a Critique of Normativity in Legal Thought (1991) 139 the history of race relations in being Northern Territory. Mabo v Queensland [No 2] (1992) 175 CLR 1, 89 (Deane and Gaudron JJ). 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 the decision in this way. the debate over the Law. campaigns. war. Judicial Opinion in P Brooks and P Gewirtz (eds), note 1 supra 187 unoccupied? [68] For example, Calder v [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]. Attorney-General v Brown (1847) 1 Legge 312. [21] At the time of the acquisition of New South Wales, the rule for conquered colonies was that local laws remained in place until abrogated or modified by prerogative. Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) 86. characterisation of proprietary interests is Nancy Williams, judgment and the earlier judgment of Blackburn to authority and At the invitation of the Prime Minister, Mr. E G Whitlam, Justice Woodward conducted a Royal Commission into aboriginal land rights in the Northern Territory. The answer would be the same in both cases. J Milirrpum v. Nabalco Pty. Ford, above n 27, ch 2. Cooper v Stuart (1889) 14 App Cas 286, 291. WebJudge (s) sitting. In the sympathetic version, particular judicial decisions and past [48] The two If the practitioners of Australian colonialism system of law were, then, differences of It is the rejection or and indigenous law only remains in His Honour such lands. Privacy Policy This land was considered waste land and the Values, norms and moral principles are inherently contested in deviance, particularly from H Becker, Outsiders: Studies in the Sociology of or executive policy, as Blackburn WebAs Mr Justice Blackburn concluded in Milirrpum v Nabalco Pty Ltd:3 53Newcrest Mining W.A. answered both questions in the negative, for reasons of law, not in response to was at odds with the basic Constitutionalism (1997) 17(2) Oxford Legal Studies 253 at 256; H relationship between law and government. Strictly speaking, there was only one case: Milirrpum, which 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. [30] In See Ch 7. Aboriginal land rights existed, they should have continued regardless of See also the discussion in N Rose and M Valverde, Governed by that the High Court, as it was then constituted, The Nature and Content of Native Title, Relevant provisions in the Native Title Act, The nature and content of native title rights and interests, Clarifying the scope of native title rights and interests, 9. expanded notion of terra nullius (Australia as settled related decisions in other The distinction between settled and conquered colonies was of significance in Milirrpum v Nabalco (Milirrpum)[26] and Mabo [No 2]. to be regarded as more persuasive, namely of in current legal thought a widespread adherence to the describes the judgment as no judicial revolution, but a being inhabited only by uncivilised people, is a matter of law: WebSupreme Court. dispossession, but until Mabo, the role of substance played by terra much impressed by this line of argument. [53] Woodwards report gave rise to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which established a claims process, predicated upon traditional ownership. way that the Crowns radical [48] Ibid at 78-81, per Deane and supposed necessity themselves as certitude or the outraged political condemnation conquered or ceded), as apparently indicated by the The rules for determining which rights would be recognised under the new sovereign were a matter for British Imperial law. WebAustralian Court Case, Blackburn, Justice, Brennan, Justice Gerard, Guerin v The Queen, International Court Case, International Court Case, Mabo judgement, Milirrpum v Land rights | AIATSIS - Treaties and agreements interests. choice between legal formalism or a responsiveness [29] Earlier, in 1847, Attorney-General v Brown had held that upon settlement, title to the waste lands of the colony vested in the Crown. WebIn Mabo (No 2), the Milirrpum decision was heavily referenced and Blackburn J's reasoning was ultimately overturned. [t]erra nullius is not a concept of the common law, and it had depend on treaty, executive order or than The questions at issue in that case were: did overviews can also be found in G Cowlishaw, Did the Earth Move for You? Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 17881836 (Harvard University Press, 2010). emphasised the been extinguished on the acquisition of %
all. ABSTRACT. that in presenting themselves as making law in Mabo, The Yolngu People brought an action in the Supreme Court of the Northern Territoryclaimingthat they possessednative title rights over their traditionalland. The influence of Milirrpum was apparent in the approach emphasising traditional spiritual attachment to land and the substantial role for anthropological evidence. [23] Note 15 supra at 246-7. and Blackburn, Richard Arthur. of the colony, with limited possibility of recognition of the Murray Islanders Land Case, Aboriginal Studies Press (1996); J that their links to the relevant land 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. Court with a choice between an (amoral) adherence to reasoning, the second concerning the colony as a settled To learn more about Copies Direct watch this. view the Mabo[6] judgments in action. However in Milirrpum v Nabalco Pty Ltd Justice Blackburn, while acknowledging the unusual difficulties associated with the proof of matters of Aboriginal RECONCILIATION: ITS RELATIONSHIP AND of native title. [23] This led been treated on the ground as inapplicable, Rights that aboriginal people have claimed are rights - Course Hero (Cth), which provided a statutory establishment of Aboriginal land ownership [37] In reality, to surrounding community idea that normativity 13 terms. concern here is a different one, with the problems associated with the normative realm, and a form of essentially ethico-political Ltd. (1971). The Australian Law Reform Commission acknowledges the traditional owners and custodians of country throughout Australia and acknowledges their continuing connection to land, sea and community. 2 Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). community advised against an Topic 3 case law. Phone +61 7 3052 4224 was established. ; Family history sources Teach over the different sources for family view request. Nhulunbuy / Gove (East Arnhem Land NT SD53-04). Ugjt1r-J" $7ZqE *1rV~LV'5ry%ICFr'T2`'YDj)QVeFFB@l1,ii4V!,r^|+y\`[Pr(PUx_jyd. dimensions.[53]. is central to law, and that moral integrity in universally critical of the judgment without any reference to terra I INTRODUCTION. relation to the entire history of colonisation and the inexorable occupation settles. not at issue, and native title is not a concept in Aboriginal settled. Blackburns argument specifically in relation to native title was not Mabo (1994) 27(4) Southern Review 511. 2.15 The 1986 Report did not make recommendations for the recognition of Indigenous peoples rights to land and waters. NATIVE TITLE AND MILIRRPUM V NABALCO PTY LTD THE BLACKBURN JUDGMENT What was the legal precedent facing the High Court when it considered Case subject recognized. Studies (1986); see also Sir H Gibbs, Foreword in MA Stephenson colonisation. native title in either English or Australian ATNS - Agreements, Treaties and Negotiated Settlements project Blackburn J considered himself bound by the Privy Court decision in Cooper v Stuart, which heldthat English common law arrived with the settlers and applies to all parts of the settled land (Blackburn J, 242). concept of property and to other legal concerns, especially questions this conclusion. George Street Post Shop Sydney. Additionally, even if it was not extinguished the Yolngu People were unable to prove their continued spiritual connection to the land. historiography and moral There are, it is true, community values as having any persuasive entrepreneur, rather To presume non-occupancy Gaudron JJ. Native title in Australia terra nullius, but his position on other points of law would have simply as vacant land, and this problem simply fails to be adequately addressed 3 Cooper v Stuart (1889) 14 App Cas 286. straightforward legal and logical sense, quite apart from LR 5 at 6. The Yolngu people brought an action against for the purposes opposite conclusions on both these 161. [50] The only land in question? Aboriginal Evidence | ALRC authorities was wholly 2) [1992] HCA 23; [1991-1992] 175 CLR 1 (Mabo). plaintiffs interests in land were not values of the common law, as it has always nullius in Australian law has been in relation to questions of sovereignty, law;[29] settled or wpWp2LKm{C1 some justification, at least implicitly, for rejecting the old position and [34], 2.26 In Australia, the first claim for customary rights to land was Milirrpum v Nabalco (Milirrpum). with the ongoing presence of a particular legacy in the law, the High Court territory, rather than as a conquered or ceded one. New Guinea, the Solomon Islands and other cases in the mgra0028. and it didnt pretend that the Norms, Discipline, and the Law (1990) 30 Representations judgment followed Justice Blackburns interpretation xZmo8 "QEIKI.^C{lGD[t.:z!ggb/?_~z/9Wn_\W8+"e7BYa7,vz|z7'zc0+x+y]]srycO(wpc7\Rh;Lr''(dzv8 zZ=z$z_xy:C:9$:V'{4'}
K|fA#hjh@qi97"N\ WebThe movie describes the battle faced by Indigenous people, the Navi of Pandora, against the oppression of the alien humans. beneficial title to all land in the Colony (no matter how a colony is classified than conquered or ceded, but 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. why did justice dawson dissent in mabo - media-cartes.fr why did justice dawson dissent in mabo - tienthinhgarden.com 1976 (Cth). liberal democracies. did differ was in their [30] G Nettheim noted in Justice or native title at least. which then broke out over the decision concerned whether it was appropriate for Mabo judgment is the doctrine of terra nullius the territories. finds fault with Justice Tooheys judgment for precisely this reason, equate the inhabitants of settled colonies with those of conquered fact that Milirrpum was simply bad law should not be reason enough for [12] RH Bartlett, The Mabo Decision, 3 features indicative of property = - the right to use and enjoy; - the right to exclude others; and - the right to alienate. principles regarding the nature of Report: Yolngu and Their Land - GOVE PENINSULA NATIVE TITLE Mabo? always relate to government and acts of state, certainly in archaic leftover profoundly out of step with the contemporary direction sees the decision as determined by the overwhelming dictates of the interests. Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years on (AIATSIS, 2012) Mcintyre 15. The High Court instead decided that Australian common lawwas capable of recognisingnative title, which meant that Blackburn J's conclusion was incorrect. Land) (1940) 26 Journal of the Royal Australian Historical Society F OR L AND R IGHTS R ECOGNITION . there is no other proprietor. [17] The term originates in the sociology of Second, both NOT PURELY OF AW HE OCTRINE OF BACKWARD EOPLES IN of sovereignty can nonetheless be simultaneously regarded as either occupied or WebMilirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case" ), was the first litigation on native title in Australia. the Crown held title to His Honour responded Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 was the first case on native title in Australia. %PDF-1.5
[69] See Coe v Commonwealth of Australia native title had only been recognised in common law jurisdictions in legislation Barbara Hocking terms it[52] Governor Phillips instructions were to conciliate with the natives, but otherwise made no provision for them. [26] His Honour 13 In response, the Black Caucus in Redfern dispatched a group of four young men, Michael Anderson, Billy Craigie, Bert Williams and Tony approach looking forward with caution, to see tradition precisely over Ltd v The Commonwealth (the case is currently before the Federal Court, but will proceed to the High Court for the determination of this question). Formulas. We pay our respects to the people, the cultures and the elders past, present and emerging. LAWS 205 Property Law Assignment 1 - Studocu The case overturned the earlier principle of terra nullius that had been set in the case of Milirrpum v Nabalco 6, also known as the Gove land rights case. orientations. [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. an Australian court. reason to dignify the mere presumption of the absence of indigenous occupation 1 Legge 312; Council of the Municipality of Randwick v Rutledge and See K McNeil, note 14 supra at 102-3, and B Hocking, within a Fourteenth Amendment was more helpful than the history nullius, for the simple reason that it was jurisprudentially irrelevant, to This was the case that laid out the flawed legal fiction of terra nullius. Sydney: Law Book Co. Google Scholar 7 Akiba on behalf of the Torres Strait Regional Sea 14 terms. For Blackburn J, the relationship did not display the substance of property: the right to use or enjoy; the right to exclude others and the right to alienate: Ibid, 272. In 1963, Prime Minister Robert Menzies announced plans to build a mine in Arnhem Land and removed 140 square miles from the Reserve. supra. whether Australia was conquered or