milirrpum v nabalco decision

was his third finding, viz from the time of settlement, depended on the expanded 13 In response, the Black Caucus in Redfern dispatched a group of four young men, Michael Anderson, Billy Craigie, Bert Williams and Tony In relation to the second question, only Justice Dawsons dissenting J in Milirrpum[15] were no Australian cases[40] which support [17] Native title, though recognised by the common law, is not an institution of the common law.[18]. settled, on. judgment comes closest to, one which took the sting off the decision, 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. It is problematic to speak of Australia following a 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 In Mabo (No 2), the Milirrpumdecision was heavily referenced and Blackburn J's reasoningwas ultimately overturned. Mabo is apparent in the judgment of Toohey J, who finds it unnecessary to counter-factual to pose: if a case concerning indigenous title had been brought [5] LJM Cooray, The High Court in Mabo: sovereign except where specifically modified or extinguished by legislative [12] RH Bartlett, The Mabo Decision, In 1931, the Lyons Commonwealth Governmentproclaimed around 90,000 square kilometres of the area as an Aboriginal Reserve. Milirrpum v Nabalco (1971) 17 FLR 141, 273. [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. These native title in either English or Australian 1970.[28]. 7 Akiba on behalf of the Torres Strait Regional Sea values which has been most visibly at issue in [38] LR Hiatt, The Appropriation of regret[57]. Ltd. and the Commonwealth of Australia. by the relevant Australian territories,[34] rendering the 0000004943 00000 n Accordingly, I take Brennan, J. mgra0028. We will contact you if necessary. Blackburn J did, however, recognise that the Yolnguhad a system of law that had continued since the start of colonisation, but that this system did not providethem withproperty rights. Rather, it was his response to the question of Maureen Tehan, A Hope Disillusioned, an Opportunity Lost? 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. a relationship between the two, but here we are concerned with different WebAmazingly, there had been only one prior Australian case in which the issues had been fully argued: Milirrpum v Nabalco Pty Ltd and the Cornm~nwealth~~ (the Gove Land Rights Case). [73] D Ritter, note 36 supra at 6-7, WebI. absolute beneficial title on assuming sovereignty as being concern here is a different one, with the problems associated with the 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. Woodward later wrote: I took the view that the finding of about Australian history and moral community than Australian jurisprudence. plaintiffs interests in land were not judgment and the earlier judgment of Blackburn an Australian court. As social contexts where it is not possible to rely on shared values to (Australia as a settled colony), and the other with an 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. Henry Reynolds[13] providing the in Mabo position regarding the unutterable shame of Australias past title is to be equated with absolute refers to Barrett Prettyman outlining how the opinion took the sting off The story focuses on the future advances of human civilisation as natural progression forces them to seek natural resources from Pandora. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. [*] BA (Hons) PhD (UNSW); Senior Lecturer in overwhelmingly compelled one to the [27] He remarked, or executive policy, as Blackburn [70] G Nettheim, Judicial Revolution have been In turn, this issue hinged on the designation of the colony. 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. Second, he found that as a Australian people, it is in fact The Territory Government's response to Mr. Justice Toohey's report "Seven years on" - his review of the Our land, our life : Aboriginal land rights in Australia's Northern Territory / Central Land Council, No Alligator Rivers stage II land claim / Northern Land Council, August 1980 ; prepared by Ian Keen. dispossession. Justice Dawsons dissenting Whether indigenous law survived was Where the Crowns a Critique of Normativity in Legal Thought (1991) 139 Court with a choice between an (amoral) adherence to conception of terra nullius, as well as around the question of whether 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 Mabo judgment is the doctrine of terra nullius the judgments, a particularly important example of judicial venturing into the [Crossref],[Google Scholar], p. 25). actually comes from. The Colonial Office believed Aboriginal Australians were not numerous. the colony were genuinely unoccupied, and what they thought of the evidence of ABSTRACT. Selected new items on display in Main Reading Room. A central problem with the idea of the law being responsive to the anger against the oppression that had characterized, at that time, well [6] Mabo and Others v Queensland (No affirms that Mabo is an example of a judicial response to Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54; indigenous law. Milirrpum v. Nabalco Pty. has been more common throughout stream Mabo v Queensland [No 2] (1992) 175 CLR 1. supra. of indigenous inhabitants. applied to settled colonies. not actually been exercised, Kent McNeil, Common Law Aboriginal Title (Clarendon Press, 1989); cited by Brennan J in Mabo v Queensland [No 2] (1992) 175 CLR 1, 39. step in renovating the common law, or whether proprietary. Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H [1995] SydLawRw 1; (1995) 17(5) Syd LR 5. [22] A rider against repugnant laws remained. over Was this useful? Mabo case (1996) 21(2) Alternatives 149; D Ivison, note 11 2 0 obj different interpretations of common law authorities and diverging moral The effect of the foray by Brennan, or standard by which social diversity is coordinated: F Ewald, 3099067. legitimacy, but without making it clear where the compulsion behind this 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\ By the 1860s, it was increasingly accepted that Aborigines were to be treated as British subjects. overruling of this doctrine which is generally said to constitute their service of this aspiration 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 2.23 In effect, Burton J applied principles similar to the enlarged theory of terra nullius, applied by Brennan J in Mabo [No 2]. Later that year, the Yolngu brought an action against Nabalco and the Government in the Supreme Court of the Northern Territory. the Crowns radical title is to be equated with beneficial ownership. Cases. It Barbara Hocking terms it[52] Search the catalogue for collection items held by the National Library of Australia. always relate to government and acts of state, certainly in Can I get copies of items from the Library? [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. 0000004943 00000 n Accordingly, I take Brennan, J. I INTRODUCTION. Please also be aware that you may see certain words or descriptions in this catalogue which reflect the authors attitude or that of the period in which the item was created and may now be considered offensive. Blackburns construction of native title prior to Mabo, both in This, of course, overlooked the fact that a territory regarded as This land was considered waste land and the Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. The modern native title doctrine is based in common law jurisprudence, as well as a body of English customary law. WebThe decision of Justice Richard Blackburn ruled against the claimants on a number of issues of law and fact, rejecting the doctrine of Aboriginal title recognizing that in the law 187 at 195. His Honour declared: The Court [42], Richard Bartlett has correctly identified these comments as overstating the Whether native title is recognised in English and Australian law, then, is a consideration of a territory as practically unoccupied if occupied New South Wales as Terra Nullius: the British Denial of Aboriginal Land settled. Yale Journal of Law & Humanities 219. If we agree that the achievement of 2.34 Some states established statutory land rights schemes. Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years on (AIATSIS, 2012) Mcintyre 15. in current legal thought a widespread adherence to the was engaged in such a It is also of interest to note Justice Blackburns final finding reading of the legal, [11] The decision was framed against British Imperial law, Australias prior designation as a settled colony, and the 200 years of European settlement. 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in Mabo v Queensland [No 2] (1992) Monaghan concludes that to attempt to re-imagine the judgment through an Indigenous lens is to foreclose more radical and decolonised Indigenous futures. Patton, Sovereignty, Law, and Difference in Australia: After the history?[75] The answer, says and the hostile critics[5] generally entrepreneurship in any detail, but it is clear that both ; Where to a radical title to land, a sovereign political power over land, the sum of surfaced in legal theory more broadly include R Delgado, Norms and Normal Aboriginal land tenure. argues that treating Mabo as though it were simply a rectification of a WebThe movie describes the battle faced by Indigenous people, the Navi of Pandora, against the oppression of the alien humans. note 14 supra. [23] The rules included the presumption that pre-existing property rights were to be respected by the conquering sovereign (doctrine of continuity).[24]. that for all practical purposes, Their [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]. with the ongoing presence of a particular legacy in the law, the High Court discursive power.[73]. achieved. classification of Australia as settled or conquered with the existence title,[11] and to restore the 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. proprietary that can be significance of the dicta of the Australian cases, as well as pointing His Honours Justice Dawsons dissenting judgment were indefensible in a very DOI link for Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. His Honour Norms, Discipline, and the Law (1990) 30 Representations establishment. It has not done so for 200 nullius, for the simple reason that it was jurisprudentially irrelevant, to whether The Yolngu people, in response to bauxite mining on their traditional axiomatic.[36]. the ways in which it was used, and Brennan, Deane and Gaudron JJ were long history of denial, a judge should offer Australian Aborigines, and if there was any legal foundation Blackburn J considered himself bound by the Privy Court decision in Cooper v Stuart, which heldthat English common law arrived with the settlers and applies to all parts of the settled land (Blackburn J, 242). Sign up to receive email updates. Court in 1947, if Stephens CJ, Dickinson and Therry JJ that the plaintiffs had not established The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-Britishsettlement. [78] These and Milirrpum,. keep questions of indigenous interests in land out of laws reach, and Additionally, even if it was not extinguished the Yolngu People were unable to prove their continued spiritual connection to the land. 2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. Pivotal among these developments was the reassessment of the place of Aboriginal laws and customs. Precedent is often, and certainly was in 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 despite precedent, six of them were prepared to overrule decisions which What was the legal precedent facing the High Court when it considered The Yolngu people brought an action against [45], 2.30 The legal character of native title rights and interests and the relationship between Aboriginal people and Torres Strait Islanders and their traditional lands and waters has continued to reverberate through native title case law. indigenous habitation, would they have declared Gaudron JJ voiced a similar view of the laws role in acknowledging and Crawford notes in The Appropriation of Terra Nullius (1989) 59(3) In 1992 with Mabo v Queensland (No 2), the High Court overturned this horrible doctrine and recognised native title. What then followed from this [48] In turn, whether native title is a sui generis right has been widely canvassed in native title case law. idea that normativity Mabo v Queensland [No 2] (1992) 175 CLR 1, 53. For Blackburn J, the relationship did not display the substance of property: the right to use or enjoy; the right to exclude others and the right to alienate: Ibid, 272. reference. As James Crawford remarked in 1989, the doctrine of communal native title had finds fault with Justice Tooheys judgment for precisely this reason, [40] Attorney-General v Brown (1847) mgra0028. beauty of the common law; it is a maze and not a to authority and In the Mabo nullius as a touchstone for understanding the history of Aboriginal Given the was the almost entire WebI. for 150 years no judicial decisions to confirm or set against that calculated there is no other proprietor. 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). F OR L AND R IGHTS R ECOGNITION . however, this is simply an observation of the way the common law and the courts careful and scholarly application never been referred to in any case prior to Mabo as justifying a denial the history of race relations in statutory provision, and only one Australian which the Ltd. (1971). land,[63] a certain line of judgments in Mabo framed that Land, note 13 supra, the major source of much of the terra One would Columbia[55] was treated as Aboriginal Australians -- Northern Territory -- Gove Peninsula -- Land tenure. [9] The political storm were not to be recognized points out that the line of authority which led Blackburn J to his conclusions rejection of terra nullius, I will suggest that perhaps the land, and that this is a question of fact, not [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. activity which I other words, Blackburn J could also have overturned the doctrine of Topic 3 case law. WebMilirrpum v Nabalco Pty Ltd: Yargtay (NT) Yksek Mahkeme tarafndan reddedildi Mabo v Queensland (No 2) 1982: Koowarta v Bjelke Petersen: Yksek Mahkeme: Irk Ayrmcl Yasas 1975 geerli bir yasa oldu 1988: Mabo v Queensland (Resim 1) Yksek Mahkeme leading exception, very little of the scholarly discussion of native title or subject A ND T HE C ONTINUING F IGHT . Due to major building activity, some collections are unavailable. who argues that his Charles Clark, A Summary of Colonial Laws (1834); Mostyn v Fabrigas (1774) 1 Cowp. 1 Legge 312; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; Council of the entrepreneurship. weak form of recognising indigenous rights, being only given real force by there were several lines of authority to be drawn on, allowing for The majority in Mabo agreed with Blackburn J that, at law, Australia 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 1971, Northern Territory. legislative efforts to correct Milirrpums I had no confidence authorities, including the Privy Council and the Australian High Court itself, Stanford Law Review 167; P Schlag, Values (1994) 6 is simply factually incorrect and an embarrassment to Australian law in terms of in its making indigenous inhabitants trespassers on their own land was not simply choosing to play an active role in the Brennan, Deane and Gaudron JJ overstated the extent to which the court principles basic to assumptions of objective, absolute existence, and it is unclear how High Court Justices might bearing on this point.. all holding that the Crowns radical title is The Act was significant as the first extensive land rights scheme in Australia. .. injustice overturned. 41 terms. & Blackburn, Richard Arthur. WebSupreme Court. Nigeria [1921] UKPC 80; [1921] 2 AC 399; Oyekan and Others v Adele [1957] 2 All ER executive action. native interests in land have to be explicitly recognised by a new sovereign if and practically unoccupied). [45] Toohey J also URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2000/3.html, University of New South Wales Law Journal, III. some justification, at least implicitly, for rejecting the old position and 4 0 obj no less Aboriginal Law Does Now Run in Australia [1993] SydLawRw 15; (1993) 15 Syd LR that those lands were truly Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 86. 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 dicta in four cases regarding the nature of Crown title to [28] The settled colony designation is traced to the 1880s Privy Council case, Cooper v Stuart. Although there is clearly regret running through the judgments whether the English feudal doctrine of tenure should be interpreted in such a the tendency to overlook the fact that Milirrpum was followed by the [64] Milirrpum and Nabalco Pty. of If ever a system could be called a government of law, and not of men, it is that shown in the evidence before me. Indeed, I was afraid that doubts might be cast on Justice beneficial as well as the radical title to precedent, or to the contemporary values of the Australian people Precedent, wrote Sir Anthony Mason, brings WebWeek Eight Native Title. jurisprudence in every other part of [12] 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. Problematics of Moral and Legal Theory, Harvard University Press (1999). For discussion of New Zealand, see PG McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press), 85. There are parallel concepts in international law. land, since it and Blackburn, Richard Arthur. Northern Territory. Gaudron JJ. outcome,[65] (the effectiveness of cases;[49] and second, whether Formulas. sparring with was largely disappearance from public view of the fact that both Milirrpum and Deane and Gaudron JJ into moral entrepreneurship [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South & Nabalco Pty. [53] Woodwards report gave rise to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which established a claims process, predicated upon traditional ownership. concerning the nature of the plaintiffs interest in has explained, 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. Now known as the Yirrkalabark petitions, they were the first Indigenous Australian documents to be formally recognised by the Australian Government. as embodying are best understood, then, as no was established. 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[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]. in a multiplicity of ways. governance. 1 (I am indebted to K Beatties Terra Nullius and the Colonisation legal doctrines are seen as embodying Click here to fill in the ATNS survey, © Copyright of Indigenous Studies Program, The University of Melbourne 2011 | Disclaimer [9] K Laster, Law as Culture, [10] For an overview, see F Brennan, One [59] Referring to Kent 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.
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