’s narrow scope means broader land management laws continue to apply except where expressly displaced.

The Act was originally assented to on 18 June 1991 and commenced the same day (s 2). It has been amended twice. The first amendment was by the Transfer of Land (Single Register) Act 1998 (No. 85/1998), which repealed former s 8(2) and (3) (the Table of Amendments shows s. 24(Sch. item 1) repealed those subsections on 1 January 1999). That amendment likely removed transitional provisions related to the old paper register as Victoria moved to a single electronic register under the Transfer of Land Act 1958. The second and more significant amendment is by the Aboriginal Land Legislation Amendment Act 2024 (No. 29/2024), with sections 31 to 35 commencing on 1 January 2025 (per Special Gazette No. 671, 3 December 2024). That Act made four changes: (1) amended s 4(2) to require the Minister administering the Crown Land (Reserves) Act 1978 to grant reasonable access to abutting owners before road closure (s 31 of the amending Act); (2) amended s 6(5) by inserting “Subject to section 7A,” so that the use condition now only applies to the Coranderrk grant (s 32); (3) substituted s 7 entirely to introduce graded restrictions on disposal - absolute prohibition for Coranderrk, limited alienation to traditional owners for Ebenezer and Ramahyuck (s 33); (4) inserted new s 7A (removal of use restriction for Ebenezer and Ramahyuck) and new s 7B (non‑affectation of native title) (s 34); and (5) inserted new s 8(2) requiring the Registrar to make recordings or amendments necessary because of the 2024 amendments (s 35). The Act as at 1 January 2025 is Version No. 005, incorporating all amendments. The Endnotes note that no explanatory details have been entered at the date of publication, but the Minister’s second reading speeches from May‑June 1991 are referenced for interpretative context. The 2024 amendments substantially changed the property rights of the grantees, freeing two of the three sites from ongoing use restrictions and permitting (limited) future sale.

The source text records no litigation; no cases are cited within the Act itself. The Endnotes state “No entries at date of publication” under Explanatory details. Given the Act’s narrow scope and site-specific operation, it has likely not generated reported litigation. The Act’s provisions are largely self-executing through Crown Orders and registration. Any disputes would most likely have concerned the extinguishment of interests (s 5) or the denial of compensation (s 9), but no such cases are referred to. The 2024 amendments are recent (commenced 1 January 2025) and may yet prompt litigation if questions arise about the meaning of “traditional owner” under the Aboriginal Heritage Act 2006, or about the scope of native title non‑affectation (s 7B). For instance, if a sale to a traditional owner is challenged by a native title claim group, the interaction with the Native Title Act 1993 (Cth) could produce litigation. However, as of the version date, there is no recorded case law. Practitioners should conduct independent legal research for any unreported decisions.

Several features of this Act are latent traps for the unwary. First, no compensation is payable (s 9) for anything done under or arising out of the Act. Any person whose licence, lease, permit or easement is extinguished by s 5 receives nothing. This includes committees of management, trustees, and any holders of rights over the land before the Orders. Second, the Coranderrk grant is locked in perpetuity: the land cannot be sold or disposed of at all (s 7(1)) and must be used for Aboriginal cultural and burial purposes (s 6(5) as preserved by s 7A(2)). That restricts the Wurundjeri organisation from leveraging the land as security for loans, from developing it for commercial income, or from transferring it to another Aboriginal body. Third, for the Ebenezer and Ramahyuck grants, while the use restriction has been removed (s 7A(1)), the only permitted transferee is a “traditional owner” within the meaning of the Aboriginal Heritage Act 2006. That definition is not replicated in this Act; it must be checked under the Aboriginal Heritage Act 2006 and may be narrower than “Aboriginal organisation”. A sale to any other entity would be void. Fourth, the road closure provisions (s 4) extinguish all public and private rights in the cross‑hatched access roads. An abutting owner whose land adjoins the Ramahyuck road is entitled to a reasonable right of access (s 4(2)), but no similar guarantee exists for Coranderrk; the Act does not mandate access rights for abutting owners in Coranderrk’s case. Fifth, the Act relies on survey plans signed by the Surveyor-General (s 3(1)). If those plans are not prepared or are delayed, the Orders cannot be made. The land remains under existing reservations until the Orders are gazetted. Sixth, the non‑affectation of native title clause (s 7B) is a statement of intent, not a guarantee. It does not prevent the Commonwealth Native Title Act 1993 from allowing future acts that may affect native title. Any future sale of Ebenezer or Ramahyuck land will need to comply with the Commonwealth Act’s future act regime, even if the buyer is a traditional owner. Seventh, the Act does not address stamp duty, land tax or GST on the grants or subsequent sales. While Crown grants to Aboriginal organisations may be exempt under other legislation, practitioners cannot assume this. Eighth, the Registrar of Titles is directed to make amendments (s 8), but errors in survey or description could cause title defects. The Act provides no mechanism for correcting mistakes beyond the Registrar’s general powers. Ninth, the Act does not expire; the restrictions run with the land indefinitely. Finally, the 2024 amendments create a split regulatory regime: three grants with different conditions, meaning the organisations cannot act uniformly. A buyer interested in all three sites would face different rules for each.

For the three grantee organisations, compliance involves several steps. First, each must ensure the Minister receives the necessary survey plans signed by the Surveyor-General (s 3(1)) and that the Governor in Council issues an Order revoking reservations and an Order making the grant. The grant document (Crown Grant) will be issued under s 6 and will record the conditions required by s 6(5) (for Coranderrk) and any additional terms determined by the Governor in Council. The organisation must accept the grant in writing and lodge it with the Registrar of Titles for registration (s 8 will then amend the Register). Once registered, the organisation must keep the Certificates of Title and note the restrictive covenants. For Coranderrk, the organisation must ensure that all land use is exclusively for Aboriginal cultural and burial purposes. Any proposal to use the land for administration, education, commercial activity (e.g., tours, retail) must be assessed against that condition; if not falling within “cultural and burial purposes”, it could breach the grant. The organisation should maintain records of use. It must absolutely not sell or dispose of the fee simple; any dealing such as a lease for a term normally seen as a disposal of an interest may need careful legal advice. For Ebenezer and Ramahyuck, the use condition no longer binds (s 7A(1)), so the organisations can use the land for any lawful purpose. However, if they wish to sell, they must verify that the purchaser is a “traditional owner” as defined under the Aboriginal Heritage Act 2006. That may require obtaining a certificate or advice from the relevant Traditional Owner group or the Registrar of Aboriginal Heritage. The sale must be to the entity itself; a sale to a trust or company that is not the traditional owner would not comply. The organisations must also ensure compliance with the Native Title Act 1993 (Cth) before any sale, given s 7B. This may involve a s 24AA future act process, including notification and negotiation. For all grantees, the Registrar of Titles will have to be engaged for any amendment following a sale (s 8(2)). Practitioners advising the grantees should conduct due diligence on the exact land descriptions from Schedules 2-4, ensure the surveys match, and check the Crown Grant terms for any additional covenants. The Minister and Governor in Council must comply with the procedure in ss 3-6: the Minister must recommend an Order only after receiving signed survey plans; the Order must be published in the Government Gazette; the grant must include the statutory condition (subject to s 7A). If creating access rights under s 4(2), the Minister must do so before road closure. The Registrar of Titles must, under s 8, make any necessary recordings or amendments promptly. For any person affected by extinguishment under s 5, no compensation is available, so compliance means accepting the loss; no remedy exists under this Act. Overall, compliance is procedural and title-based; the Act creates few ongoing obligations beyond respecting the disposal and use restrictions. Organisations should keep records of all decisions regarding land use and any transactions.