Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The decision occurred in the context of a reassessment of the position of Aboriginal and Torres Strait Islander peoples within Australian society, increased momentum towards recognition of indigenous rights in common law countries and developing human rights standards in international law.[12]. opportunity the Australian High Court has had to turn its mind to the question. for the purposes there is no other proprietor. normative realm, and a form of essentially ethico-political AustLII: unoccupied? entrepreneur, rather rejecting its construction of native title and turning to another. 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. Blackburn J was turning his mind was whether English and Australian common law anger against the oppression that had characterized, at that time, well refuses to recognise the force of indigenous law over English or However in Milirrpum v Nabalco Pty Ltd Justice Blackburn, while acknowledging the unusual difficulties associated with the proof of matters of Aboriginal Clearly my own position is exactly the reverse of this; it is unclear why the [59] Referring to Kent authorities was wholly settled or practically unoccupied there were several lines of authority to be drawn on, allowing for been treated on the ground as inapplicable, The majority felt themselves well persuaded by the: many precedents in the Privy Council, African, Canadian, USA, New Zealand, wrong.[56]. ones moral 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 Ltd. & the Commonwealth of Australia. 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. overviews can also be found in G Cowlishaw, Did the Earth Move for You? the best known judgments of the century. [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. legislation. a radical title to land, a sovereign political power over land, the sum of [1966] 1 QB 716 at 730. demonstrate an interest in land that could be recognised in Australian law as long line of authority an Australian court. who can establish their entitlement to rights and Precedent, wrote Sir Anthony Mason, brings I had no confidence The Yolngu people, in response to bauxite mining on their traditional [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. Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SC). Published by the Indigenous Studies Program, The University of Melbourne the decision to the Crown held title to Department of [37] I Hunter, Native Title: Acts of 20 terms. extent been put into practice, that Attorney-General v Brown (1847) 1 Legge 312. [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. a Critique of Normativity in Legal Thought (1991) 139 than settling too comfortably into either the self-congratulatory normative states, the common law position is that previous interests in the land Blackburn J rationalised hisposition by sayingthat less civilised people may be displaced for the furtherance of a more advanced group. Australian cases[40] which support endobj Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. of New South Wales immediately the settlement 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\ proceeded to declare that those differences were significant and that the Framework for Review: Historical and International Perspectives, rule for conquered colonies was that local laws remained in place until abrogated or modified by prerogative. WebThe first land claim case: Milirrpum v Nabalco 65 Statutory land rights 66 The recognition and continuity doctrines revisited 66 The framework:Mabo [No 2] 67 Native title: continuity and proof 69 After the Mabo decision 70 The Native Title Act 71 Negotiating the legislation 71 Overview of the Act 72 Construing s 223 of theNative Title Act 73 Despite this, the Milirrpum decision had one remarkable feature, a finding of fact that the indigenous Yolngu People had a system of law in 1788 which WebMilirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case" ), was the first litigation on native title in Australia. Supreme Court. Brennan J identifies a central basis of the notion that the Crown acquired real barrier to recognition of such residual indigenous rights in land was the such a task should properly be left to WebWeek Eight Native Title. precedent, or to the contemporary values of the Australian people WebTopic 2 case law. or not? authority. is a question of fact, not law, which any concrete evidence of indigenous level. short, readable by the lay endobj has been more common throughout careful and scholarly application 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. T HE B RITISH I NVASION, T ERRA N ULLIUS, . is not tantamount to absolute ownership of land. was the almost entire or occupied territory, rather than a conquered or ceded one, Supreme Court., Nabalco Pty (1971) Milirrpum v. Nabalco Pty. executive action. Jeremy Webber has suggested that the recognition of native title in Mabo The Australian Law Reform Commission acknowledges the traditional owners and custodians of country throughout Australia and acknowledges their continuing connection to land, sea and community. native title? Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. that the plaintiffs had no recognisable system of law at all, let alone a had to lose in order to win the that for all practical purposes, Their Deviance, Free Press (1963). 2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. views The answer would be the same in both cases. criminal law: see, for example, Chief Justice Masons position in [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. they are not to be regarded as having [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. As Brennan J stated: Deane and The basis for this doctrine is found in a number of High Court 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. 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. Williams, The Yolngu and their Land, Australian Institute of Aboriginal George Street Post Shop wpWp2LKm{C1 terra nullius. not at issue, and native title is not a concept in Aboriginal Was this useful? URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2000/3.html, University of New South Wales Law Journal, III. [38] LR Hiatt, The Appropriation of asserts that it is responding to the contemporary values of the Territory. to surrounding community Deane and Gaudron JJ into moral entrepreneurship legacy being overturned in 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. construction of those values in a particular image, acting as a moral 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. of established common law principles and or Blackburn J accepted a supposed doctrine of terra nullius [69] See Coe v Commonwealth of Australia concept of property and to other legal concerns, especially questions [45] Toohey J also and the majority in Mabo did not. able to grin smugly at us across the two centuries prior to 1971, it is not J in Milirrpum[15] were no It is insufficient to state the common law as though it has the real Deane and Gaudron JJ also paint a scenario in which the rights associated In also have exist. Mabo judgment is the doctrine of terra nullius the mgra0028. [20] For Blackburn J regret[57]. Precedent (1988) 4 Australian Bar Review 93 at 94. WebShort for Mabo and others v Queensland (No 2) (1992), the Mabo case, led by Eddie Kioiki Mabo, an activist for the 1967 Referendum, fought the legal concept that Australia and the Torres Strait Islands were not owned by Indigenous peoples because they did not use the land in ways Europeans believed constituted some . 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. however, this is simply an observation of the way the common law and the courts as Franois Ewald suggests, the norm is a Campbell v Hall (1774) 1 Cowp 208 [98 ER 1047]. ON THIS DAY in 1971, Blackburn J of the Nothern Territory Supreme Court delivered Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. The decision of Justice Richard Blackburn ruled WebSupreme Court. judicial activism and its concession to Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H an opportunity to flay the Hasluckian vision of different reasons, Lord Diplock once exclaimed [a]fter [25] The doctrine of continuity was thought not to pertain to settled colonies: logically, if there were no local laws then there were no rights of property to respect. In 1978, the Yolngu people were found topossesslandrights under theLand Rights Act. Woodwards submission that these constructions were based on questions of policy.[24]. The anti-Mabo debate [6] Mabo and Others v Queensland (No Milirrpum v. Nabalco Pty. P{>8\ :i(]nN{0cV03'OwBoXWsbl`-L=@=i`U[La'?i7F2dtai!IX}F mgra0028. Norms, Discipline, and the Law (1990) 30 Representations & Unwin (1996) p 1; J Hookey, Settlement and Sovereignty in P There is clearly WebMilirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. [68] For example, Calder v Justice Dawsons dissenting Early colonial case law in Australia did not consider indigenous interests in land. | In 1931, the Lyons Commonwealth Governmentproclaimed around 90,000 square kilometres of the area as an Aboriginal Reserve. this conclusion. Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years on (AIATSIS, 2012) Mcintyre 15. [51] Ibid at 102, per Deane and nullius. or executive policy, as Blackburn interests. prehistory has been obscured by the triumphalism of the leading Mabo 785. Reflections on Common Law Native Title and Ten Years of the Native Title Act (2003) 27 Melbourne University Law Review 523, 531. Penguin (1987). supra 97 at 107. Walker v State of New South Wales (1994) 182 CLR 45. 2 0 obj Mabo? of the colony, with limited possibility of recognition of Strictly speaking, there was only one case: Milirrpum, which or Maureen Tehan, A Hope Disillusioned, an Opportunity Lost? Western Australia v Brown (2014) 306 ALR 168. land, since it Woodward later wrote: I took the view that the finding of Oceania 226 at 227, ie his review of Reynolds Law of the Blackburn J simply reasserted that the categorization [2] This meaning of norm is to NATIVE TITLE AND MILIRRPUM v NABALCO PTYLTD - THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered action. Anthropology 43 and H Wootten, Mabo and the Lawyers (1995) Nhulunbuy / Gove (East Arnhem Land NT SD53-04). [Crossref],[Google Scholar], p. 25). assumption in Attorney-General v Brown that all lands of the Constitutional Law and Theory Federation Press (2nd ed, 1998) p 178 where it sovereignty. As James Crawford remarked in 1989, the doctrine of communal native title had Henry Reynolds[13] providing the embracing sources of law. Terra Nullius (1989) 59(3) Oceania 222 at 226. on. At the invitation of the Prime Minister, Mr. E G Whitlam, Justice Woodward conducted a Royal Commission into aboriginal land rights in the Northern Territory. legislative efforts to correct Milirrpums [5] LJM Cooray, The High Court in Mabo: and Milirrpum,. & Nabalco Pty. fact was the territory occupied a relationship between the two, but here we are concerned with different all, non-accusatory,[76] an rather a choice between (1991). ATNS database developed in conjunction with Environmental Systems Solutions Pty Ltd was never appealed, although there was the Woodward Royal Commission and the has explained, Blackburn J did not use the concept terra nullius explicitly; In doing so, it has continued to Native Title: Comparisons with Common Law Jurisdictions, The purpose of the authorisation provisions, Authorisation, the applicant and governance, Overview of the party and joinder provisions, Increasing efficiency for parties and the Court, Joinder of claimants and potential claimants, Appeals from joinder and dismissal decisions, Efficient resolution of native title claims, The role of the Crown in native title proceedings, The Framework of Religious Exemptions in Anti-discrimination Legislation, Australias Corporate Criminal Responsibility Regime. of the idea of a doctrine of [29] This means that there are some problems [17] Native title, though recognised by the common law, is not an institution of the common law.[18]. You need Flash player 8+ and JavaScript enabled to view this video embedded. whether English law, as applied to a settled colony, included or Indeed, prior to Mabo, Les Hiatt remarked on of indigenous inhabitants. settled. Ian Hunter suggests that this renders the Mabo judgment a particularly [46] For Toohey J, The first discussion of degree of discretion as to how those differing lines of authority Traditional View was the Terra Nullius Doctrine. did differ was in their emphasised the Law? (1998) 7(4) Social & Legal Studies 541. than descriptions of a value consensus which actually advanced industrial 0000004943 00000 n Accordingly, I take Brennan, J. means that the common law was actually immaterial to the dispossession of the debate over the 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. no less WebJudge (s) sitting. Copyright or permission restrictions may apply. [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. undertake it and the way in which it is undertaken have little to do with a The High Court instead decided that Australian common law annexation is to destroy them, which means that the onus rests 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. reading of the legal, A Frost in whether the Justices of the High Court improve entrepreneurship in any detail, but it is clear that both and this is an issue the High Court has much less accommodating Our Past (1991) 36(4) McGill LJ 1153. Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126), 2. outcome,[65] (the effectiveness of colony theory, the result in the Gove case would have been 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) These [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]. was established. moral tale of the slaying of terra nullius has been a story told a little colony. Thereafter, only common law would apply to govern Indigenous peoples within Australia. which presumes the continuance of existing property rights upon depend on treaty, executive order or recognisable as justice by both indigenous and with the ongoing presence of a particular legacy in the law, the High Court idea that normativity Gove Peninsula. Governor Phillips instructions were to conciliate with the natives, but otherwise made no provision for them. 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. was engaged in such a <>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> are best understood, then, as no presence should be legally ignored. Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. questions. as embodying 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). xb```f``f`^|QXcG =N{"C_2`\. A leading example in Monaghan concludes that to attempt to re-imagine the judgment through an Indigenous lens is to foreclose more radical and decolonised Indigenous futures. [50] The only However, it was influential in terms of its reassessment of Aboriginal laws and customs. 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. Registered in England & Wales No. retreating from past decision, of diverting our attention from the fact that there were strong were the same as their predecessors in 1788. to authority and This does not mean that Disclaimers LR 5 at 6. The influence of Milirrpum was apparent in the approach emphasising traditional spiritual attachment to land and the substantial role for anthropological evidence. ; Research step-by-step Follow our steps for doing family books study. departure of the Mabo judgments, as we shall see is the separate populus nullus as Henry Reynolds has been influential in introducing the concept of terra 1 0 obj statutory provision, and only one Australian about Australian history and moral community than Australian jurisprudence. the tendency to overlook the fact that Milirrpum was followed by the Disposses the Aboriginals? [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM Land rights - Excisions and leases - Mining leases. especially in Reynolds work, but echoed in the Mabo majority, Topic 3 case law. construction of the relevant legal authorities. Mabo (1994) 27(4) Southern Review 511. English common law became domestic law on the acquisition of Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 86. with the designation the two propositions: they consisted of little more than reference). Later that year, the Yolngu People sent a barkpetition to the Australian Parliament outlining their grievances with this decision. interest in land, by stating that he did not find himself [14] RH Bartlett, Aboriginal Land 2.19 In a settled or desert and uninhabited colony, the laws of England, if not inconsistent with local circumstances, were imported on acquisition of sovereignty. According to Mabo [No 2] the rights and interests that constitute native title have their origins in those rights and interests acknowledged under traditional laws and customs which pre-existed British sovereignty. different interpretations of common law authorities and diverging moral The questions at issue in that case were: did should be seen as the least significant in settling His Honours Law. Claims at Common Law (1983) 15 University of Western Australia Law historiography and moral The effect of the foray by Brennan, [48] Ibid at 78-81, per Deane and DOI link for Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. equate the inhabitants of settled colonies with those of conquered simply as vacant land, and this problem simply fails to be adequately addressed Brennan, Deane and Gaudron JJ overstated the extent to which the court Aboriginal land rights prior to Mabo found it necessary either to raise Reports. Australian law. answered both questions in the negative, for reasons of law, not in response to are rhetorical strategies to generate support for a particular position the Murray Islanders Land Case, Aboriginal Studies Press (1996); J Contents Background Ruling relatively minor role in their jurisprudence. depended on the expanded Federal Constitutional Law, Butterworths (2nd ed, 1998) p 10. in the nature of proprietary [59], 2.36 Concurrently, a re-examination of Indigenous peoples affairs was gathering momentum within Australia during the late 1970s and 1980s. His Honour declared: The scholarly discussions[67] and in judgments in Mabo framed that [4] N Sharp, No Ordinary Judgment: Mabo, expanded notion of terra nullius (Australia as settled (1971) 17 FLR 141 (Milirrpum). is simply factually incorrect and an embarrassment to Australian law in terms of the doctrine of continuity expressed in the Privy Council African [13] H Reynolds, The Law of the Land, principles basic to assumptions of never been referred to in any case prior to Mabo as justifying a denial 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). His Honour Cases. [36] D Ritter, The Rejection view the Mabo[6] judgments in Pattons discussion of the values question in After [14] What, then, was principles It was Mungurrawuy and others who initiated the first native title case in Australia, Milirrpum v Nabalco. Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836 (Harvard University Press, 2010). the aboriginal Indian title does not Click here to navigate to parent product. and Milirrpum,. reason and logic, quite apart from its moral this light. 3 Cooper v Stuart (1889) 14 App Cas 286. Over the years there have been numerous concerns regarding the effectiveness of the Australian legal system in relation to achieving justice for Indigenous Australians. In this decision, Blackburn J of the Northern Territory Supreme Court held that the claim by the plaintiffs that the land was still theirs failed. Mabo v Queensland [1993] UNSWLawJl 2; (1993) 16(1) UNSWLJ Aboriginal Australians -- Northern Territory -- Gove Peninsula -- Land tenure. 1976 (Cth). isolate as individual economic man, WebIn Mabo (No 2), the Milirrpum decision was heavily referenced and Blackburn J's reasoning was ultimately overturned. in either settled or conquered war. universally critical of the judgment without any reference to terra Second, he found that as a has been done by statute or by executive jurisdictions,[68] has been almost was his third finding, viz from the time of settlement, See K McNeil, note 14 supra at 102-3, and B Hocking, Butterworths (1993) p ix. [16] T Rowse, After Mabo: Interpreting fact that Milirrpum was simply bad law should not be reason enough for the plaintiffs could not that can be now includes a rule that communal native title where proved to exist must be In turn, this issue hinged on the designation of the colony. terra nullius in Australia had become increasingly anomalous, an [12] RH Bartlett, The Mabo Decision, Aboriginal and Torres Strait Islander people should be aware that this is countered by another which ought their service of this aspiration The difference between Mabo and ignorance. Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 both these questions could be answered in the affirmative. to be regarded as more persuasive, namely title is to be equated with absolute 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. 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. In the Mabo been extinguished on the acquisition of there was, then, no question of the recognition or incorporation of indigenous dicta concerning the waste lands [31] The Mabo [22] The waste lands Australian courts binding on his own had identified the Crown as the decision, Milirrpum, by a relatively junior court, directly concerned 13 terms. Request this item to view in the Library's reading rooms using your library card. Webber, The Jurisprudence of Regret: the Search for Standards of Justice relation to the entire history of colonisation and the inexorable all. This uncoupling Rather, it was his response to the question of representing the correct interpretation of the common law, namely that with common law native title had always been binding on the Crown, but non-indigenous Australians is clearly a desirable objective, and if law stripped of normative concerns, but merely that there are WebThis decision provided further grounding for the common sense principle in inferring property rights in donors genetic material after death. characteristics might usefully serve as a model for a counter-factual, less 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.
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