Australian Indigenous Law Reporter
In November 1995, the Land Tribunal, consisted of: Carmel A MacDonald, Deputy Chairperson; Gary J Martin, Member; John W Stewart, Member, published their report and recommendations in the Helenvale: Wunbuwarra - Banana Creek Land Claim.
Claim was to about 6,220 hectares of vacant unallocated State land south of
Cooktown. The Tribunal was not able to resolve legal
issues as to the southern
boundary of the claimed area, in particular, 'whether the bed and banks of the
northern branch of the East
Normanby River is available Crown land within the
meaning of the Act' (paragraph. 31). The matter was important to the claimants
because of the presence of sites of significance, because it is the only
permanent water in the
claim area, and because of their wish to exercise traditional rights of hunting and fishing there (paragraph. 17).
The claim was made without prejudice to any native title rights which the claimants may have. One reason for this was the prospect for recognition of native title to water (paragraph 33). Another reason was the claimants' wish to establish native title in respect of a Timber Reserve area adjacent to the land under claim. The Tribunal, as in earlier claims, made no determination as to the existence of native title in relation to the land available for claim (paragraphs 36-48).
The claim was based on traditional affiliation under s. 46 of the Act (paragraph 53). The claim was made by or on behalf of 'The Kuku-Nyungkul people whose traditional estate encompasses the claim area'. The claim was made on behalf of, but not exclusive to a number of listed family names. One name was subsequently withdrawn, by agreement. Detailed lists of family members were provided in Appendix 1 to the claim book as subsequently amended (paragraphs 49-52).
The only other party was Cook Shire Council.
The hearing took place at Wujal Wujal where a large number of the claimants live. It is reasonably close to the land claimed. The claim area was visited by helicopter. The hearing was open to the public. The claimants were represented by Ms Suzette Coates as their agent, assisted by Dr Christopher Anderson. Cook Shire Council were represented by Councillor Burns and Mr Looser, Assistant Executive Officer of the Council. The Tribunal permitted groups of witnesses to sit together in giving evidence. Evidence was given in English interspersed with words or phrases in the Kuku-Nyungkul language, interpreted by Dr Anderson. Proceedings were recorded on sound tape and a transcript was prepared. The Tribunal attempted to avoid unnecessary naming of deceased people (paragraphs 58-67).
The claimants sought restrictions on the publication, copying and removal of a document compiled by Dr Anderson and described as Appendix Genealogies to the claim book. Cook Shire Council did not oppose the restriction (paragraphs 68-73). The Tribunal made such an order (paragraph 74) and subsequently published its reasons (paragraphs 75-79)concluding:
78. The claimants did not seek a complete prohibition on the publication of the Appendix Genealogies. Copies of the Appendix were available to the members of the Tribunal both before, during and subsequent to the hearing for the purposes of preparing this report. A copy was also made available to the representatives of the Cook Shire Council during the hearing. The material will also be available if any appeal is lodged in relation to the matter. Thus the orders made have not, in our opinion adversely affected the conduct of the proceedings or the parties presentation of their cases. The effect of the orders made is that the content of the Appendix Genealogies is not to be publicised other than as permitted and their physical location is to be controlled in the manner indicated.
79. In making these orders, the Tribunal is conscious that it is desirable that hearings be conducted in public and that documents received by the Tribunal should be made available to the public. However the Tribunal is given discretion under section 8.22 [s. I10 in Reprint No. 3] of the Act to restrict or prohibit the publication of documents lodged with the Tribunal. We are satisfied that it is desirable to make the orders sought because of the confidential nature of the information contained in the Appendix Genealogies. We accept that the Appendix Genealogies contain information that may cause embarrassment and harm to some of the claimant families if disclosed publicly. We also accept Dr Anderson's evidence that it is part of Aboriginal tradition in the area that peoples' family history belongs to themselves and their families. In making our decision we have balanced the principle that it is desirable that documents received by the Tribunal should be made available to the public against the harm that might be caused by disclosure of the information sought. We have taken into account the limited nature of the restrictions sought, in particular that they apply only to the Appendix Genealogies, and the evidence which we heard in relation to Aboriginal traditions in this regard.
The Tribunal is required to consult with elders in respect of a claim based on
traditional affiliation, and is specifically required
to consult as to who
should be grantees of land as trustees. It held a meeting outside the hearing
with the claimant group, including
elders, a number of whom also gave evidence
The Tribunal, if satisfied that a claim is established on the ground of traditional affiliation, must recommend to the Minister that the land be granted in fee simple. It must also advise the Minister in writing in relation to four matters - the advantage to Aborigines from a grant, the responsibilities they would undertake, any detriment that might result from a grant, and any effect of a grant on existing and proposed patterns of land usage in the region. The Tribunal accepted the view of these functions expressed by the Tribunal in the Cape Melville Report (paragraphs 170-187).
In Chapter Two of the Report, the Tribunal considered the various elements that need to be established to support a claim based on traditional affiliation. It referred to earlier Tribunal reports, to Court decisions and to evidence before them.
As to whether the claimants constituted a group with a common connection with the land:
98. The claimants' agent submitted that the 'group' in this claim could be identified on the following bases.
By virtue of birth a Kuku-Nyungkul person takes their place in a group, membership of which is defined by genealogical or putative link with their parents -and beyond this with their father's or mother's line. ... In this sense, a member of these groups shares a common biological reckoning. In addition to this, the group members share a relationship to a particular area of land which is primarily associated with that clan group. 'This relationship gives the group members rights and responsibilities with respect to their land. The claimants... form a group constituted under Aboriginal law and tradition by the following criteria: genealogical connection to a clan and a clan area within the Upper Annan area and a common language. ... Other aspects such as shared history, shared beliefs, residence and birthplace also play a role in defining group membership.'
99. Since this submission identifies those characteristics which this particular group of claimants are said to have in common, the Tribunal is prepared to accept that proof of existence of these common characteristics will establish group membership for the purposes of this claim.
As to whether they were people 'of the Aboriginal race of Australia' the Tribunal said that although some have at least one non-Aboriginal ancestor, that would not preclude them from membership, citing Brennan J in Commonwealth v. Tasmania  HCA 21; (1983) 158 CLR 1 at 243, 244 and in Mabo v. Queensland (No 2)  HCA 23; (1992) 175 CLR 1 at 70.
As to the effect of possible changes to Aboriginal tradition:
111. In her final submission the claimants' agents says that Kuku-Nyungkul tradition is alive and that it is changing and evolving. It is submitted by Ms Coates that:
'Aboriginal culture in south eastern Cape York Peninsula has changed considerably since the arrival of the first European land visitor in 1872 and that all other Australians of non-Aboriginal origin have also changed over that period. Technological innovations and introductions have altered many aspects of Kuku-Nyungkul life and their economic and political system has also been affected by the social forces of a dominant way of life imposing itself on a previously independent people. Living away from country in a centralised community much of the time has also meant changes. The culture of the Kuku-Nyungkul people is not the same as it was one hundred years ago. The Kuku-Nyungkul people have a recognisable and systematic culture which is the result of both continuities and the adaption of tradition'.
112. In the Cape Melville report there is an extended discussion of the effects of changing traditions and a review of the relevant legal authorities. It is clear that the courts have accepted that Aboriginal tradition may change over time.
113. That Tribunal concluded and we also accept that, for the purposes of determining land claim applications under the Act on the ground of traditional affiliation, it is necessary to ascertain whether and to what extent the common connection which the members of the claimant group have with the areas of land claimed are derived from Aboriginal tradition as defined in section s.203 of the Act. The answer to that question will have to be determined in light of the evidence about the basis and contemporary content of those aspects of Aboriginal tradition that are relevant to these proceedings. 114. Our conclusion in this regard is not altered by consideration of the decision of the Court of Appeal in New South Wales in Mason v. Tritton (1994) 34 NSWLR 572 which was handed down subsequent to the Land Tribunal's Cape Melville report ....
As to whether the claimants had a common connection with the land:
119. As we discuss in detail below the evidence presented established a complex system of land holding within the Kuku-Nyungkul tradition. The association with land was at three levels - sites, estates and 'nation'. Different members of the Kuku-Nyungkul people have different connections with different parts of the land depending on the level of their association with the particular land. However for the purposes of this claim the Kuku-Nyungkul people have joined together and made one claim for the whole of the land available for claim. In making the claim they are therefore operating at nation level and their claim is that at that level all Kuku-Nyungkul people are equally affiliated with the land. They also submit that level of affiliation existed and operated in the 1870's prior to European contact. The claim of equal affiliation at nation level, once established, appears to us to be sufficient to bring the claimants case within the meaning of a 'common connection' with the land.
As to the nature of spiritual and other associations with the land, the Tribunal noted what was said by two of the claimants (paragraph 122), and went on:
123. The claimants' representative also submitted that there is no distinction in Aboriginal culture between humans and the supernatural or spiritual world. Dr Anderson's research, writings and evidence establish, submit the claimants, that there is a unity in Kuku-Nyungkul thinking of nature and culture/people, (so that people are an integral part of the landscape and vice versa) and a unity of past and present (so that the 'old people' or ancestors live today in the land and in the people alive now).
The Tribunal's report summarises the evidence as to the history of the area after European contact, Kuku-Nyungkul traditions concerning land, the relation of the claimed area to overall Kuku-Nyungkul territory, the claimant group, spiritual associations with the land, other associations with the land, rights and responsibilities for the land under Aboriginal tradition, and other Kuku-Nyungkul traditions. The Tribunal in its Conclusions expressed itself as satisfied on the essential elements of the claim, and recommended that the claim land be granted in fee simple to 'The group of Aboriginal people described as the Kuku-Nyungkul people who have traditional affiliation with the land' (paragraph. 300). As to who should be the specific grantees:
304. It was decided by the group that two people should be appointed to represent each of the major family groups as grantees of the land to hold it as trustees for the benefit of the claimants. We are satisfied, as a result of the consultation with the members of the claimant group, that the persons nominated are appropriate to be so appointed and we recommend that these persons be appointed.
In Chapter Three the Tribunal reported on the four matters on which the Act requires it to advise the Minister.
Approximately 825 Aborigines had been named as claimants with additional numbers of their children not specifically named. 'In our opinion at least 900 Aborigines will be directly advantaged if the claim land is granted' (paragraph 308). In addition, it was acknowledged that other Aborigines through marriage would also be advantaged.
As to the nature and extent of the advantage, the Tribunal accepted evidence that a grant would counter the feeling of alienation caused by Kuku-Nyungkul people having to live on other peoples' land, that a grant would help to alleviate the stress and strain caused by overcrowding in Wujal Wujal, that the grant would strengthen the role and self-esteem of older people, and the socialisation and self-esteem of young people, that the grant would restore the people's sense of community, that access to traditional lands and bush foods would improve diet and health, and that skills and culture would be enhanced (paragraphs 311-312).
314. The responsibilities identified in chapter 2 of this report were as follows; (a) for some of the senior claimants to look after the country for everyone else, and to talk for the country; (b) to make sure knowledge of country survives in the group; (c) to maintain contact with the country by visiting it regularly and thinking about it; (d) to protect the sites of special significance by preventing access by strangers, and preventing disturbance of the site, and to protect it in the sense of providing for the transmission of the knowledge relating to that site to the appropriate next generation; (e) to keep the land clear and clean by burning it off.
The claimants say that these responsibilities still apply today. In addition, the claimants have said that today they have the following responsibility.
(f) to establish themselves in the area and to use the land successfully in contemporary terms, by building houses, putting up fences and perhaps running a few cattle. ... 316. In the circumstances the Tribunal considers that an appropriate formulation is that adopted by the claimants in the land claim application, that is:
'To look after and utilise the land in accordance with contemporary Kuku-Nyungkul tradition'.
Cook Shire Council did not oppose the claim but became a party to express its concerns relating to rateability, access, and provision of services. As to rateability, the Tribunal advised that the land was not currently rateable, and would not become rateable if granted except to the extent that part of it might be used for residential or commercial purposes. The 'Council would not appear to suffer any detriment in that respect' (paragraph 323) though it was not possible to predict whether and to what extent the land would be used for commercial or residential purposes. Council would suffer detriment if it were required to provide infrastructure and services without cost recovery via rates (paragraph 324).
Cook Shire Council would not suffer detriment by any liability to maintain an access road, if constructed, as it would expect to be funded externally for that liability (paragraph 326).
As to provision of services, the Aboriginal Land Act 1991 (Qld) confirms that the laws of the State apply to land granted under the Act, so that the Shire's general regulations would apply to any living areas or tourist facilities (paragraphs 327-328).
There was no evidence of any detriment to other interests, including surrounding land holders who had been notified of the proceedings but had not applied to become parties. Nor was there evidence of detriment to other Aborigines but, rather, of possible benefit to Kuku-Yalanji people (traditional owners of Wujal Wujal).
There was no evidence on this issue apart from the question of an access road. The Tribunal advised on the effect that either of the two principal options for routing such a road might have, on the Timber Reserve or on a Grazing lease, respectively.
As noted in (1996) 1(2) AILR 283 the Minister for Lands accepted the recommendation that the land be granted in fee simple.
In April 1996, the Land Tribunal, consisting of: Graeme J Neate, Chairperson; Graham H. Dillon, Member; and Beverley M Perel, Member, published their report and recommendations in the Lakefield National Park Land Claim.
The Queensland Land Tribunal reported to the Minister for Natural Resources in April 1996. The claim under Queensland's Aboriginal Land Act 1991, was over Queensland's second largest national park. 1. With over 2,500 claimants, Lakefield was by far the largest claim run so far in Queensland in terms of the number of people to be advantaged by the claim.
The claim was heard together with a claim to the nearby Cliff Islands National Park, made by a sub-group of the claimants for Lakefield. 2. This note will deal mainly with the larger Lakefield claim and report.
The claims to both:
1. Lakefield, including its tidal lands, an area of approximately 537,000 hectares, southwards from part of the southern boundary of Princess Charlotte Bay roughly 100 kilometres north west of Cooktown; and
2. Cliff Islands, to the north of Lakefield, and about 50 kilometres east of Coen,
were made on the grounds of 'traditional affiliation' and 'historical association' 3.
The report notes that Lakefield contains representative samples of floral
communities and species of Cape York Peninsula, including
grassy open woodlands
dominated by eucalypts and paperbarks on its flood plains, riparian or gallery
forest, and tracts of fan palms.
There are extensive lowlands with permanent
water, providing highly significant foraging and nesting habitats for
species of birds. Lakefield is reported to contain the only
viable estuarine crocodile habitat in a conservation zone in Queensland,
one of only six key areas for crocodile conservation in Queensland
The Land Tribunal's report contains a useful detailed summary of the tenure history for Lakefield, which was first declared a national park in 1979, having previously been subject to several pastoral leases and other dealings (paragraph 20ff).
It then reported that the claim did not include tidal waters ebbing and flowing across claimed tidal lands, with the claimable tidal lands being those lands ordinarily covered and uncovered by the ebb and flow of spring tides (paragraph 82ff).
The Tribunal found that the beds and banks of watercourses or lakes within the boundaries of the park were claimable land, but that those parts of the beds or tidal rivers within the park that are downstream of the point to which the spring tide normally flows, are not claimable.
There were 13 other interested parties to the Lakefield claim, including the Regional Director of the then Department of Environment and Heritage, Cook Shire Council, Cattlemen's Union of Australia, neighbouring pastoralists and the Queensland Commercial Fishermen's Organisation (QCFO).
The Tribunal stated that the individual criteria to satisfy the claim on the ground of historical association are (paragraph 170):
(a) The claim must be made by 'a group of Aboriginal people';
(b) The claim must be for 'an area of claimable land';
(c) The group must have an 'association with the land', based on:
(i) The group for a 'substantial period' having 'lived on ... the land'; or
(ii) The group for a 'substantial period' having 'lived on ... land in the district or region in which the land is located'; or
(iii) The group of a 'substantial period' having 'used ... the land'; or
(iv) The group for a 'substantial period' having 'used ... land in the district or region in which the land is located'; or
(v) The ancestors of the group for a 'substantial period' having 'lived on ... the land'; or
(vi) The ancestors of the group for a 'substantial period' having 'lived on ... land in the district or region in which the land is located'; or
(vii) The ancestors of the group for a 'substantial period' having 'used ... the land'; or
(viii) The ancestors of the group for a 'substantial period' having 'used ... land in the district or region in which the land is located'.
The Tribunal stated that the individual criteria to satisfy a claim on the ground of traditional affiliation are (paragraph 168):
(a) The claimant must be made by 'a group of Aboriginal people';
(b) The claims must be for 'an area of claimable land';
(c) Members of the group must have 'a common connection with the land';
(d) The common connection must be 'based on spiritual and other associations with, rights in relation to and responsibilities for' the land; and
(e) The associations, rights and responsibilities must arise under 'Aboriginal tradition', that is, 'the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people', including any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships. 4
The report discusses application of the statutory criteria, considering terms such as Aboriginality (paragraphs 178-186); group (paragraphs 187-198); common connection (paragraphs 199-214), based on (paragraphs 215-25); spiritual and other associations (paragraphs 226-236); rights in relation to, and responsibilities, for the land (paragraphs 237-241) and Aboriginal tradition (paragraphs 242-47). In relation to the claim on the ground of historical association, the report discusses the terms lived on or used (paragraphs 249-252), substantial period (paragraphs 253-68) and district or region (paragraphs 269-272).
The claimants stated that each of them had interests in the park which were both traditional and historical. The report states at paragraph 274 that the claim was based primarily on traditional affiliation. Before dealing with that basis of claim, the Tribunal considered the claim on the basis of historical association, examining evidence on the history of Aboriginal presence in the region before European settlement; records of early European explorers, settlers and researchers; and occupation and use of land by the claimants and their ancestors. With such a large group of claimants, the Tribunal systematically examined evidence from each of the 50 claimant families comprising the claimant group (paragraphs 343-489). The Tribunal found that (paragraph 510):
(a) Aboriginal people have for a substantial period, lived on or used the claimed land and land in the district or region in which the land is located; and
(b)those Aboriginal people identify themselves and were recognised by others as comprising named groups with links to identifiable tracts of land; and
(c) those Aboriginal people were, or included, the ancestors of the individual families who are claimants to Lakefield and the groups comprising those families
The Tribunal was satisfied that the claim made on the ground of historical association had been established.
The report carries out a detailed examination of the evidence to support the claim of traditional affiliation. The claim being made by two large and five smaller groups with connection to the claim area, the Tribunal considered the social organisation of the claimants as a whole and then examined evidence from the individual subgroups (paragraphs 563-663). The Tribunal found that there was a strong sense of identification as members of definable subgroups with that impression being strengthened by evidence of Aboriginal people from neighbouring groups who provided evidence that the claimants were, in effect, the right people to claim the land (paragraphs 664-670).
The Tribunal found that while claimants identified with separate subgroups, there was evidence demonstrating the links between those subgroups. One witness stated that elders had told him that (paragraph 674):
'Bama not just from one place there; and its the relatedness with everybody else that makes you realise that whilst your main focus might be at Bagaarrmugu, you also have an interest in -and other people have an interest in your land as well. And as I said, the biggest benefit to me from this whole claim is ... the connectedness with people ...' 5.
The claimants submitted that there was unity of the group at several levels including their committment to the views that: ancestral spirits inhabit the land; a vital part of their several family histories lies in the land; they have rights to use the land; Aboriginal law should be followed in dealing with the land; they have responsibilities to look after the land; and that it is their land because of the principle of descent from their ancestors who were land owners (paragraph 692).
The Tribunal stated that (paragraph 712):
'The word 'group' is a word of flexible application, both in its ordinary English sense and the expanded sense given by the definition in the Act. The claimants have close actual and classificatory relationship with each other (so that they can be described as countrymen) and are descended from people whose traditional country was within the claim area. They are linked by virtue of making the claims together (having coalesced in a way which, although not a continuation of a tribe from the past, is in accordance with Aboriginal tradition) and so have a community of interest.'
The Tribunal was satisfied that the claimants were a group for the purposes of the Act.
The critical issue then was whether the members of that group have a common connection with the land as required in the Act.
In relation to spiritual associations with the land claimed, the Tribunal found that (paragraph 759):
'although ceremonial life among the claimants has been diminished and transformed by contact with non-Aboriginal settlers over more than a century, aspects of the ritual life and the system of beliefs on which it was based still exist. That system of belief (rather than any particular ritual or ceremony) provides the basis for the claimants' spiritual associations with the land.'
The Tribunal found numerous examples of traditional rights in relation to the land including traditional rights to enter, remain and the use of the resources of the land, with those rights not being unlimited, but being qualified by traditional restrictions on behaviour at certain places, and by traditional rules governing such things as the type and quantity of resources which can be obtained. Further rights included rights possessed primarily by elders to teach others about the land and a range of cultural matters (such as particular stories) associated with it, with other claimants having the right to learn about the land from their elders (paragraph 761). The Tribunal found the following in relation to traditional responsibilities for the land (paragraph 764):
'A picture of a regional land tenure system emerges from the collation of these individual perceptions. Its principles as practised and explained by individual claimants include that:
(a) one must look after country according to the rules of the local Aboriginal tradition (including religious rules about fishing, hunting, preparation of food, food taboos to be observed at particular places; camping; and a range of other activities);
(b) one must show respect for sacred areas, or Story Places, and approach these areas only in the company of the appropriate elder or elders, and observe the rituals as enunciated by them;
(c) one must have respect for the social relations between groups, and for the ways in which these social relations are linked to cultural/geographical areas (including referring to others by the correct kinship term);
(d) one must ask permission of the appropriate elders to enter and to carry out any activity on another person's country;
(e) the ability to observe these principles requires a basic understanding of the relevant regional or local Aboriginal body of traditional knowledge (so that to be recognised as an Aboriginal person with links to the region, a person must know about these matters and live in such a way as to be seen to be complying. In general, with the rules and traditions of the local Aboriginal society);
(f) the extent to which any person has rights and responsibilities in land is limited by the extent of knowledge of these matters which a person has (so that one can fish, hunt and camp on one's own country, so long as the traditions are observed; and one can fish, hunt and camp on a nearby country so long as the traditions are observed; but one can only observe the traditions if one knows what they are);
(g) elders have the greatest rights and responsibilities because of their knowledge, and those in the company of elders are spiritually protected by their knowledge and by their legitimacy as heirs to the country.'
The Tribunal found that (paragraph 765):
'there is evidence of a range of phenomena which are distinguishable from spiritual associations and which connect the claimant sub-groups with the land in direct and indirect ways under Aboriginal traditions. They include such things as various aspects of Murri Law and indigenous languages, place names and personal names, as well as matters already discussed, such as knowledge of ceremonies and the use of natural resources for food and medicine.'
The Tribunal made the following observations about the claim on the ground of traditional affiliation (paragraph 799-800):
'The claim is complex. It involves identifiable (though not necessarily discrete) sub-groups of people with numerous family and social links, and adjacent (though overlapping) estates, each of which is the primary focus of a sub-group's spiritual and other associations. There are great variations between claimant families and members of families in terms of the nature and extent of their historical associations with the claimed land and the nature and extent of their knowledge and observance of Aboriginal tradition with respect to the land. Those claimants who are knowledgeable elders demonstrated a readiness to acknowledge as members of the group those people who have lived away from the claimed land but who trace their ancestry back to the region. Those who returned to the claim area for the purposes of the land claim hearing were frank in their admissions of what they did not know but were keen to learn from knowledgeable elders. Those elders demonstrated a willingness to teach those of the dispersed people who show a willingness to learn and who could be entrusted with that traditional knowledge.
It is clear that the constitution of the claimant group has been fashioned by reference to the area of land available for claim. The boundaries of that land are artificial when considered in terms of the classical estates of clans or other traditional sub-groups. The claimant group is not determined by reference to traditional principles of recruitment to a single group which existed before the claim was made. Rather it comprises those traditional sub-groups of people for whom areas of land for which they have primary traditional rights and responsibilities lie within those boundaries. Although the claimant group is not a traditional group, membership of the group is determined by reference to traditionally recognised criteria.'
In its conclusions the Tribunal found that (paragraph 809-14):
'Although the affiliation with the land may be rooted in the traditions, observances, customs and beliefs of the past, it is the current nature and extent of the traditional affiliation which determines whether a claim will succeed.
It is undoubtedly the case that a number of senior claimants in each of the claimant sub-groups (and hence in the claimant group) have demonstrated that they have strong connections with the land based on spiritual and other associations with, rights in relation to, and responsibility for the land under Aboriginal tradition. But what of the others who, on the evidence before us, comprise the majority of the claimants?
This is not a case where, in the words of Justice Brennan, 'the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs'. Rather, various historical currents and eddies have taken or drawn some people away from the land, differentially causing a lessening or diffusion of some indices of the links which the ancestors of some families or sub-groups once had to the land.
Chapter Two of this report contains a discussion of the meaning of the expression 'common connection'. Having considered various judicial decisions and observations by Aboriginal Land Commissioners about a similar expression in the (Cth) Aboriginal Land Rights (Northern Territory) Act 1976, we concluded that the 'common connection' with the land is a connection which must be held by the individuals who comprise the group together with each other. That analysis was not put in issue by the claimants. Indeed their final submission stated that 'it is the members of the group rather than the group itself which must have a common connection with the land' on the relevant basis.
How the nature and extent of the common connection is proved is a separate issue. The Full Federal Court, when interpreting a similar provision in the Aboriginal Land Rights (Northern Territory) Act 1976, stated:
'A group necessarily comprises persons. Clearly it is not necessary to call each member of the group to give evidence to establish that they have the appropriate spiritual affiliation. It will be sufficient if the evidence establishes, on the balance of probabilities, that the Aboriginals who comprise the group have that affiliation'.
It is also appropriate to bear in mind that the strength of that common connection and the means by which it is demonstrated are not static. Justice Brennan has observed that, as Aboriginal tradition within a group 'is eroded or renewed with the passing of time, so the strength of the group's spiritual affiliations to sites on their land and their spiritual responsibility for those sites and for that land may wane or wax.' The renewal to which his Honour referred may well be invigorated by the preparation and presentation of a land claim.'
The Tribunal was satisfied that the claim was established on the ground of traditional affiliation.
The recommendation is currently with the Queensland Minister for Natural Resources to consider. If the Minister accepts the recommendation of the Tribunal to grant the land, section 83 of the Act requires the negotiation of a lease in perpetuity for the purpose of management of the national park land under the Nature Conservation Act 1992; establishment of a board of management composed in the way approved by the Minister but with at least some claimant representation on the board, and finally preparation of a plan of management for the ongoing management of the national park.
Copies of the Land Tribunal's land claim reports can be purchased ($15 each) from the Land Services Centre (Woolloongabba), Lands Department, Locked Bag 40, Coorparoo DC, Qld 4151, Telephone: (07) 3896 3216, Fax: (07) 3896 3510.
Inquiries should be addressed to the Senior Deputy Registrar, Land Tribunal, PO Box 127, Brisbane, Roma St, 4003.