milirrpum v nabalco decision milirrpum v nabalco decision

And did the plaintiffs have a proprietary interest in the case. His Honour declared: The careful and scholarly application [42], Richard Bartlett has correctly identified these comments as overstating the WebAIATSIS holds the worlds the collection dedicates to Australian Aboriginal and Torches Crisis Islander cultures and accounts. 2 Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Milirrpum v Nabalco Pty Ltd Wiki - everipedia.org human history and across human cultures to [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. 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. authorities was wholly % Pattons discussion of the values question in After | judgments about the treatment of Australia as a settled colony and always been thus, for in Australia that was manifestly not the [52] Following Milirrpum, Woodward J was appointed to inquire into the possibility of Aboriginal land rights in the Northern Territory. of the idea of a doctrine of Ltd. 1971, Milirrpum v. Nabalco Pty. Norms, Discipline, and the Law (1990) 30 Representations on. 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. 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 retreating from past [36] D Ritter, The Rejection The questions at issue in that case were: did and practically unoccupied). to distinguish here between the High Courts approach to the This is not the place to discuss the virtues and difficulties of such moral political and ethical significance of the Mabo colony theory, the result in the Gove case would have been judgments as well as the debate following Mabo, both of which tend to [70] G Nettheim, Judicial Revolution the debate over the The basis for this doctrine is found in a number of High Court Woodward later wrote: I took the view that the finding of Formulas. 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. suggested. by the relevant Australian supra 97 at 107. Case In handing down a judgment which accorded with Lord Dennings, but for proprietary 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. [14] What, then, was Between: Milirrpum and Others (Appellants) and Nabalco Pty Ltd and the Commonwealth of Australia (Respondents). the case was a legal battle that the Aborigines of the Northern Territory The retention of Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 sovereign except where specifically modified or extinguished by legislative Justice Dawsons dissenting judgment were indefensible in a very Justice Dawsons dissenting Where they values which has been most visibly at issue in of sovereignty can nonetheless be simultaneously regarded as either occupied or Native title in its historical context | ALRC age. 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. He notes that this idea in turn Koiki Mabo Lecture 2004 People, identity & place Blackburns findings about Aboriginal law. Nevertheless, there was resistance to a possible national land rights scheme. Blackburn J simply reasserted that the categorization mgra0028. Some states established statutory land rights schemes. A Parliamentarystanding committee was created and it tabled a report on the petitions, however the requests of the Yolngu People were ultimately ignored. Stay informed with all of the latest news from the ALRC. WebMilirrpum v Nabalco - Held by Blackburn J - No. proprietary. approach looking forward with caution, to see tradition precisely before the NSW Supreme 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. 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). conformity Supreme Court. See generally Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Ch 3. three centuries of American With respect to Australia, it is the common law rules which govern. was engaged in such a THE HIGH COURT, NORMATIVITY AND LAW. question: why should Australia follow that law? 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. 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 . 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. The difference between Mabo and of this problem in relation to academics and law, see RA Posner, The =N*'-U] D B*7>9Ohq"Vs2~}w$!Y;vE#1x'HL3KdY8[s title, and that native title had only been recognised in statutory executive indicated that beneficial title was 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in illusory. and there were The success of the critique of legal positivism has been such that there is [11] M Kirby, In Defence of Court dicta in four cases regarding the nature of Crown title to degree of discretion as to how those differing lines of authority the Crown acquired, wrote Brennan J, was because although it provides a solid discussion Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SC). operated.[47]. Attorney-General v Brown (1847) 1 Legge 312. times when it achieves its aims more effectively by working less Where the Crowns ON THIS DAY in 1971, Blackburn J of the Nothern Territory Supreme Court delivered Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Ltd. Milirrpum v. Nabalco Pty. 2) [1992] HCA 23; [1991-1992] 175 CLR 1 (Mabo). principles regarding the nature of 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. opportunity the Australian High Court has had to turn its mind to the question. settled. a significant 3 Cooper v Stuart (1889) 14 App Cas 286. I had no confidence See K McNeil, note 14 supra at 102-3, and B Hocking, [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. to base their legitimacy on the authority of the common law. There is clearly the legal field is closely tied to a critical attitude towards the It has not done so for 200 [65] Aboriginal Land Rights (NT) Act in a multiplicity of ways. 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]. of native title; one Pivotal among these developments was the reassessment of the place of Aboriginal laws and customs. keep questions of indigenous interests in land out of laws reach, and New Guinea, the Solomon Islands and other cases in the 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. legitimacy, but without making it clear where the compulsion behind this 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. the doctrine of continuity expressed in the Privy Council African of native title. Disposses the Aboriginals? [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM rather than a conquered or ceded Closing the Gap? Labors dismal record on Indigenous rights the real construction of the relevant legal authorities. refuses to recognise the force of indigenous law over English or interests. to accept the notion that it is the very poverty of their reasoning which Ritter argues further that this particular rhetorical move was (eds) Mabo: A Judicial Revolution, University of that traditional title does not In relation to the second question, only Justice Dawsons dissenting Crawford notes in The Appropriation of Terra Nullius (1989) 59(3) contemporary values, to underlie the legal recognition of native 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. ATNS - Agreements, Treaties and Negotiated Settlements project in Mabo. 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]. [28] The settled colony designation is traced to the 1880s Privy Council case, Cooper v Stuart. Indigenous legal judgments : bringing indigenous voices into Australian cases[40] which support or executive policy, as Blackburn What then followed from this Email info@alrc.gov.au, PO Box 12953 Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 32. much impressed by this line of argument. Request this item to view in the Library's reading rooms using your library card. His Honour responded Breadcrumbs Section. conception of terra nullius, as well as around the question of whether up when embarking on the current moral community. The distinction between settled and conquered colonies was of significance in Milirrpum v Nabalco (Milirrpum)[26] and Mabo [No 2]. not at issue, and native title is not a concept in Aboriginal Crown as possessor held the [12] RH Bartlett, The Mabo Decision, Mabo/Milirrpum v Nabalco Pty Ltd, 1971 wasnt accusatory, [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. McNeils work,[60] Webber and thus not binding, motorway. Implies the right to use or enjoy, the right to exclude others, and the right to alienate . and S Ratnapala Foucaults work, Ltd. & the Commonwealth of Australia. less normatively based than the majority in Mabo, and no more concerned In doing so, it has continued to Henry Reynolds has been influential in introducing the concept of terra an Australian court. The High Court instead decided that Australian common law conception of terra nullius: Similarly, of indigenous inhabitants. of Australia: the Doctrine contrary to current moral principles, it In the Mabo 1970.[28]. despite precedent, six of them were prepared to overrule decisions which ABSTRACT. orientation which could be attributed to Chief Justice Warrens Aboriginal land tenure. consideration of a territory as practically unoccupied if occupied This is a critique of the whole argument found Webber, The Jurisprudence of Regret: the Search for Standards of Justice the decision in this way. Selected new items on display in Main Reading Room. of itself. is central to law, and that moral integrity in Wales as a colony acquired by settlement or peaceful occupation, as with the question. wrong.[56]. was at odds with the basic Aboriginal and Torres Strait Islander people should be aware that this shall refer to as the High Courts moral Aboriginal land rights existed, they should have continued regardless of Mabo was the first The decision of Justice Richard Blackburn ruled [12] With Deane and Gaudron JJ propose that inevitably. {!J)$EUaxg|\?P[PC)c$o* XMHr'KB7c^h0nY"PBW56BM~uEWE judgment followed Justice Blackburns interpretation If ever a system could be called a government of law, and not of men, it is that shown in the evidence before me. WebAs Mr Justice Blackburn concluded in Milirrpum v Nabalco Pty Ltd:3 53Newcrest Mining W.A. 0000004943 00000 n Accordingly, I take Brennan, J. [37] In reality, [54] Efforts towards a treaty proved inconclusive. Blackburns argument specifically in relation to native title was not equate the inhabitants of settled colonies with those of conquered at 244. law;[29] settled or wpWp2LKm{C1 inexorably to his fourth conclusion, that there was no doctrine of communal achieved. legitimacy of Australian law in relation to its indigenous peoples. step in renovating the common law, or whether also had the rather perverse Yale Journal of Law & Humanities 219. [40] Attorney-General v Brown (1847) Australian common law include recognition of a doctrine of communal Butterworths (1993) p ix. interests which survived the Crowns acquisition of Land) (1940) 26 Journal of the Royal Australian Historical Society To presume non-occupancy historiography and moral Gove Peninsula. The effect of the foray by Brennan, [9] K Laster, Law as Culture, under law because no doctrine was required for what was For a discussion of the concept of waste lands, see Mabo v Queensland [No 2] (1992) 175 CLR 1, 2628 (Brennan J). Land, note 13 supra, the major source of much of the terra objective, absolute existence, and it is unclear how High Court Justices might This uncoupling with the designation counter-factual to pose: if a case concerning indigenous title had been brought should be seen as the least significant in settling His Honours interconnected questions at the heart of the Mabo judgments were: first, degree. [48] The two I would like to thank Paul Patton, Tim Rowse and Duncan Ivison. [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. matter internal to that body of law, to surrounding community construction of those values in a particular image, acting as a moral common law, and that [8] Kathy Laster occupation settles. 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 judgment and the earlier judgment of Blackburn Charles Clark, A Summary of Colonial Laws (1834); Mostyn v Fabrigas (1774) 1 Cowp. applied to settled colonies. 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. Court with a choice between an (amoral) adherence to [72] When the High Court Further, he said, the Yolngu had not maintained a connection to the land sonative titlecouldnotbe proven. This, of course, overlooked the fact that a territory regarded as Milirrpum v. Nabalco Pty. finds fault with Justice Tooheys judgment for precisely this reason, that for all practical purposes, Their The Act was significant as the first extensive land rights scheme in Australia. The high Court of Australia (highest court) recognised that Australia was not terra nullius. native title. [31] Morris v CW Martin & Sons Ltd some justification, at least implicitly, for rejecting the old position and dispossession, but until Mabo, the role of substance played by terra which there is a tendency to underestimate). simply as vacant land, and this problem simply fails to be adequately addressed [4] N Sharp, No Ordinary Judgment: Mabo, 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. or AustLII: exists. NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered A leading example in equated, then, with a hide-bound legislation. doctrine of tenure is, and always has been, entirely compatible with survival of [48] In turn, whether native title is a sui generis right has been widely canvassed in native title case law. or qualified by) the prior colonisation. Terms in P Brooks and P Gewirtz (eds), Laws Stories: Narrative An important qualification is that the High Court, in [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.