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	Australian Indigenous Law Reporter

Queensland Land Tribunal - Practice Directions

Date of Issue: June 1992

Reproduced below are the practice directions of the Queensland Land Tribunal for the assessment of Aboriginal land claims under the Aboriginal Land Act 1991 (Qld).

Practice Directions

A. Receipt and Notification of Applications

1. The Land Tribunal will only take action with respect to a land claim where:

(a) an application has been duly made to the Land Claims Registrar in accordance with sections 4.01-4.[05] of the Aboriginal Land Act 1991; and

(b) the Land Claims Registrar has referred the application to the Tribunal.

2. As soon as practicable after a land claim application is referred to the Land Tribunal the Tribunal will:

(a) publish notice of the claim; and

(b) give notice of the claim to interested persons; and

(c) cause copies of the application to be made available for public inspection,

in the ways described in paragraphs 3-7 of these Practice Directions below.

3. Notice of each application referred to the Land Tribunal will be published in:

(a) the Queensland Government Gazette;

(b) a newspaper circulating throughout the State (usually the "Courier Mail"); and

(c) any regional newspapers that the Tribunal considers appropriate.

Any person or Organisation which may be an "interested person" for the purpose of a land claim (or land claims) may apply to the Tribunal to receive:

(a) notice of that claim or those claims; and

(b) notice of any proceedings before the Tribunal involving that claim or those claims.

(a) a letter; or

(b) any other means that the Land Tribunal considers more effective than a letter.

(a) copies of the application are available for public inspection at places, and during times, specified in the notice; and

(b) interested persons may, within the period specified in the notice, apply to the Tribunal to be made a party to the proceedings for the hearing of the claim; and

(c) any other group of Aboriginal people may, within that period, make a claim for the whole or part of the land the subject of the claim or for such an area and additional area of claimable land.

7. Copies of each application referred to the Land Tribunal will be available for public inspection at:

(a) the Office of the Land Tribunal, Ground Floor, BP House, Herschel Street, Brisbane on business days between
9 am and 5 pm; and

(b) any other place that the Tribunal considers appropriate,

for not less than 60 days after publication of notice in the Gazette.

8. If the claimants want to amend their land claim, they may apply to the Land Tribunal to amend the claim. A claim may be amended with the permission of the Tribunal.

9. Where the Land Tribunal considers that interested parties should be notified of:

(a) an application to amend a land claim; or

(b) an amendment of a land claim,

10. If a claim is amended to include land that was not claimed in the original claim, then paragraphs 2-7 of these Practice Directions will apply as if a separate claim had been made to that additional land and the claim had been referred to the Land Tribunal.

Multiple claims to an area of land

11. If:

(a) a claim is made by a group of Aboriginal people for an area of claimable land; and

(b) a claim is made for all or part of that land by another group of Aboriginal people, either:

(1) within the period specified in a notice published in relation to the first claim; or

(2) before the hearing of the first claim has started;

12. If the subsequent claim also includes an additional area of claimable land, then paragraphs 2-7 of these Practice Directions will apply with respect to the additional land.

Parties to a proceeding before Land Tribunal

13. The parties to a proceeding for the hearing [of] a claim under this Act are:

(a) the claimants; and

(b) the claimants of any other claim under this Act that is to be heard and determined with that claim; and

(c) any other person who has been made a party to the proceeding by the Tribunal on application by the person in the way described in paragraph 14.

14. An interested person may:

(a) within the period specified in the notice published in the Gazette in relation to the claim; or

(b) within such further period as the Tribunal allows,

15. If it is necessary to decide whether a person is an interested person in relation to a claim under this Act, the matter is to be decided by the Land Tribunal.

If the Tribunal decides that a person is not an interested person in relation to a claim under this Act:

(a) the Tribunal must give the person written reasons for its decision; and

(b) the person may appeal to the Land Appeal Court against the decision.

B. Procedures before Hearing by the Land Tribunal of a Land Claim

16. No claim will be allocated a hearing date until the Chairperson or, in the absence of the Chairperson, a Deputy Chairperson of the Land Tribunal is satisfied that the claim is ready for hearing.

Application by the claimants

17. Consideration will be given to allocating a hearing date when the Chairperson of the Land Tribunal receives written notice from the claimants or the claimants' representatives stating that the claim is ready to proceed and requesting the Land Tribunal to commence its inquiry.

Where such a notice is received, the Chairperson:

(a) will give written notice to any other parties to the proceeding that the claimants are ready to proceed; and

(b) will provide the other parties with a copy of the documents referred to in paragraph 18; and

(c) will request the views of those parties about an appropriate hearing date.

(a) a list or sufficient description of the claimants and, where appropriate, genealogical records for the claimant group, including information about general rules for the inclusion or exclusion of people from the group;

(b) a written statement giving a summary of the information on which the claimants rely to support the ground or grounds on which the claim is made, namely:

(1) traditional affiliation; or

(2) historical association; or

(3) economic or cultural viability, including details of the claimants' proposal for the use of the land,

and the form of that information (for example, historical records, videotapes, published documents, photographs, ceremonial activity, field visits);

(c) a written statement giving a summary of the information about other matters on which the Tribunal must advise the Minister including:

(1) the persons who should be appointed to be the grantees of the land as trustees for the benefit of the group of Aboriginal people concerned;

(2) the number of Aborigines who will be advantaged by a grant of land, and the nature and extent of the advantage that will accrue to them; and

(3) the responsibilities in relation to the land that the group of Aboriginal people concerned agrees to assume if the land is granted because of the claim, and how those responsibilities should be expressed in any deed of grant or lease granted in relation to the land (Note: The Aboriginal Land Act 1991 defines "responsibilities" in relation to land, to include such things as:

(i) responsibilities under Aboriginal tradition for the land, including, for example, responsibilities for areas that are of particular significance under Aboriginal tradition; and

(ii) responsibilities for the land that may affect neighbouring land, including, for example, responsibilities in relation to fire and vermin control);

(d) any other materials which the claimants think the Land Tribunal should have before taking oral evidence from Aboriginal informants;

(e) details of the restrictions which the claimants propose should be placed upon the copying or publication of any of the materials referred to above (see paragraphs 38, 39 of these Practice Directions about the types of restrictions that may apply); and

(f) proposals for the further conduct of the inquiry, including the place or places where the claimants propose the Tribunal should conduct a hearing of the claim.

Where the claim is based on the claimant group's traditional affiliation to the land claimed and that affiliation includes affiliation to particular areas, tracts or places on the land, the claimants may wish to provide:

(1) a map or maps showing the areas, tracts and places of spiritual or other significance which are relied upon in support of the claim; and

(2) a land information register for the land claimed.

Ideally, a land information register will provide in relation to each area, tract and place:

A. its Aboriginal name or names;

B. its non-Aboriginal name (if any);

C. its physical features;

D. its location (where practical, by reference to an Australian National Grid Reference);

E. the totemic, mythological or other spiritual beings associated with it;

F. a summary of the mythology associated with it or other reasons for its significance (eg burials, sacred art, use as a ritual ground);

G. traditional economic uses of and resources on it;

H. any historical associations which the claimants have with it;

I. the Aboriginal person(s) responsible for it; and

J. sources of the above information (including any documents and the names of Aboriginal persons who supplied this information).

Note: Such maps and registers are not essential but are examples of the type of materials which some claimants may think are appropriate for the presentation of their claim.

Application by a party

19. Where a claim has been referred to the Land Tribunal but no date has been fixed for the hearing a party to the proceeding may apply in writing to the Chairperson of the Land Tribunal for directions for the hearing of the proceedings on the ground that there are special reasons why the application should be dealt with as soon as possible. The Chairperson will then:

(a) set a time for a hearing to deal with that application; and

(b) give written notice of the hearing to the claimants and the parties to the proceedings.

20. Before the hearing of a claim, the claimants or a party to the proceeding may apply to the Chairperson of the Land Tribunal for a hearing to deal with any procedural questions relating to the proceeding, including such matters as the date, place and manner of hearing.

21. In any event (whether or not an application for a hearing has been made to the Chairperson), where it appears to the Chairperson to be necessary or desirable to determine any procedural question relating to the hearing or determination of a claim, the Chairperson may appoint a time for a hearing to determine that question and will give written notice of hearing to the claimants and the parties to the proceedings.

22. A hearing, or hearings, to determine any procedural question relating to a proceeding may be held by way of a conference including, where appropriate, a conference by telephone.

Practice directions for a particular proceeding

23. At the conclusion of a hearing to determine any procedural question, the presiding member may issue detailed practice directions about the further conduct of the proceeding, including directions concerning the preparation and exchange of documents before the hearing of the land claim (see paragraph 29 of these Practice Directions).

Notice of hearing

24. When a date for the hearing of proceedings has been determined, notice of the date and place of the hearing:

(a) will be given in writing to each party; and

(b) may be published in a newspaper or newspapers that the Land Tribunal considers appropriate.

C. Hearing by Land Tribunal of a Land Claim

25. If a claim is referred to the Land Tribunal, the Chairperson may direct the holding of a conference of the parties presided over by a presiding member.

26. If a conference is held and:

(a) at or after the conference, agreement is reached between the parties as to the terms of a decision of the Tribunal in the proceeding that would be acceptable to the parties; and

(b) the terms of the agreement are reduced to writing, signed by the parties and given to the Tribunal; and

(c) the Tribunal is satisfied that:

(1) a decision in those terms would be within the powers of the Tribunal; and

(2) it would be appropriate to make a decision in those terms;

27. At the hearing of a proceeding before the Tribunal, unless the parties otherwise agree, evidence must not be given, and statements must not be made, about anything that happens at a conference held in relation to the proceeding.

28. If:

(a) a conference held in relation to a proceeding is presided over by a member of the Tribunal; and

(b) a party to the proceeding who was present at the conference notifies the Tribunal before, or at the start of, the hearing that the party objects to the member participating in the hearing;

Exchange of information before hearing

29. Subject to any directions given under paragraph 23 of these Practice Directions, the parties to the hearing of a claim should, as far as is practicable:

(a) prepare and exchange statements of their intended evidence and any material of a technical nature proposed to be used as evidence; and

(b) give a copy of those statements and that material to the Senior Deputy Registrar,

Representation before the Land Tribunal

30. At the hearing of a proceeding before the Tribunal, a party to the proceeding:

(a) may appear in person; or

(b) may be represented by an agent duly appointed in writing for the purpose.

31. A person representing a party before the Land Tribunal has the same protection and immunity as a barrister has in appearing for a party in a proceeding in the Supreme Court.

Procedure of the Land Tribunal

32. In a proceeding before the Land Tribunal:

(a) the procedure of the Tribunal is (subject to the provisions of the Aboriginal Land Act 1991) within the discretion of the Tribunal; and

(b) the proceeding is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Tribunal permit; and

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in any way that it considers appropriate. In particular, as a general proposition, hearsay evidence may be admitted. The weight to be attached to that evidence will be a matter for submission and determination. Relevancy will be the controlling test for the admissibility of evidence.

33. Where a party to the proceedings intends to give evidence in a language other than English, that party should, no later than 7 days before the date appointed for the commencement of the hearing of the proceedings, advise the Tribunal:

(a) that evidence will be given in the other language or languages; and

(b) of the steps which the party has taken to ensure that an interpreter is available to translate or explain that evidence at the hearing.

(a) that evidence will be given in Aboriginal English; and

(b) of the steps which the party has taken to ensure that an appropriate person is available to translate or explain that evidence at the hearing.

35. As a general rule the hearing of a proceeding before the Land Tribunal is to be in public.

36. If the Tribunal is satisfied that it is desirable to do so because of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(a) direct that a hearing or part of a hearing is to take place in private and give directions as to the persons who may be present; or

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; or

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal.

(a) whether the hearing of a proceeding should be held in private; or

(b) whether publication, or disclosure to a party, of evidence, or of a matter contained in a document or received in evidence, should be prohibited or restricted;

Restrictions on evidence

38. Where appropriate and subject to the exceptions indicated, the restrictions and other directions set out in paragraph 39 of these Practice Directions may be applied by the Land Tribunal to exhibits and sections of transcript during the course of the hearing of a land claim. A party seeking to have a restriction applied to an exhibit or section of transcript must specify the type of restriction sought and the reasons for seeking that restriction, including a description of the offence or harm which is to be avoided by applying the restriction.

39. The Land Tribunal may direct that an identified exhibit or section of transcript is subject to one of the following restrictions:

(a) The exhibit or section of transcript is not to be copied or otherwise reproduced without the consent of either a presiding member of the Land Tribunal or the author. (Exception A applies unless otherwise directed.)

(b) All copies of the exhibit or section of transcript provided for the use of participants during the course of the hearing are to be returned to the Senior Deputy Registrar of the Land Tribunal at the close of submissions. Subject to any other restrictions imposed, the original will be available for inspection at the Land Tribunal's office in Brisbane and, later, at the archives depot where it is permanently stored.

(c) The contents of the exhibit or section of the transcript are not to be revealed to any person other than the member(s) of the Land Tribunal conducting the hearing. (Exceptions B, C and D apply unless otherwise directed.)

(d) The contents of the exhibit or section of the transcript are not to be revealed to any female person or any male person other than the members of a specified Aboriginal group. (Exceptions B and D apply unless otherwise directed.)

(e) The contents of the exhibit or section of the transcript are not to be revealed to any male person, other than the member(s) of the Land Tribunal conducting the hearing. (Exceptions B and D apply unless otherwise directed.)

(f) The contents of the exhibit or section of the transcript are not to be:

(1) revealed to persons other than the member(s) of the Land Tribunal conducting the hearing, the Land Tribunal's consultants and staff, participants in the inquiry whose interests may be affected by the material concerned, authorised agents representing parties to the proceedings and those instructing or advising them in relation to the hearing; and

(2) quoted or cited other than for the purposes of this land claim.

Restrictions upon commercially sensitive material will be applied where appropriate. Those seeking them should carefully frame them to meet the specific requirements of the occasion.

Exceptions

A. May be quoted by parties in their written submission to the Land Tribunal, and by the Land Tribunal in its report.

B. To the extent which the Land Tribunal considers necessary and appropriate, contents may be revealed in the Tribunal's report.

C. To the extent which the Land Tribunal considers necessary and appropriate, contents may be revealed by a member of the Tribunal in discussions with the Tribunal's consultant (if any) of the appropriate gender.

D. Contents may be revealed to the Minister for Land Management.

E. Authorised agents for parties to other land claim proceedings may have access to this material for the purposes of research.

F. Contents may be used in and for the purposes of other land claim proceedings.

G. Contents may be revealed to the Minister for Land Management and advisors and consultants to the Minister.

H. Subject to any other restrictions applied, the State of Queensland and its instrumentalities may have access to this material for the purpose of discharging its responsibilities under the Constitution, but on the understanding that no Queensland public servant or other Queensland functionary will publish the material or any part of it beyond what is strictly necessary for the discharge of those responsibilities.

I. Any anthropological or other researcher may apply to the Chairperson of the Land Tribunal for permission to inspect these materials and, subject to obtaining that consent, may inspect them upon such conditions as the Chairperson may impose.

Opportunity to make submissions

40. Subject to paragraphs 36-39 of these Practice Directions, the Land Tribunal will ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present the party's case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to the documents.

Sitting places

41. The Land Tribunal will hear a claim at a place or places and at such times as the Tribunal considers appropriate to perform its functions with respect to that claim. A decision about the location of the hearing will be made having regard to the interests of the claimants and the interested parties and the general principle that the hearing of a proceeding should be held in public.

Part or all of a hearing may be held on or near the land claimed. The Tribunal may inspect part or all of the land claimed where the Tribunal considers it is necessary or appropriate to do so for the purpose of determining a land claim.

Field visits

42. Whenever it is proposed that, in the course of the hearing of a land claim, evidence is to be given at a place or places more than 10 kilometres away from the principal hearing place, the party wanting to give that evidence must lodge at the office of the Land Tribunal in Brisbane, and forward to each party to the proceedings:

(a) a field visit map; and

(b) a field visit program; and

(c) a field visit certificate.

43. For the purpose of paragraph 42(a) of these Practice Directions, a field visit map is to be a topographical map on which is indicated the location of each place proposed to be visited and the route proposed to be followed.

44. For the purpose of paragraph 42(b) of these Practice Directions, a field visit program must state the proposed departure and arrival times in respect of all relevant places. Where the field visit is to be carried out by motor vehicle, the field visit program must describe the route to be followed in the course of each visit giving details of distances from the departure point, road junctions, turn-offs and/or other physical features.

45. For the purpose of paragraph 42(c) of these Practice Directions, a field visit certificate must be in writing signed by a senior and responsible person from or representing the party requesting the field visit, certifying:

(a) that the person has visited the places referred to on the field visit map; and

(b) that the location of the places on the field visit map is accurate; and

(c) that the route described in the field visit program has been travelled by the person and that the distances shown in the field visit program are accurate; and

(d) that the proposed departure and arrival times referred to in the field visit program are capable of being achieved; and

(e) the nature and condition of the road surface, track or other country over which it is proposed to travel and drawing attention to any particular difficulties likely to be encountered which may delay or inhibit travel; and

(f) that the proposed field visit program can be completed during the hours of daylight.

47. Camping out away for the base camp or principal hearing venue will only be undertaken when absolutely necessary and then only after consultation with, and with the approval of, the Chairperson of the Land Tribunal (or other presiding member) not less than 2 weeks before the commencement of the hearing.

48. The party requesting the field visit is responsible for giving notice of the intended travel to the owner, leaseholder or licence holder of any land over which it is intended to travel. That notice must be given in an appropriate form and a reasonable period before the intended travel.

Particular powers of Tribunal concerning procedure

49. For the purpose of a proceeding, the Land Tribunal may:

(a) take evidence on oath or affirmation; or

(b) proceed in the absence of a party who has had reasonable notice of the proceeding; or

(c) adjourn the proceeding from time to time.

50. As a general practice, all evidence given and submissions made orally during the hearing of a proceeding will be tape recorded and a written transcript will be prepared from the sound recording.

51. Subject to any restrictions imposed by the Land Tribunal on the publication or distribution of transcript, a party to a proceeding may obtain a copy of part of all of the transcript of the proceeding from the Senior Deputy Registrar of the Land Tribunal.

52. Where a party considers that the transcript is an incorrect record of the proceeding, the party may apply to the Land Tribunal for the transcript to be corrected and the Tribunal may direct that corrections be made.

Summons of a person to give evidence

53. For the purposes of the hearing of a proceeding, a presiding member of the Land Tribunal may summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are specified in the summons.

54. A person served as prescribed with a summons to appear as a witness before the Land Tribunal must not, without reasonable excuse:

(a) fail to attend as required by the summons; or

(b) fail to appear from time to time in the course of the proceeding as required by the presiding member.

(a) to the Chairperson of the Land Tribunal; or

(b) where the hearing of a proceeding has commenced, to the presiding member of the Land Tribunal hearing that proceeding,

The party making the application should present with the affidavit a draft of the order sought, using the form attached to these Practice Directions.

Protection of witnesses

56. A person summoned to attend or appearing before the Land Tribunal as a witness has the same protection as a witness in a proceeding in the Supreme Court.

Allowances for witnesses

57. A witness summoned to appear at a hearing of the Land Tribunal is entitled to be paid such allowances and expenses:

(a) as are prescribed; or

(b) as the Chairperson of the Tribunal determines in the absence of regulations.

58. The member of the Land Tribunal who presides at the hearing of a proceeding:

(a) may require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and

(b) may administer an oath or affirmation to a person so appearing before the Tribunal.

Refusal of a witness to be sworn or to answer questions

59. A person appearing as a witness at a hearing of the Land Tribunal must not, without reasonable excuse:

(a) fail to be sworn or to make an affirmation; or

(b) fail to answer a question that the person is required to answer by the presiding member; or

(c) fail to produce a document that the person was required to produce by a summons under this Act served on the person as prescribed.

It is a reasonable excuse for a person to fail to produce a document if producing the document may tend to incriminate the person.

Land Tribunal may dismiss claim or strike out party in certain circumstances

60. If a party to a proceeding before the Land Tribunal fails either to appear at a preliminary conference or at the hearing of the proceeding, the Tribunal may:

(a) if the party has made a claim under this Act to which the proceeding relates - dismiss the claim concerned; or

(b) in any other case - direct that the person who failed to appear is to cease to be a party to the proceeding.

61. The Land Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Land Appeal Court for decision, but a question is not to be referred without the agreement of the presiding member (if any) who is presiding or the Chairperson of the Tribunal.

Draft minutes of advice on detriment to a party

62. Where a party to the proceedings claims that the party would suffer detriment if the land claimed or part of the land becomes Aboriginal land, the party should provide to the Land Tribunal and to the claimants not later than 21 days before the date appointed for the commencement of the hearing of the proceeding a written draft of the advice which the party wishes the Land Tribunal to give to the Minister. The draft advice should:

(a) identify the issue precisely; and

(b) specify the finding(s) of primary fact (if any) which the party wishes the Land Tribunal to make in relation to that issue; and

(c) state precisely what the implications of a grant are for the party's interests; and

(d) briefly but succinctly frame the comments that the party wishes the Land Tribunal to make in relation to that issue.

D. Determination by Land Tribunal of a Land Claim

63. A claim by a group of Aboriginal people for an area of claimable land on the ground of traditional affiliation is established if the Land Tribunal is satisfied that the members of the group have a common connection with the land based on spiritual and other associations with, rights in relation to, and responsibilities for, the land under Aboriginal tradition. "Aboriginal tradition" is the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.

64. In determining the claim, the Tribunal must consult with, and consider the views of, the persons recognised under Aboriginal tradition as the elders of the group of Aboriginal people.

Establishment of a claim on ground of historical association

65. A claim by a group of Aboriginal people for an area of claimable land on the ground of historical association is established if the Land Tribunal is satisfied that the group has an association with the land based on them or their ancestors having, for a substantial period, lived on or used:

(a) the land; or

(b) land in the district or region in which the land is located.

66. In determining the claim, the Tribunal must consult with, and consider the views of, the persons recognised under Aboriginal tradition as the elders of the group of Aboriginal people.

Establishment of a claim on ground of economic or cultural viability

67. A claim by a group of Aboriginal people for an area of claimable land on the ground of economic or cultural viability is established if the Land Tribunal is satisfied that granting the claim would assist in restoring, maintaining or enhancing the capacity for self-development, and the self-reliance and cultural integrity, of the group.

68. In determining the claim, the Tribunal must have regard to the proposal made in the claim for the use of the land.

Claim may be established on more than one ground

69. A claim by a group of Aboriginal people for an area of claimable land may be established on more than one ground.

Claim may be established for only part of the land claimed

70. A claim by a group of Aboriginal people for an area of claimable land may be established for all or for a part only of the land.

Notice of Land Tribunal's findings about a land claim

71. If a claim by a group of Aboriginal people for an area of claimable land is established, the Land Tribunal must recommend to the Minister for Land Management:

(a) if the claim is established on the ground of:

(1) traditional affiliation; or

(2) historical association,

that the land be granted in fee simple to the group; or

(b) if the claim is established on the ground of economic or cultural viability, that the land be granted to the group by way of a lease in perpetuity, or a lease for a specified term of years, on specified terms and conditions.

72. If a claim by a group of Aboriginal people for an area of claimable land is established on one or more grounds, the Land Tribunal will notify each party to the proceeding, in writing:

(a) that the claim has been so established; and

(b) of the recommendations (if any) made to the Minister for Land Management in relation to the claim,

73. If a claim by a group of Aboriginal people for an area of claimable land is not established on one or more grounds, the Land Tribunal will notify each party to the proceeding, in writing, that the claim has not been so established and will cause a copy of its reasons to be given in writing to each party.