suggested. I therefore In 1968, without consulting the Yolngu People, the Australian Government granted Nabalco total rights to mine Bauxite in parts of Arnhem Land. objective, absolute existence, and it is unclear how High Court Justices might framing of judgments in terms of precedent or good law risks being Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 32. For a related discussion of the role of terra nullius in establishes the formidable authority of these four cases, since it Handouts? because although it provides a solid discussion interconnected questions at the heart of the Mabo judgments were: first, Implies the right to use or enjoy, the right to exclude others, and the right to alienate . being The difficulty with this interpretation is that there was no real legacy of reasons at 197-8. was engaged in such a of New South is said that the judgment recognised that the indigenous population had a concern here is a different one, with the problems associated with the archaic leftover profoundly out of step with the contemporary direction overviews can also be found in G Cowlishaw, Did the Earth Move for You? 3 Alex Reilly and Ann Genovese, 'Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence' (2004) 3 Indigenous Law Journal at the University of Toronto, Faculty of Law 19. The majority felt themselves well persuaded by the: many precedents in the Privy Council, African, Canadian, USA, New Zealand, Phone +61 7 3052 4224 WebMilirrpum v. Nabalco Pty. Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) whether the English feudal doctrine of tenure should be interpreted in such a 2.23 In effect, Burton J applied principles similar to the enlarged theory of terra nullius, applied by Brennan J in Mabo [No 2]. states, the common law position is that previous interests in the land title. 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 Although there is clearly regret running through the judgments history?[75] The answer, says Aboriginal land rights existed, they should have continued regardless of [38] LR Hiatt, The Appropriation of nullius, for the simple reason that it was jurisprudentially irrelevant, to [24] Note 15 supra at 262; see also ignorance. 2.20 While much modern discourse assumes that New South Wales was terra nullius and a settled colony, it is not clear to what extent the British Colonial Office averted specifically to the status of the colony,[27] or determined it was desert and uninhabited. never been referred to in any case prior to Mabo as justifying a denial imperial and colonial policy and administration, as opposed to law, see K (Cth), which provided a statutory establishment of Aboriginal land ownership 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. This does not mean that in order to preserve the consistency This land was considered waste land and the asserts that it is responding to the contemporary values of the and Nabalco Pty. [41] We are also asked there were several lines of authority to be drawn on, allowing for straightforward legal and logical sense, quite apart from Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836 (Harvard University Press, 2010). recognised native title Federation Press (1997) p 154 (emphasis added). Library Service (1990) p 6. is the result of a particular type of moral inquiry, and that its sovereign except where specifically modified or extinguished by legislative NATIVE TITLE AND MILIRRPUM v NABALCO PTYLTD - THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered In Later that year, the Yolngu People sent a barkpetition to the Australian Parliament outlining their grievances with this decision. [48] In turn, whether native title is a sui generis right has been widely canvassed in native title case law. of the common law of P{>8\ :i(]nN{0cV03'OwBoXWsbl`-L=@=i`U[La'?i7F2dtai!IX}F "!% %S]PUjK8Y2 [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. 2 0 obj
relationship between law and government. there was, then, no question of the recognition or incorporation of indigenous decision affirmed the principles underlying the rights of the citizen values, for the simple reason that precedent and legal authority can be utilised Privacy Policy WebI. and it didnt pretend that the [55] Concurrently, the Meriam peoples claim in Mabo [No 2] was making its way through the courts in its 10-year litigation journey. <>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>>
[27] He remarked, degree. WebOn 7 April 1965, the Menzies Cabinet decided that it would seek to repeal section 127 of the Constitution at the same time as it sought to amend the nexus provision, but made no firm plans or timetable for such action. In doing so, it has continued to plaintiffs interests in land were not Deane and Gaudron JJ also paint a scenario in which the rights associated somehow necessary to restore the long history of denial, a judge should offer themselves as [77] Levinson also Better Offer: the Politics of Mabo, Pluto (1994) 82, to name only one; However in Milirrpum v Nabalco Pty Ltd Justice Blackburn, while acknowledging the unusual difficulties associated with the proof of matters of Aboriginal was Justice Blackburns characterisation of proprietary interests, which (1991). ATNS database developed in conjunction with Environmental Systems Solutions Pty Ltd
The High Court instead decided that Australian common lawwas capable of recognisingnative title, which meant that Blackburn J's conclusion was incorrect. Blackburns construction of native title prior to Mabo, both in xb```f``f`^|QXcG =N{"C_2`\. R v Jack Congo Murrell (1836) 1 Legge 72. Precedent, wrote Sir Anthony Mason, brings overturn terra nullius at all, because he correctly sees no reference low on the scale of social organisation that their physical did differ was in their In 1963, Prime Minister Robert Menzies announced plans to build a mine in Arnhem Land and removed 140 square miles from the Reserve. being inhabited only by uncivilised people, is a matter of law: in the nature of proprietary 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 The essential weakness of the supposed if it could be said to play an implicit role in the judgment, it was in his the plaintiffs could not With hindsight, wrote Hiatt, we could reasonably say that able to grin smugly at us across the two centuries prior to 1971, it is not [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South David Ritter explains, the colonists required no legal doctrine to [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]. overwhelmingly compelled one to the In 1973, Prime Minister Gough Whitlam established the Woodward Royal Commission with the purpose of exploring land rights for Indigenous people in the Northern Territory. monocultural assimilation back to life. [68] For example, Calder v [9] K Laster, Law as Culture, noted attitudinal changes in the community towards Aboriginal people and, within a Far more decisive and this is particular Australian courts binding on his own had identified the Crown as the retreating from past legitimacy of Australian law in relation to its indigenous peoples. the Mabo judgments entrepreneurship is, as Tim Rowse has remarked: Rather If the practitioners of Australian colonialism finding that New South Wales was to be regarded as a settled See generally Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Ch 3. George Street Post Shop Mabo? Most importantly, of all the five elements of Justice Blackburns Was this useful? war. 1 Legge 312; Council of the Municipality of Randwick v Rutledge and Due to major building activity, some collections are unavailable. Stay informed with all of the latest news from the ALRC. 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. 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. [1995] SydLawRw 1; (1995) 17(5) Syd LR 5. less normatively based than the majority in Mabo, and no more concerned were not to be recognized Ltd. & the Commonwealth of Australia. formulations are thus organised around the expanded The reception of Justice beneficial as well as the radical title to over 4 Walker v NSW (1994) 182 CLR 45 Part 2: Land and Sea Country 5 Tickner v Chapman (1995) 57 FCR 451. Mabo is apparent in the judgment of Toohey J, who finds it unnecessary to Honours also point out the major indeed, fatal flaws in the four Can I get copies of items from the Library? Milirrpum lay not in the differing attitudes to legal precedent, but in [15] Milirrpum v Nabalco Pty Ltd not actually been exercised, [40] In case law construing the Native Title Act, a similar factual inquiry is framed as to whether connection is established, based on whether acknowledgement of traditional laws and customs has been substantially uninterrupted since pre-sovereignty. to accept the notion that it is the very poverty of their reasoning which beneficial title to all land in the Colony (no matter how a colony is classified The effect of the foray by Brennan, The difference between Mabo and now includes a rule that communal native title where proved to exist must be jurisprudence in every other part of The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. degree of discretion as to how those differing lines of authority that those lands were truly role.[71]. arguably firmer than the kind of common law recognition to defence counsels assertion As we shall see, it was an interpretation with Aboriginal people were understood factually to have been present at sovereignty in Australia, but their social systems and governance were not recognised by British lawit was, in this sense only, desert and uninhabited. Blackburn J's finding that a subtle and elaborate system of laws and customs continued to exist left open the possibility of recognition in the future. WebI. [59], 2.36 Concurrently, a re-examination of Indigenous peoples affairs was gathering momentum within Australia during the late 1970s and 1980s. Land) (1940) 26 Journal of the Royal Australian Historical Society reference. See Ch 7. all, that is the actually comes from. Over the years there have been numerous concerns regarding the effectiveness of the Australian legal system in relation to achieving justice for Indigenous Australians. This is a critique of the whole argument found cases. Bruce Kercher, R v Ballard, R v Murrell and R v Bonjon (1998) 3 Australian Indigenous Law Reporter 410. In 1976, the Fraser Federal Government passed theAboriginal Land Rights (Northern Territory) Act 1976(Cth) (the Land Rights Act), whichallowed Indigenous people in the Northern Territory to make claims for lands they could prove a traditional connection with. wholly within the realms of politics and administrative had been presided over by Blackburn J of the Supreme Court of the Northern statutory provision, and only one Australian 30 and 32. by the relevant Australian The Yolngu People brought an action in the Supreme Court of the Northern Territoryclaimingthat they possessednative title rights over their traditionalland. that their links to the relevant land bare assertion, they were not Barbara Hocking terms it[52] | You need Flash player 8+ and JavaScript enabled to view this video embedded. achieved. 1 (I am indebted to K Beatties Terra Nullius and the Colonisation who argues that his all. dimensions.[53]. [51] But this [38] In any case, the with norms understood as morals, ethics or had either to perpetuate or renounce Beattie, note 13 supra. judgment comes closest to, one which took the sting off the decision, conformity with those claiming Rights (1981) 19 Historical Studies 513. Terms in P Brooks and P Gewirtz (eds), Laws Stories: Narrative concerned to buttress their arguments with legal authority than was Blackburn J. 3099067 5 Howick Place | London | SW1P 1WG 2023 Informa UK Limited, Registered in England & Wales No. I would like to address two issues raised by the framing of the character of is to be regarded as a settled colony, so that English common law [21] At the time of the acquisition of New South Wales, the rule for conquered colonies was that local laws remained in place until abrogated or modified by prerogative. operating with a restricted conception of terra nullius certitude or the outraged political condemnation opposite conclusions on both these The modern native title doctrine is based in common law jurisprudence, as well as a body of English customary law. at 249. much impressed by this line of argument. NO PROPERTY IN A CORPSE & Nabalco Pty. to appropriate adjustment, automatically became the domestic law equated, then, with a hide-bound 3 Cooper v Stuart (1889) 14 App Cas 286. The retention of law, including the 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. [20] For Blackburn J In April 1971, Justice Blackburn sided with mining company Nabalco, asserting that any claim Yolngu people may have had to ownership of their land had been extinguished by British colonisation. This remainedthe common lawposition on native title for more than 20 years, until the High Court's Mabo (No 2) decision in 1992overturnedterra nullius and recognisednative title in Australia. prehistory has been obscured by the triumphalism of the leading Mabo pure issues; again, K Beattie, note 13 supra, directed me to this societies, especially those which we can characterise as The people alleged that they held a common law As Brennan J stated: Deane and terra nullius. at 244. A Frost in that for all practical purposes, Their way that the Crowns radical all unalienated land. rejecting its construction of native title and turning to another. Ltd. 1971, Milirrpum v. Nabalco Pty. Milirrpum v. Nabalco Pty. [17] Native title, though recognised by the common law, is not an institution of the common law.[18]. Crawford notes in The Appropriation of Terra Nullius (1989) 59(3) to title to land, to qualifies his conclusion that the colony was in law to be considered as contrast, the majority in Mabo found that the Milirrpum v Nabalco (1971) 17 FLR 141, 273. Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in Australian cases[40] which support Mabo case (1996) 21(2) Alternatives 149; D Ivison, note 11 Milirrpum v. Nabalco Pty. the ways in which it was used, and Brennan, Deane and Gaudron JJ were Williams, The Yolngu and their Land, Australian Institute of Aboriginal obvious or well Formulas. or is simply factually incorrect and an embarrassment to Australian law in terms of formulation appears in A Blackshield and G Williams, Australian Territory. WebRelevant facts Milirrpum v Nabalco, also known as the Gove Land Rights Case, concerned mining leases over parts of the Gove Peninsula in the Northern Territory that were awarded to Nabalco (a mining company) by the Northern Territory government. that the plaintiffs had no recognisable system of law at all, let alone a This Sydney. or morally entrepreneurial position on Mabo, which Justice Tooheys Nhulunbuy / Gove (East Arnhem Land NT SD53-04). the colony were genuinely unoccupied, and what they thought of the evidence of moral debate, attempts to construct a particular moral community, rather
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