Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

Between: Milirrpum and Others (Appellants) and Nabalco Pty Ltd and the Commonwealth of Australia (Respondents). 

Judge: Blackburn J 

Judgment:

The Yolngu People brought an action in the Supreme Court of the Northern Territory claiming that they possessed native title rights over their traditional land. Blackburn J held that native title was not part of Australian law and even if it was, it would have been extinguished since the arrival of European settlers. Further, he said, the Yolngu had not maintained a connection to the land so native title could not be proven. Blackburn J did, however, recognise that the Yolngu had a system of law that had continued since the start of colonisation, but that this system did not provide them with property rights.

This remained the common law position on native title for more than 20 years, until the High Court's Mabo (No 2) decision in 1992 overturned terra nullius and recognised native title in Australia.

Background

The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-British settlement. In 1931, the Lyons Commonwealth Government  proclaimed around 90,000 square kilometres of the area as an Aboriginal Reserve. Bauxite was later discovered in Arnhem Land, and the Government began to alter laws to allow parts of the area to be granted to mining companies. 

In 1963, Prime Minister Robert Menzies announced plans to build a mine in Arnhem Land and removed 140 square miles from the Reserve. Later that year, the Yolngu People sent a bark petition to the Australian Parliament outlining their grievances with this decision. Now known as the Yirrkala bark petitions, they were the first Indigenous Australian documents to be formally recognised by the Australian Government. A Parliamentary standing committee was created and it tabled a report on the petitions, however the requests of the Yolngu People were ultimately ignored. 

In 1968, without consulting the Yolngu People, the Australian Government granted Nabalco total rights to mine Bauxite in parts of Arnhem Land. Later that year, the Yolngu brought an action against Nabalco and the Government in the Supreme Court of the Northern Territory. 

This case was the first in Australia to deal explicitly with land rights and native title. 

Details of Blackman J's Judgment 

Blackburn J delivered a 150-page long judgment in which he found that native title did not exist in Australian law, and even if it did, it would have been extinguished by statute, including by the Mining (Gove Peninsula Nabalco Agreement) Act 1968 (NT). Additionally, even if it was not extinguished the Yolngu People were unable to prove their continued spiritual connection to the land. 

Blackburn J considered himself bound by the Privy Court decision in Cooper v Stuart, which held that English common law arrived with the settlers and applies to all parts of the settled land (Blackburn J, 242). 

Blackburn J found that the Yolngu People had continued to observe a system of laws and customs, going as far as concluding that 'if ever a system could be called "a government of law, and not of men",' it was the Yolngu system (Blackburn J, 267). However, his Honour could not find it existed in Australian law, nor could he legally recognise that there were settled people in Australia before English settlement. Blackburn J rationalised his position by saying that less civilised people may be displaced for the furtherance of a more advanced group. 

Significant Developments

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. 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. 

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. The Commission produced two reports which among many findings said that Indigenous peoples had claim to vacant Crown land if they could prove their connection. 

In 1976, the Fraser Federal Government passed the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act), which allowed Indigenous people in the Northern Territory to make claims for lands they could prove a traditional connection with. 

In 1978, the Yolngu people were found to possess land rights under the Land Rights Act.

In Mabo (No 2), the Milirrpum decision was heavily referenced and Blackburn J's reasoning was ultimately overturned. The High Court instead decided that Australian common law was capable of recognising native title, which meant that Blackburn J's conclusion was incorrect.

Related Entries

Glossary