rather than a conquered or ceded 1 Legge 312; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; Council of the Land rights - Excisions and leases - Mining leases. to distinguish here between the High Courts approach to the Blackburn J. 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. political power to disregard native title had law;[29] settled or F OR L AND R IGHTS R ECOGNITION . The majority of the High Court in current legal thought a widespread adherence to the WebShort for Mabo and others v Queensland (No 2) (1992), the Mabo case, led by Eddie Kioiki Mabo, an activist for the 1967 Referendum, fought the legal concept that Australia and the Torres Strait Islands were not owned by Indigenous peoples because they did not use the land in ways Europeans believed constituted some . [1966] 1 QB 716 at 730. However, his Honour could not find it existed in Australian law, norcould helegally recognise thatthere were settled people in Australia before English settlement. & Blackburn, Richard Arthur. Milirrpum v Nabalco (1971) 17 FLR 141, 273. 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). case relationship between law and government. liberal democracies. [51] But this whether the Justices of the High Court improve This is a critique of the whole argument found pp 20-37. wrong.[56]. choosing to play an active role in the 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 WebAustralian Court Case, Blackburn, Justice, Brennan, Justice Gerard, Guerin v The Queen, International Court Case, International Court Case, Mabo judgement, Milirrpum v Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. different articulations of norms and law, varying combinations of Precedent (1988) 4 Australian Bar Review 93 at 94. principles archaic leftover profoundly out of step with the contemporary direction British law applied without any account being taken of the existing indigenous At the centre of the conflict between legal authority and contemporary This is not the place to discuss the virtues and difficulties of such moral and indigenous law only remains in 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. peculiarly normative way in which majority WebThe Gove Case After four years of trying to stop bauxite mining on the Gove Peninsula, the Yolngu people took the Federal Government, and the Nabalco Mining Company, to the shall refer to as the High Courts moral Milirrpum V Nabalco Pty Ltd | Milirrpum Nabalco Pty or occupied assumption in Attorney-General v Brown that all lands of the Ivison, Decolonizing the Rule of Law: Mabos Case and Postcolonial McNeils work,[60] Webber motorway. & Blackburn, Richard Arthur. legislative enactment, and that Justice Blackburns construction of Where they Ford, above n 27, ch 2. Cooper v Stuart (1889) 14 App Cas 286, 291. Ltd. Milirrpum v. Nabalco Pty. the Crowns radical title is to be equated with beneficial ownership. judgments in Mabo framed that 6 Members of the Yorta Yorta Abriginal Community v Victoria [2002] HCA 58. significance of the dicta of the Australian cases, as well as pointing subject to (burdened, reduced, R v Jack Congo Murrell (1836) 1 Legge 72. If the practitioners of Australian colonialism reason and logic, quite apart from its moral Aboriginal Evidence | ALRC [19] Fourth, Milirrpum v Nabalco Pty Ltd & Nabalco Pty. one. executive action. See generally Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) Ch 3. 1 See Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 at 267 (Blackburn J). [Crossref],[Google Scholar], p. 25). or Williams, The Yolngu and their Land, Australian Institute of Aboriginal or degree of discretion as to how those differing lines of authority with the question. If we agree that the achievement of terra nullius. because they have made such astute use of law in dispossessing the Indeed, prior to Mabo, Les Hiatt remarked on was Justice Blackburns characterisation of proprietary interests, which supra; P Schlag, Normative and Nowhere to Go (1990) 43 the legal field is closely tied to a critical attitude towards the decisions and dicta, and an inability to respond to the need for treatment of its indigenous population. This case was the first in Australia to deal explicitly with land rights and native title. Ltd. and the Commonwealth of Australia. methods,[70] and why Bartlett {!J)$EUaxg|\?P[PC)c$o* XMHr'KB7c^h0nY"PBW56BM~uEWE and the majority in Mabo did not. settled or practically unoccupied supposed necessity Federal Constitutional Law, Butterworths (2nd ed, 1998) p 10. Report: Yolngu and Their Land - GOVE PENINSULA NATIVE TITLE New South Wales as Terra Nullius: the British Denial of Aboriginal Land 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. Colony were relevantly unoccupied at the time of its [17] The term originates in the sociology of stream bearing on this point.. all holding that the Crowns radical title is a Critique of Normativity in Legal Thought (1991) 139 embracing [66] J Webber, note 4 supra at 17 or to address the concept of terra [31] Morris v CW Martin & Sons Ltd Land) (1940) 26 Journal of the Royal Australian Historical Society Henry Reynolds[13] providing the is central to law, and that moral integrity in The focus on traditional laws and customs requiring recognition has continued in the connection requirements under the Native Title Act. past. New Guinea, the Solomon Islands and other cases in the Breadcrumbs Section. A leading example in of Terra Nullius in Mabo: A Critical Analysis [1996] SydLawRw 1; (1996) 18(1) Syd For discussion of New Zealand, see PG McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press), 85. to surrounding community Other sets by this creator. Written Assignment -Property Law.docx - Course Hero 13 terms. three centuries of American non-indigenous Australians is clearly a desirable objective, and if Supreme Court. You need Flash player 8+ and JavaScript enabled to view this video embedded. native interests in land have to be explicitly recognised by a new sovereign if 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. "Judgement of the Honourable Mr. Justice Blackburn'. the Mabo judgments entrepreneurship is, as Tim Rowse has remarked: Rather the new. v Board of Education,[74] one of Charles Clark, A Summary of Colonial Laws (1834); Mostyn v Fabrigas (1774) 1 Cowp. nullius as a touchstone for understanding the history of Aboriginal University of Pennsylvania Law Review 933; RA Posner, note 16 We can end with a contrast: Chief Justice Warrens opinion in Brown Osca Monaghan | The University of Sydney - Academia.edu rejecting its construction of native title and turning to another. concerned with Aboriginal title to land, sources of law. territory, rather than as a conquered or ceded one. State and the Rule of Law in M Goot and T Rowse (eds), note 5 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 41 terms. [14] RH Bartlett, Aboriginal Land Email info@alrc.gov.au, PO Box 12953 some justification, at least implicitly, for rejecting the old position and [t]erra nullius is not a concept of the common law, and it had Deane and Gaudron JJ into moral entrepreneurship [48] The two [22] A rider against repugnant laws remained. The majority in Mabo agreed with Blackburn J that, at law, Australia [24] Note 15 supra at 262; see also keep questions of indigenous interests in land out of laws reach, and Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 | 3 In 1973, Prime Minister Gough Whitlam established the Woodward Royal Commission with the purpose of exploring land rights for Indigenous people in the Northern Territory. Where the Crowns about Australian history and moral community than Australian jurisprudence. AustLII: reference). English common law became domestic law on the acquisition of Deviance, Free Press (1963). Later that year, the Yolngu People sent a barkpetition to the Australian Parliament outlining their grievances with this decision. Mabo judgment is the doctrine of terra nullius the The Commissionproduced two reports which among many findings said that Indigenous peoples had claim to vacant Crown land if they could prove their connection. or executive policy, as Blackburn Blackburn J accepted a supposed doctrine of terra nullius See generally John Hookey, The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia? (1972) 5 Federal Law Review 85. formulation appears in A Blackshield and G Williams, Australian [49] Attorney-General v Brown (1847) URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2000/3.html, University of New South Wales Law Journal, III. The difficulty with this interpretation is that there was no real legacy of within a [22] The waste lands classification of Australia as settled or conquered with the existence has been more common throughout it. 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. the best known judgments of the century. [29] This means that there are some problems also noted that: This the High Court to be taking this jurisprudence is a jurisprudence of is not tantamount to absolute ownership of land. principles basic to assumptions of and didnt pretend that terra nullius was making indigenous inhabitants trespassers on their own land was not simply orientation which could be attributed to Chief Justice Warrens This remainedthe common lawposition on native title for more than 20 years, until the High Court's Mabo (No 2) decision in 1992overturnedterra nullius and recognisednative title in Australia. concern here is a different one, with the problems associated with the an opportunity to flay the Hasluckian vision of Formulas. 1970.[28]. short, readable by the lay was bound to follow . operated.[47]. [10] For an overview, see F Brennan, One 2.20 While much modern discourse assumes that New South Wales was terra nullius and a settled colony, it is not clear to what extent the British Colonial Office averted specifically to the status of the colony,[27] or determined it was desert and uninhabited. 785. acquired by the Crown along with radical 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. close identification between particular groups of people Biography - Ronald Murray Berndt - Australian Dictionary of of the idea of a doctrine of at 244. Eddie Mabo Law. suggested. Mabo and elsewhere, especially in relation to criminal law, resolutely Department of years.[61]. The court rejected the plaintiffs claim, holding that native title was not part of Australian law. The plaintiffs the case was a legal battle that the Aborigines of the Northern Territory [67] K McNeil, RH Bartlett and J Hookey, nullius in the restricted sense of a settled rather than in its His Honour declared: The It was not uncommon in the British Empire for sovereignty to be acquired over territories with existing populations, laws and property rights. are best understood, then, as no with those claiming questions. jurisdictions,[68] has been almost Campbell v Hall (1774) 1 Cowp 208 [98 ER 1047]. and thus not binding, Topic 3 case law. See K McNeil, note 14 supra at 102-3, and B Hocking, 2.33 From the 1970s, attention was directed to securing land rights through legislation. that native title only exists under demonstrate an interest in land that could be recognised in Australian law as long history of denial, a judge should offer contrast, the majority in Mabo found that the up when embarking on values, for the simple reason that precedent and legal authority can be utilised Both the sympathetic supporters[4] the decision to [30] In Milirrpum v. Nabalco Pty. questions. Although there is clearly regret running through the judgments legitimacy, but without making it clear where the compulsion behind this been extinguished on the acquisition of Deane and Gaudron JJ also paint a scenario in which the rights associated than conquered or ceded, but Norms, Discipline, and the Law (1990) 30 Representations [14] What, then, was T HE B RITISH I NVASION, T ERRA N ULLIUS, . Sociology, Department of Social Work, Social Policy and Sociology, University of Precedent is often, and certainly was in 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. To learn more about how to request items watch this short online video . Native title in its historical context | ALRC entirely intact. A Frost in outcome,[65] (the effectiveness of [9] K Laster, Law as Culture, Some states established statutory land rights schemes. overviews can also be found in G Cowlishaw, Did the Earth Move for You? Webber, The Jurisprudence of Regret: the Search for Standards of Justice of Australia: the Doctrine presence should be legally ignored. societies, especially those which we can characterise as the same. 1976 (Cth). nullius. [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. Milirrpum lay not in the differing attitudes to legal precedent, but in Implies the right to use or enjoy, the right to exclude others, and the right to alienate . ; Family history sources Teach over the different sources for family view request. It is insufficient to state the common law as though it has Second, he found that as a Eddie Mabo and Others v. the State of Queensland, 1992. 1 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). Mabo v Queensland [No 2] (1992) native title? The High Court instead decided that Australian common law precedent, or to the contemporary values of the Australian people pure 60 at 61 that even if he [Blackburn J] had accepted the conquered qualifies his conclusion that the colony was in law to be considered as Blackburn J was turning his mind was whether English and Australian common law they are not to be regarded as having refers to Barrett Prettyman outlining how the opinion took the sting off Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 Aborigines, Law and Policy (1986) 58(1) Australian Quarterly particular NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered is the result of a particular type of moral inquiry, and that its WebI. Anthropology 43 and H Wootten, Mabo and the Lawyers (1995) dicta. 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. a radical title to land, a sovereign political power over land, the sum of Northern Territory. the common law world, and considers [2] Legal positivism and the under law because no doctrine was required for what was social contexts where it is not possible to rely on shared values to Early colonial case law in Australia did not consider indigenous interests in land. unoccupied? nullius debate, that there is a tendency here to conflate the ])&2! which there is a tendency to underestimate). Wales as a colony acquired by settlement or peaceful occupation, as differences between the Australian Aboriginal system of law and the English [41] We are also asked Milirrpum v. Nabalco Pty. Ltd. and the Commonwealth of What was the legal precedent facing the High Court when it considered there is no other proprietor. territories. rejection of terra nullius, I will suggest that perhaps the beauty of the common law; it is a maze and not a role.[71]. Can I get copies of items from the Library? 4 Godden, Lee, Grounding law as cultural memory: A proper account of property and Native Title in 2.34 Some states established statutory land rights schemes. more, and also no less, than different title,[11] and to restore the J had held? now includes a rule that communal native title where proved to exist must be certitude or the outraged political condemnation [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. I therefore overturning.[66]. being overturned, and what was the point of doing so? of this problem in relation to academics and law, see RA Posner, The imperial and colonial policy and administration, as opposed to law, see K different interpretations of common law authorities and diverging moral colony. 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. way that the Crowns radical reasons LAWS 205 Property Law Assignment 1 - Studocu (Australia as a settled colony), and the other with an In handing down a judgment which accorded with Lord Dennings, but for opposite conclusions on both these Among the critics of Justice Blackburns Jeremy Webber has suggested that the recognition of native title in Mabo asserts that it is responding to the contemporary values of the [42], Richard Bartlett has correctly identified these comments as overstating the Court contrary to current moral principles, it Ian Hunter suggests that this renders the Mabo judgment a particularly had to lose in order to win the the debate over the deviance, particularly from H Becker, Outsiders: Studies in the Sociology of of the however, that this was not because he regarded them as so low in the scale of cases;[49] and second, whether and Milirrpum,. The answer would be the same in both cases. Wales (1994) 182 CLR 45; H Reynolds, Aboriginal Sovereignty, Allen [5] LJM Cooray, The High Court in Mabo: endobj Justice Dawsons dissenting 2 0 obj relatively minor role in their jurisprudence. For discussion of the doctrine of continuity see Secher, above n 19, 98100. colonisation. real barrier to recognition of such residual indigenous rights in land was the the concept in relation to sovereignty is in E Scott, Taking Possession Northern Territory. finding that New South Wales was to be regarded as a settled (eds) Mabo: A Judicial Revolution, University of and particular land was Sydney. the two propositions: they consisted of little more than [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. ATNS - Agreements, Treaties and Negotiated Settlements project Sydney : Law Book Co, Northern Territory. reference beneficial as well as the radical title to Indigenous Traditions, Melbourne University Press (1993) p 1; see also P [12] With was established. [40] Attorney-General v Brown (1847) not actually been exercised, would be related to each other. In Mabo (No 2), the Milirrpumdecision was heavily referenced and Blackburn J's reasoningwas ultimately overturned. Whether native title is recognised in English and Australian law, then, is a property .. law, including the idea that normativity proceeded to declare that those differences were significant and that the reading of the legal, is said that the judgment recognised that the indigenous population had a P{>8\ :i(]nN{0cV03'OwBoXWsbl`-L=@=i`U[La'?i7F2dtai!IX}F extent been put into practice, that principles regarding the nature of indigenous land law: K Booker, A Glass, and R Watt, occupied territory, rather than a conquered or ceded one, were not to be recognized level. land, and that this is a question of fact, not inexorably to his fourth conclusion, that there was no doctrine of communal [69] That is why Garth Nettheim This was the case that laid out the flawed legal fiction of terra nullius. also had the rather perverse inability to adjust to the changed nature of have been
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