Case: Northern Land Council v Aboriginal Land Commissioner (1992) 105 ALR 539
Outcome: referred to
Justice Gray noted that this passage had been cited with approval by the Full Court of the Federal Court in Northern Land Council v Aboriginal Land Commissioner (1992) 105 ALR 539 (at 553). The Full Court observed (at 553-4): "In the present case ... the views expressed by the Commissioners in their later reports coincide with the ordinary meaning of the expression "local descent group" and correctly state the law, subject to two matters which call for comment. The first is, as was indeed recognised in a number of reports, 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. Thus the principle of descent should be interpreted not solely in a biological sense. Secondly, the words "deemed to be relevant by the claimants" may be misinterpreted by some. What has to be found is the existence of a group, recruited by descent, possessing ties to the land and otherwise satisfying the criteria set out in the definition of "traditional Aboriginal owners". 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 the particular principle of descent traditionally operating may not change over time. That is what Toohey J meant when his Honour used the words: "... a principle of descent deemed relevant by the claimants." It should not be thought that the words are to be taken to suggest that the governing descent principle in operation in a particular group could be changed by them at whim so as to fit the circumstances of a land claim. 116 Justice Gray then dealt with the notion of "descent criteria". He said: "3.2.1 In the present claim, the evidence is strong that the claimants recognise a dual principle of descent. A person is recognised as taking country from both his or her father's father ('kakung country') and his or her mother's father ('jawajing country'). Responsibility and rights for kakung country and jawajing country are generally considered to be of equal importance. Sometimes, there are assertions of rights and responsibilities to father's mother's country ('ngapuju country') and mother's mother's country ('jaju country'). This is particularly so when strict adherence to rights to kakung and jawajing country alone would give rise to a risk of a descent group becoming extinct, or so vestigial as to leave too few people to exercise proper responsibility for country. It is also the case when the actual attachment of people to ngapuju or jaju country is so strong as to result in the acceptance of those people as part of the group with traditional responsibilities for, and rights to, that country. 3.2.2 In considering the claim, I have been prepared to accept as members of a local descent group people who claim through their fathers' fathers and people who claim through their mothers' fathers. In some circumstances, I have regarded it as appropriate to recognise as members of a local descent group those who claim through their fathers' mothers and those who claim through their mothers' mothers. There are cases, however, in which the evidence does not support the proposition that these wider claims should be upheld, usually because the circumstances in which they would be recognised by the claimants generally as having sufficient strength are not present. It is plain that the recognition of the rights of people to the country of all four grandparents as a matter of course would result in the disappearance within a relatively short time of any notion of separate groups with responsibility for different areas of land. The way in which the claim was put indicates that the claimants have not been so generous in affording recognition of traditional rights." 117 Justice Gray observed that the claim before him was put primarily on the basis that there were seven separate but overlapping local descent groups, each with its own attachments to, and responsibilities for, a part of the land claim. After identifying these groups (some of which coincide broadly with the various claimant groups in the proceeding before me, including Makalamayi, Wunjayi, Yanturi and Wantawul), he found that although there were seven identifiable areas of land, each associated with a descent group, the reality was that responsibilities were viewed as shared on a much less strict basis. There was considerable overlapping of the areas of land associated with the different groups, and a sharing of Dreamings.