Levy, Ron --- "The Kenbi Land Claim" [2002] IndigLawB 16; (2002) 5(15) Indigenous Law Bulletin 19

The Kenbi Land Claim

Aboriginal Land Commissioner Justice Gray
Kenbi (Cox Peninsula) Land Claim No 37
12 December 2000

by Ron Levy

The Kenbi Land Claim (‘the claim’) covers the Cox Peninsula, which adjoins the western side of Darwin Harbour, and various islands further to the west of the Cox Peninsula. The claim was formally lodged on 20 March 1979 and has been called ‘the most complex traditional land claim in the history of the Land Rights Act’.[1] It has also been the most hard fought and consequently longest running land claim in Australia. To date it has involved three hearings before the High Court,[2] four hearings before the Federal Court,[3] and two hearings before the Aboriginal Land Commissioner (‘the Commissioner’). The claim has involved, at various times, consideration by all five Commissioners who have been appointed under the Aboriginal Land Rights Act (NT) 1976 (‘the Act’).

From the outset the Northern Territory took every action possible to defeat the claim. In 1978, prior to the lodgement of the claim, the government significantly expanded the town boundaries of Darwin, by regulation, over an area which included the Cox Peninsula. Land within towns may not be claimed under the Act, and thus the Cox Peninsula was rendered immune to future claim.

The validity of this regulation was upheld by the first Commissioner, Justice Toohey, on the basis that the motives of the Administrator as the representative of the Crown could not be impugned. In 1981 this basis was overruled by the High Court, and the issue returned to the Commissioner for consideration.[4]

In 1984 the second Commissioner, Justice Kearney, in considering this issue, ordered that the Territory could not rely on legal professional privilege regarding certain documents because they had been created as part of a plan to defeat a potential land claim under the Act. In 1984 and 1985 the Federal and High Courts upheld this decision.[5]

In 1987 the third Commissioner, Justice Maurice, commenced hearings regarding the validity of the regulation, but was required to stand down on the basis of perceived bias arising from comments made in another claim that were critical of the Northern Territory government.[6] The High Court refused leave to appeal on 12 June 1987.

In 1988 the fourth Commissioner, Justice Olney, now able to examine the Territory’s documents, held that the regulations had been ‘made for the improper purpose of preventing claims under the Land Rights Act.’[7] In 1989 the Federal Court upheld this conclusion.[8] The High Court refused an application for leave to appeal by the Northern Territory.

In 1990 Justice Olney conducted a hearing into the claim. The Commissioner found that there were no ‘traditional Aboriginal owners’ of the claimed land because this term, as defined in the Act, required that there be at least two persons of patrilineal descent who had primary spiritual responsibility for sites on the land. The Commissioner found that only one such person existed. In 1992 the Federal Court overruled this conclusion, on the basis that persons of matrilineal descent can satisfy the term ‘traditional Aboriginal owners’ as defined in the Act.[9]

The Hearing before Justice Gray

In 1995 the fifth Commissioner, Justice Gray, commenced a hearing regarding the claim. This inquiry occupied 57 sitting days and was completed in 1999. Four Aboriginal groups were legally represented at the hearing. In December 2000 Justice Gray found that six Larrakia people, being members of the Tommy Lyons Group, met the requirements of the term ‘traditional Aboriginal owners’ of most of the land claimed. This positive finding was necessary before Aboriginal freehold could be granted under the Act.

The Commissioner recommended that the land be granted as Aboriginal freehold for the benefit of the six ‘traditional Aboriginal owners’ as well as a wider group of 1,600 Larrakia persons who hold traditional interests to the land. (Both groups would qualify as holding native title interests to the lands as the Native Title Act 1993 (Cth) does not distinguish between the two groups).[10]

As required by the Act, the Commissioner also commented about ‘detriment’ resulting from the granting of the land on other stakeholders. In relation to a range of interests, such as amateur and commercial fishing interests, the Radio Australia antenna, and the Charles Point lighthouse, the Commissioner found that there would be little detriment because issues could be resolved by agreement prior to a grant. The Commissioner expressed his expectation that traditional owners would act reasonably regarding such issues.[11]

The major issue regarding detriment concerned Northern Territory submissions that the Cox Peninsula was required for the future expansion of Darwin. The Territory relied on a 1990-1991 town planning exercise, originally conducted for the first hearing before Justice Olney, to argue that Darwin would expand to a population of 1 million people, and that of four available options only the Cox Peninsula could be used for that expansion.

Justice Gray described this exercise as ‘a hurried exercise in planning’,[12] which may be ‘without legal force or effect’,[13] but which he nevertheless examined in relation to detriment.[14] The Commissioner noted that while some haste might have been necessary given the 1991 hearing, it was ‘surprising ... that the opportunity ha[d] not been taken to carry out a proper planning exercise since’.[15]

Justice Gray was critical of the 1990-1991 town planning exercise, describing it as ‘unsatisfactory’ and continued:

The 1990-91 planning exercise seems to have had more to do with defeating this land claim than attempting to plan for the possible future expansion of Darwin. Indeed, it is hard to avoid the conclusion that the aim was to defeat this land claim. The Land Rights Act and the claimants are the subject of express criticism. The options are examined in very different ways, using different criteria, so as to ensure that only one can succeed. Aboriginal interests are given little or no weight, whereas much emphasis is placed on the desirability of providing vast areas for people who might wish to live in low-density, rural-residential environments.[16] (Emphasis added)

The Commissioner concluded by observing that, if his recommendation was adopted, a town could be constructed in the south-east portion of the Peninsular, which had not been recommended for grant in the land claim.

Justice Gray’s recommendation must now be considered by the Commonwealth Minister for Aboriginal Affairs who, under the Act, decides whether to grant the land or not. The Territory however has sought judicial review of the Commissioner’s findings regarding the expansion of Darwin in the Federal Court. It is anticipated that the Full Court of the Federal Court will hear this matter in May 2002. The Territory has not disputed the Commissioner’s findings as to the existence of traditional Aboriginal owners. However three Aboriginal persons, on behalf of the Dangalaba clan, initially sought judicial review of that finding on the basis that additional persons should have been recognised as ‘traditional Aboriginal owners’. This judicial review application has been discontinued.

Ron Levy is the Principal Legal Officer of the Northern Land Council.

---

[1] Kenbi (Cox Peninsular) Land Claim No 37, para 1.1 (Gray J)

[2] Re Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; Re Kearney; ex parte Northern Land Council (1984) 158 CLR 365; Attorney General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

[3] Attorney General (NT) v Kearney and Northern Land Council; Re Kenbi (Cox Peninsular) Land Claim [1948] ArgusLawRp 48; 55 ALR 545; Re Maurice, Aboriginal Land Commissioner; ex parte Attorney General for the Northern Territory (1987) 17 FCR 422; Attorney General for the Northern Territory v Olney and the Northern Land Council FCA (1439/88 Fed No 325) 11; Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470.

[4] Re Toohey; ex parte Northern Land Council [1981] HCA 74; 1981 151 CLR 170.

[5] Attorney General (NT) v Kearney and Northern Land Council; Re Kenbi (Cox Peninsular) Land Claim [1948] ArgusLawRp 48; 55 ALR 545; Attorney General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

[6] Re Maurice, Aboriginal Land Commissioner; ex parte Attorney General for the Northern Territory ( 1987) 17 FCR 422.

[7] Attorney General for the Northern Territory v Olney and the Northern Land Council FCA (1439/88 Fed No 325) 11.

[8] Ibid.

[9] Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470.

[10] Native Title Act 1993 (Cth) s 3.

[11] Kenbi (Cox Peninsular) Land Claim No 37, para 11.13.11 (Gray J).

[12] Ibid para 12.7.1.

[13] Ibid para 12.8.3.

[14] Ibid para 12.8.4.

[15] Ibid para 12.9.2.

[16] Ibid para 12.9.12.