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Kenbi (Cox Peninsular) Land Claim
Aboriginal Land Commissioner: Olney J.
February 1991
Casenote by Robert Blowes
After 10 years of legal manoeuvring the Aboriginal Land Commissioner has heard the evidence of Aborigines concerning the traditional Aboriginal ownership of the Kenbi land claim area. He has made a finding that there are no traditional Aboriginal owners in the area.
That finding, even if open on the evidence and even if supported by an interpretation of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act") that was open to the Land Commissioner, is an indictment on our community.
If the Commissioner was right, then the Land Rights Act requires amendment. An amendment to ensure that the definition of traditional Aboriginal owners is, as it was previously thought to be, flexible enough to cover a broad range of Aboriginal cultures and patterns of social organisation including what is left of the traditions of those most ravaged by non-Aboriginal contact. Such an amendment should also address the artificiality of assessing traditional ownership at a frozen and random cross-section of time. Alternatively, an amendment should permit a claim to be made by such peoples on a needs basis as was originally envisaged by Mr Justice Woodward.
Olga Sing died in April 1989. She was a member of the Danggalaba clan of the Larrakia people. Olney J, in his report to the Minister for Aboriginal Affairs, found that if there were any traditional Aboriginal owners of the Kenbi claim area they would be people from her clan. He found that "Had she survived it is likely that the criteria of the statutory definition of traditional Aboriginal owners may have been met."
The Commissioner had observed that;
"With all the preliminary manoeuvring out of the way, the claimants were ultimately able to present their case but by then the ravages of time had severely depleted their numbers." (p.vii)
Even before the Land Rights Act came into force in 1977 the Larrakia people in the Darwin area had laid claim to the Cox Peninsula and islands to the west of it.
A formal claim was lodged with the Aboriginal Land Commissioner on 20 March 1979.
Before the claim was lodged, the Administrator of the Northern Territory made regulations under the Town Planning Act, by which the Cox Peninsula portion of the claim area was to be treated as if it were part of the town of Darwin. The regulations purported to increase Darwin from its then present size of 142.4 square kilometres to 4350 square kilometres. Because the Land Rights Act precludes the making of a claim to land in a town, a question arose as to whether the Aboriginal Land Commissioner had jurisdiction to hear the claim or whether it was defeated by the regulations.
A ten year legal war ensued which involved the High Court on four occasions. There were four battles in the war. The first was instigated by the Northern Land Council against the decision of the then Aboriginal Land Commissioner, Mr Justice Toohey. In reasons handed down on 20 December 1979, he found that the land was not available for claim because the regulations, the purpose of or motives for which he held he could not investigate, had not been shown to be invalid. In R v Toohey; Ex parte Northern Aboriginal Land Council [1981] HCA 74; (1981) 151 CLR 170, the High Court directed the Land Commissioner to proceed to investigate the regulations and to deal with the land claim application.
The second battle was about documents. After being ordered to produce a list of documents concerning the making of the town planning regulations the Northern Territory Government listed by, general description, some documents for which it claimed legal professional privilege. Having been further ordered to produce a list describing each document, the Northern Territory objected to production of certain documents. This claim was ultimately rejected by the High Court in a decision given on 25 September 1985.
It was at last time to test the validity of the town planning regulations. The Aboriginal Land Commissioner, Maurice J, commenced hearings on 30 March 1987 but because of comments he had made which were thought to be critical of the Northern Territory Government, the Attorney-General for the Northern Territory sought and obtained in the Federal Court an order prohibiting Maurice J from proceeding with the hearing. An application for special leave to appeal to the High Court was refused by the High Court on 12 June 1987.
No further action could be then be taken until the appointment of a new Land Commissioner which did not occur until 25 May 1988.
The last and final battle was to test the validity of the regulations. The Aboriginal Land Commissioner found on 8 December 1988, that the regulations they were made for the purpose of defeating the land claim and therefore did not represent a valid exercise of power under the Town Planning Act. On 15 September 1989, the High Court refused an application by the Northern Territory for special leave to appeal against the dismissal of its application for review by the Federal Court.
Commencement of the inquiry by the Aboriginal Land Commissioner concerning traditional Aboriginal ownership was not able to commence until 13 December 1989, some 8 months after Olga Sing's death. By its ten years of legal manoeuvring, the principal objector to the claim, the Northern Territory Government, had defeated the claim. The delay was a direct result of the Northern Territory Government's making wrongful regulations.
Three planks build the structure of Olney J's reasoning which led him to the conclusion that there are no traditional Aboriginal owners of the Kenbi land claim area:
1. He took a narrower view of the definition of "traditional Aboriginal owner" than did his predecessors.
Counsel for the claimants urged that in view of the history of the Land Rights Act and judicial interpretation of the definition of "traditional Aboriginal owners", the definition ought to be interpreted in keeping with the beneficial purposes of the Land Rights Act, so as to be capable of application to Aboriginal people who have suffered most as a result of the arrival of non-Aboriginal peoples Olney JJ came to quite a different conclusion. He concluded (para 8.26) that the words "local descent group" in the definition of "traditional Aboriginal owners" should have the same meaning which Mr Justice Woodward assigned to them in the first report of the Aboriginal Land Rights Commission: in essence that a local descent group is a clan, a sub-division of a dialect group larger than a family but based on family links through a common male ancestry, although those links may go back beyond living memory (First Woodward report, para 37).
Accordingly he rejected additional and alternative claimant groups (some put forward on the basis of language based groups and potentially as many as 350 people). He was prepared only to consider the Danggalaba clan of the Larrakia group as possible traditional owners (para, 9.8).
2. He excluded from the potential group of traditional owners, all those persons whom he found to have only nominal traditional attachment or no attachment.
On that basis he excluded one claimant who did not give evidence and whom he understood to be incapacitated (para 9.19); another who was "clearly a leader among the Larrakia people in the Darwin area "but who gave very little evidence about the claim area and had only lived there during the war" (para 9.20); and a younger woman (born 1968) who had "obviously a growing interest in things Larrakia" (para, 9.22.3) and who "may one day take up the mantle of her grandfather and be a leader among the Larrakia" (para, 9.22.5).
He found that only one person, the only other surviving member of the Danggalaba clan (three others having died during the legal manoeuvrings), had the requisite spiritual affiliations and strength of attachment to qualify as a traditional Aboriginal owner (para, 9.21).
An alternative interpretation of the Commissioner's functions under s.50 of the Land Rights Act is open. The section could be interpreted to mean that a particular local descent group is the group which, according to Aboriginal tradition, has primary spiritual responsibility for the sites and the land and has the right to forage over the land. All members of that group are traditional owners regardless of age, sex and experience. The Commissioner then, having regard to the strength of traditional attachment by the group to the land, may determine whether or not to make a recommendation to the Minister for the granting of the land.
Whether Olney J would have declined to make a recommendation had he adopted this approach may never be known but the approach would at least avoid the dubious requirement of determining the traditional ownership of each individual member of the group by attempting to measure his or her individual strength of traditional attachment.
3. He followed previous Commissioners in their view that one person cannot be a traditional owner as a single person cannot constitute a group.
This construction of the definition of traditional Aboriginal owners, if it is right, has the consequence that a claim may be successful if heard before the second last traditional owner dies and may be successful if it is heard after a second member of a group is born or alternatively matures with the requisite knowledge and traditional attachment but must fail, as the Kenbi claimants have so tragically discovered, if it happens to be heard in the interim (and arbitrary) cross section of time.
It is understood that application has been made to the Federal Court for a review of the Land Commissioner's decision, that a repeat claim has been lodged over the whole of the claim area, and that talks are being held concerning the possibility of the grant of some land being made.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/34.html