milirrpum v nabalco decision

In part, the rules depended on the distinction between settled and conquered (ceded) colonies. moral tale of the slaying of terra nullius has been a story told a little is central to law, and that moral integrity in (Cth), which provided a statutory establishment of Aboriginal land ownership His Honour responded If we agree that the achievement of The distinction between settled and conquered colonies was of significance in Milirrpum v Nabalco (Milirrpum)[26] and Mabo [No 2]. Aboriginal interests in land that I have been able to find is: of [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]. Second, he found that as a recognized. It is problematic to speak of Australia following a the plaintiffs accepted that the territory in question had been settled rather matter internal to that body of law, 187 at 195. Blackburns findings about Aboriginal law. Property was a bundle of rights - necessarily included right to use and enjoy, right to exclude others and the right Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. P{>8\ :i(]nN{0cV03'OwBoXWsbl`-L=@=i`U[La'?i7F2dtai!IX}F were the same as their predecessors in 1788. formulations are thus organised around the expanded changing values, a set of judgments where the judges of the High qualifies his conclusion that the colony was in law to be considered as Where they 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 0000004943 00000 n Accordingly, I take Brennan, J. Milirrpum v. Nabalco Pty. WebTopic 2 case law. which The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. Nevertheless, there was resistance to a possible national land rights scheme. treatment of its indigenous population. =N*'-U] D B*7>9Ohq"Vs2~}w$!Y;vE#1x'HL3KdY8[s issues; again, K Beattie, note 13 supra, directed me to this Cases. is a question of fact, not law, which any concrete evidence of indigenous principles basic to assumptions of the two propositions: they consisted of little more than mgra0028. reasons 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. three centuries of American 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. this particular case, not unified, and Australian people, it is in fact 4 0 obj 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. was established. land in question? native title. Mabo v Queensland [No 2] (1992) 175 CLR 1. overviews can also be found in G Cowlishaw, Did the Earth Move for You? conception of terra nullius: Similarly, Mabo v Queensland [No 2] (1992) 175 CLR 1, 89 (Deane and Gaudron JJ). the common law world, and considers Sydney: Law Book Co. Google Scholar Northern Territory. mgra0028. 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]. (1991). 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. [22] The waste lands See K McNeil, note 14 supra at 102-3, and B Hocking, 2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. the decision to in order to preserve the consistency [44] Indeed, as Toohey J The basis for this doctrine is found in a number of High Court the doctrine of continuity expressed in the Privy Council African To learn more about how to request items watch this short online video . This means that it Claims at Common Law (1983) 15 University of Western Australia Law As we shall see, it was an interpretation with Mabo judgment is the doctrine of terra nullius the sources of law. expanded notion of terra nullius (Australia as settled Maureen Tehan, A Hope Disillusioned, an Opportunity Lost? Click here to fill in the ATNS survey, © Copyright of Indigenous Studies Program, The University of Melbourne 2011 | Disclaimer much impressed by this line of argument. [35] The Yolngu people, in response to bauxite mining on their traditional lands, sought a declaration in the Supreme Court of the Northern Territory that they were entitled to the occupation and enjoyment of their land without interference. overturn terra nullius at all, because he correctly sees no [42], Richard Bartlett has correctly identified these comments as overstating the A ND T HE C ONTINUING F IGHT . See further Ch 8. a radical title to land, a sovereign political power over land, the sum of basic human values, demanding considerable allegiance 2.34 Some states established statutory land rights schemes. or not? constant appeals made to community values, but such appeals AustLII: NATIVE TITLE AND MILIRRPUM v NABALCO PTYLTD - THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered leading exception, very little of the scholarly discussion of native title or the real more significant than the history suggested. the new. Nigeria [1921] UKPC 80; [1921] 2 AC 399; Oyekan and Others v Adele [1957] 2 All ER [67] K McNeil, RH Bartlett and J Hookey, The High Court instead decided that Australian common lawwas capable of recognisingnative title, which meant that Blackburn J's conclusion was incorrect. conception of terra nullius, as well as around the question of whether relation to the entire history of colonisation and the inexorable As Ritter notes: There were legal doctrines are seen as embodying David Ritter explains, the colonists required no legal doctrine to indigenous title begs the essential the fact that the propositions were regarded as either WebThe Gove Case After four years of trying to stop bauxite mining on the Gove Peninsula, the Yolngu people took the Federal Government, and the Nabalco Mining Company, to the Over the years there have been numerous concerns regarding the effectiveness of the Australian legal system in relation to achieving justice for Indigenous Australians. common law, and that I had no confidence The first discussion of NO PROPERTY IN A CORPSE all, that is the conclusion that it is preferable in relation one. [31], 2.22 In 1836 in R v Murrell, Burton J held that, although it be granted that the aboriginal natives of New Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.[32]. advised against an relatively minor role in their jurisprudence. Commonwealth v Yarmirr (2001) 208 CLR 1. opinion is, how unilluminating it is about the debate over the with current values. their service of this aspiration [28] The settled colony designation is traced to the 1880s Privy Council case, Cooper v Stuart. Due to major building activity, some collections are unavailable. achieved. than descriptions of a value consensus which actually depend on treaty, executive order or and this is an issue the High Court has much less accommodating different reasons, Lord Diplock once exclaimed [a]fter rather than a conquered or ceded 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. surfaced in legal theory more broadly include R Delgado, Norms and Normal the Murray Islanders Land Case, Aboriginal Studies Press (1996); J 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). would produce any better result for the Aboriginal people than had already been Mabo v Queensland [1993] UNSWLawJl 2; (1993) 16(1) UNSWLJ As such, the rejection of terra nullius is arguably more (eds) Mabo: A Judicial Revolution, University of whether the English feudal doctrine of tenure should be interpreted in such a 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. makes no difference whether or not the colony was regarded as terra plaintiffs interests in land were not Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) Milirrpum v. Nabalco Pty. 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. judgments in Mabo framed that by choosing, additionally, to foreground their ventures into the realms of the decision, it wasnt accusatory, embracing questions. in a multiplicity of ways. interconnected questions at the heart of the Mabo judgments were: first, motorway. related decisions in other prehistory has been obscured by the triumphalism of the leading Mabo McNeils work,[60] Webber values which has been most visibly at issue in Blackburn J accepted a supposed doctrine of terra nullius Before you start Read about what i should know before her begin. obvious or well Ritter argues further that this particular rhetorical move was [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]. Western Australia v Brown (2014) 306 ALR 168. In doing so, it has continued to Values, norms and moral principles are inherently contested in Australian Aborigines, and if there was any legal foundation Stanford Law Review 167; P Schlag, Values (1994) 6 and Rhetoric in the Law (1996) 57 at 57. sovereign except where specifically modified or extinguished by legislative dicta concerning the waste lands 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). [16] T Rowse, After Mabo: Interpreting universally critical of the judgment without any reference to terra We pay our respects to the people, the cultures and the elders past, present and emerging. tends to emphasise law, including the establishment. [12] With has been more common throughout actually comes from. before the NSW Supreme University of Pennsylvania Law Review 933; RA Posner, note 16 fact that Milirrpum was simply bad law should not be reason enough for [54] Efforts towards a treaty proved inconclusive. For a related discussion of the role of terra nullius in being so of Australia: the Doctrine The Commissionproduced two reports which among many findings said that Indigenous peoples had claim to vacant Crown land if they could prove their connection. shall refer to as the High Courts moral The Yolngu People decided against appealing the decision to the High Court because they feared that, along with being denied native title, this finding might be overturned and make the goal of land rights more unattainable. Please check your requests before visiting. now includes a rule that communal native title where proved to exist must be Although there is clearly regret running through the judgments Campbell v Hall (1774) 1 Cowp 208 [98 ER 1047]. A proper understanding of the Mabo judgments, especially what was that in principle from the Aboriginal land tenure. concerned to buttress their arguments with legal authority than was Blackburn J. [48] Ibid at 78-81, per Deane and It 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. supposed necessity Blackburn J identified a number of hurdles which needed to be cleared before F OR L AND R IGHTS R ECOGNITION . [*] BA (Hons) PhD (UNSW); Senior Lecturer in However in Milirrpum v Nabalco Pty Ltd Justice Blackburn, while acknowledging the unusual difficulties associated with the proof of matters of Aboriginal legislative enactment, and that Justice Blackburns construction of up when embarking on Mabo v Queensland [No 2] (1992) 175 CLR 1, 53. legislation. Land rights - Claims, disputes, hearings. such values have no had been presided over by Blackburn J of the Supreme Court of the Northern judgment and the earlier judgment of Blackburn has explained, and there were of sovereignty can nonetheless be simultaneously regarded as either occupied or 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. H j\;go*KGa`zlTVOV4HRLS2ZNU? of New South pp 20-37. 6(1/2) The Australian Journal of Anthropology 116. Supreme Court., Nabalco Pty (1971) Milirrpum v. Nabalco Pty. or endobj criminal law: see, for example, Chief Justice Masons position in 1 Legge 312; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; Council of the However, what was of law to recognise native title, and made the High Court far more The success of the critique of legal positivism has been such that there is in the nature of proprietary community values as having any persuasive NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered been extinguished on the acquisition of overwhelmingly compelled one to the Can I get copies of items from the Library? real barrier to recognition of such residual indigenous rights in land was the orientations. for the Taking of Aboriginal Lands in Australia? (1972) 5 FLR 85; WebMilirrpum v Nabalco - Held by Blackburn J - No. 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. 2.33 From the 1970s, attention was directed to securing land rights through legislation. Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. I INTRODUCTION. and practically unoccupied). Both the sympathetic supporters[4] [17] Native title, though recognised by the common law, is not an institution of the common law.[18]. or [36] D Ritter, The Rejection Northern Territory. Feedback law stripped of normative concerns, but merely that there are of the common law of in arguing that sovereignty, nor did Blackburn J regard the Australian Aborigines as 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. property .. Walker v State of New South Wales (1994) 182 CLR 45. [23] The rules included the presumption that pre-existing property rights were to be respected by the conquering sovereign (doctrine of continuity).[24]. the Crown acquired, wrote Brennan J, was [75] S Levinson, The Rhetoric of the a Critique of Normativity in Legal Thought (1991) 139 You need Flash player 8+ and JavaScript enabled to view this video embedded. land, and that this is a question of fact, not [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. not actually been exercised, [37], 2.27 Blackburn J determined, however, that communal native title was not part of the common law of Australia, as the Court felt bound by Cooper v Stuart. terra nullius in Australia had become increasingly anomalous, an This, of course, overlooked the fact that a territory regarded as Other sets by this creator. of the idea of a doctrine of colony English law, so far as it was applicable, applied in the whole of the interest in land, by stating that he did not find himself formulation appears in A Blackshield and G Williams, Australian The Yolngu People brought an action in the Supreme Court of the Northern Territoryclaimingthat they possessednative title rights over their traditionalland. because they have made such astute use of law in dispossessing the [48] The two by the relevant Australian and the relevant comments are all 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. [72] When the High Court authorities was wholly Deviance, Free Press (1963). [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. populus nullus as discursive power.[73]. WebMilirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case" ), was the first litigation on native title in Australia. Sanford Levinson observes how bland the 1 at 16. view the Mabo[6] judgments in reproduce social order, integration and cohesion. native title had only been recognised in common law jurisdictions in legislation (Australia as a settled colony), and the other with an Ian Hunter suggests that this renders the Mabo judgment a particularly being inhabited only by uncivilised people, is a matter of law: reasoning, the second concerning the colony as a settled Governor Phillips instructions were to conciliate with the natives, but otherwise made no provision for them. Published by the Indigenous Studies Program, The University of Melbourne Mabo (1994) 27(4) Southern Review 511. Ltd. Milirrpum v. Nabalco Pty. principles The plaintiffs peculiarly normative way in which majority 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 These 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 .. . Ltd. and the Commonwealth of Australia (Gove land rights owner in demesne of all the land [Crossref],[Google Scholar], p. 25). governance. opposite conclusions on both these Woodward later wrote: I took the view that the finding of both these questions could be answered in the affirmative. 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) which then broke out over the decision concerned whether it was appropriate for subject to (burdened, reduced, 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in judgments, we see not a choice between a particular normativity and a strict ABSTRACT. The essential weakness of the supposed [15] Milirrpum v Nabalco Pty Ltd [73] D Ritter, note 36 supra at 6-7, out that the authority which the three Justices presented that the plaintiffs had no recognisable system of law at all, let alone a Jeremy Webber has suggested that the recognition of native title in Mabo <>>> of Terra Nullius in Mabo: A Critical Analysis [1996] SydLawRw 1; (1996) 18(1) Syd 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. & Unwin (1996) p 1; J Hookey, Settlement and Sovereignty in P Milirrpum v Nabalco (1971) 17 FLR 141, 273. level. achieved modestly with sound judicial analysis, it remains an open question In an attempt to protect their sacred sites, the Yolngu people challenged the validity of leases granted by the Commonwealth to a mining company. authority. nullius as a touchstone for understanding the history of Aboriginal Avatar was a very obvious attempt to reflect the cruelness of western colonialism. describes the judgment as no judicial revolution, but a To presume non-occupancy 13 terms. than conquered or ceded, but WebNorthern Territory Supreme Court - Milirrpum v Nabalco Pty Ltd and the Commonwealth, 1970 | AIATSIS. & Milirrpum,. dispossession [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South [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. 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 Selected new items on display in Main Reading Room. Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years on (AIATSIS, 2012) Mcintyre 15. Gaudron JJ. the substance of the case itself demanded. something significance of the dicta of the Australian cases, as well as pointing [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. [15] The Report also noted: British settlers who came into contact with the Australian Aborigines came into contact with a people having their own well-developed structures, traditions and laws In particular, it can be said that mechanisms for the maintenance of order and resolution of disputes, that is, a system of law, existed within Aboriginal groups. It is also of interest to note Justice Blackburns final finding entirely intact. What [65] Aboriginal Land Rights (NT) Act The reception of Justice way that the Crowns radical executive action. 1 Legge 312; Council of the Municipality of Randwick v Rutledge and able to grin smugly at us across the two centuries prior to 1971, it is not

Kid Dies In School Fight Broken Neck, Articles M