Kenbi map

After more than 40 years of struggle, later today the Deed of Grant for the Kenbi Land Claim will be handed to the Larrakia traditional Aboriginal owners of land on the Cox Peninsula opposite the city of Darwin.

The tortuous legal history of the Larrakia people’s struggle for their land is recorded in this chronology that was first published in the April 2016 edition of Land Rights News, produced by the Northern Land Council.

19 May 1975 – Before the enactment of the Aboriginal Land Rights (Northern Territory) Act, correspondence was forwarded to the Interim Land Commissioner, Justice Dick Ward, seeking advice about the lodgement of a land claim over land on Cox Peninsula.

22 December 1978 – Town Planning Regulations, subsequently held to be invalid as made for an improper purpose, were promulgated under the Town Planning Act (TPA) These regulations stated that large areas of land (including submerged lands in Darwin Harbour) surrounding Darwin, Katherine, Tennant Creek, and Alice Springs were to be treated as if part of a town. The regulations were made notwithstanding earlier correspondence from the Northern Land Council (prior to Northern Territory self government ) foreshadowing a land claim, and requesting that there be no alienation of land.

20 March 1979 – A land claim to the Cox Peninsula and various islands to the west (the Kenbi land claim) was lodged.

2 November 1979 – On the basis that the Planning Regulations (under the Planning Act 1979 which replaced the Town Planning Regulations in 1979) were relevant to the issue of whether the Kenbi Land Claim could be considered, the Land Commissioner (Justice John Toohey ) held that regulation 5 was prima facie valid, and that the regulation could not be attacked by impugning the motives of the Crown (ie, the Administrator). Justice Toohey  had earlier reached the same conclusion regarding the Town Planning Regulations (in a hearing on 26 June 1979).

24 December 1981 – Justice Toohey’s conclusion was overruled by the High Court in R v Toohey; ex parte Northern Land Council 1981 151 CLR 170. The Court proceeded on the basis that the relevant legislation was the Planning Act 1979, in particular regulation 5. The matter was returned to the Land Commissioner for further consideration.

2 April 1982 – Justice Toohey ordered that the Northern Territory provide discovery of documents relating to the promulgation of  regulations made under both the TPA and the Planning Act 1979. The Territory claimed legal professional privilege of particular documents. These documents comprised legal advice from the then solicitor-general to the NT Government about methods by which the operation of the Land Rights Act could be defeated.

3 & 6 February 1984 – Justice Toohey’s successor, Justice William Kearney  ordered that legal professional privilege did not apply because the documents had been created as part of a plan to defeat a potential land claim under the Land Rights Act.

14 September 1984 – The Federal Court upheld Justice Kearney decision (Attorney-General (NT) v. Kearney and Northern Land Council; Re Kenbi (Cox Peninsula) Land Claim 55 ALR 545; 1984 FCR 534).

25 September 1985 – The High Court upheld the Federal Court’s decision (Attorney-General (NT) v. Kearney 1985 158 CLR 500).

30 March 1987 – Justice Kearney’s successor, Justice Michael Maurice began hearings about the validity of the regulations made under the Planning Act 1979, but was required to stand down on the basis of perceived bias arising from comments,critical of the Northern Territory Government made in another claim. (Re Maurice, Aboriginal Land Commissioner; ex parte Attorney-General for the Northern Territory 1987 17 FCR 422; 73 ALR 123). The High Court refused leave to appeal on 12 June 1987.

8 December 1988 – As a result of the decision of the High Court in Re Kearney; Ex parte Northern Land Council 1984 158 CLR 365, the validity of the regulation made under the Planning Act 1979 was no longer an issue. The High Court held that the relevant issue was whether land was claimable at the time of lodgement of the application, and that a later change in the status of the land (through alienation or gazettal as a town) was irrelevant. Consequently Justice Maurice’s successor, Justice William Olney  examined the regulations made under the TPA, holding that they were invalid as made for the improper purpose of preventing claims under the Land Rights Act. The regulations were held to be ultra vires the TPA, an argument of inconsistency with the Land Rights Act not being considered.

In his consideration of the validity of the regulation made under the Town Planning Act 1964 Justice Olney stated:

The regulations were made in an attempt to ensure that the authority of the Northern Territory legislature and executive government over the Darwin regulation area would not be diminished or otherwise inhibited by the making of an Aboriginal land claim in respect of that land.” (Attorney-General for the Northern Territory v. Olney and the Northern Land Council no. NG 1439/88; Fed. No. 325 – unreported)

He further stated that this “was the sole reason for making the regulations.”

28 June 1989 – The Federal Court upheld Justice Olney’s decision (Attorney-General for the Northern Territory v. Olney and the Northern Land Council no. NG 1439/88; Fed. No. 325 – unreported). On 15 September 1989 the High Court refused leave to appeal.

21 February 1991 – Justice Olney, after conducting a hearing over 30 sitting days between 13 November 1989 and 8 December 1990, issued an interim report which found that there were no traditional Aboriginal owners of the land claimed because that 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 land. Justice Olney found that only one such person existed.

27 February 1992 – The Full Bench of the Federal Court upheld an appeal against Justice Olney’s decision, finding that persons of matrilineal descent can satisfy the term “traditional Aboriginal owners” as defined in the Act (NLC v Olney 1992 34 FCR 470).

11 June 1992 – Justice Olney, whose appointment as Land Commissioner had expired, held that he consequently had no function to perform regarding the further hearing of the claim.

16 October 1995 – The claim resumed before the new Land Commissioner, Justice Peter Gray, and continued over 57 sitting days to 4 June 1999.

14 December 2000 – Justice Gray finds that six persons are traditional Aboriginal owners in relation to most of the land claimed, and recommends that it be granted as Aboriginal land. Justice Gray emphasised that the land would be for the benefit of all 1600 Larrakia people who have traditional interests in the land, not just the six traditional Aboriginal owners.

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You can read more of the story of the struggle for Land Rights in the Northern Territory here: The ABC, the Country Liberal Party, the Kenbi land claim and a southern journalist and of the earlier struggle for land rights here: Pandora’s Box – the Council for Aboriginal Affairs, 1967 – 1976