Case: Northern Land Council v Olney (1992) 34 FCR 470
Outcome: referred to
The Kenbi Claim was first lodged in 1979. It was the subject of two separate hearings, one before Justice Olney as the then Aboriginal Land Rights Commissioner in 1989-1990. The findings in his Report were set aside by the Federal Court (see Northern Land Council v Olney (1992) 34 FCR 470). The second hearing was before Justice Gray between 1995 and 1999. 429 There were four separate and competing claim groups. Each sought to be recognised as the traditional owners of the land in question. These groups included the Larrakia group, and the Danggalaba group. There was also the Tommy Lyons group, and the Belyuen group. Unlike the Tommy Lyons and the Danggalaba groups, the Belyuen group does not have any link with 'Larrakia' country apart from the Kenbi claim area. It is accepted that the Larrakia group in the current proceedings is the same as in the Kenbi Claim proceedings. Some of the people identified as Danggalaba group members in the Kenbi Claim are among the second applicants in the current proceedings. 430 Although the Kenbi Claim was brought under the ALR Act, evidence presented during its hearings, in particular about the relationship of Aboriginal people to land and waters, is also relevant to the current proceedings. 437 There is no precise correspondence between the proof requirements under the NT Act and those for a claim under the ALR Act. Section 3 of the ALR Act defines 'traditional Aboriginal owners' as including that they be a local descent group of Aboriginals who have common spiritual affiliations, being affiliations that place that group under a primary spiritual responsibility for the particular land. It is a term which does not include all those Aboriginals who may have a traditional right to use or occupy the land: cf s 71(1) of the ALR Act, and the discussion by Northrop, Hill and O'Loughlin J in Northern Land Council v Olney (1992) 34 FCR 470 at 478-485. The Territory contended that since Justice Gray's findings were made in accordance with the ALR Act, and because they included findings of law or of mixed fact and law, it is not appropriate to adopt them in this matter. 438 Despite its objections to the first applicants' submissions, the Territory in its submissions on connection referred to the findings of Justice Gray in his Summary to the Kenbi Report, paras [17]-[20] and [24]. These findings were as follows: 'It is well known that Aboriginal societies traditionally impart knowledge to their members progressively. It is clear that the Belyuen group functions in this manner. Its members hold knowledge relating to dreamings and their relationship to sites on the land claimed. The degrees of knowledge held depend upon initiation, age and experience. There is a considerable amount of ceremonial activity, often involving people who do not live at Belyuen, as well as those who do. Some senior people are identified as leaders. Those who have been born with entitlements to knowledge are considered not to have lost those entitlements, even if they have moved away to live; such spiritual affiliations as those persons have acquired by birth as members of the group will remain. So far as most of its members are concerned, the Larrakia group does not have the characteristics of Aboriginal society that have been described. The events which have occurred since the establishment of the first European settlement in 1869 have had drastic effects on the society which once existed among members of the Larrakia language group. To a very great extent, knowledge of dreamings and sites has been lost to Larrakia people. Young people are not routinely initiated into adulthood. Ceremonial activity has ceased. There had not been a consistent spiritual tradition, handed down from generation to generation, among those who are said to constitute that group. ... At its heart, the case put on behalf of the Larrakia group is that the possession of any Larrakia ancestry entitles a person by birth to all of the spiritual affiliations available in respect of all the dreamings so far as they relate to all of the sites on or near the land claimed. I am unable to accept this argument. ... With respect to the Larrakia group, the position is much more difficult. There can be no doubt that some members of the Larrakia group have spiritual affiliations to sites on the land claimed. Others have affiliations to the land itself, rather than to specific sites. In my view, the absence of a detailed common tradition of spiritual affiliations with sites, handed down from generation to generation to members of the Larrakia group, has resulted in the development of different spiritual responses on the part of different people. In the absence of such a tradition, it is difficult to make findings as to the nature of the spiritual affiliations, if any, of the many Larrakia group claimants who did not give any evidence. The lack of the regular practice of ceremonial activity related to dreamings and sites, and of the staged acquisition of knowledge in association with that ceremonial activity, has resulted in different members of the Larrakia group having spiritual affiliations that differ essentially in many ways. As such, to attempt to speak of spiritual affiliations which are "common" to the members of the Larrakia group would be unreal.' 439 The issue is whether any findings of the Land Rights Commissioner in the Kenbi Report ought be adopted in this matter, in circumstances where that course of action is not consensual.