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Kenbi Land Claim

Category: Case Law
Date: 1 January 1979
Sub Category:Case Law
Place:

Cox Peninsula, West of Darwin

State/Country:Northern Territory, Australia
The land and waters claims consists of unalienated crown land on the Cox peninsula, in the Hundreds of Bray and Parsons within the County of Palmerston. The land claimed includes islands in Port Patterson and Bynoe Harbour. The claim area excludes a multitude of freehold properties held by both Indigenous and non-Indigenous parties. 
Alternative Names:
  • Cox Peninsula Land Claim
  • Kenbi (Cox Peninsula Land Claim) No 37
  • Summary Information:

    Background

    The Larrakia People lodged the Kenbi Land Claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) on 22 March 1979. There were four separately represented claimant groups (totalling 1600 people) who claimed land available on the Cox Peninsula and the islands and reefs to the west of the Peninsula.



    After 21 years, three hearings before the Full Bench of the Federal Court, three before the High Court, and two before the Land Commissioner, Justice Gray published his recommendations in a Report to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Administration of the Northern Territory in December 2000.

    The Report rejected the claims of three of the claimant groups but found that the Tommy Lyons Group, which consisted of six people, fell within the statutory test of 'traditional Aboriginal owners' in the Act with respect to a substantial part of the claim. As such, it was recommended that most of the land claimed be granted to an Aboriginal Land Trust. The recommendation made it clear however, that all the claimants would benefit as they also had strong traditional interests to the land claimed.


    The Land Commissioner's (Gray's)recommendation then went to the Federal Minister for Aboriginal and Torres Strait Islander Affairs, who, under the Land Rights (NT) Act 1976 (Cth) makes the decision to grant the land or not.

    Chief Minister of the Northern Territory, Denis Burke, opposed the proposal to return the 600 square kilometres of land to the Larrakia People and appealed the Land Commissioner's decision. The Northern Territory Government's appeal was ultimately withdrawn in 2002 with the election of the Martin Labor Government.

    Subsequent Attempt to gain Native Title

    The applicants William Risk, Helen Secretary and Pauline Baban brought a claim of native title on behalf of the Larrakia Peoples over the Cox Peninsula in 2006, under Native Title Act (NTA). The claim was determined in Risk v Northern Territory [2007] FCAFC 46

    The trial judge found that Larrakia peoples had inhabited the area prior to 1788 and continually inhabited the area until the first decade of the 20th century [22]. However, the trial judge, ruled that the laws and customs under which Larrakia society operated were not 'traditional' in the meaning of Members of the Yorta Yorta Community v Victoria [23]. The trial judge held that there was significant ambiguity regarding Larrakia laws and customs, and that there had been significant change in them since acquisition of sovereignty. Ultimately, the trial judge determined that the claim did not satisfy s 223(1)(a) of the NTA

    The applicants appealed on two grounds: that the trail judge disregarded oral evidence of continual inhabitance from 1910 and that the trail judge misapplied Yorta Yorta. The Full Federal Court of French, Finn and Sunberg JJ found that the trial judge discharged their duty to consider all evidence and did not ignore evidence crucial to the issues for determination [72]. Furthermore, the court found that the trail judge did not err in their application of Yorta Yorta [98]. 

    Resolving the Land Claim

    In 2016, the newly incumbent Turnbull Liberal Government settled the Kenbi land claim with the Larrakia Development Corporation (LDC). This settlement ended the longest land claim dispute in Australian history, having lasted for 37 years (Dunlevie and La Canna). 

    It is notable that, all of the claimants were included as beneficiaries of the trust over the land, which is distinct from the previous two determinations which denied a large majority of Larrakia people. The settlement concluded the "fishing access" component of the claim, with recognition of a public access to fish and hunt in the determination area (Larrakia Development Corporation). The Larrakia Development Corporation holds a number of development privileges and the right of first refusal for development of the Darwin subdivision Farrar West. 


    Related Entries

    Agreement
  • Cox Peninsula Water Supply Project Agreement
  • Kenbi Indigenous Land Use Agreement
  • Organisation
  • Northern Territory of Australia
  • Larrakia Development Corporation
  • Legislation
  • Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
  • People
  • Larrakia People - Native Title Claimant
  • Tommy Lyons
  • Case Law
  • Risk v Northern Territory of Australia [2007] FCAFC 46
  • Members of the Yorta Yorta Aboriginal Community v The State of Victoria [2002] HCA 58

  • References

    Media Release
    Northern Land Council (2000) Kenbi Land Claim Victory
    Resource
    Department of Justice (2005) Significant Cases: Aboriginal Land Claims: The Kenbi (Cox Peninsula) Land Claim (Claim No. 37)

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