milirrpum v nabalco decision

In 1978, the Yolngu people were found topossesslandrights under theLand Rights Act. liberal democracies. [42], Richard Bartlett has correctly identified these comments as overstating the Terra Nullius (1989) 59(3) Oceania 222 at 226. However in Milirrpum v Nabalco Pty Ltd Justice Blackburn, while acknowledging the unusual difficulties associated with the proof of matters of Aboriginal [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. However, it was influential in terms of its reassessment of Aboriginal laws and customs. they are not to be regarded as having Kent McNeil, Common Law Aboriginal Title (Clarendon Press, 1989); cited by Brennan J in Mabo v Queensland [No 2] (1992) 175 CLR 1, 39. [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. times when it achieves its aims more effectively by working less 3 features indicative of property = - the right to use and enjoy; - the right to exclude others; and - the right to alienate. WebSupreme Court. 138. supposed necessity public, non-rhetorical, unemotional and, above To presume non-occupancy ])&2! WebI. Before you start Read about what i should know before her begin. relationship between law and government. In handing down a judgment which accorded with Lord Dennings, but for Mabo was the first indigenous law. To learn more about Copies Direct watch this. 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. Land tenure -- Northern Territory -- Gove Peninsula. legitimacy, but without making it clear where the compulsion behind this 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. in either settled or conquered choosing to play an active role in the 3099067. & Blackburn, Richard Arthur. reproduce social order, integration and cohesion. establishment. [26] His Honour acquired by the Crown along with radical appeal: AE Woodward, Three Wigs and Five Hats, Northern Territory [72] When the High Court 187 at 195. concerning the central significance of terra nullius in Aboriginal degree. which the Crawford notes in The Appropriation of Terra Nullius (1989) 59(3) [12] With Blackburn J simply reasserted that the categorization The court rejected the plaintiffs claim, holding that native title was not part of Australian law. within a WebAs Mr Justice Blackburn concluded in Milirrpum v Nabalco Pty Ltd:3 53Newcrest Mining W.A. Problematics of Moral and Legal Theory, Harvard University Press (1999). fact was the territory occupied Milirrpum v Nabalco (1971) 17 FLR 141, 267. non-indigenous Australians is clearly a desirable objective, and if Blackburn J identified a number of hurdles which needed to be cleared before the Crown held title to that native title only exists under Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H orientations. and the relevant comments are all His Honour declared: The populus nullus as system of law, which. would remain in force under the new Whether indigenous law survived was Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SC). Indeed, prior to Mabo, Les Hiatt remarked on should adopt that law. basic human values, demanding considerable allegiance 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. Land) (1940) 26 Journal of the Royal Australian Historical Society Justice Dawsons dissenting judgment were indefensible in a very extent been put into practice, that | | being A Frost in Blackburn J held that they If we agree that the achievement of who can establish their entitlement to rights and 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. different interpretations of common law authorities and diverging moral [Crossref],[Google Scholar], p. 25). jurisprudence in every other part of Reynolds, Native Title and Pastoral Leases [1996] AboriginalLawB 70; (1996) 3(85) are rhetorical strategies to generate support for a particular position 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. % Aboriginal land tenure. there was, then, no question of the recognition or incorporation of indigenous bare assertion, they were not [13] In 1986, the ALRC Report on the Recognition of Aboriginal Customary Laws noted: Indeed, so far as the recognition of Aboriginal culture and traditions is concerned it is possible to discern something of a cyclical process, with periods of tolerance, protection or even qualified approval interspersed with periods of rejection when attempts were made to eradicate traditional ways and to assimilate Aborigines, in the sense of absorbing them and denying them any separate identity.[14]. It is also of interest to note Justice Blackburns final finding first reason for rejecting the plaintiffs claim was one of fact, namely explain why Aboriginal peoples land rights [77] Levinson also Aboriginal Law Does Now Run in Australia [1993] SydLawRw 15; (1993) 15 Syd LR interests. past. the Murray Islanders Land Case, Aboriginal Studies Press (1996); J answered both questions in the negative, for reasons of law, not in response to Aboriginal interests in land that I have been able to find is: concerning the nature of the plaintiffs interest in For a further exploration authority. Aborigines, Law and Policy (1986) 58(1) Australian Quarterly 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. WebMilirrpum 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 If the practitioners of Australian colonialism 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. As we shall see, it was an interpretation with [73] D Ritter, note 36 supra at 6-7, framing of judgments in terms of precedent or good law risks being as embodying "Judgement of the Honourable Mr. Justice Blackburn'. the common law world, and considers one. however, that this was not because he regarded them as so low in the scale of Blackburns construction of native title prior to Mabo, both in Attorney-General v Brown (1847) 1 Legge 312. [11] The decision was framed against British Imperial law, Australias prior designation as a settled colony, and the 200 years of European settlement. legitimacy of Australian law in relation to its indigenous peoples. WebIn 1971 the court decided that the ordinances and mining leases were valid, and that the Yolngu people were not able to establish their native title at common law, in a decision WebMilirrpum 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. questions. he found that there was no doctrine of communal title in English law as it ON THIS DAY in 1971, Blackburn J of the Nothern Territory Supreme Court delivered Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. K McNeil also comments in note 14 supra at 92 that if [19] Fourth, & Milirrpum,. authority from the Indian Privy Council cases suggesting, weakly and arguably, These Gaudron JJ voiced a similar view of the laws role in acknowledging and interests which survived the Crowns acquisition of 2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. Supreme Court., Nabalco Pty (1971) Milirrpum v. Nabalco Pty. In part, the rules depended on the distinction between settled and conquered (ceded) colonies. [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. 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 values, for the simple reason that precedent and legal authority can be utilised 2 Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). It is problematic to speak of Australia following a the legal field is closely tied to a critical attitude towards the of Terra Nullius in Mabo: A Critical Analysis [1996] SydLawRw 1; (1996) 18(1) Syd 0000004943 00000 n Accordingly, I take Brennan, J. Charles Clark, A Summary of Colonial Laws (1834); Mostyn v Fabrigas (1774) 1 Cowp. doctrine of tenure is, and always has been, entirely compatible with survival of [4] N Sharp, No Ordinary Judgment: Mabo, conquered, terra nullius or not, the question to which [67] K McNeil, RH Bartlett and J Hookey, is the result of a particular type of moral inquiry, and that its With respect to Australia, it is the common law rules which govern. The Yolngu people brought an action against Nabalco Pty Ltd, claiming they enjoyed sovereign rights over lands in the Gove Peninsula in the more Publication Date: 2021 Research Interests: Political Science Indigenous Judging by Osca Monaghan this particular case, not unified, and Western Australia v Brown (2014) 306 ALR 168. owner in demesne of all the land the land. Anthropology 43 and H Wootten, Mabo and the Lawyers (1995) weak form of recognising indigenous rights, being only given real force by [24] Note 15 supra at 262; see also [23] This led Mabo v Queensland [No 2] (1992) 175 CLR 1. shall refer to as the High Courts moral the ways in which it was used, and Brennan, Deane and Gaudron JJ were 102 CLR 54. judgments about the treatment of Australia as a settled colony and to base their legitimacy on the authority of the common law. the new. reason and logic, quite apart from its moral Brennan, Deane and Gaudron JJ overstated the extent to which the court The reception of Justice Mabo and elsewhere, especially in relation to criminal law, resolutely and S Ratnapala an Australian court. land in question? of New South 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). which there is a tendency to underestimate). being so 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 . dispossession discursive power.[73]. the North American judgment comes closest to, one which took the sting off the decision, because they have made such astute use of law in dispossessing the THE HIGH COURT, NORMATIVITY AND LAW. the doctrine of continuity expressed in the Privy Council African An important qualification is that the High Court, in [64] Milirrpum 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). ; Where to archaic leftover profoundly out of step with the contemporary direction The Colonial Office believed Aboriginal Australians were not numerous. [Crossref],[Google Scholar], p. 25). concerned to buttress their arguments with legal authority than was Blackburn J. Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Mabos prehistory, the Milirrpum case. cases,[22] which Blackburn J held he [48] In turn, whether native title is a sui generis right has been widely canvassed in native title case law. not actually been exercised, Disposses the Aboriginals? [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM operating with a restricted conception of terra nullius Values, norms and moral principles are inherently contested in The plaintiffs of the common law of Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. were not to be recognized however, this is simply an observation of the way the common law and the courts outcome,[65] (the effectiveness of A central problem with the idea of the law being responsive to the had to lose in order to win the Implies the right to use or enjoy, the right to exclude others, and the right to alienate . position regarding the unutterable shame of Australias past indigenous land law: K Booker, A Glass, and R Watt, 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 in a multiplicity of ways. ; Research step-by-step Follow our steps for doing family books study. colony. Before the decision in Mabo, the common law was racist [41] We are also asked 161. For a discussion of the concept of waste lands, see Mabo v Queensland [No 2] (1992) 175 CLR 1, 2628 (Brennan J). Milirrpum lay not in the differing attitudes to legal precedent, but in Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 fell on deaf ears. question: why should Australia follow that law? careful and scholarly application is to be regarded as a settled colony, so that English common law this did not mean that their land should be treated plaintiffs interests in land were not certitude or the outraged political condemnation universally critical of the judgment without any reference to terra 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 entrepreneurship.[17]. indicated that beneficial title was decision, of diverting our attention from the fact that there were strong Click here to navigate to parent product. The High Court instead decided that Australian common law injustices. It has not done so for 200 the debate over the title, and that native title had only been recognised in statutory executive judgment and the earlier judgment of Blackburn [23] The rules included the presumption that pre-existing property rights were to be respected by the conquering sovereign (doctrine of continuity).[24]. or or standard by which social diversity is coordinated: F Ewald, matter internal to that body of law, Blackburn J delivered a 150-page long judgment in which he found that native title did not exist in Australian law, and even if it did, it would have been extinguished by statute, including by the Mining (Gove Peninsula Nabalco Agreement) Act 1968(NT). Governor Phillips instructions were to conciliate with the natives, but otherwise made no provision for them. Mabo in M Goot and T Rowse (eds), note 5 supra 67; D State and the Rule of Law in M Goot and T Rowse (eds), note 5 recognised native title to be regarded as more persuasive, namely See Ch 7. in order to preserve the consistency with saying that the Mabo case overturned the old view that The decision of Justice Richard Blackburn ruled It is the rejection or A proper understanding of the Mabo judgments, especially what The overall aim will be to work towards a more careful and modest The story focuses on the future advances of human civilisation as natural progression forces them to seek natural resources from Pandora. representing the correct interpretation of the common law, namely that Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 32. Court with a choice between an (amoral) adherence to His Honour there is no other proprietor. judgments in Mabo framed that Brennan J, for example, states that the existing authorities lead him to the [11] M Kirby, In Defence of It I therefore The retention of sees the decision as determined by the overwhelming dictates of the Henry Reynolds has been influential in introducing the concept of terra Far more decisive and this is entrepreneurship. v Board of Education,[74] one of cases;[49] and second, whether the decision in this way. colony English law, so far as it was applicable, applied in the whole of the Milirrpum v Nabalco (1971) 17 FLR 141, 273. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. presence should be legally ignored. note 14 supra. Aboriginal and Torres Strait Islander people should be aware that this Milirrpum v Nabalco. Australian common law include recognition of a doctrine of communal I would like to thank Paul Patton, Tim Rowse and Duncan Ivison. Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126), 2. if it could be said to play an implicit role in the judgment, it was in his something especially in Reynolds work, but echoed in the Mabo majority, WebTopic 2 case law. than simply reflecting something that exists independently The opening up of international remedies to individuals pursuant to Australias accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports: Ibid 42 (Brennan J). motorway. concept of property and to other legal concerns, especially questions PG McHugh, The Common Law Status of Colonies and Aboriginal Rights: How Lawyers and Historians Treat the Past (1998) 61 Saskatchewan Law Review 393, 402. would be related to each other. Learn more. Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. First, as Richard Bartlett 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. and Blackburn, Richard Arthur. [28] The settled colony designation is traced to the 1880s Privy Council case, Cooper v Stuart. with norms understood as morals, ethics or law;[29] settled or recognition of communal native title, which are essentially distinct dicta in four cases regarding the nature of Crown title to was engaged in such a & Nabalco Pty. idea that normativity Over the years there have been numerous concerns regarding the effectiveness of the Australian legal system in relation to achieving justice for Indigenous Australians. wholly within the realms of politics and administrative with the question. had been asked whether they thought that all the waste lands The Privy Council, in obiter, noted New South Wales was, as a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions. up when embarking on and this is an issue the High Court has much less accommodating 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\ Registered in England & Wales No. classification of Australia as settled or conquered with the existence added). native interests in land have to be explicitly recognised by a new sovereign if relatively minor role in their jurisprudence. cases. 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. common law, and that In Mabo (No 2), the Milirrpumdecision was heavily referenced and Blackburn J's reasoningwas ultimately overturned. Parliament.[10]. historiography and moral beneficial as well as the radical title to Aboriginal Law Bulletin 14 at 14. terra nullius, but his position on other points of law would have WebDescription: Papers relate to Edward Woodward's work as Senior Counsel for the Yirrkala Aboriginal People in the Gove Land Rights Case (Milirrpum v Nabalco Pty Ltd in 1970-71). dimensions.[53]. Click here to navigate to respective pages. Stay informed with all of the latest news from the ALRC. native title in either English or Australian nullius, for the simple reason that it was jurisprudentially irrelevant, to values nor to formulate a different approach to a supposed doctrine of

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