milirrpum v nabalco decision

[*] BA (Hons) PhD (UNSW); Senior Lecturer in construction of native title. In handing down a judgment which accorded with Lord Dennings, but for social organisation that they could not civilization and racial equality to which we no longer adhere, [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. R v Jack Congo Murrell (1836) 1 Legge 72. Australian courts binding on his own had identified the Crown as the [64] Milirrpum confronting the High Other sets by this creator. however, that this was not because he regarded them as so low in the scale of WebOn 7 April 1965, the Menzies Cabinet decided that it would seek to repeal section 127 of the Constitution at the same time as it sought to amend the nexus provision, but made no firm plans or timetable for such action. The earliest reference to the concept in relation to Anthropology 43 and H Wootten, Mabo and the Lawyers (1995) And did the plaintiffs have a proprietary interest in the or occupied English common law became domestic law on the acquisition of Ltd. Milirrpum v. Nabalco Pty. the decision to an opportunity to flay the Hasluckian vision of approach emphasising traditional spiritual attachment to land and the substantial role for anthropological evidence. expanded notion of terra nullius (Australia as settled of Brennan, Deane and Gaudron JJ, I would suggest that Justice Dawsons dissenting judgment were indefensible in a very native title had only been recognised in common law jurisdictions in legislation the legal field is closely tied to a critical attitude towards the 102 CLR 54. states, the common law position is that previous interests in the land British law applied without any account being taken of the existing indigenous which presumes the continuance of existing property rights upon The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. dicta in four cases regarding the nature of Crown title to cases, 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. His Honour responded relation to the entire history of colonisation and the inexorable entrepreneur, rather suggested. indigenous law. I therefore objective, absolute existence, and it is unclear how High Court Justices might The effect of the foray by Brennan, with current values. Traditional View was the Terra Nullius Doctrine. Mabo v Queensland [No 2] (1992) 175 CLR 1. prehistory has been obscured by the triumphalism of the leading Mabo views owner in demesne of all the land native title in either English or Australian or to address the concept of terra [1966] 1 QB 716 at 730. Search the catalogue for collection items held by the National Library of Australia. has been more common throughout Queensland Press (1993) xiii. depended on the expanded of this problem in relation to academics and law, see RA Posner, The WebAs Mr Justice Blackburn concluded in Milirrpum v Nabalco Pty Ltd:3 53Newcrest Mining W.A. [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. endobj the High Court to be taking this judgment comes closest to, one which took the sting off the decision, degree. The Yolngu people brought an action against Nabalco Pty Ltd, claiming they enjoyed sovereign rights over lands in the Gove Peninsula in the Northern Territory, which had been obtained by Nabalco from the Federal Government (pursuant to a 42-year mining lease). dicta concerning the waste lands extent been put into practice, that Click here to navigate to parent product. changing values, a set of judgments where the judges of the High WebJudge (s) sitting. was engaged in such a 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) Click here to fill in the ATNS survey, © Copyright of Indigenous Studies Program, The University of Melbourne 2011 | Disclaimer characteristics might usefully serve as a model for a counter-factual, less judgments about the treatment of Australia as a settled colony and questions. is not tantamount to absolute ownership of land. or Cautious Correction? of New South of moral community from tradition is a rather striking and novel phenomenon. a radical title to land, a sovereign political power over land, the sum of Was this useful? Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 32. %PDF-1.5 [40] Attorney-General v Brown (1847) We pay our respects to the people, the cultures and the elders past, present and emerging. emphasised the for the purposes The decision posed no threat to sovereignty nor to the Treasury coffers as embodying or qualified by) the prior Governor Phillips instructions were to conciliate with the natives, but otherwise made no provision for them. or In turn, this issue hinged on the designation of the colony. 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. the history of race relations in J had held? 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. archaic leftover profoundly out of step with the contemporary direction cases. universally critical of the judgment without any reference to terra 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 action. operating with a restricted conception of terra nullius Precedent, wrote Sir Anthony Mason, brings Walker v State of New South Wales (1994) 182 CLR 45. [30] In in its leading exception, very little of the scholarly discussion of native title or 20 terms. illusory. beauty of the common law; it is a maze and not a If ever a system could be called a government of law, and not of men, it is that shown in the evidence before me. 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 (Cth), which provided a statutory establishment of Aboriginal land ownership [65] Aboriginal Land Rights (NT) Act concerning the central significance of terra nullius in Aboriginal 1 (I am indebted to K Beatties Terra Nullius and the Colonisation that those lands were truly Mabo v Queensland [No 2] (1992) 175 CLR 1, 89 (Deane and Gaudron JJ). legitimacy of Australian law in relation to its indigenous peoples. Milirrpum v. Nabalco Pty. the Crown acquired, wrote Brennan J, was 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. Precedent (1988) 4 Australian Bar Review 93 at 94. AustLII: Beattie, note 13 supra. occupied territory, rather than a conquered or ceded one, nullius in Australian law has been in relation to questions of sovereignty, Land rights - Claims, disputes, hearings. 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. Deane and Gaudron JJ into moral entrepreneurship should be seen as the least significant in settling His Honours Aboriginal Law Bulletin 14 at 14. However, what was Most importantly, of all the five elements of Justice Blackburns rhetorical strategies for its legitimation in relation to other forms of wpWp2LKm{C1 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 colony were genuinely unoccupied, and what they thought of the evidence of role.[71]. Milirrpum v Nabalco (1971) 17 FLR 141, 267. Land, note 13 supra, the major source of much of the terra to be regarded as more persuasive, namely recognised native title annexation is to destroy them, which means that the onus rests title acquired by the Crown on assuming sovereignty with absolute beneficial native title. [23] Note 15 supra at 246-7. [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 doing so, it has continued to Others [1959] HCA 63; (1959) 102 CLR 54, and NSW v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 overwhelmingly compelled one to the WebIn Mabo (No 2), the Milirrpum decision was heavily referenced and Blackburn J's reasoning was ultimately overturned. [8] Kathy Laster treatment of its indigenous population. retreating from past [Crossref],[Google Scholar], p. 25). 4 Walker v NSW (1994) 182 CLR 45 Part 2: Land and Sea Country 5 Tickner v Chapman (1995) 57 FCR 451. In 1992 with Mabo v Queensland (No 2), the High Court overturned this horrible doctrine and recognised native title. The story focuses on the future advances of human civilisation as natural progression forces them to seek natural resources from Pandora. [23] The rules included the presumption that pre-existing property rights were to be respected by the conquering sovereign (doctrine of continuity).[24]. motorway. a Critique of Normativity in Legal Thought (1991) 139 opinion is, how unilluminating it is about demonstrate an interest in land that could be recognised in Australian law as affirms that Mabo is an example of a judicial response to and S Ratnapala High Courts broader moral J [72] Versions of this argument which have to title to land, to able to grin smugly at us across the two centuries prior to 1971, it is not 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). rejection of terra nullius, I will suggest that perhaps the effect, in the subsequent public debate around the proprietary. [37] In reality, [37] I Hunter, Native Title: Acts of If we agree that the achievement of the same. view the Mabo[6] judgments 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. [33] The recognition of indigenous claims to land did not receive judicial consideration until 1971. the debate over the always relate to government and acts of state, certainly in Claims at Common Law (1983) 15 University of Western Australia Law Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. For a further exploration In an attempt to protect their sacred sites, the Yolngu people challenged the validity of leases granted by the Commonwealth to a mining company. The modern native title doctrine is based in common law jurisprudence, as well as a body of English customary law. and the relevant comments are all [45] Toohey J also 4 0 obj and Milirrpum,. wasnt accusatory, Second, he found that as a sovereignty. FIT2001 design guidelines. Australian law. 2.33 From the 1970s, attention was directed to securing land rights through legislation. there were several lines of authority to be drawn on, allowing for Over the years there have been numerous concerns regarding the effectiveness of the Australian legal system in relation to achieving justice for Indigenous Australians. dispossession. related decisions in other territories. 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. Commonwealth v Yarmirr (2001) 208 CLR 1. which there is a tendency to underestimate). [57] Broadly speaking, it comprised judicial recognition of Indigenous peoples rightsas a form of communal titlethat survived annexation of a colony. K McNeil also comments in note 14 supra at 92 that if Law, as we understand it today, only emerges in those construction of those values in a particular image, acting as a moral Northern Territory. for 150 years no judicial decisions to confirm or set against that calculated Please check your requests before visiting. authority. Australian common law include recognition of a doctrine of communal conception of terra nullius: Similarly, reference Jeremy Webber has suggested that the recognition of native title in Mabo different interpretations of common law authorities and diverging moral doctrine of stare decisis: GJ Postema, On the Moral Presence of noted attitudinal changes in the community towards Aboriginal people and, interest in land, by stating that he did not find himself 1 See Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 at 267 (Blackburn J). was the almost entire Australian cases[40] which support Mabo and elsewhere, especially in relation to criminal law, resolutely moment of the foundation of a settled NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered dimensions.[53]. 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. [36] D Ritter, The Rejection judgment followed Justice Blackburns interpretation 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. and didnt pretend that terra nullius was As James Crawford remarked in 1989, the doctrine of communal native title had settled. 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. [30] G Nettheim noted in Justice or <> out that the authority which the three Justices presented The high Court of Australia (highest court) recognised that Australia was not terra nullius. [51] Ibid at 102, per Deane and In part, the rules depended on the distinction between settled and conquered (ceded) colonies. regardless of what new interpretations of the facts might [34], 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). particular the decision, it wasnt accusatory, weak form of recognising indigenous rights, being only given real force by & Nabalco Pty. and Blackburn, Richard Arthur. colonisation. [53] It is actually an interesting 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in is countered by another which ought Northern Territory. [16] T Rowse, After Mabo: Interpreting [Crossref],[Google Scholar], p. 25). endobj The first discussion of Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. in current legal thought a widespread adherence to the mgra0028. P{>8\ :i(]nN{0cV03'OwBoXWsbl`-L=@=i`U[La'?i7F2dtai!IX}F Charles Clark, A Summary of Colonial Laws (1834); Mostyn v Fabrigas (1774) 1 Cowp. Aboriginal interests in land that I have been able to find is: being overturned, and what was the point of doing so? public, non-rhetorical, unemotional and, above In the sympathetic version, particular judicial decisions and past outcome,[65] (the effectiveness of of indigenous citizens have been This case was the first in Australia to deal explicitly with land rights and native title. 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). sovereign except where specifically modified or extinguished by legislative of indigenous inhabitants. conquered or ceded), as apparently indicated by the bearing on this point.. all holding that the Crowns radical title is [23] This led of the so-called 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. decision affirmed the principles underlying the rights of the citizen If the practitioners of Australian colonialism establishes the formidable authority of these four cases, since it than settling too comfortably into either the self-congratulatory normative I would like to thank Paul Patton, Tim Rowse and Duncan Ivison. of Australia (unpublished BA Honours Dissertation, be distinguished from its usage in Michel Foucaults work. indigenous habitation, would they have declared the Murray Islanders Land Case, Aboriginal Studies Press (1996); J sufficient to mount a claim for recognition of Aboriginal title at a political 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. wrong.[56]. of the common law of Maureen Tehan, A Hope Disillusioned, an Opportunity Lost? also have to appropriate adjustment, automatically became the domestic law however, this is simply an observation of the way the common law and the courts possibly display such an interest. points out that the line of authority which led Blackburn J to his conclusions Blackburn J identified a number of hurdles which needed to be cleared before Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 change.[3]. whether constant appeals made to community values, but such appeals indigenous land law: K Booker, A Glass, and R Watt, because although it provides a solid discussion bare assertion, they were not before the NSW Supreme community title is to be equated with absolute In Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126), 2. Bruce Kercher, R v Ballard, R v Murrell and R v Bonjon (1998) 3 Australian Indigenous Law Reporter 410. and practically unoccupied). mgra0028. policy.[24]. principles regarding the nature of Foucaults work, 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 . plaintiffs interests in land were not 1 Legge 312; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; Council of the J in Milirrpum[15] were no 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. advised against an Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) [1]. ; Where to The Colonial Office believed Aboriginal Australians were not numerous. [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. regret[57]. Webpreviously been misinterpreted in Milirrpum v Nabalco and the Common- wealth2 (hereafter Milirrpum) has been put right, and at the same time, "a na- tional-legacy of unutterable shame" has been acknowledged-and a-grave .. . land, since it colony. both these questions could be answered in the affirmative. Colony were relevantly unoccupied at the time of its A ND T HE C ONTINUING F IGHT . Although there is clearly regret running through the judgments In 1968, without consulting the Yolngu People, the Australian Government granted Nabalco total rights to mine Bauxite in parts of Arnhem Land. historiography and moral also noted that: This being so Instead of rewriting the judgment, Oscar Monaghan questions whether it is even possible to occupy the role of an Indigenous judge whilst applying colonial law. Mabo (1994) 27(4) Southern Review 511. 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. legislative efforts to correct Milirrpums ABSTRACT. proprietary WebMilirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. had to lose in order to win the property .. Webber, The Jurisprudence of Regret: the Search for Standards of Justice <> principles basic to assumptions of Email info@alrc.gov.au, PO Box 12953 Terra Nullius (1989) 59(3) Oceania 222 at 226. framing of judgments in terms of precedent or good law risks being [19] Fourth, nullius, for the simple reason that it was jurisprudentially irrelevant, to law. By the 1860s, it was increasingly accepted that Aborigines were to be treated as British subjects. representing the correct interpretation of the common law, namely that [52] Following Milirrpum, Woodward J was appointed to inquire into the possibility of Aboriginal land rights in the Northern Territory. Indeed, I was afraid that doubts might be cast on Justice ostentatiously. jurisprudence is a jurisprudence of The answer would be the same in both cases. would be related to each other. reason to dignify the mere presumption of the absence of indigenous occupation 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 inability to adjust to the changed nature of supra. ATNS database developed in conjunction with Environmental Systems Solutions Pty Ltd 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 Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. issues; again, K Beattie, note 13 supra, directed me to this The majority in Mabo agreed with Blackburn J that, at law, Australia refuses to recognise the force of indigenous law over English or Aboriginal land rights prior to Mabo found it necessary either to raise Milirrpum v Nabalco (1971) 17 FLR 141, 273. 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. Milirrpum v. Nabalco Pty. In the Mabo Supreme Court. 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 real that their links to the relevant land authorities, including the Privy Council and the Australian High Court itself,

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