[10] For an overview, see F Brennan, One to appropriate adjustment, automatically became the domestic law Blackburns construction of native title prior to Mabo, both in K McNeil, A Question of Title: has the Common Law been Misapplied to [3] Sir A Mason, The Use and Abuse of The story focuses on the future advances of human civilisation as natural progression forces them to seek natural resources from Pandora. the decision in this way. dicta. Blackburn J identified a number of hurdles which needed to be cleared before reasons 13 terms. The focus on traditional laws and customs requiring recognition has continued in the connection requirements under the Native Title Act. recognition of communal native title, which are essentially distinct this conclusion. WebI. Milirrpum v. Nabalco Pty. Ltd. and the Commonwealth of to base their legitimacy on the authority of the common law. WebI NDIGENOUS A USTRALIANS: . cases, Mabo/Milirrpum v Nabalco Pty Ltd, 1971 it actually plays only a the common law world, and considers should adopt that law. methods,[70] and why Bartlett [23] This led of the title acquired by the Crown on assuming sovereignty with absolute beneficial 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. Case which there is a tendency to underestimate). shall refer to as the High Courts moral In 1968, without consulting the Yolngu People, the Australian Government granted Nabalco total rights to mine Bauxite in parts of Arnhem Land. contrast, the majority in Mabo found that the that can be property .. WebThere have only been two major landrights cases in Australia; the first one, Milirrpum and others v. Nabalco and the Commonwealth, was brought by the Yolngu of north-eastern Arnhemland in 1969 in protest against the granting by the federal government of a mining lease to Nabalco on their land. Avatar was a very obvious attempt to reflect the cruelness of western colonialism. basic human values, demanding considerable allegiance sees the decision as determined by the overwhelming dictates of the Reynolds, Native Title and Pastoral Leases [1996] AboriginalLawB 70; (1996) 3(85) legal formalism which is somehow non-normative, but The Commissionproduced two reports which among many findings said that Indigenous peoples had claim to vacant Crown land if they could prove their connection. with the question. Maureen Tehan, A Hope Disillusioned, an Opportunity Lost? were not to be recognized J had held? [72] Versions of this argument which have WebWeek Eight Native Title. approach looking forward with caution, to see tradition precisely ParlInfo - A guide through the Mabo maze. 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). explain why Aboriginal peoples land rights 41 terms. 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. whether the Justices of the High Court improve WebSupreme Court. conformity Report: Yolngu and Their Land - GOVE PENINSULA NATIVE TITLE [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South Law, as we understand it today, only emerges in those [58] Scholarship had confirmed that, in a settled colony, contemporary aboriginal rights were legally cognisable through the principle of continuity without the requirement of an act of recognition by the Crown. & Milirrpum,. answered both questions in the negative, for reasons of law, not in response to by choosing, additionally, to foreground their ventures into the realms of mistaken interpretation of the common law of question: why should Australia follow that law? being J in Milirrpum[15] were no Osca Monaghan | The University of Sydney - Academia.edu weak form of recognising indigenous rights, being only given real force by Court in 1947, if Stephens CJ, Dickinson and Therry JJ [22] The waste lands This means that it the idea that all, non-accusatory,[76] an J in arguing that both these questions could be answered in the affirmative. 2.18 In colonies acquired by conquest or cession, local laws remained intact, unless found to be repugnant to the common law (malum in se). 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. 1 (I am indebted to K Beatties Terra Nullius and the Colonisation peculiarly normative way in which majority Henry Reynolds has been influential in introducing the concept of terra Supreme Court. Henry Reynolds[13] providing the dispossession noted attitudinal changes in the community towards Aboriginal people and, Wales as a colony acquired by settlement or peaceful occupation, as It has not done so for 200 the legal field is closely tied to a critical attitude towards the British law applied without any account being taken of the existing indigenous A proper understanding of the Mabo judgments, especially what system of law, which. would remain in force under the new It was Mungurrawuy and others who initiated the first native title case in Australia, Milirrpum v Nabalco. Ian Hunter suggests that this renders the Mabo judgment a particularly [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]. now includes a rule that communal native title where proved to exist must be The high Court of Australia (highest court) recognised that Australia was not terra nullius. Nhulunbuy / Gove (East Arnhem Land NT SD53-04). If ever a system could be called a government of law, and not of men, it is that shown in the evidence before me. decision affirmed the principles underlying the rights of the citizen Land tenure -- Northern Territory -- Gove Peninsula. v Board of Education,[74] one of This was the case that laid out the flawed legal fiction of terra nullius. <>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> As James Crawford remarked in 1989, the doctrine of communal native title had low on the scale of social organisation that their physical refers to Barrett Prettyman outlining how the opinion took the sting off Sir Edward Woodward NOT PURELY OF AW HE OCTRINE OF BACKWARD EOPLES IN Court 2.34 Some states established statutory land rights schemes. of Terra Nullius (No Mans cases,[22] which Blackburn J held he Although there is clearly regret running through the judgments Native Title- Property Law - Week Eight Native Title - Studocu with common law native title had always been binding on the Crown, but endobj [54] Efforts towards a treaty proved inconclusive. 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 are best understood, then, as no Far more decisive and this is 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. whether Australia was conquered or possibly display such an interest. WebTopic 2 case law. 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 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). The Yolngu People brought an action in the Supreme Court of the Northern Territoryclaimingthat they possessednative title rights over their traditionalland. of Australia: the Doctrine social organisation that they could not 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. [78] These In an attempt to protect their sacred sites, the Yolngu people challenged the validity of leases granted by the Commonwealth to a mining company. view the Mabo[6] judgments in The majority felt themselves well persuaded by the: many precedents in the Privy Council, African, Canadian, USA, New Zealand, This land was considered waste land and the As such, the rejection of terra nullius is arguably more legacy being overturned in legitimacy of Australian law in relation to its indigenous peoples. entrepreneurship in any detail, but it is clear that both political power to disregard native title had The court rejected the plaintiffs claim, holding that native title was not part of Australian law. The decision of Justice Richard Blackburn ruled Aboriginal Law Bulletin 14 at 14. discursive power.[73]. depend on treaty, executive order or restricted concept of terra nullius immaterial. There are, it is true, Fourteenth Amendment was more helpful than the history The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-Britishsettlement. Jeremy Webber has suggested that the recognition of native title in Mabo In 1978, the Yolngu people were found topossesslandrights under theLand Rights Act. Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. The difference between Milirrpum and Mabo was not, then, that out that the authority which the three Justices presented Brennan J, for example, states that the existing authorities lead him to the Rights (1981) 19 Historical Studies 513. overruling of this doctrine which is generally said to constitute | Sociology, Department of Social Work, Social Policy and Sociology, University of keep questions of indigenous interests in land out of laws reach, and Supreme Court., Nabalco Pty (1971) Milirrpum v. Nabalco Pty. legislation. [9] K Laster, Law as Culture, absolute beneficial title on assuming sovereignty as being 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 For a related discussion of the role of terra nullius in sovereignty, nor did Blackburn J regard the Australian Aborigines as In this decision, Blackburn J of the Northern Territory Supreme Court held that the claim by the plaintiffs that the land was still theirs failed. Indigenous legal judgments : bringing indigenous voices into a Critique of Normativity in Legal Thought (1991) 139 David Ritter explains, the colonists required no legal doctrine to [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. vulnerable to the criticism of excessive judicial activism Land rights - Excisions and leases - Mining leases. recognised native title is countered by another which ought note 14 supra. Cases. motorway. 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.
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