Milirrpum v Nabalco Pty Ltd
Milirrpum v Nabalco Pty Ltd. | |
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FLR 141 | |
Court membership | |
Judge(s) sitting | Blackburn J |
Milirrpum v Nabalco Pty Ltd, also known as the Gove land rights case because its subject was land known as the
The decision of Justice
The issue of terra nullius was not contemplated in the case. Although Milirrpum was not appealed beyond the Supreme Court of the Northern Territory, it was overruled by the High Court of Australia two decades later in Mabo v Queensland (No 2), when native title was recognised under Australian Law.
Background
The
In December 1968, the Yolngu people living in
The applicants asserted before the Court that since time immemorial, they held a “communal native title” that had not been validly extinguished, or acquired under the Lands Acquisition Act 1955 (Cth), and should be recognised as an enforceable proprietary right. The lengthy legal battle culminated in 1971.[5]
Ruling
Justice Blackburn found that the Yolngu people could not prevent mining on their lands. He held that native title was not part of the
Blackburn rejected the claim on the bases that:
- A doctrine of common law native title had no place in a settled colony except under express statutory provisions (i.e. the recognition doctrine).
- Under the recognition doctrine, pre-existing interests were not recognised unless they were rights of private property and, while the community possessed a legal system, it was not proved that under that legal system, the claimant clans possessed such rights.
- The clan’s relationship to land was therefore not a “right ... in connection with the land” under the Lands Acquisition Act 1955.
- On the balance of probabilities, the applicants had not shown that, in 1788, their ancestors had the same links to the same areas of land that they were now claiming.
The terms "settled" and "desert and uncultivated" included territory in which resided "uncivilized inhabitants in a primitive state of society". In such a territory, the laws of England (unless inconsistent with local laws) were imported when sovereignty was acquired. The doctrine of continuity did not relate to settled colonies, and therefore, "if there were no local laws then there were no rights of property to respect". A distinction between settled and conquered colonies was drawn.[6] The decision also noted that the Crown had the power to extinguish native title, if it existed.[7]
Blackburn examined comparative Commonwealth, Canadian, New Zealand and US jurisprudence. He accepted that the applicants had established that under traditional law any given part of the land could be “attributed” to a particular
Blackburn acknowledged the claimants' ritual and economic use of the land and that they had an established system of law "a subtle and highly elaborate" system of laws (
Consequences
There was a deliberate decision to pursue a political course rather than legal challenge to the
Milirrpum led to the establishment of the Woodward Royal Commission by the Whitlam government in 1973–4, and the eventual recognition of Aboriginal Land rights in the Northern Territory. In 1975, shortly before he was dismissed, Prime Minister Gough Whitlam drew up the Aboriginal Land Rights Act 1976 which was later passed (in a slightly diluted form) by the conservative Fraser government on 9 December 1976.
The court interpreter for the case was
The impact of the international law doctrine of terra nullius on domestic laws, which was not contemplated in this decision, was later addressed in Mabo v Queensland (No 2) (1992),[10] where it was found to not precluded the common law recognition of native title.[2]
See also
- List of Australian Native Title court cases
- Where the Green Ants Dream
References
- ^ Wong, Tammy (2019–2020). "Blackburn's "error": The Ngaliwurru Nungali (Timber Creek) Caseand the future of compensation in native title" (PDF). State Chambers.
- ^ a b c d "Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141". ATNS (Agreements, Treaties and Negotiated Settlements project). University of Melbourne. Retrieved 26 July 2020.
- ^ "The Marika family". National Museum of Australia.
- ^ ISBN 9780980332070.
- ^ Foley, Gary 'Teaching the whites a lesson' in Staining the wattle (ed) Very Burgmann and Jenny Lee Ringwood; Penguin, 1988 p203
- ^ "Native title in its historical context". ALRC. 22 May 2015. Retrieved 26 July 2020.
- ^ FLR 141 (27 April 1971) Supreme Court(NT).
- ^ Hobbs, Harry; Williams, George (1 March 2018). "The Noongar Settlement: Australia's First Treaty". Sydney Law Review. 40 (1). Retrieved 25 July 2020 – via Australasian Legal Information Institute (AustLII).
- ^ National Archives of Australia, confidential memorandum provided to government and opposition by Justice Blackburn urging the establishment of a statutory system of land rights, 1972, released 31 December 2001
- ^ Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court.
Further reading
- Northern Territory. Supreme Court; Leslie, A. J.; Blackburn, Richard Arthur; Milirrpum; Nabalco Pty. Ltd. (1971), Milirrpum v. Nabalco Pty. 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 : judgment of the Honourable Mr. Justice Blackburn., Law Book Company
- Van Krieken, Robert (1 July 2000). "From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship". UNSW Law Journal 3 (63?). 23 (1) – via Australasian Legal Information Institute (AustLII).