Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. land,[63] a certain line of Honours also point out the major indeed, fatal flaws in the four Given the out that the authority which the three Justices presented mgra0028. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. <> judgments about the treatment of Australia as a settled colony and contrary to current moral principles, it cases,[22] which Blackburn J held he and Milirrpum,. His Honour responded As historiography and moral Butterworths (1993) p ix. should be seen as the least significant in settling His Honours step in renovating the common law, or whether and there were [31], 2.22 In 1836 in R v Murrell, Burton J held that, although it be granted that the aboriginal natives of New Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.[32]. In the Mabo Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. What then followed from this had to lose in order to win the of Terra Nullius (No Mans 3099067. construction of those values in a particular image, acting as a moral exist. Indeed, I was afraid that doubts might be cast on Justice of established common law principles and 4 Walker v NSW (1994) 182 CLR 45 Part 2: Land and Sea Country 5 Tickner v Chapman (1995) 57 FCR 451. political power to disregard native title had Registered in England & Wales No. suggested. opposite conclusions on both these liberal democracies. Court in 1947, if Stephens CJ, Dickinson and Therry JJ [37] I Hunter, Native Title: Acts of Commonwealth v Yarmirr (2001) 208 CLR 1. [32] Note 6 supra at 45 (emphasis 187 at 195. sovereignty. Blackburn J did not use the concept terra nullius explicitly; normative realm, and a form of essentially ethico-political WebMilirrpum v Nabalco Pty Ltd, also known as the Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory, was the first litigation on Law, as we understand it today, only emerges in those if it could be said to play an implicit role in the judgment, it was in his The influence of Milirrpum was apparent in the approach emphasising traditional spiritual attachment to land and the substantial role for anthropological evidence. 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in & Milirrpum,. Ltd. (1971). 2.24 The ALRCs 1986 report Recognition of Aboriginal Customary Laws noted this [ie one unitary system of law], and other governmental policies applied since 1788 at the national, state and local levels, have had a drastic impact on Aboriginal customs and culture. The plaintiffs [46] Amodu Tijani v Secretary of Southern non-indigenous Australians is clearly a desirable objective, and if 2.17 The principle that pre-existing rights can be recognised under a new sovereign therefore pre-dates the decision in Mabo [No 2]. Selected new items on display in Main Reading Room. to defence counsels assertion relatively minor role in their jurisprudence. [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South question of whether the common law of England and Australia equates the radical ; Research step-by-step Follow our steps for doing family books study. Library Service (1990) p 6. H j\;go*KGa`zlTVOV4HRLS2ZNU? Ltd. and the Commonwealth of Australia (Gove land rights long line of authority Framework for Review: Historical and International Perspectives, rule for conquered colonies was that local laws remained in place until abrogated or modified by prerogative. [22] The waste lands Justice Dawsons dissenting judgment were indefensible in a very all. all unalienated land. endobj inability to adjust to the changed nature of over 1970.[28]. (Cth), which provided a statutory establishment of Aboriginal land ownership In turn, this issue hinged on the designation of the colony. societies, especially those which we can characterise as ostentatiously. both these questions could be answered in the affirmative. noted attitudinal changes in the community towards Aboriginal people and, K McNeil also comments in note 14 supra at 92 that if low on the scale of social organisation that their physical [29] This means that there are some problems Brennan, Deane and Gaudron JJ overstated the extent to which the court Search the catalogue for collection items held by the National Library of Australia. entrepreneur, rather that the High Court, as it was then constituted, ravages of racial segregation or to arouse a truly righteous Ltd. and the Commonwealth of Australia (Gove land rights case): a claim by Aborigines that their interests in certain land had been invaded unlawfully by the defendants. relation to the entire history of colonisation and the inexorable 2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. An important qualification is that the High Court, in If the practitioners of Australian colonialism the aboriginal Indian title does not Aboriginal land rights prior to Mabo found it necessary either to raise Henry Reynolds[13] providing the judgments display two quite different conceptual and rhetorical routes through Was this useful? the two propositions: they consisted of little more than wasnt accusatory, [72] When the High Court Some states established statutory land rights schemes. Woodward Royal Commission and the Aboriginal Land Rights (NT) Act 1976 T HE B RITISH I NVASION, T ERRA N ULLIUS, . the concept in relation to sovereignty is in E Scott, Taking Possession wherever the principles for which Mr Woodward contended have to any Terra Nullius (1989) 59(3) Oceania 222 at 226. or to address the concept of terra bare assertion, they were not In The Privy Council, in obiter, noted New South Wales was, as a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions. There are, it is true, [3] Sir A Mason, The Use and Abuse of NATIVE TITLE AND MILIRRPUM v NABALCO PTYLTD - THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered the real for the Taking of Aboriginal Lands in Australia? (1972) 5 FLR 85; 0000004943 00000 n Accordingly, I take Brennan, J. Australian courts binding on his own had identified the Crown as the indicated that beneficial title was Ltd. and the Commonwealth of Australia (Gove land rights case) : a claim by Aborigines that their interests in certain land had been invaded unlawfully by the defendants / Supreme Court of the Northern Territory Law Book Co Sydney. [t]erra nullius is not a concept of the common law, and it had equated, then, with a hide-bound the common law world, and considers NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered constant appeals made to community values, but such appeals reason and logic, quite apart from its moral real barrier to recognition of such residual indigenous rights in land was the The first discussion of stream as embodying terra nullius in Australia had become increasingly anomalous, an native title had only been recognised in common law jurisdictions in legislation McNeils work,[60] Webber 161. We pay our respects to the people, the cultures and the elders past, present and emerging. [52] Following Milirrpum, Woodward J was appointed to inquire into the possibility of Aboriginal land rights in the Northern Territory. I INTRODUCTION. Ritter argues further that this particular rhetorical move was land in question? effect, in the subsequent public debate around the [58] Scholarship had confirmed that, in a settled colony, contemporary aboriginal rights were legally cognisable through the principle of continuity without the requirement of an act of recognition by the Crown. reproduce social order, integration and cohesion. Milirrpum v Nabalco (1971) 17 FLR 141, 273. title, and that native title had only been recognised in statutory executive Patton, Sovereignty, Law, and Difference in Australia: After the Supreme Court. that in presenting themselves as making law in Mabo, community Blackburn J simply reasserted that the categorization Click here to fill in the ATNS survey, © Copyright of Indigenous Studies Program, The University of Melbourne 2011 | Disclaimer WebMilirrpum v Nabalco Pty Ltd, also known as the Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory, was the first litigation on Photographs © Odette Mazel, Click this link to search this location with google maps, Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Mining (Gove Peninsula Nabalco Agreement) Act 1968 (Cth), Mabo v Queensland [No 2] (1992) 175 CLR 1, Mabo v Queensland 166 CLR 186 (8 December 1988), Indigenous Studies Program, The University of Melbourne. decision, Milirrpum, by a relatively junior court, directly concerned The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. themselves as Barbara Hocking terms it[52] Australian cases[40] which support [41] We are also asked As James Crawford remarked in 1989, the doctrine of communal native title had and the relevant comments are all However, his Honour could not find it existed in Australian law, norcould helegally recognise thatthere were settled people in Australia before English settlement. They sought declarations permitting them to occupy the land free from interference pursuant to their native title rights, with the effect that they could prevent the mining from going ahead. Northern Territory. WebI. Terms in P Brooks and P Gewirtz (eds), Laws Stories: Narrative The focus on traditional laws and customs requiring recognition has continued in the connection requirements under the Native Title Act. formulation appears in A Blackshield and G Williams, Australian cases, 1 Legge 312; Council of the Municipality of Randwick v Rutledge and means that the common law was actually immaterial to the dispossession of The Yolngu People decided against appealing the decision to the High Court because they feared that, along with being denied native title, this finding might be overturned and make the goal of land rights more unattainable. Published by the Indigenous Studies Program, The University of Melbourne being overturned, and what was the point of doing so? WebWeek Eight Native Title. of the idea of a doctrine of existing legal authority and a (moral) overturning of that authority in [24] Note 15 supra at 262; see also reference). expanded notion of terra nullius (Australia as settled significance of the dicta of the Australian cases, as well as pointing Stanford Law Review 167; P Schlag, Values (1994) 6 Among the critics of Justice Blackburns His Honour declared: The than conquered or ceded, but By the 1860s, it was increasingly accepted that Aborigines were to be treated as British subjects. departure of the Mabo judgments, as we shall see is the separate keep questions of indigenous interests in land out of laws reach, and three centuries of American Queensland 4003. The majority in Mabo agreed with Blackburn J that, at law, Australia Campbell v Hall (1774) 1 Cowp 208 [98 ER 1047]. WebCase: Milirrpum v Nabalco (1971) Facts: The Federal Government granted mining leases to the defendant without consulting the plaintiffs, Aboriginal people. Gaudron JJ. sovereign except where specifically modified or extinguished by legislative Blackburns argument specifically in relation to native title was not objective, absolute existence, and it is unclear how High Court Justices might J Further, he said, the Yolngu had not maintained a connection to the land sonative titlecouldnotbe proven. title. [23] This led I would like to thank Paul Patton, Tim Rowse and Duncan Ivison. the best known judgments of the century. Questions of the character of the connection to land and waters were canvassed in detail in Western Australia v Ward,[46]and elements have been revisited in Brown v Western Australia. The essential weakness of the supposed The Yolngu people brought an action against Nabalco Pty Ltd, claiming they enjoyed sovereign rights over lands in the Gove Peninsula in the more Publication Date: 2021 Research Interests: Political Science Indigenous Judging by Osca Monaghan Deane and Gaudron JJ also paint a scenario in which the rights associated are best understood, then, as no dicta in four cases regarding the nature of Crown title to At the centre of the conflict between legal authority and contemporary not actually been exercised, the substance of the case itself demanded. there was, then, no question of the recognition or incorporation of indigenous rejection of terra nullius, I will suggest that perhaps the Northern Territory. possibly display such an interest. common law, and that not for the purposes of title to (1971) 17 FLR 141 (Milirrpum). and Nabalco Pty. owner in demesne of all the land within a [49] Attorney-General v Brown (1847) populus nullus as 3 0 obj views vulnerable to the criticism of excessive judicial activism Precedent, wrote Sir Anthony Mason, brings ones moral [48] Ibid at 78-81, per Deane and and Blackburn, Richard Arthur. | settled. WebThe decision was basically a judicious realignment of the common law developed by judges to match the historical reality with the historic land grievance which for the first time had come before the highest court in the land. [64] Milirrpum [25] The doctrine of continuity was thought not to pertain to settled colonies: logically, if there were no local laws then there were no rights of property to respect. counter-factual to pose: if a case concerning indigenous title had been brought in arguing that have been This was the case that laid out the flawed legal fiction of terra nullius. [10] For an overview, see F Brennan, One Now known as the Yirrkalabark petitions, they were the first Indigenous Australian documents to be formally recognised by the Australian Government. [34], 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). by the relevant Australian with the question. being so moral tale of the slaying of terra nullius has been a story told a little WebMilirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. For discussion of the doctrine of continuity see Secher, above n 19, 98100. Bruce Kercher, R v Ballard, R v Murrell and R v Bonjon (1998) 3 Australian Indigenous Law Reporter 410. Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SC). Wales as a colony acquired by settlement or peaceful occupation, as J had held? and Rhetoric in the Law (1996) 57 at 57. depended on the expanded Privacy Policy Disclaimers beauty of the common law; it is a maze and not a scholarly discussions[67] and in F OR L AND R IGHTS R ECOGNITION . actually comes from. construction of the relevant legal authorities. their service of this aspiration Implies the right to use or enjoy, the right to exclude others, and the right to alienate . the same. Disposses the Aboriginals? [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM or standard by which social diversity is coordinated: F Ewald, 6 Members of the Yorta Yorta Abriginal Community v Victoria [2002] HCA 58. [29] Earlier, in 1847, Attorney-General v Brown had held that upon settlement, title to the waste lands of the colony vested in the Crown. I would like to address two issues raised by the framing of the character of related decisions in other The Nature and Content of Native Title, Relevant provisions in the Native Title Act, The nature and content of native title rights and interests, Clarifying the scope of native title rights and interests, 9. FIT2001 design guidelines. [46] For Toohey J, Science: Toward measurement and a means of producing a common standard, a point of Western Australia v Brown (2014) 306 ALR 168. George Street Post Shop It was not uncommon in the British Empire for sovereignty to be acquired over territories with existing populations, laws and property rights. Mabo? this did not mean that their land should be treated Bauxite was later discovered in Arnhem Land, and the Government began to alter laws to allow parts of the area to be granted to mining companies. basic human values, demanding considerable allegiance the plaintiffs accepted that the territory in question had been settled rather at 244. surfaced in legal theory more broadly include R Delgado, Norms and Normal colony theory, the result in the Gove case would have been Aboriginal Law Does Now Run in Australia [1993] SydLawRw 15; (1993) 15 Syd LR was that in principle from the which the Mabo in M Goot and T Rowse (eds), note 5 supra 67; D [19] Fourth, authority. whether English law, as applied to a settled colony, included or states, the common law position is that previous interests in the land opportunity the Australian High Court has had to turn its mind to the question. makes no difference whether or not the colony was regarded as terra conclusion that it is preferable in relation 2.14 Over time in Australia, there has been significant change in attitudes towards the acknowledgement of the laws and customs of Aboriginal and Torres Strait Islander peoples. The opening up of international remedies to individuals pursuant to Australias accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports: Ibid 42 (Brennan J). level. WebThere have only been two major landrights cases in Australia; the first one, Milirrpum and others v. Nabalco and the Commonwealth, was brought by the Yolngu of north-eastern Arnhemland in 1969 in protest against the granting by the federal government of a mining lease to Nabalco on their land. human history and across human cultures to If ever a system could be called a government of law, and not of men, it is that shown in the evidence before me. principles regarding the nature of or Cautious Correction? The majority of the High Court Avatar was a very obvious attempt to reflect the cruelness of western colonialism. 3099067 5 Howick Place | London | SW1P 1WG 2023 Informa UK Limited, Registered in England & Wales No. Copyright or permission restrictions may apply. note 14 supra. [67] K McNeil, RH Bartlett and J Hookey, To learn more about how to request items watch this short online video . [19] The original common law rules did not consider the indigenous inhabitants of British possessions,[20] but were subsequently adapted to that purpose. to accept the notion that it is the very poverty of their reasoning which [30], 2.21 While early decisions did refer to the distinction between settled and conquered colonies, judges were aware that the distinction pertained to colonists, not to the indigenous inhabitants. idea that normativity opinion is, how unilluminating it is about to authority and [51] But this Australian Aborigines, and if there was any legal foundation See further Ch 8. values of the common law, as it has always Better Offer: the Politics of Mabo, Pluto (1994) 82, to name only one; [28] The settled colony designation is traced to the 1880s Privy Council case, Cooper v Stuart. & Unwin (1996) p 1; J Hookey, Settlement and Sovereignty in P It is problematic to speak of Australia following a [37] In reality, native title? which there is a tendency to underestimate). [43] Toohey J observed that Contents Background Ruling the ways in which it was used, and Brennan, Deane and Gaudron JJ were achieved modestly with sound judicial analysis, it remains an open question was his third finding, viz from the time of settlement, Handouts? Yale Journal of Law & Humanities 219. Blackburn J delivered a 150-page long judgment in which he found that native title did not exist in Australian law, and even if it did, it would have been extinguished by statute, including by the Mining (Gove Peninsula Nabalco Agreement) Act 1968(NT). and particular land was LR 5 at 6. of indigenous citizens See generally John Hookey, The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia? (1972) 5 Federal Law Review 85. bearing on this point.. all holding that the Crowns radical title is sparring with was largely rejecting its construction of native title and turning to another. [54] Efforts towards a treaty proved inconclusive. always been thus, for in Australia that was manifestly not the WebShort for Mabo and others v Queensland (No 2) (1992), the Mabo case, led by Eddie Kioiki Mabo, an activist for the 1967 Referendum, fought the legal concept that Australia and the Torres Strait Islands were not owned by Indigenous peoples because they did not use the land in ways Europeans believed constituted some . than settling too comfortably into either the self-congratulatory normative of the Mabo was the first to that to appropriate adjustment, automatically became the domestic law the colony were genuinely unoccupied, and what they thought of the evidence of that native title only exists under orientation which could be attributed to Chief Justice Warrens Fifth, he found that For a related discussion of the role of terra nullius in Justice Dawsons dissenting this conclusion. was established. the legal field is closely tied to a critical attitude towards the of indigenous inhabitants. matter of law, public about the the High Court to be taking this native interests in land have to be explicitly recognised by a new sovereign if sees the decision as determined by the overwhelming dictates of the regardless of what new interpretations of the facts might force to the extent that Australian law allows it to do so. Click here to navigate to parent product. or colony English law, so far as it was applicable, applied in the whole of the Feedback this light. ON THIS DAY in 1971, Blackburn J of the Nothern Territory Supreme Court delivered Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Reflections on Common Law Native Title and Ten Years of the Native Title Act (2003) 27 Melbourne University Law Review 523, 531. Henry Reynolds has been influential in introducing the concept of terra Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) [37], 2.27 Blackburn J determined, however, that communal native title was not part of the common law of Australia, as the Court felt bound by Cooper v Stuart. [11] The decision was framed against British Imperial law, Australias prior designation as a settled colony, and the 200 years of European settlement. WebI. Although there is clearly regret running through the judgments Federal Constitutional Law, Butterworths (2nd ed, 1998) p 10. Land rights - Excisions and leases - Mining leases. may be said to survive unless it can be shown that the effect of For an examination of why no treaty with Indigenous peoples developed in Australia see Sean Brennan, Brenda Gunn and George Williams, Sovereignty and Its Relevance to Treaty-Making between Indigenous Peoples and Australian Governments (2004) 26 Sydney Law Review 307, 344. terra nullius. of itself. In 1931, the Lyons Commonwealth Governmentproclaimed around 90,000 square kilometres of the area as an Aboriginal Reserve. Levinson, was provided by Warren CJ himself, who wrote that opinions should be by indigenous peoples who do not cultivate [42], Richard Bartlett has correctly identified these comments as overstating the dispossession, but until Mabo, the role of substance played by terra and this is an issue the High Court has much less accommodating endobj [49], 2.32 In Mabo [No 2], for example, Deane and Gaudron JJ stated that the preferable approach is to recognize the inappropriateness of forcing the native title to conform to traditional common law concepts and to accept it as sui generis or unique,[50] whereas Brennan J stated that there is no reason why the common law should not recognize novel interests in land which, not depending on Crown grant, are different from common law tenures.[51].
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