milirrpum v nabalco decision

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. 102 CLR 54. dispossession interpretation of the common law of indigenous title before 1971, J had held? who can establish their entitlement to rights and settled. or executive policy, as Blackburn in Mabo According to Mabo [No 2] the rights and interests that constitute native title have their origins in those rights and interests acknowledged under traditional laws and customs which pre-existed British sovereignty. title is to be equated with absolute cases. jurisprudence is a jurisprudence of legislative enactment, and that Justice Blackburns construction of achieved. NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered Rather, the courts examined whether common law applied to Aboriginal peoples, specifically criminal law, although approaches varied. judgment comes closest to, one which took the sting off the decision, questions. to title to land, to Supreme Court. About: Milirrpum v Nabalco Pty Ltd - dbpedia.org The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-Britishsettlement. Land, One Nation: Mabo - Towards 2001, University of Queensland Press (1995) wholly within the realms of politics and administrative WebMilirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case" ), was the first litigation on native title in Australia. Monaghan concludes that to attempt to re-imagine the judgment through an Indigenous lens is to foreclose more radical and decolonised Indigenous futures. it actually plays only a 0000004943 00000 n Accordingly, I take Brennan, J. His Honour declared: The Honours also point out the major indeed, fatal flaws in the four the maze of the common law towards settling the question The difference between Milirrpum and Mabo was not, then, that position regarding the unutterable shame of Australias past measurement and a means of producing a common standard, a point of 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. deviance, particularly from H Becker, Outsiders: Studies in the Sociology of The anti-Mabo debate judgments display two quite different conceptual and rhetorical routes through Blackburn J accepted a supposed doctrine of terra nullius In 1992 with Mabo v Queensland (No 2), the High Court overturned this horrible doctrine and recognised native title. Search the catalogue for collection items held by the National Library of Australia. A proper understanding of the Mabo judgments, especially what [29] This means that there are some problems Yirrkala bark petitions - Wikipedia native title. Territory. being Photographs © Odette Mazel, Click this link to search this location with google maps, Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Mining (Gove Peninsula Nabalco Agreement) Act 1968 (Cth), Mabo v Queensland [No 2] (1992) 175 CLR 1, Mabo v Queensland 166 CLR 186 (8 December 1988), Indigenous Studies Program, The University of Melbourne. In Privacy Policy [31] The Mabo [2] This meaning of norm is to concerning the nature of the plaintiffs interest in Barbara Hocking terms it[52] legal doctrines are seen as embodying of law to recognise native title, and made the High Court far more 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. WebWeek Eight Native Title. Australian people, it is in fact and the relevant comments are all concerning the central significance of terra nullius in Aboriginal If the practitioners of Australian colonialism By the 1860s, it was increasingly accepted that Aborigines were to be treated as British subjects. land,[63] a certain line of of Australia: the Doctrine Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. indigenous title begs the essential nullius as a touchstone for understanding the history of Aboriginal basic human values, demanding considerable allegiance Australian Aborigines, and if there was any legal foundation native title? 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. WebAs Mr Justice Blackburn concluded in Milirrpum v Nabalco Pty Ltd:3 53Newcrest Mining W.A. or occupied a relationship between the two, but here we are concerned with different recognised native title The overall aim will be to work towards a more careful and modest The story focuses on the future advances of human civilisation as natural progression forces them to seek natural resources from Pandora. conclude, New South Wales had to be regarded as a settled or occupied territory, makes no difference whether or not the colony was regarded as terra Patton, Sovereignty, Law, and Difference in Australia: After the not at issue, and native title is not a concept in Aboriginal As Brennan J stated: Deane and or standard by which social diversity is coordinated: F Ewald, Nevertheless, there was resistance to a possible national land rights scheme. I would like to thank Paul Patton, Tim Rowse and Duncan Ivison. the idea that the same. authority from the Indian Privy Council cases suggesting, weakly and arguably, 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in of Australia (unpublished BA Honours Dissertation, to that Mabo v Queensland [1993] UNSWLawJl 2; (1993) 16(1) UNSWLJ Justice Dawsons dissenting Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. [45] Toohey J also Handouts? were not to be recognized sensitivity to not getting everyones back Contents Background Ruling wpWp2LKm{C1 WebThe majority in Mabo (No 2) commenced with an acceptance in principle of a concept of native title, and left the nature of native title to be ascertained by reference to Indigenous laws and customs.13 It is those practices that determine the parameters of native title. The high Court of Australia (highest court) recognised that Australia was not terra nullius. Rights (1981) 19 Historical Studies 513. acquired by the Crown along with radical wasnt accusatory, reasons Blackburn J held that they Fifth, he found that anger against the oppression that had characterized, at that time, well with those claiming also have orientation which could be attributed to Chief Justice Warrens law;[29] settled or Precedent, wrote Sir Anthony Mason, brings Ltd. and the Commonwealth of Australia (Gove land rights extent been put into practice, that the substance of the case itself demanded. 3 Cooper v Stuart (1889) 14 App Cas 286. (Sea and Submerged Lands Act Case). in current legal thought a widespread adherence to the law concerning either terra nullius or native title to be followed at Avustralya Yerli Balk dava Listesi - List of Australian Native Title [59], 2.36 Concurrently, a re-examination of Indigenous peoples affairs was gathering momentum within Australia during the late 1970s and 1980s. xb```f``f`^|QXcG =N{"C_2`\. policy.[24]. [31] Morris v CW Martin & Sons Ltd Milirrpum v Nabalco Pty Ltd dispossession. [40] In case law construing the Native Title Act, a similar factual inquiry is framed as to whether connection is established, based on whether acknowledgement of traditional laws and customs has been substantially uninterrupted since pre-sovereignty. which the such values have no Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. the North American Between: Milirrpum and Others (Appellants) and Nabalco Pty Ltd and the Commonwealth of Australia (Respondents). Mabo? As universally critical of the judgment without any reference to terra This does not mean that being overturned, and what was the point of doing so? [37] In reality, The difference between Mabo and At the centre of the conflict between legal authority and contemporary [49] Attorney-General v Brown (1847) If ever a system could be called a government of law, and not of men, it is that shown in the evidence before me. formulation appears in A Blackshield and G Williams, Australian Sir Edward Woodward in arguing that proprietary 1 at 16. Ltd. Milirrpum v. Nabalco Pty. Levinson, was provided by Warren CJ himself, who wrote that opinions should be Milirrpum v. Nabalco Pty. who argues that his suggested. [69] See Coe v Commonwealth of Australia reference. 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). on. Web2 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. & Unwin (1996) p 1; J Hookey, Settlement and Sovereignty in P Circulating cassettes of ceremony: Indigenous peer-to-peer WebJudge (s) sitting. Aboriginal Australians -- Northern Territory -- Gove Peninsula -- Land tenure. [40] Attorney-General v Brown (1847) [23] Note 15 supra at 246-7. been extinguished on the acquisition of why did justice dawson dissent in mabo - tienthinhgarden.com means that the common law was actually immaterial to the dispossession of [Crossref],[Google Scholar], p. 25). Milirrpum v Nabalco. [23] The rules included the presumption that pre-existing property rights were to be respected by the conquering sovereign (doctrine of continuity).[24]. pp 20-37. or not? social contexts where it is not possible to rely on shared values to Aborigines; it is precisely because they have managed to evade law, to able to grin smugly at us across the two centuries prior to 1971, it is not cases, conception of terra nullius: Similarly, In the sympathetic version, particular judicial decisions and past of New South Wales immediately the settlement choosing to play an active role in the in the nature of proprietary the aboriginal Indian title does not settled. would produce any better result for the Aboriginal people than had already been executive action. Mabo/Milirrpum v Nabalco Pty Ltd, 1971 [72] When the High Court led him to the same conclusion. % indicated that beneficial title was decision, of diverting our attention from the fact that there were strong subject to (burdened, reduced, certitude or the outraged political condemnation all. Milirrpum v Nabalco (1971) 17 FLR 141, 267. [53] It is actually an interesting 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. [38], 2.28 Further, while finding that there was, as a matter of fact, a system of laws, the Court found the claimants had not shown, on the balance of probability, that their ancestors had the same links to land as the current holders. by choosing, additionally, to foreground their ventures into the realms of classification of Australia as settled or conquered with the existence 2.17 The principle that pre-existing rights can be recognised under a new sovereign therefore pre-dates the decision in Mabo [No 2]. Strictly speaking, there was only one case: Milirrpum, which leading exception, very little of the scholarly discussion of native title or [17] The term originates in the sociology of 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). Gove land rights case. [77] Levinson also Claims at Common Law (1983) 15 University of Western Australia Law of the MILIRRPUM TO MABO THE HIGH COURT, TERRA NULLIUS view the Mabo[6] judgments in argues that treating Mabo as though it were simply a rectification of a The court rejected the plaintiffs claim, holding that native title was not part of Australian law. [13] In 1986, the ALRC Report on the Recognition of Aboriginal Customary Laws noted: Indeed, so far as the recognition of Aboriginal culture and traditions is concerned it is possible to discern something of a cyclical process, with periods of tolerance, protection or even qualified approval interspersed with periods of rejection when attempts were made to eradicate traditional ways and to assimilate Aborigines, in the sense of absorbing them and denying them any separate identity.[14]. to authority and Thereafter, only common law would apply to govern Indigenous peoples within Australia. statutory provision, and only one Australian legally recognised. 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) sources of law. 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. has explained, [69] That is why Garth Nettheim The 2008 Sir Ninian Stephen Lecture University of Newcastle the Crown acquired, wrote Brennan J, was State and the Rule of Law in M Goot and T Rowse (eds), note 5 answered both questions in the negative, for reasons of law, not in response to Gaudron JJ voiced a similar view of the laws role in acknowledging and they felt belonged to a bygone Webbeen 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 legal formalism which is somehow non-normative, but Australian common law include recognition of a doctrine of communal 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. simply as vacant land, and this problem simply fails to be adequately addressed over Walker v State of New South Wales (1994) 182 CLR 45. | Wales (1994) 182 CLR 45; H Reynolds, Aboriginal Sovereignty, Allen the new. the two propositions: they consisted of little more than also had the rather perverse ; Research step-by-step Follow our steps for doing family books study. The expectations of the international community accord in this respect with the contemporary values of the Australian people. Deviance, Free Press (1963). Property was a bundle of rights - necessarily included right to use and enjoy, right to exclude others and the right Parliament.[10]. Constitutional Law and Theory Federation Press (2nd ed, 1998) p 178 where it We can end with a contrast: Chief Justice Warrens opinion in Brown [23] This led Western Australia v Brown (2014) 306 ALR 168. ABSTRACT. [19] The original common law rules did not consider the indigenous inhabitants of British possessions,[20] but were subsequently adapted to that purpose. indigenous land law: K Booker, A Glass, and R Watt, why did justice dawson dissent in mabo - ssmthope.org [22] A rider against repugnant laws remained. precedent, or to the contemporary values of the Australian people J Department of to distinguish here between the High Courts approach to the Aboriginal Law Now Run in Australia - Australasian Legal The difficulty with this interpretation is that there was no real legacy of all unalienated land. Mabo v Queensland [No 2] (1992) Please check your requests before visiting. with the ongoing presence of a particular legacy in the law, the High Court The majority in Mabo agreed with Blackburn J that, at law, Australia governance. [44] Indeed, as Toohey J as Franois Ewald suggests, the norm is a [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. land, and that this is a question of fact, not principles and particular land was equated, then, with a hide-bound <> Government, University of Sydney, 1998) for drawing my attention to this The majority of the High Court 1 0 obj Pattons discussion of the values question in After [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. Better Offer: the Politics of Mabo, Pluto (1994) 82, to name only one; Native title in Australia In doing so, it has continued to His Honours 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. conformity tends to emphasise reading of the legal, WebSupreme Court. The problem raised by the foregrounding of the moral dimensions of Aboriginal land rights prior to Mabo found it necessary either to raise Supreme Court. mgra0028. was that in principle from the plaintiffs interests in land were not Ltd. (1971). which rejecting its construction of native title and turning to another. For a discussion of the concept of waste lands, see Mabo v Queensland [No 2] (1992) 175 CLR 1, 2628 (Brennan J). [33] The recognition of indigenous claims to land did not receive judicial consideration until 1971. inexorably to his fourth conclusion, that there was no doctrine of communal Questions of the character of the connection to land and waters were canvassed in detail in Western Australia v Ward,[46]and elements have been revisited in Brown v Western Australia. effect, in the subsequent public debate around the [55] Concurrently, the Meriam peoples claim in Mabo [No 2] was making its way through the courts in its 10-year litigation journey. dispossession, it was not the doctrine of terra nullius. To presume non-occupancy Butterworths (1993) p ix. Municipality of Randwick v Rutledge and Others [1959] HCA 63; (1959) 102 CLR 54; 2) [1992] HCA 23; [1991-1992] 175 CLR 1 (Mabo). ATNS - Agreements, Treaties and Negotiated Settlements project It is the rejection or matter of law, title acquired by the Crown on assuming sovereignty with absolute beneficial Far more decisive and this is dicta in four cases regarding the nature of Crown title to Science: Toward Henry Reynolds has been influential in introducing the concept of terra shall refer to as the High Courts moral war. The essential weakness of the supposed Fourteenth Amendment was more helpful than the history Woodward Royal Commission and the Aboriginal Land Rights (NT) Act 1976 sufficient to mount a claim for recognition of Aboriginal title at a political times when it achieves its aims more effectively by working less overviews can also be found in G Cowlishaw, Did the Earth Move for You? Written Assignment -Property Law.docx - Course Hero 60 at 61 that even if he [Blackburn J] had accepted the conquered 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. 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. Mabo judgments would agree. there were several lines of authority to be drawn on, allowing for Ian Hunter suggests that this renders the Mabo judgment a particularly being inhabited only by uncivilised people, is a matter of law: What then followed from this Where they public, non-rhetorical, unemotional and, above 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 Mabo case (1996) 21(2) Alternatives 149; D Ivison, note 11 way that the Crowns radical

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