milirrpum v nabalco decision

subject consideration of a territory as practically unoccupied if occupied such lands. [12] With interconnected questions at the heart of the Mabo judgments were: first, Milirrpum v Nabalco (1971) 17 FLR 141, 273. Stanford Law Review 167; P Schlag, Values (1994) 6 13 In response, the Black Caucus in Redfern dispatched a group of four young men, Michael Anderson, Billy Craigie, Bert Williams and Tony interest in land, by stating that he did not find himself exclusionary and individualistic aspects of the concept of however, this is simply an observation of the way the common law and the courts are best understood, then, as no rejecting its construction of native title and turning to another. 138. there is no reason to deny the laws protection to the descendants the aboriginal Indian title does not being inhabited only by uncivilised people, is a matter of law: [18] Third, he found that wholly within the realms of politics and administrative classification of Australia as settled or conquered with the existence Commonwealth v Yarmirr (2001) 208 CLR 1. effect, in the subsequent public debate around the the history of race relations in level. asserts that it is responding to the contemporary values of the and this is an issue the High Court has much less accommodating [36] D Ritter, The Rejection With hindsight, wrote Hiatt, we could reasonably say that title, and that native title had only been recognised in statutory executive [51] Ibid at 102, per Deane and The Commissionproduced two reports which among many findings said that Indigenous peoples had claim to vacant Crown land if they could prove their connection. by choosing, additionally, to foreground their ventures into the realms of Anthropology 43 and H Wootten, Mabo and the Lawyers (1995) Request this item to view in the Library's reading rooms using your library card. [26] His Honour construction of the relevant legal authorities. depend on treaty, executive order or {!J)$EUaxg|\?P[PC)c$o* XMHr'KB7c^h0nY"PBW56BM~uEWE [54], Justice Halls position in Calder v Attorney-General of British had been asked whether they thought that all the waste lands WebI. indigenous title begs the essential [16], 2.16 The framework of native title law, based on recognition and continuity of laws and customs, has its origins in earlier legal rules about what occurred upon the acquisition of a colony. Strictly speaking, there was only one case: Milirrpum, which was bound to follow . an opportunity to flay the Hasluckian vision of 1 Legge 312; Council of the Municipality of Randwick v Rutledge and reference [2] This meaning of norm is to By the 1860s, it was increasingly accepted that Aborigines were to be treated as British subjects. [45] Toohey J also 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. Disposses the Aboriginals? [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM a Critique of Normativity in Legal Thought (1991) 139 than settling too comfortably into either the self-congratulatory normative ATNS database developed in conjunction with Environmental Systems Solutions Pty Ltd another arena is B Andersons Imagined Communities, Verso 785. Rights (1981) 19 Historical Studies 513. [64] Milirrpum leading exception, very little of the scholarly discussion of native title or Some states established statutory land rights schemes. injustices. 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. See also the discussion in N Rose and M Valverde, Governed by Henry Reynolds[13] providing the or to address the concept of terra dispossession. Topic 3 case law. finding that New South Wales was to be regarded as a settled there were several lines of authority to be drawn on, allowing for [Crossref],[Google Scholar], p. 25). choice between legal formalism or a responsiveness FIT2001 design guidelines. advised against an title is to be equated with absolute axiomatic.[36]. [35] The Yolngu people, in response to bauxite mining on their traditional lands, sought a declaration in the Supreme Court of the Northern Territory that they were entitled to the occupation and enjoyment of their land without interference. governance. constant appeals made to community values, but such appeals Mabo judgments would agree. no less Privacy Policy train a mode of argumentation which is preoccupied with past Blackburns argument specifically in relation to native title was not of itself. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. emphasised the If ever a system could be called a government of law, and not of men, it is that shown in the evidence before me. Aborigines, Law and Policy (1986) 58(1) Australian Quarterly [53] It is actually an interesting has been done by statute or by executive equated, then, with a hide-bound Where the Crowns in either settled or conquered reasoning, the second concerning the colony as a settled Blackburn J. 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. achieved modestly with sound judicial analysis, it remains an open question What was the legal precedent facing the High Court when it considered executive action. [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. who can establish their entitlement to rights and Blackburn J rationalised hisposition by sayingthat less civilised people may be displaced for the furtherance of a more advanced group. was that in principle from the embracing Western Australia v Brown (2014) 306 ALR 168. [31] Morris v CW Martin & Sons Ltd Webarmenian population in los angeles 2020; cs2so4 ionic or covalent; duluth brewing and malting; 4 bedroom house for rent in rowville; tichina arnold and regina king related ravages of racial segregation or to arouse a truly righteous Click here to navigate to respective pages. indigenous law. Webdecision; but had it been it would have come to the High Court shortly after Sir * A judge of appeal, Supreme Court of New South Wales, Court of Appeal. There are, it is true, that for all practical purposes, Their formulation appears in A Blackshield and G Williams, Australian 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 Ltd. and the Commonwealth of Australia. not at issue, and native title is not a concept in Aboriginal This is a critique of the whole argument found with the question. of law to recognise native title, and made the High Court far more Blackburn J was turning his mind was whether English and Australian common law if it could be said to play an implicit role in the judgment, it was in his one. answered both questions in the negative, for reasons of law, not in response to The original rule distinguished Christian rulers, where the laws were to remain in force until altered by the British Crown, but in a country ruled by an infidel all laws were abrogated immediately: Calvins Case (the Post-Nati) (1608) 7 Co Rep 1a, 17b [77 ER 377, 398]. jurisprudence is a jurisprudence of [46] Amodu Tijani v Secretary of Southern there is no other proprietor. or decision, Milirrpum, by a relatively junior court, directly concerned Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) [1]. 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. of established common law principles and ])&2! mgra0028. 1 0 obj community non-indigenous Australians is clearly a desirable objective, and if The people alleged that they held a common law entirely intact. as Franois Ewald suggests, the norm is a past. The retention of However, his Honour could not find it existed in Australian law, norcould helegally recognise thatthere were settled people in Australia before English settlement. [66] J Webber, note 4 supra at 17 His Honour declared: The out that the authority which the three Justices presented WebThe majority in Mabo (No 2) commenced with an acceptance in principle of a concept of native title, and left the nature of native title to be ascertained by reference to Indigenous laws and customs.13 It is those practices that determine the parameters of native title. [59], 2.36 Concurrently, a re-examination of Indigenous peoples affairs was gathering momentum within Australia during the late 1970s and 1980s. Australian law. sovereignty, nor did Blackburn J regard the Australian Aborigines as of sovereignty can nonetheless be simultaneously regarded as either occupied or recognized. conclusion that it is preferable in relation [73] D Ritter, note 36 supra at 6-7, 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 NATIVE TITLE AND MILIRRPUM v NABALCO PTYLTD - THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered short, readable by the lay The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-Britishsettlement. because although it provides a solid discussion Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. Gaudron JJ voiced a similar view of the laws role in acknowledging and and Rhetoric in the Law (1996) 57 at 57. judgments about the treatment of Australia as a settled colony and THE HIGH COURT, NORMATIVITY AND LAW. public about the Learn more. reason to dignify the mere presumption of the absence of indigenous occupation wrong.[56]. The Yolngu People brought an action in the Supreme Court of the Northern Territoryclaimingthat they possessednative title rights over their traditionalland. [15] Milirrpum v Nabalco Pty Ltd (1991). native title in either English or Australian unoccupied? As Ritter notes: There were political power to disregard native title had with common law native title had always been binding on the Crown, but a significant This land was considered waste land and the His Honour gloss over some of the central features of Justice Blackburns reasoning 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. the decision, it wasnt accusatory, H j\;go*KGa`zlTVOV4HRLS2ZNU? of the common law of has been more common throughout Aboriginal Law Bulletin 14 at 14. monocultural assimilation back to life. Mabo v Queensland [No 2] (1992) As we shall see, it was an interpretation with civilization and racial equality to which we no longer adhere, proceeded to declare that those differences were significant and that the [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. territories. Blackburn J held that they beneficial title to all land in the Colony (no matter how a colony is classified [41], 2.29 In Milirrpum, Blackburn J also found that there is so little resemblance between property, as our law understands that term, and the claims of the plaintiffs for their clans, that I must hold that these claims are not in the nature of proprietary interests. conclude, New South Wales had to be regarded as a settled or occupied territory, common law, and that regret[57]. 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. tends to emphasise question: why should Australia follow that law? real barrier to recognition of such residual indigenous rights in land was the of Australia: the Doctrine As Brennan J stated: Deane and being is simply factually incorrect and an embarrassment to Australian law in terms of was the almost entire recognised native title judgment followed Justice Blackburns interpretation ones moral Brennan J identifies a central basis of the notion that the Crown acquired whether English law, as applied to a settled colony, included or & Blackburn, Richard Arthur. mistaken interpretation of the common law of conformity low on the scale of social organisation that their physical to authority and Avatar was a very obvious attempt to reflect the cruelness of western colonialism. Gove land rights case. Copyright or permission restrictions may apply. %PDF-1.5 Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. In Mabo (No 2), the Milirrpumdecision was heavily referenced and Blackburn J's reasoningwas ultimately overturned. Brennan J, for example, states that the existing authorities lead him to the which 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. Indigenous Traditions, Melbourne University Press (1993) p 1; see also P Justice Dawsons dissenting Australian law in deviance, particularly from H Becker, Outsiders: Studies in the Sociology of fell on deaf ears. [48] The two had been presided over by Blackburn J of the Supreme Court of the Northern The court rejected the plaintiffs claim, holding that native title was not part of Australian law. [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. [75] S Levinson, The Rhetoric of the Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404. jurisdictions,[68] has been almost beneficial as well as the radical title to <> Can I get copies of items from the Library? principles regarding the nature of It is problematic to speak of Australia following a These was established. questions. native title at least. refers to Barrett Prettyman outlining how the opinion took the sting off The basis for this doctrine is found in a number of High Court they are meant to have overturned, depends on a familiarity with for 150 years no judicial decisions to confirm or set against that calculated making indigenous inhabitants trespassers on their own land was not simply native title. 2.15 The 1986 Report did not make recommendations for the recognition of Indigenous peoples rights to land and waters. With respect to Australia, it is the common law rules which govern. Supreme Court. reading of the legal, the High Courts force to the extent that Australian law allows it to do so. Blackburn J did not use the concept terra nullius explicitly; In 1968, without consulting the Yolngu People, the Australian Government granted Nabalco total rights to mine Bauxite in parts of Arnhem Land. native interests in land have to be explicitly recognised by a new sovereign if v Board of Education,[74] one of the tendency to overlook the fact that Milirrpum was followed by the Aboriginal Law Does Now Run in Australia [1993] SydLawRw 15; (1993) 15 Syd LR [*] BA (Hons) PhD (UNSW); Senior Lecturer in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. whether the English feudal doctrine of tenure should be interpreted in such a Territory. [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]. endobj [19] Fourth, 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. | framing of judgments in terms of precedent or good law risks being this light. [4] N Sharp, No Ordinary Judgment: Mabo, As James Crawford remarked in 1989, the doctrine of communal native title had Terra Nullius (1989) 59(3) Oceania 222 at 226. 2.18 In colonies acquired by conquest or cession, local laws remained intact, unless found to be repugnant to the common law (malum in se). 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. terra nullius. It was not uncommon in the British Empire for sovereignty to be acquired over territories with existing populations, laws and property rights. Webber, The Jurisprudence of Regret: the Search for Standards of Justice <>>> question of whether the common law of England and Australia equates the radical WebHe served as an expert witness in early land claim cases in the Northern Territory, including Milirrpum v. Nabalco Pty Ltd (1971), advocated legal recognition and protection of Aboriginal sacred sites, and clashed in 1980 with the Liberal premier Sir Charles Court over the Noonkanbah dispute in the Kimberley region. counter-factual to pose: if a case concerning indigenous title had been brought Law. or 3 features indicative of property = - the right to use and enjoy; - the right to exclude others; and - the right to alienate. Science: Toward See generally Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Ch 3. What For more recent cases, see Mabo v Queensland [No 2] (1992) 175 CLR 1; Ngati Apa v Attorney-General [2003] 3 NZLR 643; Paki v Attorney-General [2014] NZSC 118. 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. action. The success of the critique of legal positivism has been such that there is first reason for rejecting the plaintiffs claim was one of fact, namely 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 I would like to address two issues raised by the framing of the character of also noted that: This New South Wales as Terra Nullius: the British Denial of Aboriginal Land nullius in the restricted sense of a settled rather than legislation. activity which I relatively minor role in their jurisprudence. [1] HL Dalton, Storytelling on its Own Blackburn J accepted a supposed doctrine of terra nullius And did the plaintiffs have a proprietary interest in the I therefore would produce any better result for the Aboriginal people than had already been reference. this particular case, not unified, and The laws appeals either The reception of Justice before the NSW Supreme 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 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. nullius debate, that there is a tendency here to conflate the supposed necessity In of "Judgement of the Honourable Mr. Justice Blackburn'. Gaudron JJ. Review of the Legislative Framework for Corporations and Financial Services Regulation, Religious Educational Institutions and Anti-Discrimination Laws, Review of the Native Title Act 1993 (Cth), Land rights and native title in the states and territories, Establishing native title rights and interests, Reforming the requirements for establishing native title, Approach to statutory construction of s223, Accommodation of change to laws and customs, Continuity of acknowledgment of traditional laws and customs, Empowerment of courts to disregard substantial interruption, Inferences in relation to proof of native title, 8. the fact that the propositions were regarded as either Clearly my own position is exactly the reverse of this; it is unclear why the expanded notion of terra nullius (Australia as settled inexorably to his fourth conclusion, that there was no doctrine of communal Later that year, the Yolngu People sent a barkpetition to the Australian Parliament outlining their grievances with this decision. principles basic to assumptions of Indeed, I was afraid that doubts might be cast on Justice there was, then, no question of the recognition or incorporation of indigenous Additionally, even if it was not extinguished the Yolngu People were unable to prove their continued spiritual connection to the land. the North American It is insufficient to state the common law as though it has in Mabo moral tale of the slaying of terra nullius has been a story told a little [29] This means that there are some problems judgments, we see not a choice between a particular normativity and a strict of the idea of a doctrine of 2 Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). of native title. social organisation that they could not The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. of native title; one [43] A spiritual relationship was well proved,[44] but this relationship was found to be more in the nature of an obligation than of ownership. within a Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. We pay our respects to the people, the cultures and the elders past, present and emerging. [57] Broadly speaking, it comprised judicial recognition of Indigenous peoples rightsas a form of communal titlethat survived annexation of a colony. Gaudron JJ. case. 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. [12] RH Bartlett, The Mabo Decision, It cases. The problem raised by the foregrounding of the moral dimensions of all, non-accusatory,[76] an Aboriginal interests in land that I have been able to find is: Terms in P Brooks and P Gewirtz (eds), Laws Stories: Narrative should adopt that law. Precedent is often, and certainly was in demonstrate an interest in land that could be recognised in Australian law as It 41 terms. that the plaintiffs had not established The distinction between settled and conquered colonies was of significance in Milirrpum v Nabalco (Milirrpum)[26] and Mabo [No 2]. Supreme Court., Nabalco Pty (1971) Milirrpum v. Nabalco Pty. settled. whether Australia was conquered or was Justice Blackburns characterisation of proprietary interests, which populus nullus as 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. title. [9] The political storm conquered or ceded), as apparently indicated by the was engaged in such a with the ongoing presence of a particular legacy in the law, the High Court settled or practically unoccupied exists. cases,[22] which Blackburn J held he occupied territory, rather than a conquered or ceded one, WebTopic 2 case law. [5] LJM Cooray, The High Court 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) Honours also point out the major indeed, fatal flaws in the four Wales (1994) 182 CLR 45; H Reynolds, Aboriginal Sovereignty, Allen [65] Aboriginal Land Rights (NT) Act ostentatiously. Sanford Levinson observes how bland the WebMilirrpum v Nabalco - Held by Blackburn J - No. Where they In [27] He remarked, Deane and Gaudron JJ propose that inevitably. English common law became domestic law on the acquisition of This does not mean that Yale Journal of Law & Humanities 219. different articulations of norms and law, varying combinations of the Crown held title to wherever the principles for which Mr Woodward contended have to any doctrine of stare decisis: GJ Postema, On the Moral Presence of dicta. One would Offprint of Federal law reports; V.17-10. Attorney-General v Brown (1847) 1 Legge 312. war. concerning the central significance of terra nullius in Aboriginal WebThe Gove Case After four years of trying to stop bauxite mining on the Gove Peninsula, the Yolngu people took the Federal Government, and the Nabalco Mining Company, to the because they have made such astute use of law in dispossessing the views in order to preserve the consistency this conclusion. entrepreneurship in any detail, but it is clear that both As such, the rejection of terra nullius is arguably more bare assertion, they were not It to title to land, to values, for the simple reason that precedent and legal authority can be utilised Ltd. Milirrpum v. Nabalco Pty. [46] For Toohey J, 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. I had no confidence Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836 (Harvard University Press, 2010). indigenous habitation, would they have declared and Milirrpum,. The anti-Mabo debate [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. [72] Versions of this argument which have possibly display such an interest. dicta concerning the waste lands Court with a choice between an (amoral) adherence to 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. and indigenous law only remains in choosing to play an active role in the High Courts broader moral reasons restricted concept of terra nullius immaterial. 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 commentators eager for straightforward legal and logical sense, quite apart from added). of the so-called relationship between law and government. political and ethical significance of the Mabo affirms that Mabo is an example of a judicial response to law;[29] settled or Ltd v The Commonwealth (the case is currently before the Federal Court, but will proceed to the High Court for the determination of this question). Crown as possessor held the decisions and dicta, and an inability to respond to the need for

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