31:
364:, which at the time because of the membership of the Court was likely to reject Blackburn’s finding that there was a coherent system of Aboriginal law relating to land. By not having the appeal rejected by the High Court, the findings of Justice Blackburn that were favourable to the plaintiffs (and by extension to other
352:). The judgement concludes: "I cannot help being specially conscious that for the plaintiffs it is a matter in which their personal feelings are involved". In a confidential memorandum to the Government and Opposition, he opined that a system of Aboriginal land rights was "morally right and socially expedient".
322:
The terms "settled" and "desert and uncultivated" included territory in which resided "uncivilized inhabitants in a primitive state of society". In such a territory, the laws of
England (unless inconsistent with local laws) were imported when sovereignty was acquired. The doctrine of continuity did
323:
not relate to settled colonies, and therefore, "if there were no local laws then there were no rights of property to respect". A distinction between settled and conquered colonies was drawn. The decision also noted that the Crown had the power to extinguish native title, if it existed.
129:
there was a distinction between settled colonies, where the land, being "desert and uncultivated", was claimed by right of occupancy, and conquered or ceded colonies. The decision also noted that the Crown had the power to extinguish native title, if it existed.
597:
307:
Under the recognition doctrine, pre-existing interests were not recognised unless they were rights of private property and, while the community possessed a legal system, it was not proved that under that legal system, the claimant clans possessed such
722:
Milirrpum v. Nabalco Pty. 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 : judgment of the Honourable Mr. Justice
331:, but held that this did not amount to a proprietary interest. He also found that the evidence did not establish the landholding model asserted. Blackburn acknowledged for the first time in an Australian higher court the existence of a system of
326:
Blackburn examined comparative
Commonwealth, Canadian, New Zealand and US jurisprudence. He accepted that the applicants had established that under traditional law any given part of the land could be “attributed” to a particular
678:
National
Archives of Australia, confidential memorandum provided to government and opposition by Justice Blackburn urging the establishment of a statutory system of land rights, 1972, released 31 December
346:
Blackburn acknowledged the claimants' ritual and economic use of the land and that they had an established system of law "a subtle and highly elaborate" system of laws (
277:
The applicants asserted before the Court that since time immemorial, they held a “communal native title” that had not been validly extinguished, or acquired under the
318:
On the balance of probabilities, the applicants had not shown that, in 1788, their ancestors had the same links to the same areas of land that they were now claiming.
343:, normally inadmissible, but a vital precondition for a successful land rights case, and he also acknowledged the claimants' ritual and economic use of the land.
304:
A doctrine of common law native title had no place in a settled colony except under express statutory provisions (i.e. the recognition doctrine).
368:
peoples), and thus the concept of land rights, was maintained as a possibility, at least until the membership of the High Court had changed.
762:
757:
451:
262:
clan, who represented that clan as well as acting on behalf of 11 other peoples with interests in the land. The plaintiffs' lawyers were
289:
Justice
Blackburn found that the Yolngu people could not prevent mining on their lands. He held that native title was not part of the
633:
227:
144:
41:
555:
293:, and even had it existed, any native title rights had been extinguished. Further, even if extinguishment had not occurred, the
767:
192:
174:
107:
787:
568:
411:
clan leader, Munggurrawuy, who was one of the
Yirrkala plaintiffs. Galarrwuy had earlier helped his father draft the
375:
126:
719:
Northern
Territory. Supreme Court; Leslie, A. J.; Blackburn, Richard Arthur; Milirrpum; Nabalco Pty. Ltd. (1971),
281:(Cth), and should be recognised as an enforceable proprietary right. The lengthy legal battle culminated in 1971.
777:
392:
718:
480:"Blackburn's "error": The Ngaliwurru Nungali (Timber Creek) Caseand the future of compensation in native title"
219:
247:
457:
332:
554:
Fogarty, John; Dwyer, Jacinta (2012). "The First
Aboriginal Land Rights Case". In Sykes, Helen (ed.).
479:
311:
The clan’s relationship to land was therefore not a “right ... in connection with the land” under the
772:
166:
103:
698:
689:
438:
153:
732:
702:
647:
412:
361:
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200:
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There was a deliberate decision to pursue a political course rather than legal challenge to the
420:
533:
416:
365:
235:
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after the government had sold part of the Arnhem Land reserve on 13 March of that year to a
694:
8:
629:
404:
61:
442:(1992), where it was found to not precluded the common law recognition of native title.
383:
379:
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granted a special mineral lease to the company over the land for a period of 42 years.
184:
99:
507:
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on domestic laws, which was not contemplated in this decision, was later addressed in
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564:
424:
397:
196:
114:
77:
243:
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without consultation with the traditional owners at the time. However, in 1968 the
122:
16:
First
Australian Aboriginal land rights case, heard in the NT Supreme Court in 1971
733:"From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship"
782:
340:
336:
290:
231:
95:
751:
432:
387:
180:
135:
30:
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claimants on a number of issues of law and fact, rejecting the doctrine of
720:
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in 1973–4, and the eventual recognition of
Aboriginal Land rights in the
271:
251:
188:
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which was later passed (in a slightly diluted form) by the conservative
294:
267:
239:
223:
743:(1) – via Australasian Legal Information Institute (AustLII).
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208:
204:
668:– via Australasian Legal Information Institute (AustLII).
408:
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over their land, and sought the freedom to occupy their lands.
255:
125:. Instead his ruling recognised that in the law of the time of
118:
512:
ATNS (Agreements, Treaties and Negotiated Settlements project)
587:(ed) Very Burgmann and Jenny Lee Ringwood; Penguin, 1988 p203
259:
230:
against the Nabalco Corporation, which had secured a 12-year
386:. In 1975, shortly before he was dismissed, Prime Minister
328:
157:, when native title was recognised under Australian Law.
191:(which includes the Gove Peninsula), had petitioned the
266:, Frank Purcell, John Little and John Fogarty. The
648:"The Noongar Settlement: Australia's First Treaty"
749:
430:The impact of the international law doctrine of
335:. He also recognised the validity of the use of
300:Blackburn rejected the claim on the bases that:
646:Hobbs, Harry; Williams, George (1 March 2018).
508:"Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141"
583:Foley, Gary 'Teaching the whites a lesson' in
218:In December 1968, the Yolngu people living in
645:
553:
730:
682:
639:
621:
619:
452:List of Australian Native Title court cases
139:was not contemplated in the case. Although
106:, and the first significant legal case for
94:because its subject was land known as the
29:
549:
547:
477:
616:
598:"Native title in its historical context"
403:The court interpreter for the case was
557:More or less: democracy & new media
228:Supreme Court of the Northern Territory
145:Supreme Court of the Northern Territory
750:
544:
502:
500:
498:
496:
258:clan, and Daymbalipu, an elder of the
297:were not able to prove native title.
763:Aboriginal land rights in Australia
731:Van Krieken, Robert (1 July 2000).
590:
493:
193:Australian House of Representatives
175:Indigenous land rights in Australia
108:Aboriginal land rights in Australia
13:
758:Native title case law in Australia
712:
415:. He later became chairman of the
14:
799:
127:British colonisation of Australia
374:led to the establishment of the
254:clan; Munffaraway, elder of the
393:Aboriginal Land Rights Act 1976
355:
672:
577:
526:
471:
102:, was the first litigation on
1:
464:
160:
538:National Museum of Australia
143:was not appealed beyond the
110:, decided on 27 April 1971.
24:Milirrpum v Nabalco Pty Ltd.
7:
768:Northern Territory case law
626:Milirrpum v Nabalco Pty Ltd
445:
87:Milirrpum v Nabalco Pty Ltd
10:
804:
458:Where the Green Ants Dream
313:Lands Acquisition Act 1955
279:Lands Acquisition Act 1955
164:
147:, it was overruled by the
788:Indigenous Australian law
514:. University of Melbourne
478:Wong, Tammy (2019–2020).
376:Woodward Royal Commission
284:
167:Native title in Australia
104:native title in Australia
73:
68:
56:
48:
37:
28:
23:
737:UNSW Law Journal 3 (63?)
690:Mabo v Queensland (No 2)
439:Mabo v Queensland (No 2)
226:, obtained writs in the
154:Mabo v Queensland (No 2)
113:The decision of Justice
413:Yirrkala bark petitions
362:High Court of Australia
222:, represented by three
213:Commonwealth government
171:Yirrkala bark petitions
149:High Court of Australia
778:1971 in Australian law
421:Australian of the Year
701:1 (3 June 1992),
695:[1992] HCA 23
417:Northern Land Council
366:Aboriginal Australian
270:claimed they enjoyed
151:two decades later in
92:Gove land rights case
632:141 (27 April 1971)
400:on 9 December 1976.
90:, also known as the
585:Staining the wattle
534:"The Marika family"
419:and in 1978 became
405:Galarrwuy Yunupingu
726:, Law Book Company
563:. Future Leaders.
384:Northern Territory
380:Whitlam government
236:Federal Government
185:traditional owners
117:ruled against the
100:Northern Territory
653:Sydney Law Review
425:Indigenous rights
398:Fraser government
115:Richard Blackburn
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795:
773:1971 in case law
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423:for his work on
291:law of Australia
244:Milirrpum Marika
207:mining company,
123:Aboriginal title
69:Court membership
33:
21:
20:
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713:Further reading
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341:property rights
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264:Edward Woodward
234:lease from the
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165:Main articles:
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333:Aboriginal law
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96:Gove Peninsula
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634:Supreme Court
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604:. 22 May 2015
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570:9780980332070
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388:Gough Whitlam
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42:Supreme Court
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27:
22:
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662:. Retrieved
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606:. Retrieved
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516:. Retrieved
511:
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390:drew up the
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356:Consequences
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18:
272:sovereignty
252:Rirratjingu
189:Arnhem Land
78:Blackburn J
752:Categories
723:Blackburn.
703:High Court
628:(1971) 17
465:References
295:plaintiffs
268:plaintiffs
240:plaintiffs
224:plaintiffs
195:in August
161:Background
60:(1971) 17
372:Milirrpum
141:Milirrpum
446:See also
220:Yirrkala
57:Citation
664:25 July
608:26 July
518:26 July
378:by the
349:Madayin
308:rights.
250:of the
209:Nabalco
205:bauxite
199:with a
98:in the
49:Decided
783:Yolngu
567:
409:Gumatj
285:Ruling
256:Gumatj
238:. The
183:, the
173:, and
119:Yolngu
693:
636:(NT).
561:(PDF)
483:(PDF)
260:Djapu
248:elder
242:were
38:Court
679:2001
666:2020
610:2020
602:ALRC
565:ISBN
520:2020
329:clan
197:1963
179:The
44:(NT)
699:CLR
660:(1)
630:FLR
187:of
64:141
62:FLR
754::
741:23
739:.
735:.
658:40
656:.
650:.
618:^
600:.
546:^
536:.
510:.
495:^
485:.
427:.
246:,
169:,
705:.
612:.
573:.
540:.
522:.
489:.
315:.
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.
