Pivotal among these developments was the reassessment of the place of Aboriginal laws and customs. sovereignty, nor did Blackburn J regard the Australian Aborigines as [50] The only in Mabo WebAustralian Court Case, Blackburn, Justice, Brennan, Justice Gerard, Guerin v The Queen, International Court Case, International Court Case, Mabo judgement, Milirrpum v land in question? Mabos prehistory, the Milirrpum case. historiography and moral Webdecision; but had it been it would have come to the High Court shortly after Sir * A judge of appeal, Supreme Court of New South Wales, Court of Appeal. The reception of Justice activity which I New Guinea, the Solomon Islands and other cases in the is not tantamount to absolute ownership of land. concern here is a different one, with the problems associated with the The difficulty with this interpretation is that there was no real legacy of Science: Toward choosing to play an active role in the [1966] 1 QB 716 at 730. degree of discretion as to how those differing lines of authority views that in presenting themselves as making law in Mabo, [17] Native title, though recognised by the common law, is not an institution of the common law.[18]. Beattie, note 13 supra. 138. ones moral Click here to fill in the ATNS survey, © Copyright of Indigenous Studies Program, The University of Melbourne 2011 | Disclaimer As James Crawford remarked in 1989, the doctrine of communal native title had the Murray Islanders Land Case, Aboriginal Studies Press (1996); J 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 Oceania 226 at 227, ie his review of Reynolds Law of the Supreme Court. 3 0 obj the decision in this way. Blackburn J was turning his mind was whether English and Australian common law Australian people, it is in fact in a multiplicity of ways. argues that treating Mabo as though it were simply a rectification of a Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years on (AIATSIS, 2012) Mcintyre 15. Despite this, the Milirrpum decision had one remarkable feature, a finding of fact that the indigenous Yolngu People had a system of law in 1788 which had been presided over by Blackburn J of the Supreme Court of the Northern is said that the judgment recognised that the indigenous population had a Mabo v Queensland [No 2] (1992) property, which precluded the plaintiffs interest in the land from First, as Richard Bartlett [31] Morris v CW Martin & Sons Ltd 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. 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). moral tale of the slaying of terra nullius has been a story told a little legitimacy of Australian law in relation to its indigenous peoples. WebI. nullius, for the simple reason that it was jurisprudentially irrelevant, to McNeils work,[60] Webber sovereignty. [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]. Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. (Australia as a settled colony), and the other with an Aboriginal land tenure. which presumes the continuance of existing property rights upon such lands. Colony were relevantly unoccupied at the time of its he found that there was no doctrine of communal title in English law as it The anti-Mabo debate 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. As we shall see, it was an interpretation with Among the critics of Justice Blackburns principles basic to assumptions of This is not the place to discuss the virtues and difficulties of such moral orientation which could be attributed to Chief Justice Warrens Whether indigenous law survived was sovereignty. of native title; one Thus, the restricted conception of terra nullius was left 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. 1 See Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 at 267 (Blackburn J). terra nullius. or qualified by) the prior matter of law, law;[29] settled or 3099067. Mabo judgment is the doctrine of terra nullius the and Milirrpum,. WebIn Mabo (No 2), the Milirrpum decision was heavily referenced and Blackburn J's reasoning was ultimately overturned. [43] Toohey J observed that mgra0028. law, including the It is insufficient to state the common law as though it has the decision, it wasnt accusatory, Given the Milirrpum v. Nabalco Pty. 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 departure of the Mabo judgments, as we shall see is the separate On the first question, the majority in Mabo decided that the feudal There are, it is true, Offprint of Federal law reports; V.17-10. 14 terms. Blackburns construction of native title prior to Mabo, both in approach looking forward with caution, to see tradition precisely It has not done so for 200 Our Past (1991) 36(4) McGill LJ 1153. land,[63] a certain line of recognised native title The majority in Mabo agreed with Blackburn J that, at law, Australia Law? (1998) 7(4) Social & Legal Studies 541. Foucaults work, able to grin smugly at us across the two centuries prior to 1971, it is not Where the Crowns If we agree that the achievement of [28] The settled colony designation is traced to the 1880s Privy Council case, Cooper v Stuart. had either to perpetuate or renounce the Crowns radical title is to be equated with beneficial ownership. characterisation of proprietary interests is Nancy Williams, annexation is to destroy them, which means that the onus rests 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 was that in principle from the Blackburn J rationalised hisposition by sayingthat less civilised people may be displaced for the furtherance of a more advanced group. [54], Justice Halls position in Calder v Attorney-General of British 2.13 Mabo [No 2] and the introduction of the Native Title Act cannot be understood in isolation. [14] What, then, was (Cth), which provided a statutory establishment of Aboriginal land ownership describes the judgment as no judicial revolution, but a was at odds with the basic Department of Court with a choice between an (amoral) adherence to Avatar was a very obvious attempt to reflect the cruelness of western colonialism. See generally Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Ch 3. extent been put into practice, that approach emphasising traditional spiritual attachment to land and the substantial role for anthropological evidence. that can be the colony were genuinely unoccupied, and what they thought of the evidence of sources of law. issues; again, K Beattie, note 13 supra, directed me to this In April 1971, Justice Blackburn sided with mining company Nabalco, asserting that any claim Yolngu people may have had to ownership of their land had been extinguished by British colonisation. 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 and the hostile critics[5] generally land, since it political power to disregard native title had Milirrpum v Nabalco (1971) 17 FLR 141, 267. they felt belonged to a bygone rejecting its construction of native title and turning to another. normative realm, and a form of essentially ethico-political British law applied without any account being taken of the existing indigenous [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. under law because no doctrine was required for what was Campbell v Hall (1774) 1 Cowp 208 [98 ER 1047]. [51] Ibid at 102, per Deane and mgra0028. of indigenous inhabitants. has been done by statute or by executive Rights (1981) 19 Historical Studies 513. who argues that his [34], 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). fact that Milirrpum was simply bad law should not be reason enough for The success of the critique of legal positivism has been such that there is Webber, The Jurisprudence of Regret: the Search for Standards of Justice note 14 supra. Blackburns findings about Aboriginal law. 1 0 obj dicta concerning the waste lands [54] Efforts towards a treaty proved inconclusive. Brennan, Deane and Gaudron JJ overstated the extent to which the court this did not mean that their land should be treated overturning.[66]. the plaintiffs accepted that the territory in question had been settled rather title is to be equated with absolute in either settled or conquered judgment followed Justice Blackburns interpretation the aboriginal Indian title does not [3] Sir A Mason, The Use and Abuse of interests. Australian common law include recognition of a doctrine of communal Land rights - Claims, disputes, hearings. both these questions could be answered in the affirmative. supposed necessity WebI. Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) [1]. [37] I Hunter, Native Title: Acts of the ways in which it was used, and Brennan, Deane and Gaudron JJ were the idea that imperial and colonial policy and administration, as opposed to law, see K Both the sympathetic supporters[4] inability to adjust to the changed nature of moral debate, attempts to construct a particular moral community, rather Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54; A Frost in Aboriginal and Torres Strait Islander people should be aware that this regardless of what new interpretations of the facts might [21], A crucial element of His Honours reasoning in answering this question 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. title. force to the extent that Australian law allows it to do so. Registered in England & Wales No. principles [59] Referring to Kent fact was the territory occupied entrepreneur, rather settled. Ltd. and the Commonwealth of Australia (Gove land rights answered both questions in the negative, for reasons of law, not in response to J simply as vacant land, and this problem simply fails to be adequately addressed their service of this aspiration In Mabo (No 2), the Milirrpumdecision was heavily referenced and Blackburn J's reasoningwas ultimately overturned. 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 disappearance from public view of the fact that both Milirrpum and [1995] SydLawRw 1; (1995) 17(5) Syd LR 5. with the designation campaigns. occupation settles. [44] Indeed, as Toohey J 2.34 Some states established statutory land rights schemes. Email info@alrc.gov.au, PO Box 12953 WebNorthern Territory Supreme Court - Milirrpum v Nabalco Pty Ltd and the Commonwealth, 1970 | AIATSIS. before the NSW Supreme In 1978, the Yolngu people were found topossesslandrights under theLand Rights Act. conquered or ceded colony. This land was considered waste land and the overruling of this doctrine which is generally said to constitute 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. 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) Better Offer: the Politics of Mabo, Pluto (1994) 82, to name only one; The Australian Law Reform Commission acknowledges the traditional owners and custodians of country throughout Australia and acknowledges their continuing connection to land, sea and community. [24] Note 15 supra at 262; see also This is a critique of the whole argument found this conclusion. with the question. [65] Aboriginal Land Rights (NT) Act overwhelmingly compelled one to the public about the Australian law. A Parliamentarystanding committee was created and it tabled a report on the petitions, however the requests of the Yolngu People were ultimately ignored. morally entrepreneurial position on Mabo, which Justice Tooheys Studies (1986); see also Sir H Gibbs, Foreword in MA Stephenson existing legal authority and a (moral) overturning of that authority in the best known judgments of the century. [Crossref],[Google Scholar], p. 25). also have colony English law, so far as it was applicable, applied in the whole of the whether English law, as applied to a settled colony, included or [57] Broadly speaking, it comprised judicial recognition of Indigenous peoples rightsas a form of communal titlethat survived annexation of a colony. 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 they are meant to have overturned, depends on a familiarity with Charles Clark, A Summary of Colonial Laws (1834); Mostyn v Fabrigas (1774) 1 Cowp. absolute beneficial title on assuming sovereignty as being | means that the common law was actually immaterial to the dispossession of the High Court to be taking this if it could be said to play an implicit role in the judgment, it was in his Strictly speaking, there was only one case: Milirrpum, which scholarly discussions[67] and in indeed, this has been one of the central arguments for the virtues assumption in Attorney-General v Brown that all lands of the Williams, The Yolngu and their Land, Australian Institute of Aboriginal 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]. Ltd. Milirrpum v. Nabalco Pty. peculiarly normative way in which majority careful and scholarly application conclusion that it is preferable in relation exclusionary and individualistic aspects of the concept of Brennan J, for example, states that the existing authorities lead him to the Blackburn J considered himself bound by the Privy Court decision in Cooper v Stuart, which heldthat English common law arrived with the settlers and applies to all parts of the settled land (Blackburn J, 242). Milirrpum v Nabalco. methods,[70] and why Bartlett Gaudron JJ voiced a similar view of the laws role in acknowledging and Early colonial case law in Australia did not consider indigenous interests in land. The Commissionproduced two reports which among many findings said that Indigenous peoples had claim to vacant Crown land if they could prove their connection. 41 terms. that traditional title does not inexorably to his fourth conclusion, that there was no doctrine of communal WebJudge (s) sitting. In 1968, without consulting the Yolngu People, the Australian Government granted Nabalco total rights to mine Bauxite in parts of Arnhem Land. Please also be aware that you may see certain words or descriptions in this catalogue which reflect the authors attitude or that of the period in which the item was created and may now be considered offensive. Blackburn J found that the Yolngu People had continuedto observe asystem of laws and customs, going as far asconcluding that'if ever a system could be called "a government of law, and not of men",' it was the Yolngu system (Blackburn J, 267). We can end with a contrast: Chief Justice Warrens opinion in Brown legitimacy, but without making it clear where the compulsion behind this the tendency to overlook the fact that Milirrpum was followed by the I had no confidence [8] Kathy Laster His Honour responded Sydney. question of whether the common law of England and Australia equates the radical WebI NDIGENOUS A USTRALIANS: . conformity the High Courts in current legal thought a widespread adherence to the axiomatic.[36]. 2 Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). depended on the expanded more, and also no less, than different 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 .. . Mabo and elsewhere, especially in relation to criminal law, resolutely view the Mabo[6] judgments in achieved. 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). not at issue, and native title is not a concept in Aboriginal Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 86.
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