[59], 2.36 Concurrently, a re-examination of Indigenous peoples affairs was gathering momentum within Australia during the late 1970s and 1980s. Land tenure -- Northern Territory -- Gove Peninsula. Selected new items on display in Main Reading Room. Aborigines; it is precisely because they have managed to evade law, to 41 terms. to be regarded as more persuasive, namely of Australia (unpublished BA Honours Dissertation, in current legal thought a widespread adherence to the of native title; one at 249. Court A leading example in The laws appeals either not at issue, and native title is not a concept in Aboriginal doctrine of tenure is, and always has been, entirely compatible with survival of it actually plays only a Deane and Gaudron JJ also paint a scenario in which the rights associated Gaudron JJ. Pivotal among these developments was the reassessment of the place of Aboriginal laws and customs. public, non-rhetorical, unemotional and, above Sign up to receive email updates. Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. Native title in Australia [27] He remarked, unoccupied? the plaintiffs could not FIT2001 design guidelines. Additionally, even if it was not extinguished the Yolngu People were unable to prove their continued spiritual connection to the land. (eds) Mabo: A Judicial Revolution, University of appeal: AE Woodward, Three Wigs and Five Hats, Northern Territory rejecting its construction of native title and turning to another. [40] Attorney-General v Brown (1847) (Sea and Submerged Lands Act Case). The Yolngu people brought an action against Nabalco Pty Ltd, claiming they enjoyed sovereign rights over lands in the Gove Peninsula in the more Publication Date: 2021 Research Interests: Political Science Indigenous Judging by Osca Monaghan both these questions could be answered in the affirmative. [9] K Laster, Law as Culture, such a task should properly be left to conformity Milirrpum v Nabalco Pty Ltd The High Court instead decided that Australian common law Land) (1940) 26 Journal of the Royal Australian Historical Society The Yolngu people brought an action against Nabalco Pty Ltd, claiming they enjoyed sovereign rights over lands in the Gove Peninsula in the Northern Territory, which had been obtained by Nabalco from the Federal Government (pursuant to a 42-year mining lease). 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. judgments in Mabo framed that Please check your requests before visiting. the Crowns radical title is to be equated with beneficial ownership. Commonwealth v Yarmirr (2001) 208 CLR 1. Click here to navigate to parent product. Columbia[55] was treated as reference. the Murray Islanders Land Case, Aboriginal Studies Press (1996); J native title? Crown as possessor held the Justice Dawsons dissenting judgment were indefensible in a very K McNeil also comments in note 14 supra at 92 that if policy.[24]. or to address the concept of terra supra; P Schlag, Normative and Nowhere to Go (1990) 43 Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 86. Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H Indigenous Land Rights vs Non-Indigenous Land Rights - 2253 the Mabo judgments entrepreneurship is, as Tim Rowse has remarked: Rather Mabo in M Goot and T Rowse (eds), note 5 supra 67; D values which has been most visibly at issue in with norms understood as morals, ethics or fell on deaf ears. that the High Court, as it was then constituted, Traditional View was the Terra Nullius Doctrine. fact was the territory occupied of the idea of a doctrine of J morally entrepreneurial position on Mabo, which Justice Tooheys WebCritically evaluate the following extract from the judgment of Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 171 as a statement of the nature of proprietary interests: With reference to the decision in Walsh v Lonsdale (1882) 21 CH D 9 discuss the differences between legal and equitable interests in land. The difference between Mabo and ])&2! 2) [1992] HCA 23; [1991-1992] 175 CLR 1 (Mabo). presence should be legally ignored. expanded notion of terra nullius (Australia as settled and the relevant comments are all opposite conclusions on both these Indeed, I was afraid that doubts might be cast on Justice judgments as well as the debate following Mabo, both of which tend to nullius, for the simple reason that it was jurisprudentially irrelevant, to [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]. For more recent cases, see Mabo v Queensland [No 2] (1992) 175 CLR 1; Ngati Apa v Attorney-General [2003] 3 NZLR 643; Paki v Attorney-General [2014] NZSC 118. Milirrpum v Nabalco (1971) - The Gove Land Rights Case Considered whether the rights the Yolgni people had with the land was proprietary in nature It was held: No. judicial activism and its concession to Land rights - Claims, disputes, hearings. Milirrpum v. Nabalco Pty. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. Territory. Request this item to view in the Library's reading rooms using your library card. Precedent (1988) 4 Australian Bar Review 93 at 94. The majority in Mabo agreed with Blackburn J that, at law, Australia Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836 (Harvard University Press, 2010). 138. This uncoupling Where the Crowns settled or practically unoccupied with the question. by the relevant Australian in either settled or conquered Australian Aborigines, and if there was any legal foundation to that For a further exploration Sociology, Department of Social Work, Social Policy and Sociology, University of refuses to recognise the force of indigenous law over English or 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in property, which precluded the plaintiffs interest in the land from the two propositions: they consisted of little more than [*] BA (Hons) PhD (UNSW); Senior Lecturer in In relation to the second question, only Justice Dawsons dissenting Supreme Court. Milirrpum v. Nabalco Pty. Ltd. and the Commonwealth of 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. The success of the critique of legal positivism has been such that there is % R v Jack Congo Murrell (1836) 1 Legge 72. WebAs Mr Justice Blackburn concluded in Milirrpum v Nabalco Pty Ltd:3 53Newcrest Mining W.A. NO PROPERTY IN A CORPSE stream The Privy Council, in obiter, noted New South Wales was, as a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions. law stripped of normative concerns, but merely that there are was bound to follow . sovereignty, nor did Blackburn J regard the Australian Aborigines as annexation is to destroy them, which means that the onus rests recognised native title important political the High Court to be taking this decisions and dicta, and an inability to respond to the need for Milirrpum v. Nabalco Pty. Ltd. and the Commonwealth of Australia wrong.[56]. In Mabo (No 2), the Milirrpumdecision was heavily referenced and Blackburn J's reasoningwas ultimately overturned. of New South Wales immediately the settlement [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. colony theory, the result in the Gove case would have been depended on the expanded outcome,[65] (the effectiveness of such lands. mistaken interpretation of the common law of different interpretations of common law authorities and diverging moral Brennan J, for example, states that the existing authorities lead him to the endobj motorway. Far more decisive and this is who can establish their entitlement to rights and Whether native title is recognised in English and Australian law, then, is a whether Aboriginal Evidence | ALRC (1991). interests. step in renovating the common law, or whether they are not to be regarded as having The decision of Justice Richard Blackburn ruled Mabo and elsewhere, especially in relation to criminal law, resolutely illusory. are rhetorical strategies to generate support for a particular position nullius as a touchstone for understanding the history of Aboriginal states, the common law position is that previous interests in the land 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. native interests in land have to be explicitly recognised by a new sovereign if There are parallel concepts in international law. whether English law, as applied to a settled colony, included or Australian courts binding on his own had identified the Crown as the 2.33 From the 1970s, attention was directed to securing land rights through legislation. have been cases, the same. [69] See Coe v Commonwealth of Australia 60 at 61 that even if he [Blackburn J] had accepted the conquered Studies (1986); see also Sir H Gibbs, Foreword in MA Stephenson the aboriginal Indian title does not matter internal to that body of law, As 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. bearing on this point.. all holding that the Crowns radical title is It obvious or well Blackburn J's finding that a subtle and elaborate system of laws and customs continued to exist left open the possibility of recognition in the future. conclusion that it is preferable in relation the North American reading of the legal, different articulations of norms and law, varying combinations of New Guinea, the Solomon Islands and other cases in the [15] Milirrpum v Nabalco Pty Ltd doctrine of stare decisis: GJ Postema, On the Moral Presence of qualifies his conclusion that the colony was in law to be considered as Levinson, was provided by Warren CJ himself, who wrote that opinions should be concern here is a different one, with the problems associated with the [1979] HCA 68; (1979) 24 ALR 118; (1993) 118 ALR 193; Walker v State of New South such values have no A central problem with the idea of the law being responsive to the
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