Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987

No. 34, 1987

Compilation No.   17

Compilation date: 21 October 2016

Includes amendments up to: Act No. 61, 2016

Registered: 24 October 2016

About this compilation

This compilation

This is a compilation of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 that shows the text of the law as amended and in force on 21 October 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part I—Preliminary 3

1 Short title 3

2 Commencement 3

3 Interpretation 3

4 Crown 6

4A Application of the Criminal Code 6

5 Delegation 6

Part II—Vesting of Condah land and Framlingham Forest 9

6 Vesting of Condah land 9

7 Vesting of Framlingham Forest 9

8 Conversion of interests into claims for compensation 10

9 Notice to owners 10

10 Registration of vesting 11

11 Compensation 11

12 Miscellaneous 11

Part III—Management of Condah land 12

13 Management, transfer or lease of land 12

14 Rights of access over Condah land 12

15 By-laws 13

16 Sacred and significant sites 14

17 Committee of Elders 15

18 Powers of Committee of Elders 15

19 Winding up 16

20 Change of ownership of land 17

Part IV—Management of Framlingham Forest 18

21 Management, transfer or lease of Framlingham Forest 18

22 Rights of access over Framlingham Forest 18

23 By-laws 19

24 Sacred and significant sites 20

25 Membership 21

26 Committee of Elders 21

27 Power of Committee of Elders 21

28 Winding up 23

29 Change of ownership of land 23

Part V—Mining 25

30 Mining operations 25

31 Permission to carry out mining operation 26

32 Payments and other consideration 27

33 Conciliation and review 28

34 Sacred or significant sites 29

35 Offences 30

36 Entry onto relevant land and mining tenements 30

37 Offences by corporations 31

Part VI—Funding 32

38 Aboriginal Advancement Account 32

38A Notional accounts within the Aboriginal Advancement Account 32

Part VII—Miscellaneous 34

39 Exemption from land tax 34

40 Compensation for acquisition of property 34

41 Regulations 34

Schedule 1—Land in the Parish of Condah to be vested in the Kerrup-Jmara Elders Aboriginal Corporation 35

Part A 35

Part B 37

Schedule 2—Land in the Parish of Purnim to be vested in the Kirrae Whurrong Aboriginal Corporation 39

Endnotes 40

Endnote 1—About the endnotes 40

Endnote 2—Abbreviation key 42

Endnote 3—Legislation history 43

Endnote 4—Amendment history 46

An Act to provide for the vesting in certain Aboriginal communities of certain land at and Framlingham owned by the State of , and for related purposes

AND WHEREAS the Government of Victoria acknowledges:

that:

(i) that part of Condah land shown shaded and hatched on the plan in Crown Land (Reserves) Act 1978 of Victoria and is deemed to be temporarily reserved under that Act as an area of historic and archaeological interest;Part A of Schedule 1 was originally Aboriginal land and was on 22 February 1984 acquired under the

that part of Condah land was traditionally owned, occupied, used and enjoyed by Aboriginals in accordance with Aboriginal laws, customs, traditions and practices;

the traditional Aboriginal rights of ownership, occupation, use and enjoyment concerning that part of Condah land are deemed never to have been extinguished;

that part of Condah land has been taken by force from the Kerrup-Jmara Clan without consideration as to compensation under common law or without regard to Kerrup-Jmara Law;

Aboriginals residing on that part of Condah land and other Aboriginals are considered to be the inheritors in title from Aboriginals who owned, occupied, used and enjoyed the land since time immemorial;

that part of Condah land is of spiritual, social, historical, cultural and economic importance to the Kerrup-Jmara Community and to local and other Aboriginals;

it is expedient to acknowledge, recognise and assert the traditional rights of Aboriginals to that part of Condah land and the continuous association they have with the land; and

that:

Framlingham Forest was originally Aboriginal land and was later part of lands reserved temporarily from sale and for the use of Aboriginals under the exercise of the power vested in the Government of the State of Victoria with the advice of the Executive Council by Act No. 24 Victoria 117 and pursuant to the order of the Executive Council made on 19 September 1861;

Framlingham Forest was traditionally owned, occupied, used and enjoyed by Aboriginals in accordance with Aboriginal laws, customs, traditions and practices;

the traditional Aboriginal rights of ownership, occupation, use and enjoyment concerning are deemed never to have been extinguished;

has been taken by force from the Kirrae Whurrong (Pertobe) Clan without consideration as to compensation under common law or without regard to Kirrae Whurrong Law;

Aboriginals residing at and other Aboriginals are considered to be the inheritors in title from Aboriginals who owned, occupied, used and enjoyed since time immemorial;

is of spiritual, social, historical, cultural and economic importance to the Kirrae Whurrong community and to local and other Aboriginals;

it is expedient to acknowledge, recognise and assert the traditional rights of Aboriginals to and the continuous association they have with :

AND WHEREAS the Government of Victoria has requested the Parliament of the Commonwealth to enact an Act in the terms of this Act:

AND WHEREAS the Commonwealth does not acknowledge the matters acknowledged by the Government of Victoria, but has agreed to the enactment of such an Act:

BE IT THEREFORE ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

WHEREAS Condah land and are situated in the State of :

 I Preliminary
1 Short title

This Act may be cited as the ( and ) Act 1987.
2 Commencement 1

Part I shall come into operation on the day on which this Act receives the Royal Assent.

 2

The remaining provisions of this Act shall come into operation on a day or days to be fixed by Proclamation.
3 Interpretation 1

In this Act:

Aboriginal means a member of the Aboriginal race of .

Aboriginal and Torres Strait Islander corporation means a corporation registered under the Corporations (Aboriginal and Islander) Act 2006.

Community Council means the directors of the Kirrae Whurrong Aboriginal Corporation.

Condah land means the land shown shaded and hatched on the plan in Part A, and shown hatched on the plan in Part B, of Schedule 1.

Corporation means the Kerrup-Jmara Elders Aboriginal Corporation or the Kirrae Whurrong Aboriginal Corporation, as the case requires.

Crown means the Crown in right of the Commonwealth or of the State of , or of both, as the case requires.

day of vesting means the day on which the relevant land is vested in the Corporation under section 6 or 7.

means the land shown shaded and hatched on the plan in Schedule 2.

Framlingham Reserve means the lands shown on the plan in the First Schedule to the Aboriginal Lands Act 1970 of .

interest, in relation to land, means:

 a

a legal or equitable estate or interest in the land; or

 b

a right, power or privilege over, or in connection with, the land.

Kerrup-Jmara Elders Aboriginal Corporation means the Aboriginal and Torres Strait Islander corporation of that name.

Kirrae Whurrong Aboriginal Corporation means the Aboriginal and Torres Strait Islander corporation of that name.

mineral means any substance (except water) that occurs naturally as part of the earth’s crust, including: oil shale and coal; and hydrocarbons and mineral oils contained in oil shale or coal or extracted from oil shale or coal by chemical or industrial processes; and (c) petroleum within the meaning of the Petroleum Act 1958 of ; and (d) stone within the meaning of the Extractive Industries Act 1966 of .

 a

oil shale and coal; and

 b

hydrocarbons and mineral oils contained in oil shale or coal or extracted from oil shale or coal by chemical or industrial processes; and

 c

(c) petroleum within the meaning of the Petroleum Act 1958 of ; and

 d

(d) stone within the meaning of the Extractive Industries Act 1966 of .

mining operation means any operation carried out from mining purposes.

mining purposes means the purposes of: prospecting for a mineral or winning a mineral from a place where it occurs naturally; extracting from its natural state a mineral previously won from a place where it occurred naturally if the extraction occurs at or in the vicinity of the place where the mineral occurs naturally; disposing of a mineral in connection with operations for a purpose mentioned in paragraph (a) or paragraph (b); disposing of waste substances resulting from operations for a purpose mentioned in paragraph (a) or paragraph (b); and treating, storing or stacking earth in connection with operations for a purpose mentioned in paragraph (a) or paragraph (b) if the treating, storing or stacking earth occurs at or in the vicinity of the place where the mineral occurs naturally.

 a

prospecting for a mineral or winning a mineral from a place where it occurs naturally;

 b

extracting from its natural state a mineral previously won from a place where it occurred naturally if the extraction occurs at or in the vicinity of the place where the mineral occurs naturally;

 c

disposing of a mineral in connection with operations for a purpose mentioned in paragraph (a) or paragraph (b);

 d

disposing of waste substances resulting from operations for a purpose mentioned in paragraph (a) or paragraph (b); and

 e

treating, storing or stacking earth in connection with operations for a purpose mentioned in paragraph (a) or paragraph (b) if the treating, storing or stacking earth occurs at or in the vicinity of the place where the mineral occurs naturally.

mining tenement means:

 a

(a) an exploration licence under Part 2 of the Mineral Resources Development Act 1990 of Victoria, a permit to search for stone under section 27 of the Extractive Industries Act 1966 of Victoria or a petroleum exploration permit under Part IV of the Petroleum Act 1958 of Victoria; or

 b

(b) any other lease, licence, permit or other authority under the Mineral Resources Development Act 1990 of Victoria or the Petroleum Act 1958 of .

relevant land means:

 a

in relation to the Kerrup-Jmara Elders Aboriginal Corporation, the Condah land; and

 b

in relation to the Kirrae Whurrong Aboriginal Corporation, .

 2

(2) In provisions of the Lands Acquisition Act 1955 as applying by virtue of this Act:

 a

(a) Supreme Court means the Supreme Court of Victoria;

 b

(b) date of acquisition, in relation to land, means the date of commencement of section 6 or 7, as the case requires;

 c

(c) this Act means:

 i

(i) the Lands Acquisition Act 1955 as applying by virtue of this Act; or

 ii

this Act; and

 d

(d) claimant, court of summary jurisdiction, mortgagee and mortgagor have the meanings they have in the Lands Acquisition Act 1955.
4 Crown

This Act binds the Crown in right of the Commonwealth and in right of the State of .
4A Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
5 Delegation 1

The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate all or any powers that are conferred on the Minister by or under this Act to:

 a

a Minister of the Crown of ; or

 b

an officer of the Department.

 2

A Minister of the Crown of the State of to whom a power has been delegated under subsection (1) may, by writing signed by that Minister, authorise another person to exercise the power so delegated.

 3

An authority under subsection (2) may be given to:

 a

a specified person; or

 b

the person for the time being occupying or performing the duties of a position in the public service of the State of , being a position specified in the instrument by which the authority is given.

 4

Any act or thing done in the exercise of a power by a person to whom that power has been delegated by the Minister under subsection (1) or by a person authorised by a delegate of the Minister under subsection (2) to exercise that power has the same force and effect as if it had been done by the Minister.

 5

Where the exercise of a power by the Minister is dependent upon the opinion, belief or state of mind of the Minister in relation to a matter and that power has been delegated under subsection (1), that power may be exercised by the delegate or by a person authorised by the delegate under subsection (2) upon the opinion, belief or state of mind of the delegate or of the authorised person, as the case may be, in relation to that matter.

 6

A delegation under subsection (1) does not prevent the exercise of a power by the Minister.

 7

The giving of an authority under subsection (2) does not prevent the exercise of a power by the person by whom the authority was given.

 8

Where a person purports to exercise a power conferred or expressed to be conferred on the Minister by this Act, it shall be presumed, unless the contrary is established, that the person is duly authorised by a delegation under subsection (1) or by an authority under subsection (1), given pursuant to such a delegation, to exercise the power.
II Vesting of Condah land and
6 Vesting of Condah land 1

On the commencement of this section, the Condah land, other than minerals in the Condah land is, by force of this Act:

 a

vested in the Kerrup-Jmara Elders Aboriginal Corporation; and

 b

freed and discharged from all interests (other than interests in minerals), trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates;

to the intent that the legal estate in the land and all rights and powers incident to that legal estate are vested in the Kerrup-Jmara Elders Aboriginal Corporation.

 2

On the commencement of this section, the lands delineated and shown hatched on the plan in Part A of Schedule 1 are closed as roads and all rights, easements and privileges existing or claimed either in the public or by any body or person as incident to any past dedication or supposed dedication of them or by user or by any fiction of law cease to exist.
7 Vesting of 1

On the commencement of this section, , other than minerals in , is, by force of this Act:

 a

vested in the Kirrae Whurrong Aboriginal Corporation; and

 b

freed and discharged from all interests (other than interests in minerals), trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates;

to the intent that the legal estate in the land and all rights and powers incident to that legal estate are vested in the Kirrae Whurrong Aboriginal Corporation.

 2

On the commencement of this section, the lands delineated and shown hatched on the plan in Schedule 2 are closed as roads and all rights, easements and privileges existing or claimed either in the public or by any body or person as incident to any past dedication or supposed dedication of them or by user or by any fiction of law cease to exist.
8 Conversion of interests into claims for compensation

On the commencement of section 6 or 7, as the case requires:

 a

the property of the State of in the Condah land or in (other than property in minerals); and

 b

each interest of a person (other than the Kerrup-Jmara Elders Aboriginal Corporation or the Kirrae Whurrong Aboriginal Corporation) in the Condah land or in Framlingham Forest (other than interests in minerals);

is converted into a right to compensation under this Act.
9 Notice to owners 1

(1) The Minister shall, as soon as practicable after the commencement of owner), or such of them as can, after careful inquiry, be ascertained.section 6 or 7 cause a copy of a notice of vesting of the land, in accordance with a form approved by the Minister, to be served upon each person who had an interest in the land immediately before the commencement of that section (in this section referred to as an

2

If:

 a

the Minister is unable, after careful inquiry, to ascertain the identity of an owner; or

 b

service on an owner cannot be effected;

service on that owner may be effected by causing a copy of the notice of vesting to be published in a newspaper circulating in the district in which the relevant land is situated.
10 Registration of vesting 1

(1) After the commencement of shall lodge with the Registrar-General for Victoria or other proper officer of Victoria a copy of the notice of vesting referred to in section 9, certified by writing signed by the Chief Executive Officer of the Aboriginal and Torres Strait Islander Commission.section 6 or 7, as the case may require, the Chief Executive Officer of the Aboriginal and Torres Strait Islander Commission

 2

The officer with whom the copy of a notice of vesting is lodged in pursuance of subsection (1) may register the acquisition in the manner as nearly as may be in which dealings with land are registered, and may deal with and give effect to the copy of the notice of acquisition as if it were a grant, conveyance, memorandum or instrument of transfer of the land to the Corporation duly executed under the laws in force in Victoria.
11 Compensation

In spite of the repeal of the Lands Acquisition Act 1955, Part IV of that Act applies in relation to interests in the Condah land or Framlingham Forest that have been vested in the Corporation by force of this Act as if the land had been acquired by compulsory process under the Lands Acquisition Act 1955 on the commencement of section 6 or 7, as the case may require, and as if the right to compensation under section 8 of this Act were a right to compensation under section 11 of the Lands Acquisition Act 1955.
12 Miscellaneous

In spite of the repeal of the Lands Acquisition Act 1955, sections 13, 55, 58, 59 and 62 of that Act apply in relation to interests in the Condah land or Framlingham Forest that have been vested in the Corporation by force of this Act as if the land had been acquired by compulsory process under the Lands Acquisition Act 1955 on the commencement of section 6 or 7, as the case requires.
III Management of Condah land
13 Management, transfer or lease of land 1

Upon the vesting of the Condah land in the Kerrup-Jmara Elders Aboriginal Corporation, the Corporation has:

 a

the full power of management, control and enjoyment of the Condah land, subject to the law of Victoria and the Commonwealth;

 b

the power to transfer its interest in the Condah land to another Aboriginal and Torres Strait Islander corporation, subject to subsection (2); and

 c

the power to give a lease of the Condah land or a licence over the Condah land to the Crown, a public authority of the State of or of the Commonwealth or any other person, subject to subsection (3).

 2

The Kerrup-Jmara Elders Aboriginal Corporation shall not transfer its interest in the Condah land to another Aboriginal and Torres Strait Islander corporation if there is an objection from a member of the Kerrup-Jmara Committee of Elders or any other adult member of the Corporation.

 3

The Kerrup-Jmara Elders Aboriginal Corporation shall not give a lease of the Condah land or a licence over the Condah land that is for a period of more than 3 years to a person who is not the Crown or a public authority of the State of Victoria or the Commonwealth unless the Minister has approved the giving of that lease or licence.
14 Rights of access over Condah land 1

Any legal rights of access over the Condah land existing immediately before the day of vesting (other than the right of access provided by the roads shown hatched on the plan in Part A of Schedule 1) continue to exist on the same terms and conditions as those on which they existed immediately before the day of vesting.

 2

Except as otherwise provided in this Act, a person may, in the performance of functions under this Act or otherwise in accordance with this or any other Act or any law of the State of , enter and remain on the Condah land.
15 By-laws 1

The Kerrup-Jmara Elders Aboriginal Corporation may make by-laws, not inconsistent with any law of the Commonwealth or the State of , for or with respect to:

 a

economic enterprise on the Condah land;

 b

cultural activities on the Condah land;

 c

the management, access, conservation, fire protection, development and use of the Condah land;

 d

the declaration of sacred or significant sites or other areas of significance to Aboriginal people on the Condah land;

 e

the activities to be permitted on the Condah land or any part of it;

 f

protection and conservation of flora or fauna found on the Condah land;

 g

in relation to the Condah land, the cutting, removal and sale of timber, the granting of revocable licences and the payment of royalties for timber to the Corporation;

 h

hunting, shooting and fishing on the Condah land;

 j

control of visitors in, and charging fees (to be paid to the Corporation) for entrance to, the Condah land;

 k

the regulation and control of motor traffic and parking on the Condah land; and

 m

the appointment of persons to enforce the by-laws, and the powers and duties of those persons.

 2

The by-laws may provide that a contravention of a by-law is an offence.

 3

The regulations may provide, in respect of an offence against the by-laws, for the imposition of:

 a

if the offender is a natural person—a fine not exceeding 5 penalty units; or

 b

if the offender is a corporation—a fine not exceeding 25 penalty units.

 4

The regulations may make provision for and in relation to enabling a person who is alleged to have committed an offence against the by-laws to pay to the Commonwealth, as an alternative to prosecution, a penalty not exceeding:

 a

in the case of a natural person—1 penalty unit; or

 b

in the case of a corporation—5 penalty units.

 5

If the Kerrup-Jmara Elders Aboriginal Corporation makes a by-law, the directors of the Corporation must, within 7 days after making it, give a copy of the by-law to the Minister.

 6

(6) For the purposes of the Legislation Act 2003, a by-law made by the Kerrup-Jmara Elders Aboriginal Corporation and received by the Minister is a legislative instrument made by the Minister on the day the by-law is received.

Note: A by-law made by the Corporation and received by the Minister is stated to be a legislative instrument made by the Minister so that the Minister may perform the functions of a rule-maker in relation to the instrument under the Legislation Act 2003. For example, under that Act a rule-maker for a legislative instrument is required to lodge the instrument (and any amendments and compilations of the instrument) for registration under that Act.
16 Sacred and significant sites 1

The Kerrup-Jmara Elders Aboriginal Corporation shall compile a register of sites on the Condah land that are sacred or significant to Aboriginals or any group of Aboriginals and shall record in the register:

 a

if a site has been specifically identified, the boundaries of the site; or

 b

if a site is known to exist but has not been specifically identified, the boundaries of the site as it is known to exist.

 2

The Kerrup-Jmara Elders Aboriginal Corporation shall keep the register in a manner that is appropriate to prevent disclosure of its contents without the permission of the directors of the Corporation.

 3

The directors of the Corporation must make the register available to the Minister, if he or she so requests, for the purposes of considering the making of a declaration under paragraph 30(2)(c).
17 Committee of Elders

The Kerrup-Jmara Committee of Elders is that body of persons who are members of the Kerrup-Jmara Elders Aboriginal Corporation and are considered by Aboriginal tradition and practice and by recognition of the Kerrup-Jmara Community to be the Committee of Elders.
18 Powers of Committee of Elders 1

The powers of the Kerrup-Jmara Committee of Elders are:

 a

(a) subject to the Corporations (Aboriginal and Torres Strait Islander) Act 2006, to declare a specified person to be eligible to be a member of the Kerrup-Jmara Elders Aboriginal Corporation or any body created by that Corporation;

 b

to determine anything with respect to:

 i

matters of spiritual, cultural and religious significance to the Corporation;

 ii

the management or development of any sacred or significant site on the Condah land;

 iii

the maintenance and application within the Corporation of the traditional lores, customs and practices of the Corporation; and

 iv

the harvesting, taking, use or pursuit of animal and vegetable life (including fish and bird life) found on the Condah land with limitations as to time, volume and circumstances; and

 c

to hear and determine disputes within the Corporation about breaches of traditional customs, lores and practices.

 2

A decision of the Committee of Elders is final and binding on all members of the Corporation.

 3

The Corporation shall act in accordance with the decisions of the Committee of Elders about all matters in respect of which the Committee has power to make decisions.

 4

Nothing in this section has effect so as to confer judicial power on the Committee of Elders.

 5

(5) Subject to the Corporations (Aboriginal and Torres Strait Islander) Act 2006, a person is eligible to be a member of the Kerrup-Jmara Elders Aboriginal Corporation or a body created by the Corporation if, and only if, a declaration in force under paragraph (1)(a) so declares.

 6

Where, immediately before the commencement of this section, a person was a member of the Kerrup-Jmara Elders Aboriginal Corporation or a body created by that Corporation, a declaration under paragraph (1)(a) shall be deemed to be in force in relation to that person.
19 Winding up

If the Kerrup-Jmara Elders Aboriginal Corporation is wound up and its interest in the Condah land has not been transferred to another Aboriginal and Torres Strait Islander corporation under this Act:

 a

by force of this Act, that interest in the Condah land is, subject to paragraph (b), vested in the Commonwealth on trust for the benefit of the Aboriginal people of Victoria; and

 b

the Governor-General shall, to the extent of that interest, execute a deed of grant of an estate in the Condah land:

 i

to another Aboriginal and Torres Strait Islander corporation that is approved by the Minister and whose members are the descendants of the Kerrup-Jmara Clan; or

 ii

if there is no Aboriginal and Torres Strait Islander corporation as described in subparagraph (i)—to any appropriate Aboriginal and Torres Strait Islander corporation.
20 Change of ownership of land

If the Condah land is transferred or granted to another Aboriginal and Torres Strait Islander corporation (the transferee corporation) in accordance with this Act:

 a

this Act has effect in relation to the transferee corporation and to the Condah land as if:

 i

a reference in this Act to the Kerrup-Jmara Elders Aboriginal Corporation were a reference to the transferee corporation; and

 ii

references to the Committee of Elders were references to such Committee of Elders as is declared by the Governor-General by Proclamation for the purposes of this section; and

 iii

references to the directors of the Corporation were references to the directors of the transferee corporation; and

 b

the transferee corporation is deemed to be the successor in law of the Corporation or Aboriginal and Torres Strait Islander corporation in or to which the Condah land was last vested or granted and has all the powers, duties, rights and liabilities of that Corporation or Aboriginal and Torres Strait Islander corporation.
IV Management of
21 Management, transfer or lease of 1

Upon the vesting of in the Kirrae Whurrong Aboriginal Corporation, the Corporation has:

 a

the full power of management, control and enjoyment of , subject to the law of Victoria and the Commonwealth;

 b

the power to transfer its interest in Framlingham Forest to another Aboriginal and Torres Strait Islander corporation, subject to subsection (2); and

 c

the power to give a lease of Framlingham Forest or a licence over Framlingham Forest to the Crown, a public authority of the State of Victoria or of the Commonwealth or any other person, subject to subsection (3).

 2

The Kirrae Whurrong Aboriginal Corporation shall not transfer its interest in to another Aboriginal and Torres Strait Islander corporation if there is an objection from a member of the Kirrae Whurrong Committee of Elders or an adult member of the Corporation.

 3

The Kirrae Whurrong Aboriginal Corporation shall not give a lease of Framlingham Forest or a licence over Framlingham Forest that is for a period of more than 3 years to a person who is not the Crown or a public authority of the State of Victoria or the Commonwealth unless the Minister has approved the giving of that lease or licence.
22 Rights of access over 1

Any legal rights of access over Framlingham Forest existing immediately before the day of vesting (other than the right of access provided by the roads shown hatched on the plan in Schedule 2) continue to exist on the same terms and conditions as those on which they existed immediately before the day of vesting.

 2

Except as otherwise provided in this Act, a person may, in the performance of functions under this Act or otherwise in accordance with this or any other Act or any law of the State of , enter and remain in .
23 By-laws 1

The Kirrae Whurrong Aboriginal Corporation may make by-laws, not inconsistent with any law of the Commonwealth or the State of , for or with respect to:

 a

economic enterprise in ;

 b

cultural activities in ;

 c

the management, access, conservation, fire protection, development and use of ;

 d

the declaration of sacred or significant sites or other areas of significance to Aboriginal people in ;

 e

the activities to be permitted in or any part of it;

 f

protection and conservation of flora and fauna found in ;

 g

in relation to , the cutting, removal and sale of timber, the granting of revocable licences and the payment of royalties for timber to the Corporation;

 h

hunting, shooting and fishing in ;

 j

control of visitors in, and charging fees (to be paid to the Corporation) for entrance to, ;

 k

the regulation and control of motor traffic and parking in ; and

 m

the appointment of persons to enforce the by-laws, and the powers and duties of those persons.

 2

The by-laws may provide that a contravention of a by-law is an offence.

 3

The regulations may provide, in respect of an offence against the by-laws, for the imposition of:

 a

if the offender is a natural person—a fine not exceeding 5 penalty units; or

 b

if the offender is a corporation—a fine not exceeding 25 penalty units.

 4

The regulations may make provision for and in relation to enabling a person who is alleged to have committed an offence against the by-laws to pay to the Commonwealth, as an alternative to prosecution, a penalty not exceeding:

 a

in the case of a natural person—1 penalty unit; or

 b

in the case of a corporation—5 penalty units.

 5

If the Kirrae Whurrong Aboriginal Corporation makes a by-law, the Community Council shall, within 7 days after making it, give a copy of the by-law to the Minister.

 6

(6) For the purposes of the Legislation Act 2003, a by-law made by the Kirrae Whurrong Aboriginal Corporation and received by the Minister is a legislative instrument made by the Minister on the day the by-law is received.

Note: A by-law made by the Corporation and received by the Minister is stated to be a legislative instrument made by the Minister so that the Minister may perform the functions of a rule-maker in relation to the instrument under the Legislation Act 2003. For example, under that Act a rule-maker for a legislative instrument is required to lodge the instrument (and any amendments and compilations of the instrument) for registration under that Act.
24 Sacred and significant sites 1

The Kirrae Whurrong Aboriginal Corporation shall compile a register of sites in that are sacred or significant to Aboriginals or any group of Aboriginals and shall record in the register:

 a

if a site has been specifically identified, the boundaries of the site; or

 b

if a site is known to exist but has not been specifically identified, the boundaries of the site as it is known to exist.

 2

The Kirrae Whurrong Aboriginal Corporation shall keep the register in a manner that is appropriate to prevent disclosure of its contents without the permission of the Community Council.

 3

The Community Council shall make the register available to the Minister, if he or she so requests, for the purposes of considering the making of a declaration under paragraph 30(2)(c).
25 Membership 1

A person is eligible to be a member of the Kirrae Whurrong Aboriginal Corporation if, and only if, the person has resided on Framlingham Reserve for a continuous period of more than 12 months (whether before or after, or before and after, the commencement of this subsection).

 2

At least one-half of the members of the Community Council shall be persons who are residents of the Framlingham Reserve.

 3

(3) This section has effect notwithstanding anything to the contrary in the Corporations (Aboriginal and Islander) Act 2006.
26 Committee of Elders 1

The Kirrae Whurrong Committee of Elders is that body of persons who are members of the Kirrae Whurrong Aboriginal Corporation and are considered by Aboriginal tradition and practice and by recognition of those Aboriginals living in the area to be the Committee of Elders.

 2

At least one-half of the members of the Kirrae Whurrong Committee of Elders shall be persons who are residents of Framlingham Reserve.
27 Power of Committee of Elders 1

The powers of the Kirrae Whurrong Committee of Elders are:

 a

(a) subject to Corporations (Aboriginal and Torres Strait Islander) Act 2006, to declare a specified person to be eligible to be a member of the Kirrae Whurrong Aboriginal Corporation or any body created by the Corporation;section 25 and to the

b

to determine anything with respect to:

 i

matters of spiritual, cultural and religious significance to the Corporation;

 ii

the management or development of any sacred or significant site in ;

 iii

the maintenance and application within the Corporation of the traditional lores, customs and practices of the Corporation; and

 iv

the harvesting, taking, use or pursuit of animal and vegetable life (including fish and bird life) found in Framlingham Forest with limitations as to time, volume and circumstances; and

 c

to hear and determine disputes within the Corporation about breaches of traditional customs, lores and practices.

 2

A decision of the Committee of Elders is final and binding on all members of the Corporation.

 3

The Corporation shall act in accordance with the decisions of the Committee of Elders about all matters in respect of which the Committee has power to make decisions.

 4

Nothing in this section has effect so as to confer judicial power on the Committee of Elders.

 5

(5) Subject to the Corporations (Aboriginal and Torres Strait Islander) Act 2006, a person is eligible to be a member of the Kirrae Whurrong Aboriginal Corporation or a body created by that Corporation if, and only if, a declaration in force under paragraph (1)(a) so declares.
28 Winding up

If the Kirrae Whurrong Aboriginal Corporation is wound up and its interest in has not been transferred to another Aboriginal and Torres Strait Islander corporation under this Act:

 a

by force of this Act, that interest in Framlingham Forest is, subject to paragraph (b), vested in the Commonwealth on trust for the benefit of the Aboriginal people of Victoria; and

 b

the Governor-General shall, to the extent of that interest, execute a deed of grant of an estate in :

 i

to another Aboriginal and Torres Strait Islander corporation that is approved by the Minister and whose members are the descendants of the Kirrae Whurrong (Pertobe) Clan; or

 ii

if there is no Aboriginal and Torres Strait Islander corporation as described in subparagraph (i)—to any appropriate Aboriginal and Torres Strait Islander corporation.
29 Change of ownership of land

If Framlingham Forest is transferred or granted to another Aboriginal and Torres Strait Islander corporation (the transferee corporation) in accordance with this Act:

 a

this Act has effect in relation to the transferee corporation and to as if:

 i

a reference in this Act to the Kirrae Whurrong Aboriginal Corporation were a reference to the transferee corporation; and

 ii

references to the Committee of Elders were references to such Committee of Elders as is declared by the Governor-General by Proclamation for the purposes of this section; and

 iii

references to the directors of the Corporation were references to the directors of the transferee corporation; and

 b

the transferee corporation is deemed to be the successor in law of the Corporation or Aboriginal and Torres Strait Islander corporation in or to which Framlingham Forest was last vested or granted and has all the powers, duties, rights and liabilities of that Corporation or Aboriginal and Torres Strait Islander corporation.
V Mining
30 Mining operations 1

Subject to subsection (2), a person shall not, under the authority of a mining tenement that has been granted, renewed or extended on or after the day of vesting:

 a

carry out any mining operation on the relevant land; or

 b

enter the relevant land with the intention of carrying out any mining operation.

Penalty:

 a

for an offence against paragraph (1)(a):

 i

if the person is a natural person—50 penalty units; or

 ii

if the person is a body corporate—250 penalty units; or

 b

for an offence against paragraph (1)(b):

 i

if the person is a natural person—10 penalty units; or

 ii

if the person is a body corporate—50 penalty units.

 2

Subsection (1) does not apply in relation to anything done with respect to relevant land if:

 a

the Corporation has granted the necessary permission under section 31;

 b

the Minister has declared in writing that he or she is satisfied that the Corporation was given a reasonable opportunity to make submissions to the relevant Minister of the Crown of the State of Victoria about the conditions on which the grant, renewal or extension of the mining tenement should be made; and

 c

if the Minister has declared in writing that he or she is satisfied that any registered sacred or significant site has been appropriately protected.section 34 applies—

 3

(3) Regulations made for the purposes of Lands Acquisition Act 1989 do not apply to the relevant land.section 124 of the

31 Permission to carry out mining operation 1

A person who has applied for a mining tenement, or for the renewal variation or extension of a mining tenement, in relation to the relevant land may, with the approval of the Minister, apply to the Corporation for permission to carry out the operations to which the first-mentioned application relates.

 2

An application:

 a

shall be in writing;

 b

shall be lodged with the Corporation; and

 c

shall include or be accompanied by all the information submitted by the applicant in support of the application for or relating to the mining tenement.

 3

If the Corporation so requests, the applicant shall supply it with any further information in writing that it reasonably requires so that it can decide whether to grant the application.

 4

As soon as practicable after applying for permission, or after supplying any further information to the Corporation, the applicant shall give the Minister a copy of the application, or of the further information.

 5

After receiving an application for permission, the Corporation may:

 a

refuse permission;

 b

grant permission without any conditions; or

 c

grant permission on any conditions that it considers appropriate and are not inconsistent with any law of the State or the Commonwealth in force in .

 6

As soon as practicable after granting or refusing permission, the Corporation shall give notice in writing to the applicant of that decision.

 7

The applicant shall, within 7 days after receiving the notice, give a copy of the notice to the Minister.

 8

If, at the end of 120 days after applying, an applicant has not received notice from the Corporation of its decision on the application, the Corporation shall be deemed to have made a decision to refuse permission.

 9

The Corporation may require the applicant to pay a reasonable fee for expenses incurred by it in processing the application.

 10

If the Corporation receives fees from an applicant and later grants permission to the applicant on the condition that the applicant give any payment or other consideration to the Corporation, the Corporation shall treat the amount of the costs and expenses received as payment towards the payment or consideration.
32 Payments and other consideration 1

If:

 a

the Corporation grants permission to a person to carry out mining operations;

 b

the person agrees to the conditions on which the permission is granted; and

 c

the conditions provide that the person gives any payment or other consideration to the Corporation;

the person shall, within 14 days after agreeing to the conditions, notify the Minister of the terms of the agreement.

 2

The payment or other consideration:

 a

shall be reasonable for any disturbance to the relevant land and to the traditional owners of the land and their lifestyle that has resulted or is likely to result from the granting of a mining tenement;

 b

(b) in the case of an application for a licence or permit referred to in paragraph (a) of the definition of mining tenement in section 3—shall not exceed any amount that would have become payable as compensation under an Act of Victoria mentioned in that paragraph in respect of any operations carried out under that licence or permit; and

 c

in the case of an application for a lease, licence, permit or other authority referred to in paragraph (b) of that definition—may exceed any amount that would have become payable as compensation under an Act of Victoria mentioned in that paragraph in respect of any operations carried on under that lease, licence, permit or other authority.
33 Conciliation and review 1

If an applicant under the Minister that the Corporation has granted permission on any conditions to which the applicant objects, or has refused permission, the Minister shall arrange to meet with the Corporation and the applicant to attempt to resolve the matter by conciliation.section 31 notifies

2

If, at the end of the conciliation proceedings, the conciliation is unsuccessful, the applicant and the Corporation shall, within 60 days thereafter, appoint an arbitrator to review the decision of the Corporation.

 3

If:

 a

the applicant and the Corporation are unable to appoint an arbitrator within that period; and

 b

the applicant requests the Minister to appoint an arbitrator;

the Minister shall appoint an arbitrator, being a person whom the Minister considers to be in a position to deal with the matter impartially.

 4

In reviewing the decision of the Corporation, the arbitrator shall consider the following factors:

 a

the effect that the entry onto the relevant land and the carrying out of mining operations on the land would have on:

 i

the preservation and protection of the lifestyle, culture and traditions of the traditional owners of the land;

 ii

the proposals and wishes of the traditional owners of the land about its management, use and control;

 iii

the development of the social, cultural and economic structures of the traditional owners; and

 iv

the freedom of access of the traditional owners of the land and their freedom to carry out, in accordance with tradition, rites, ceremonies and other activities on the land;

 b

the suitability of the applicant to carry out the proposed mining operations and the applicant’s capacity, in carrying out those operations, to minimise any disturbance to the traditional owners and the land;

 c

the preservation of the natural environment;

 d

the economic and any other significance of the proposed mining operations to the State of and to the Commonwealth.

 5

The arbitrator shall make a decision:

 a

confirming the decision of the Corporation;

 b

varying the decision of the Corporation; or

 c

setting aside the decision of the Corporation and making a decision (being a decision that the Corporation could have made under this section) in substitution for the decision of the Corporation.

 6

The decision of the Corporation as varied by the arbitrator, or a decision made by the arbitrator in substitution for the decision of the Corporation shall, except for the purposes of subsection (2), be deemed to be a decision of the Corporation and has effect, unless the arbitrator otherwise determines, on and from the day on which the decision of the Corporation had effect.
34 Sacred or significant sites 1

If a person applies for a mining tenement in relation to relevant land after the day of vesting, the Minister shall consult with the Corporation to ascertain whether the land to which the application relates includes the whole or part of any sacred or significant site registered under section 16 or 24.

 2

If the Minister is satisfied that the land does include the whole or part of a registered sacred or significant site:

 a

the Minister shall give the applicant any information about the site and its location that the Minister considers appropriate; and

 b

(b) the Corporation shall be deemed to have advised the Minister under Aboriginal and Islanders Heritage Protection Act 1984 that it considers that a declaration under section 21E of that Act should be made.Part IIA of the

3

Unless the Minister otherwise determines in a particular case, this section does not apply in relation to the renewal or extension of a mining tenement.
35 Offences

A person shall not, without the consent of the Minister, give or offer, or agree to give or offer, any payment or other consideration (not being payment or other consideration given as a complete or partial discharge of a liability under this Act or payment of a royalty under this Act for any minerals recovered from the relevant land) with the intention of obtaining the permission of the Corporation to carry out any mining operation on the relevant land.

Penalty:

 a

if the person is a natural person—20 penalty units; or

 b

if the person is a body corporate—100 penalty units.
36 Entry onto relevant land and mining tenements

Subject to section 30, if the Corporation grants permission to a person to carry out any mining operation on the relevant land, the person and the person’s agents, contractors and employees, may enter the relevant land:

 a

for the purpose of carrying out the mining operation; and

 b

subject to any conditions upon which permission is granted; and

 c

(c) subject to the Mineral Resources Development Act 1990 of Victoria, the Petroleum Act 1958 of Victoria and the Extractive Industries Act 1966 of Victoria, but without requiring any further permission to enter the land under any of those Acts.
37 Offences by corporations 1

Where, in proceedings for an offence against this Act in respect of any conduct engaged in by a corporation, it is necessary to establish the state of mind of the corporation, it is sufficient to show that a director, employee or agent of the corporation, being a director, employee or agent by whom the conduct was engaged in within the scope of actual or apparent authority, had that state of mind.

 2

Any conduct engaged in on behalf of a corporation:

 a

by a director, employee or agent of the corporation within the scope of actual or apparent authority; or

 b

by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the corporation, where the giving of such direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

shall be deemed, for the purposes of any proceedings for an offence against this Act, to have been engaged in by the corporation.

 3

A reference in subsection (1) to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the intention, opinion, belief or purpose.
VI Funding
38 Aboriginal Advancement Account 1

The Aboriginal Advancement Account is established for the purpose of furthering the social and economic advancement of Aboriginal people living in .

 2

(2) The Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

 3

There must be credited to the Account amounts determined by the regulations.

 4

Amounts standing to the credit of the Account must be debited from the Account for the purposes of the making by the Commonwealth of payments to further the social and economic advancement of Aboriginal people living in .

 5

If interest is received by the Commonwealth from the investment of an amount standing to the credit of the Account, an amount equal to the interest must be credited to the Account.
38A Notional accounts within the Aboriginal Advancement Account 1

The regulations may create separate notional accounts within the Aboriginal Advancement Account in the name of particular Aboriginal groups living in .

 2

Amounts determined in accordance with the regulations must be credited to the notional accounts. To avoid doubt, amounts that may be so determined include amounts required to be credited to the Aboriginal Advancement Account under subsection 38(5).

 3

Amounts standing to the credit of a notional account must be debited from the account for the purposes of the making by the Commonwealth of payments to further the social and economic advancement of the Aboriginal group in whose name the notional account was created.
VII Miscellaneous
39 Exemption from land tax

The Condah land and are exempt from land tax under the Land Tax Act 1958 of .
40 Compensation for acquisition of property 1

Where, but for this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.

 2

(2) In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.
41 Regulations

The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

 a

required or permitted by this Act to be prescribed; or

 b

necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Land in the Parish of Condah to be vested in the Kerrup-Jmara Elders Aboriginal Corporation

Section 6

Part A

Part B

Land in the Parish of Purnim to be vested in the Kirrae Whurrong Aboriginal Corporation

Section 7

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history