Background to review and overview of Act

The Aboriginal Lands Act 1970 (Vic) (ALA) was passed in 1970 to provide for a scheme of land ownership for the residents of the Aboriginal reserves at Lake Tyers and Framlingham. It is typical for legislation to be regularly reviewed, so that they can be continuously improved and problems can be fixed. The ALA was reviewed in 2002 and 2012. Both reviews led to minor changes being made to the ALA.

In 2017, the Victorian Government published a Discussion Paper outlining the Government’s intention to undertake a major review of the ALA to:

• improve governance
• facilitate economic development and
• enable greater self-determination for the communities at Framlingham and Lake Tyers.

Jason Behrendt and Tim Goodwin were appointed as independent reviewers. They consulted with the Lake Tyers and Framlingham communities in 2018, and wrote an Options Paper setting out some different options for improving the ALA.

The Options Paper provided options to stakeholders to discuss under the following headings:

• No change: No amendment of the ALA and maintain the status quo.
• Minor change: Improve the administration of the ALA by reference to 6 key issues identified during the course of the Stage 1 Consultations (share system, governance, external regulation, dispute resolution, engagement with residents, and sale of Trust land and other economic activity.
• Major change: fundamental reform of the ALA, including by replacing the share system and/or the corporate model of the Trusts.

The independent reviewers have considered the responses to the Options Paper and have produced a final report for the review (the Report). The reviewers have made 42 recommendations that fall within the category of Minor Change. These recommendations are aimed at improving the operation of the ALA. No clear consensus emerged that Major Change was necessary. The Report has recommended an ongoing process of review for the legislation so that the option of broader and more fundamental amendments to the land holding structure in the legislation can be considered, particularly for Lake Tyers. The recommendations for Minor Change are a necessary first step to create a foundation for the Trusts to consider more fundamental change in future.

Overview of the ALA

The ALA created two trusts: the Framlingham Aboriginal Trust and the Lake Tyers Aboriginal Trust (the Trusts). People living in each community on 1 January 1968 were given shares in that community’s Trust.

Each Trust holds the freehold title of the former mission reserve on behalf of the shareholders (or members). In this way, the shareholders own the land together.

The ALA sets out rules for how the Trusts should operate, and how the land can be used:

• Each Trust can do all things that a corporation can do. However, there are some rules around when and how the Trust can do things. For example, land can only be sold if every shareholder who attends a special general meeting agrees.
• A Committee of Management, chosen by members, manages the day-to-day affairs of the Trust.
• The Trust can also hold general meetings, where shareholders can have a say about what the Trust should do. People who live at the Trusts, but don’t own shares, don’t get a vote.
• The shares are “personal property”, which means they can be sold or given to other people, in the circumstances set out in the ALA.
• The Minister for Aboriginal Affairs (Minister) supervises the Trusts. The Trusts need to report to the Minister on financial and other matters.
• If the Minister believes that the Trust is not complying with the ALA’s provisions, the Minister can appoint an Administrator to replace the Committee of Management for a certain time.

Observations about the ALA

The Report makes several observations about the ALA which have informed the recommendations:

1. The ALA was intended to achieve land justice and enable the communities to become self-sufficient. It was an important and historic step in the long struggle for Aboriginal people to have land rights.
2. The share system is unique in giving shares to individuals which are personal property, and on which dividends can be paid. Any changes to the ALA that interfere with share ownership without giving compensation would be a breach of trust, and further dispossess Aboriginal people of their land.
3. When the ALA was passed, all the residents were shareholders. However, now there are many shareholders who don’t live on the land, and some residents who aren’t shareholders. This means that there is less local participation in the decisions of the Trust, making it more difficult for the Trust to be effective. This is more of an issue at Lake Tyers than Framlingham because of the larger number of shareholders and residents at Lake Tyers.
4. The Trusts are limited in scope – they were created to manage land and undertake business enterprises. Whatever changes are made to the ALA, it is important to realise that those changes can’t fix all social and economic challenges facing the communities.
5. Because the ALA gave the Government a role supervising the Trusts, the Government has a responsibility to make sure that the ALA operates as intended.
6. There are many factors that impact on how well the Trusts are working that are beyond the legal framework. If there are community problems or a lack of capacity in community, there are likely to be problems, regardless of the legal or organisational framework.
7. There is no guaranteed funding for the Trusts. Income which is currently generated does not support the employment of many staff. Rules made for the Trusts need to be proportional to the Trust’s capacity to comply.
8. The Lake Tyers and Framlingham communities are very different – in size, population, and in the make-up of shareholders and residents. The best solution for reform might be different for each community.