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Full Court of the Federal Court of Australia, Darwin;
Northrop, Hill and O'Loughlin JJ,
27 February 1992;
[1992] FCA 69; (1992) 105 ALR 539
Casenote by Robert Blowes
Another appeal court decision was handed down on 27 February 1992 in relation to the Kenbi Land Claim to land near Darwin in the Northern Territory.
Readers will be by now familiar with this most litigated land claim. It is the subject of 2 reported decisions of the High Court and 4 decisions of the Full Court of the Federal Court. The claim commenced in 1978 and the hearing of the Aboriginal evidence was delayed until 1990 by the numerous appeals. The Aboriginal evidence will have to be heard a second time now that the Full Court of the Federal Court has held that the Aboriginal Land Commissioner fell into error during the first hearing in his interpretation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('the Land Rights Act') (see Casenotes AboriginalLB 50/14). The Court made a number of findings.
The Court held that local descent group' in the definition of 'traditional Aboriginal owners' in the Land Rights Act was not to be confined to a patrilineal group. Toohey J., in his report on the Finnis River Land Claim, was cited as representative of the views of Aboriginal Land Commissioners in their later reports and as correctly stating the law subject to two qualifications.
"In essence my view was and is that a local descent group is a collection of people related by some principle of descent, possessing ties to land who may be recruited... on a principle of descent deemed relevant by the claimants. That description is apt to include the instances of patrilineal descent, patrifiliation and matrifiliation among the Kungarankany claimants."(quoted at p553)
The two qualifications are firstly, that although the underlying principle of recruitment to a group must be some form of descent, that need not be seen in a biological sense, and persons not claiming biological affiliation may be adopted into and become part of the group.(at p553)
Secondly, the Court sounded the warning that the words 'deemed to be relevant by the claimants may be misinterpreted by some and said:
"The particular principle of descent in operation will depend upon the circumstances of the particular case. It may be that, in a particular area, the Aboriginal people of that area have adopted the principle of matrilineal descent; in another area, there may have been adopted some other principle of descent. The point is that the principle of descent will be one that is recognised as applying in respect of the particular group. Further, there is no reason why the particular principle of descent traditionally operating may not change over time..." (at p.553).
The Court also found that the background to the passing of the Land Rights Act; the judgment of Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; the reports by Woodward J;
and the second reading speeches of Mr Johnson or Mr Viner, did not suggest the patrilineal clan was to be considered exclusively of any other form of grouping (at pp 549-53).
Olney J had found that a small clan group of people was the only group eligible to be traditional owners. He went on to disqualify (on the basis of age and other factors) all except one member of the group and was then able to conclude that one person cannot constitute a group and therefore that there were no traditional owners.
The Court ruled that the Land Rights Act contemplates that the relevant 'local descent group' be in existence at the time the Commissioner makes his finding (at p.554) and also that a local descent group could not be formed of one member alone (at p.555). Olney J had not fallen into error on this point, the Court said.
In considering this issue, the Court made some observations which suggest it may be imperative that Land Councils lodge repeat claims over land which has not been the subject of a recommendation by a Commissioner.
A group might revive - a member may after the hearing be boa or mature to hold requisite spiritual affiliations. The beneficial intent of the legislation would not be infringed by refusing a recommendation in favour of one only claimant, as it was open to bring a repeat claim that could be determined at a time most likely to succeed (at p556).
The Court was considering whether in the application of the definition of 'traditional Aboriginal owners' to the claimants, the existence of 'common spiritual affiliations' is to be determined by looking at the spiritual affiliations held by each individual or the group as a whole.
It was held that the requirement of 'common spiritual affiliations' is to be determined on an individual by individual basis. The Court put it this way:
"The task of the Commissioner is first to ascertain the relevant group to be investigated and then to determine whether the members of that group have the requisite common spiritual affiliation such that the group is as a result under a primary spiritual responsibility for the site and the land. ... Clearly it is not necessary to call each member of the group to give evidence to establish that they have the appropriate spiritual affiliation. It will be sufficient if the evidence establishes, on the balance of probabilities, that the Aboriginals who comprise the group have that affiliation....(at p556) [emphasis added]
... if a group of persons having an appropriate genealogy is found to exist, but some members of the group, whether because of age or otherwise, eg infants, lack the requisite spiritual affiliation, those persons will be excluded from the group. This accords too with the policy of the Act in requiring, after grants of land have been made, the consent of traditional Aboriginal owners to various decisions of the Land Councils in respect of the traditional land.. It would be indeed strange if persons themselves lacking the necessary spiritual affiliation, or, even knowledge of it, could participate in the decision-making process. Rather, the Act contemplates that each member of the local descent group must share in common with each other member the common spiritual affiliations to a site on the land of which the definition speaks. Provided, however, that this is recognised, the manner of proof to be adopted will depend upon the way the claim is presented.(at p556-7)"
The Court found that Olney J had not made an error of law in approaching this question in the way he did in the Kenbi claim.
"...[i]t will be relevant that a person disclaims membership of a group, or asserts himself or others not to be within the class of "traditional Aboriginal owners", and not irrelevant that the person disclaims being a member of a class of traditional owners in the sense used by the Aboriginal people themselves. After all, the defined term is an attempt to equate with the reality in the Aboriginal community."(at p.557)
The Court assumed the ability of a Commissioner to distinguish the linguistic sense in which the words 'traditional owners might be used by the claimants.
Olney J had taken into consideration the facts that the three Wagaitj groups put forward in the Kenbi claim "have common spiritual affiliations with sites elsewhere than on or near the claim area and in some cases continue to actively maintain those links by visiting their own countries."(p557)
The Court commented that such consideration would not have been conclusive to Olney J in rejecting them as traditional owners because the three groups were not patrilineal clans as was, he thought, required. However the Court observed:
"...[T]he Act itself makes it clear that a group of "traditional Aboriginal owners" may have spiritual; affiliations with sites on other lands, see s.4(1B). In part, this could come about because of the way the particular land the subject of a claim is defined, as well as by the fact that two areas of land the subject of claims are separated by alienated land, so that it becomes necessary that two claims be made in respect of differently defined land."(at p558)
The role of a Commissioner is to conduct an administrative inquiry.(at p.553) It is implicit in the judgment (at p543) that the Commissioner in the circumstances of that case, was not bound to, but may have chosen to, investigate as potential traditional Aboriginal owners, groups other than those put forward by the Land Council.
A Commissioner is not bound to consider a land Claim only in the framework as presented on behalf of the claimants.
'Strength of traditional attachment', to which s.50(3) of the Land Rights Act directs the Commissioner to have regard, is not an ingredient in the definition of traditional Aboriginal owners but it is a matter to be considered by the Commissioner when he comes to determine whether he will make a recommendation to the Minister to grant the land (at p555 and see also Jungarrayi and Others v Olney and Others (1992)105 ALR 527 at 529 & 532-535).
Roll on common law land claims! The challenge for the judiciary post Mabo is to see if, left to its own devices, it can establish principles for recognising traditional Aboriginal interests in land which avoid the artificialities which have crept into the system - to which both politicians and judges have lent their collective wisdom - in the statutory scheme in the Northern Territory.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1992/47.html