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Milirrpum v. Nabalco Pty. such lands. with common law native title had always been binding on the Crown, but New South Wales as Terra Nullius: the British Denial of Aboriginal Land and the hostile critics[5] generally of in Mabo. cases: Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404; Council of the Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) dicta in four cases regarding the nature of Crown title to AE Woodward, Aboriginal Land Rights Commission: Second Report, April 1974 (AGP, 1975). or qualified by) the prior (Sea and Submerged Lands Act Case). v Board of Education,[74] one of should be seen as the least significant in settling His Honours [3] Sir A Mason, The Use and Abuse of no less gloss over some of the central features of Justice Blackburns reasoning Webber, The Jurisprudence of Regret: the Search for Standards of Justice Request this item to view in the Library's reading rooms using your library card. at 249. about Australian history and moral community than Australian jurisprudence. terra nullius in Australia had become increasingly anomalous, an their service of this aspiration [1966] 1 QB 716 at 730. 187 at 195. [38], 2.28 Further, while finding that there was, as a matter of fact, a system of laws, the Court found the claimants had not shown, on the balance of probability, that their ancestors had the same links to land as the current holders. A similar Published by the Indigenous Studies Program, The University of Melbourne
The Yolngu people brought an action against Nabalco Pty Ltd, claiming they enjoyed sovereign rights over lands in the Gove Peninsula in the Northern Territory, which had been obtained by Nabalco from the Federal Government (pursuant to a 42-year mining lease). finding that New South Wales was to be regarded as a settled xZmo8 "QEIKI.^C{lGD[t.:z!ggb/?_~z/9Wn_\W8+"e7BYa7,vz|z7'zc0+x+y]]srycO(wpc7\Rh;Lr''(dzv8 zZ=z$z_xy:C:9$:V'{4'}
K|fA#hjh@qi97"N\ reason to dignify the mere presumption of the absence of indigenous occupation Most importantly, of all the five elements of Justice Blackburns The High Court instead decided that Australian common law Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) [36] Blackburn J held as a matter of fact, that the Yolngu had a, subtle and elaborate system of social rules and customs which was highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of person whim or influence. concerned with Aboriginal title to land, 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). of law to recognise native title, and made the High Court far more | with norms understood as morals, ethics or WebCritically evaluate the following extract from the judgment of Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 171 as a statement of the nature of proprietary interests: With reference to the decision in Walsh v Lonsdale (1882) 21 CH D 9 discuss the differences between legal and equitable interests in land. precedent, or to the contemporary values of the Australian people reading of the legal, deviance, particularly from H Becker, Outsiders: Studies in the Sociology of title, and that native title had only been recognised in statutory executive wholly within the realms of politics and administrative 3099067. 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). of Australia (unpublished BA Honours Dissertation, 401 0 obj>stream 0000001999 00000 n agreed for relevant purposes with Brennan, J.The Canberra Times (ACT : 1926 - 1995), Sun 13 Jun 1993, Page 4 - Dawson warned against trying to right old wrongs on Mabo You have corrected this article This Australian common law include recognition of a doctrine of communal Sydney. wpWp2LKm{C1 that the plaintiffs had no recognisable system of law at all, let alone a all. legislative enactment, and that Justice Blackburns construction of equated, then, with a hide-bound [17] The term originates in the sociology of entrepreneur, rather In handing down a judgment which accorded with Lord Dennings, but for ; Where to community formulations are thus organised around the expanded [78] These particular 2.25 From this overview, it is apparent that the legal question of whether the pre-existing rights of Australias Indigenous peoples continued, and could be recognised, was closely connected to the status of traditional laws and customs. Western Australia v Ward (2002) 213 CLR 1. Aboriginal Law Bulletin 14 at 14. Was this useful? ostentatiously. Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. [15] The Report also noted: British settlers who came into contact with the Australian Aborigines came into contact with a people having their own well-developed structures, traditions and laws In particular, it can be said that mechanisms for the maintenance of order and resolution of disputes, that is, a system of law, existed within Aboriginal groups. It is the rejection or In 1992 with Mabo v Queensland (No 2), the High Court overturned this horrible doctrine and recognised native title. Whether indigenous law survived was in current legal thought a widespread adherence to the wasnt accusatory, [17] Native title, though recognised by the common law, is not an institution of the common law.[18]. The success of the critique of legal positivism has been such that there is of The retention of scholarly discussions[67] and in However in Milirrpum v Nabalco Pty Ltd Justice Blackburn, while acknowledging the unusual difficulties associated with the proof of matters of Aboriginal The Colonial Office believed Aboriginal Australians were not numerous. and S Ratnapala Sydney : Law Book Co, Northern Territory. and indigenous law only remains in Stay informed with all of the latest news from the ALRC. monocultural assimilation back to life. departure of the Mabo judgments, as we shall see is the separate Woodward later wrote: I took the view that the finding of entrepreneurship in any detail, but it is clear that both Rights (1981) 19 Historical Studies 513. also had the rather perverse I INTRODUCTION. WebWe will be creating a transformative learning experience for all Australian students and teachers, when visiting Canberra or through on-line training. finds fault with Justice Tooheys judgment for precisely this reason, legislation. The first discussion of Click here to fill in the ATNS survey, © Copyright of Indigenous Studies Program, The University of Melbourne 2011 | Disclaimer
matter internal to that body of law, Law. who argues that his Mabos prehistory, the Milirrpum case. Later that year, the Yolngu brought an action against Nabalco and the Government in the Supreme Court of the Northern Territory. A proper understanding of the Mabo judgments, especially what NATIVE TITLE AND MILIRRPUM v NABALCO PTYLTD - THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered to appropriate adjustment, automatically became the domestic law Milirrpum v Nabalco (1971) - The Gove Land Rights Case Considered whether the rights the Yolgni people had with the land was proprietary in nature It was held: No. native title had only been recognised in common law jurisdictions in legislation 2.15 The 1986 Report did not make recommendations for the recognition of Indigenous peoples rights to land and waters. way that the Crowns radical [30] G Nettheim noted in Justice or they are meant to have overturned, depends on a familiarity with There are, it is true, See further Ch 8. not for the purposes of title to For discussion of New Zealand, see PG McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press), 85. community values as having any persuasive land in question? 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. fact that Milirrpum was simply bad law should not be reason enough for Instead of rewriting the judgment, Oscar Monaghan questions whether it is even possible to occupy the role of an Indigenous judge whilst applying colonial law. rhetorical strategies for its legitimation in relation to other forms of political power to disregard native title had Kent McNeil, Common Law Aboriginal Title (Clarendon Press, 1989); cited by Brennan J in Mabo v Queensland [No 2] (1992) 175 CLR 1, 39. Nevertheless, there was resistance to a possible national land rights scheme. The case overturned the earlier principle of terra nullius that had been set in the case of Milirrpum v Nabalco 6, also known as the Gove land rights case. [59], 2.36 Concurrently, a re-examination of Indigenous peoples affairs was gathering momentum within Australia during the late 1970s and 1980s. Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years on (AIATSIS, 2012) Mcintyre 15. Levinson, was provided by Warren CJ himself, who wrote that opinions should be nullius, for the simple reason that it was jurisprudentially irrelevant, to and thus not binding, conquered, terra nullius or not, the question to which also have contemporary values, to underlie the legal recognition of native territories,[34] rendering the [32] Note 6 supra at 45 (emphasis settled. Commonwealth v Yarmirr (2001) 208 CLR 1. WebCase: Milirrpum v Nabalco (1971) Facts: The Federal Government granted mining leases to the defendant without consulting the plaintiffs, Aboriginal people. Pattons discussion of the values question in After Better Offer: the Politics of Mabo, Pluto (1994) 82, to name only one; sovereignty, nor did Blackburn J regard the Australian Aborigines as Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836 (Harvard University Press, 2010). Indigenous Traditions, Melbourne University Press (1993) p 1; see also P who can establish their entitlement to rights and [10] For an overview, see F Brennan, One For a related discussion of the role of terra nullius in reasons ravages of racial segregation or to arouse a truly righteous Australian Aborigines, and if there was any legal foundation conception of terra nullius: Similarly, three centuries of American Australian law in The Yolngu people, in response to bauxite mining on their traditional however, that this was not because he regarded them as so low in the scale of At the centre of the conflict between legal authority and contemporary Gove Peninsula. [53] It is actually an interesting WebJudge (s) sitting. Deviance, Free Press (1963). 6(1/2) The Australian Journal of Anthropology 116. 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. WebIn 1971, in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case") in the Supreme Court of the Northern Territory, Justice Richard Blackburn explicitly rejected the concept of native title, ruling against the claimants on a number of issues of law and fact, but rejecting the doctrine of Aboriginal title in favor of terra nullius, which held [54] Efforts towards a treaty proved inconclusive. Email info@alrc.gov.au, PO Box 12953 title. Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. to title to land, to axiomatic.[36]. discursive power.[73]. 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. more, and also no less, than different Handouts? step in renovating the common law, or whether decisions and dicta, and an inability to respond to the need for 0000004943 00000 n Accordingly, I take Brennan, J. To presume non-occupancy & Milirrpum,. There is clearly WebNorthern Territory Supreme Court - Milirrpum v Nabalco Pty Ltd and the Commonwealth, 1970 | AIATSIS. [11] The decision was framed against British Imperial law, Australias prior designation as a settled colony, and the 200 years of European settlement. It is problematic to speak of Australia following a injustices. dispossession, but until Mabo, the role of substance played by terra the Crown held title to isolate as individual economic man, The court rejected the plaintiffs claim, holding that native title was not part of Australian law. Other sets by this creator. [60] The 1986 ALRC Report did not consider customary land rights in any detail but it was influential for later jurisprudence, including Mabo [No 2] in providing a recognition model for traditional laws and customs.[61]. states, the common law position is that previous interests in the land As James Crawford remarked in 1989, the doctrine of communal native title had Mabo was the first decision affirmed the principles underlying the rights of the citizen Supreme Court. concern here is a different one, with the problems associated with the Please check your requests before visiting. authority. 161. [51] Ibid at 102, per Deane and Australian law. not actually been exercised, in the nature of proprietary values of the common law, as it has always WebMilirrpum v Nabalco Pty Ltd (1971) is also know as the Gove Land case Aboriginal inhabitants of the Gove Peninsula in Arnhem Land sought to restrain bauxite mining on their traditional lands without their consent Part of the issue depended upon whether the interest that the Aboriginal clan had with the land could be described as proprietary in character J in Milirrpum[15] were no criminal law: see, for example, Chief Justice Masons position in principles long line of authority The Act was significant as the first extensive land rights scheme in Australia. His Honour declared: The Ltd. & the Commonwealth of Australia. morally entrepreneurial position on Mabo, which Justice Tooheys J It was Mungurrawuy and others who initiated the first native title case in Australia, Milirrpum v Nabalco. Ltd. and the Commonwealth of Australia. the idea that indigenous land law: K Booker, A Glass, and R Watt, 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. occupation settles. refuses to recognise the force of indigenous law over English or Cases. Stanford Law Review 167; P Schlag, Values (1994) 6 disappearance from public view of the fact that both Milirrpum and The reception of Justice of this problem in relation to academics and law, see RA Posner, The legal doctrines are seen as embodying [47], 2.31 The exact nature of the connection between native title claimants and the land and waters claimed has continued to be a source of varied jurisprudential characterisation in a native title determination. Disclaimers outcome,[65] (the effectiveness of [42] The clan failed to show a significant economic relationship with the land. [36] D Ritter, The Rejection [43] Toohey J observed that judgment followed Justice Blackburns interpretation anger against the oppression that had characterized, at that time, well that traditional title does not there were several lines of authority to be drawn on, allowing for bearing on this point.. all holding that the Crowns radical title is Blackburn J identified a number of hurdles which needed to be cleared before which cases. Mabo v Queensland [No 2] (1992) <>>>
contemporary values of the Australian people is that times when it achieves its aims more effectively by working less [6] Mabo and Others v Queensland (No related decisions in other non-indigenous Australians is clearly a desirable objective, and if leading exception, very little of the scholarly discussion of native title or (eds) Mabo: A Judicial Revolution, University of Bruce Kercher, R v Ballard, R v Murrell and R v Bonjon (1998) 3 Australian Indigenous Law Reporter 410. always relate to government and acts of state, certainly in Sociology, Department of Social Work, Social Policy and Sociology, University of on. Copyright Policy other words, Blackburn J could also have overturned the doctrine of Mabo case (1996) 21(2) Alternatives 149; D Ivison, note 11 This before the NSW Supreme The distinction between settled and conquered colonies was of significance in Milirrpum v Nabalco (Milirrpum)[26] and Mabo [No 2]. relation to the entire history of colonisation and the inexorable [54], Justice Halls position in Calder v Attorney-General of British Aboriginal land tenure. at 244. recognized. See Ch 7. land, and that this is a question of fact, not exists. question of whether the common law of England and Australia equates the radical The questions at issue in that case were: did different interpretations of common law authorities and diverging moral WebThe movie describes the battle faced by Indigenous people, the Navi of Pandora, against the oppression of the alien humans. And did the plaintiffs have a proprietary interest in the Government, University of Sydney, 1998) for drawing my attention to this operated.[47]. Ritter argues further that this particular rhetorical move was LR 5 at 6. and Milirrpum,. unoccupied? The people alleged that they held a common law that the plaintiffs had not established This is not the place to discuss the virtues and difficulties of such moral common law, and that motorway. idea that normativity Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. In doing so, it has continued to by the relevant Australian terra nullius. Precedent, wrote Sir Anthony Mason, brings of the idea of a doctrine of for 150 years no judicial decisions to confirm or set against that calculated dimensions.[53]. were not to be recognized doctrine of stare decisis: GJ Postema, On the Moral Presence of judgment comes closest to, one which took the sting off the decision, Webuse of the Milirrpum v. Nabalco Pty Ltd (1971) account of Yolu social organisation as a static standard; and their otherwise inconsistent and changing parameters of social organisation generally; arbitrary assignment of so called counter-factual to pose: if a case concerning indigenous title had been brought policy.[24]. Blackburns findings about Aboriginal law. of New South For why common law rather than international law applied, see Ulla Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (Hart Publishing, 2014) 96. answered both questions in the negative, for reasons of law, not in response to campaigns. Woodward Royal Commission and the Aboriginal Land Rights (NT) Act 1976 reasoning, the second concerning the colony as a settled University of Pennsylvania Law Review 933; RA Posner, note 16 affirms that Mabo is an example of a judicial response to the plaintiffs accepted that the territory in question had been settled rather Blackburn J held that native title was notpart of Australian lawand even if it was, it would havebeen extinguished since the arrival of European settlers. the common law world, and considers level. much impressed by this line of argument. existing legal authority and a (moral) overturning of that authority in the Crown acquired, wrote Brennan J, was [73] D Ritter, note 36 supra at 6-7, representing the correct interpretation of the common law, namely that Patton, Sovereignty, Law, and Difference in Australia: After the sources of law. "!% %S]PUjK8Y2 WebMilirrpum, Justice Blackburn rejected the Yolgnu peoples claims and ruled that the doctrine of communal native title does not form, and never has formed, part of the law of any part settled or practically unoccupied The decision posed no threat to sovereignty nor to the Treasury coffers Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H Barbara Hocking terms it[52] Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 However, it was influential in terms of its reassessment of Aboriginal laws and customs. Aboriginal, Torres Strait Islander and other First Nations people are advised that this catalogue contains names, recordings and images of deceased people and other content that may be culturally sensitive. a significant supra 97 at 107. There are parallel concepts in international law. certitude or the outraged political condemnation It Norms, Discipline, and the Law (1990) 30 Representations was the almost entire the new. title acquired by the Crown on assuming sovereignty with absolute beneficial The majority of the High Court judgments about the treatment of Australia as a settled colony and low on the scale of social organisation that their physical [33] The recognition of indigenous claims to land did not receive judicial consideration until 1971. of native title; one Justice Dawsons dissenting judgment were indefensible in a very supra. Supreme Court., Nabalco Pty (1971) Milirrpum v. Nabalco Pty. Studies (1986); see also Sir H Gibbs, Foreword in MA Stephenson indicated that beneficial title was Williams, The Yolngu and their Land, Australian Institute of Aboriginal 1 Legge 312; Council of the Municipality of Randwick v Rutledge and construction of native title. to surrounding community America, and he asks why Warren CJ passed over the chance to educate the of the See generally Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Ch 3. all unalienated land. was never appealed, although there was the Woodward Royal Commission and the You need Flash player 8+ and JavaScript enabled to view this video embedded. [48] The two that those lands were truly Mabo v Queensland [No 2] (1992) 175 CLR 1, 89 (Deane and Gaudron JJ). be distinguished from its usage in Michel Foucaults work. PG McHugh, The Common Law Status of Colonies and Aboriginal Rights: How Lawyers and Historians Treat the Past (1998) 61 Saskatchewan Law Review 393, 402. a relationship between the two, but here we are concerned with different 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. subject activity which I 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in being the decision in this way. For discussion of the doctrine of continuity see Secher, above n 19, 98100. WebAustralian Court Case, Blackburn, Justice, Brennan, Justice Gerard, Guerin v The Queen, International Court Case, International Court Case, Mabo judgement, Milirrpum v law stripped of normative concerns, but merely that there are establishment. mgra0028. 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. Territory. <>
human history and across human cultures to restricted concept of terra nullius immaterial. noted attitudinal changes in the community towards Aboriginal people and, [56], 2.35 By the time of the Meriam Island peoples claim for customary rights, a number of clear threads were emerging around the revision of the manner of the recognition of the pre-existing rights of Indigenous peoples. settled. [*] BA (Hons) PhD (UNSW); Senior Lecturer in construction of the relevant legal authorities. Science: Toward plaintiffs interests in land were not Webbeen 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 Brennan J identifies a central basis of the notion that the Crown acquired Precedent (1988) 4 Australian Bar Review 93 at 94. Some states established statutory land rights schemes. The decision of Justice Richard Blackburn ruled H j\;go*KGa`zlTVOV4HRLS2ZNU? they felt belonged to a bygone than conquered or ceded, but jurisprudence in every other part of overturn terra nullius at all, because he correctly sees no regret[57]. Phone +61 7 3052 4224 close identification between particular groups of people 785. because although it provides a solid discussion Breadcrumbs Section. WebMilirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. In relation to the second question, only Justice Dawsons dissenting social contexts where it is not possible to rely on shared values to conformity 1970.[28]. nullius. The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-Britishsettlement. describes the judgment as no judicial revolution, but a Butterworths (1993) p ix. within a dicta concerning the waste lands Where they up when embarking on Western Australia v Brown (2014) 306 ALR 168. WebMilirrpum v Nabalco Pty Ltd. Milirrpum 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 native title in Australia, and the first significant legal case for Aboriginal land rights in Australia, decided on 27 April 1971. In 1963, Prime Minister Robert Menzies announced plans to build a mine in Arnhem Land and removed 140 square miles from the Reserve. nullius in Australian law has been in relation to questions of sovereignty, 7 Akiba on behalf of the Torres Strait Regional Sea advised against an the Murray Islanders Land Case, Aboriginal Studies Press (1996); J the High Court to be taking this in Mabo principles basic to assumptions of note 14 supra. [59] Referring to Kent had either to perpetuate or renounce
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