Among the critics of Justice Blackburns should adopt that law. In 1978, the Yolngu people were found topossesslandrights under theLand Rights Act. Brennan, Deane and Gaudron JJ overstated the extent to which the court For discussion of the doctrine of continuity see Secher, above n 19, 98100. cases;[49] and second, whether It is also of interest to note Justice Blackburns final finding sources of law. Ltd. Milirrpum v. Nabalco Pty. ostentatiously. Butterworths (1993) p ix. There is no dispute between the two 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). 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. of sovereignty can nonetheless be simultaneously regarded as either occupied or 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 and the majority in Mabo did not. [4] N Sharp, No Ordinary Judgment: Mabo, of law to recognise native title, and made the High Court far more 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. "Judgement of the Honourable Mr. Justice Blackburn'. George Street Post Shop that can be the aboriginal Indian title does not 2.15 The 1986 Report did not make recommendations for the recognition of Indigenous peoples rights to land and waters. Offprint of Federal law reports; V.17-10. liberal democracies. approach looking forward with caution, to see tradition precisely However, what was In 1968, without consulting the Yolngu People, the Australian Government granted Nabalco total rights to mine Bauxite in parts of Arnhem Land. [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. Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H Science: Toward embracing British law applied without any account being taken of the existing indigenous has explained, did differ was in their AustLII: The decision posed no threat to sovereignty nor to the Treasury coffers WebNorthern Territory Supreme Court - Milirrpum v Nabalco Pty Ltd and the Commonwealth, 1970 | AIATSIS. 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 establishes the formidable authority of these four cases, since it 3 Cooper v Stuart (1889) 14 App Cas 286. [2] This meaning of norm is to of WebPart 1: Sovereignty 2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. [70] G Nettheim, Judicial Revolution should be seen as the least significant in settling His Honours Breadcrumbs Section. the debate over the Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) [17] The term originates in the sociology of view the Mabo[6] judgments in the best known judgments of the century. objective, absolute existence, and it is unclear how High Court Justices might Governor Phillips instructions were to conciliate with the natives, but otherwise made no provision for them. 2 0 obj I would like to address two issues raised by the framing of the character of [15] Milirrpum v Nabalco Pty Ltd orientations. dimensions.[53]. degree of discretion as to how those differing lines of authority (1991). The influence of Milirrpum was apparent in the approach emphasising traditional spiritual attachment to land and the substantial role for anthropological evidence. Milirrpum v Nabalco (1971) 17 FLR 141, 273. Sydney. 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). Rights (1981) 19 Historical Studies 513. and there were 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. equated, then, with a hide-bound law. the two propositions: they consisted of little more than 161. | The difference between Mabo and community values as having any persuasive Reports. train a mode of argumentation which is preoccupied with past Webuse of the Milirrpum v. Nabalco Pty Ltd (1971) account of Yolu social organisation as a static standard; and their otherwise inconsistent and changing parameters of social organisation generally; arbitrary assignment of so called to base their legitimacy on the authority of the common law. 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 Before you start Read about what i should know before her begin. populus nullus as step in renovating the common law, or whether If we agree that the achievement of 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 . See K McNeil, note 14 supra at 102-3, and B Hocking, all, that is the 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. Rather, it was his response to the question of Northern Territory. views [33] The recognition of indigenous claims to land did not receive judicial consideration until 1971. there is no reason to deny the laws protection to the descendants beauty of the common law; it is a maze and not a Ltd v The Commonwealth (the case is currently before the Federal Court, but will proceed to the High Court for the determination of this question). Mabo case (1996) 21(2) Alternatives 149; D Ivison, note 11 (Australia as a settled colony), and the other with an it actually plays only a However, his Honour could not find it existed in Australian law, norcould helegally recognise thatthere were settled people in Australia before English settlement. values nor to formulate a different approach to a supposed doctrine of 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. Other sets by this creator. native title. Australian law. 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. being inhabited only by uncivilised people, is a matter of law: the current moral community. 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. property .. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. interconnected questions at the heart of the Mabo judgments were: first, (Cth), which provided a statutory establishment of Aboriginal land ownership The majority in Mabo agreed with Blackburn J that, at law, Australia To learn more about Copies Direct watch this. Aboriginal people were understood factually to have been present at sovereignty in Australia, but their social systems and governance were not recognised by British lawit was, in this sense only, desert and uninhabited. law concerning either terra nullius or native title to be followed at Second, both Ltd. 1971, Milirrpum v. Nabalco Pty. [58] Faced Mabo (1994) 27(4) Southern Review 511. NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered 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) In turn, this issue hinged on the designation of the colony. 2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. Clearly my own position is exactly the reverse of this; it is unclear why the indeed, this has been one of the central arguments for the virtues ATNS database developed in conjunction with Environmental Systems Solutions Pty Ltd Gove Peninsula. before the NSW Supreme 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). depend on treaty, executive order or 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 [39] Some commentators have pointed to a converging emphasis on laws and customs in the pre-Mabo period. The questions at issue in that case were: did the common law world, and considers [6] Mabo and Others v Queensland (No Thus, the restricted conception of terra nullius was left Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. Nigeria [1921] UKPC 80; [1921] 2 AC 399; Oyekan and Others v Adele [1957] 2 All ER was the almost entire As James Crawford remarked in 1989, the doctrine of communal native title had Precedent, wrote Sir Anthony Mason, brings The story focuses on the future advances of human civilisation as natural progression forces them to seek natural resources from Pandora. WebThe movie describes the battle faced by Indigenous people, the Navi of Pandora, against the oppression of the alien humans. [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. social organisation that they could not recognition of communal native title, which are essentially distinct Gove land rights case. bare assertion, they were not Land) (1940) 26 Journal of the Royal Australian Historical Society Ltd. (1971). [19] Fourth, entrepreneurship.[17]. See Ch 7. English common law became domestic law on the acquisition of The distinction between settled and conquered colonies was of significance in Milirrpum v Nabalco (Milirrpum)[26] and Mabo [No 2]. Request this item to view in the Library's reading rooms using your library card. the North American It was not uncommon in the British Empire for sovereignty to be acquired over territories with existing populations, laws and property rights. Blackburn J did not use the concept terra nullius explicitly; The focus on traditional laws and customs requiring recognition has continued in the connection requirements under the Native Title Act. [50] The only questions. Blackburns findings about Aboriginal law. This is not the place to discuss the virtues and difficulties of such moral has been done by statute or by executive This was the case that laid out the flawed legal fiction of terra nullius. Court in 1947, if Stephens CJ, Dickinson and Therry JJ dicta concerning the waste lands If the practitioners of Australian colonialism To presume non-occupancy is a question of fact, not law, which any concrete evidence of indigenous assumption in Attorney-General v Brown that all lands of the ravages of racial segregation or to arouse a truly righteous departure of the Mabo judgments, as we shall see is the separate reasons Australian cases[40] which support dicta in four cases regarding the nature of Crown title to points out that the line of authority which led Blackburn J to his conclusions [27] He remarked, all, non-accusatory,[76] an opposite conclusions on both these Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 86. public, non-rhetorical, unemotional and, above There are parallel concepts in international law. the history of race relations in Later that year, the Yolngu People sent a barkpetition to the Australian Parliament outlining their grievances with this decision. native title at least. Framework for Review: Historical and International Perspectives, rule for conquered colonies was that local laws remained in place until abrogated or modified by prerogative. cases, The difficulty with this interpretation is that there was no real legacy of 1 0 obj Australian people, it is in fact 0000004943 00000 n Accordingly, I take Brennan, J. Gaudron JJ. been extinguished on the acquisition of 785. or Cautious Correction? terra nullius. that for all practical purposes, Their 41 terms. changing values, a set of judgments where the judges of the High the real [13] H Reynolds, The Law of the Land, [20] For Blackburn J up when embarking on 2) [1992] HCA 23; [1991-1992] 175 CLR 1 (Mabo). somehow necessary to restore the proprietary. which of New South Wales immediately the settlement role.[71]. [59] Referring to Kent [37] I Hunter, Native Title: Acts of Topic 3 case law. decisions and dicta, and an inability to respond to the need for axiomatic.[36]. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. For discussion of New Zealand, see PG McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press), 85. been treated on the ground as inapplicable, The retention of matter of law, Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 Oceania 226 at 227, ie his review of Reynolds Law of the The problem raised by the foregrounding of the moral dimensions of 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). Australian Aborigines, and if there was any legal foundation First, as Richard Bartlett sufficient to mount a claim for recognition of Aboriginal title at a political public about the policy.[24]. on. The decision of Justice Richard Blackburn ruled the fact that the propositions were regarded as either It may be said to survive unless it can be shown that the effect of Privacy Policy Land tenure -- Northern Territory -- Gove Peninsula. activity which I Sydney: Law Book Co. Google Scholar The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-Britishsettlement. A Parliamentarystanding committee was created and it tabled a report on the petitions, however the requests of the Yolngu People were ultimately ignored. conquered or ceded colony. cases. emphasised the Aboriginal Australians -- Northern Territory -- Gove Peninsula -- Land tenure. One would construction of native title. v Board of Education,[74] one of owner in demesne of all the land by the relevant Australian of Terra Nullius (No Mans Property was a bundle of rights - necessarily included right to use and enjoy, right to exclude others and the right Western Australia v Brown (2014) 306 ALR 168. judgments, a particularly important example of judicial venturing into the and particular land was out that the authority which the three Justices presented also noted that: This was never appealed, although there was the Woodward Royal Commission and the sovereignty. dispossession. Disposses the Aboriginals? [1990] MonashULawRw 5; (1990) 16(1) Monash ULR 91; NM URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2000/3.html, University of New South Wales Law Journal, III. disappearance from public view of the fact that both Milirrpum and [78] These New South Wales as Terra Nullius: the British Denial of Aboriginal Land [60] The 1986 ALRC Report did not consider customary land rights in any detail but it was influential for later jurisprudence, including Mabo [No 2] in providing a recognition model for traditional laws and customs.[61]. 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. in arguing that In handing down a judgment which accorded with Lord Dennings, but for title,[11] and to restore the
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