Kenbi Land Claim NLC CEO speech at the Handback Ceremony
Joe Morrison, CEO delivered a speech summarising the history of the Kenbi Land Claim from 1979-2016
Good morning ladies and gentlemen and distinguished guests.
Firstly, I acknowledge all Larrakia people present and the Belyuen group, knowing that this journey has been long and often difficult. I acknowledge members of the Tommy Lyons Group as the traditional owners of the lands on which we stand. I welcome you all here today, and recognise that many of you have travelled from far away to attend this ceremony. I welcome our distinguished guests.
The list is too long to nominate you all, but I am delighted that the Prime Minister, the Northern Territory Chief Minister and the representative for the Opposition Leader Mr Warren Snowdon have been able to take time out of their busy schedules to be here today.
This morning I want to take you on a short journey through the last four decades of the story of the Kenbi land claim. It’s been a tumultuous journey, so buckle up and come along for a bumpy ride through a long and tortuous history.
This year, 2016, is the fortieth anniversary of the Northern Territory Aboriginal Land Rights Act. It passed through the Commonwealth Parliament in December 1976 under Mr Malcolm Fraser’s Coalition government.
A year before then, Mr Fraser’s predecessor, Labor Prime Minister Mr Gough Whitlam, was removed from office before he could enact broadly similar legislation. But, anticipating the legislation, Mr Whitlam in April 1975 appointed an interim Aboriginal Land Commissioner, Justice Dick Ward.
The newly incorporated Northern Land Council wrote to the interim Commissioner in March 1975, seeking advice about lodging a land claim to Cox Peninsula, where we are gathered today.
The prospect of Aboriginal land rights frankly terrified much of the Territory’s non-Aboriginal population. Land rights were certainly unsettling the Country Liberal Party when it assumed self-government of the Northern Territory in July 1978.
One of the first acts of the new government, in December 1978, was to promulgate town planning regulations which declared that large areas around Darwin, Katherine, Tennant Creek and Alice Springs were to be treated as if they were part of a town, and therefore unable to be claimed as Aboriginal land. That was in spite of the Northern Land Council having foreshadowed, before self-government, a claim to land on this very peninsula. Notwithstanding the Northern Territory’s town planning regulations, the NLC lodged the land claim to Cox Peninsula and various islands to the west of here on the 20th of March 1979 - more than 37 years ago. The validity of the town planning regulations would bedevil the process of the Kenbi claim for more than a decade.
The legal challenges, all the way to the High Court, were complex and expensive. The very first Aboriginal Land Commissioner, the late and much-respected Justice John Toohey, held initial hearings in 1979 to ascertain whether he could proceed with hearing the land claim. He found that he could not, as he was unable to question the motives of the Government in making the Town Planning regulations.
The NLC took the decision to the High Court which, in 1981, directed the Land Commissioner to consider whether the regulations had been made for the ulterior and improper purpose of defeating the claim. In the subsequent hearing, the Northern Territory Government refused the Land Commissioner’s order to produce all relevant documents about the planning decision. The Government took this through the Federal and High courts – and lost again. It was not until 1988 that Justice Howard Olney, the fourth Land Commissioner to deal with the matter, found that the planning regulations were invalid because they had been made for the improper purpose of preventing claims under the Land Rights Act.
The NT Government appealed to the courts, again unsuccessfully. Finally, in September 1989, the High Court’s refusal of special leave to appeal allowed Justice Olney to begin hearing the Kenbi claim. The hearing lasted for 30 sitting days and ended in disappointment. Justice Olney handed down his report in February 1991, finding that there were no traditional Aboriginal owners of the claimed land. That was because the Land Rights Act required that there be at least two persons of patrilineal descent who had primary spiritual responsibility for sites on the land, and the Commissioner found that only one such person existed.
A year later, in February 1992, the Federal Court overturned that finding and ruled that persons of matrilineal descent could satisfy the term “traditional Aboriginal owners” as defined in the Act. Thus the path was cleared for a second hearing and by then the office of Aboriginal Land Commissioner was held by Justice Peter Gray. He sat for 57 days between October 1995 and June 1999. The NT government held to its obsession that the Cox Peninsula was required for the future expansion of the City of Darwin. It argued that Darwin would expand to a population of one million, and that of four available options, only the Cox Peninsula could be used for that expansion.
But Justice Gray was critical of the government’s town planning exercise, saying that it had more to do with defeating the Kenbi land claim than attempting to plan for the possible future expansion of Darwin.
Aboriginal interests, he said, were given little or no weight, whereas much emphasis was placed on the desirability of providing vast areas for people who might wish to live in low-density, rural-residential environments. In his report, delivered in December 2000, Justice Gray observed that a town could be constructed in the south-east portion of the peninsula, which had not been recommended for grant in the land claim.
More importantly, he found that six persons known as the Tommy Lyons Group were traditional Aboriginal owners of most of the land claimed. Further, he reported that the land would be for the benefit of all 1,600 Larrakia people who have traditional interests, not just the six traditional owners.
In May 2002, that finding became a reality, and legal challenges were finally put to rest, when the Territory’s new Labor government decided to abandon any further appeals through the courts.
But that was not the end of the journey. First there were discussions with governments about how Justice Gray’s recommendations would be put to effect. That’s resulted in agreement for 52 thousand hectares to become Aboriginal land under the Land Rights Act. Another 13 thousand hectares in the northern part of Cox Peninsula will be freehold land vested in the Kenbi Land Trust.
Twenty per cent of that freehold will be granted to the Larrakia Development Corporation. Then in 2008 along came the High Court’s Blue Mud Bay decision which gave ownership of 85 per cent of the Territory’s coastline, including Cox Peninsula, to traditional Aboriginal owners. That has been factored into the final settlement, and I thank the Chief Minister, Adam Giles for his leadership in those negotiations.
That’s resulted in permit free access for recreational fishers to most of the Cox Peninsula coastline and the islands to the west, barring exclusion zones around sacred sites.
Finally, the Commonwealth, through the Departments of Finance and Defence, has agreed to remediate lands across the Kenbi claim area which have been degraded by toxic waste and arms materiel.
I thank the Commonwealth for that, and I thank the Minister for Indigenous Affairs, Senator Nigel Scullion, for the efforts he has made to enable this ceremony today.
I also thank the previous Indigenous Affairs Minister, Jenny Macklin, for her efforts in progressing the Kenbi handback.
The journey has been stressful for many, and I acknowledge that many Larrakia remain unhappy about the outcome. Further, we must not forget those senior Larrakia people who did not live to see this day eventuate.
37 years is far too long to wait for lands to be returned.
But I stress that today really is a day for celebration. Today’s handback ceremony will deliver certainty to the whole community, and opportunity for Aboriginal people themselves to participate in the economic development and cultural protection of the Cox Peninsula now and forever into the future.
That, surely, is a great outcome.
CEO Northern land Council
June 21 2016