Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

Category: Case Law
Sub Category:Case Law | Litigated Determination
Place:
State/Country:Northern Territory , Australia
Alternative Names:
  • Gove Land Rights Case
  • Subject Matter:Mining and Minerals | Native Title
    Summary Information:

    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 Territoryclaimingthat they possessednative title rights over their traditionalland. Blackburn J held that native title was notpart of Australian lawand even if it was, it would havebeen extinguished since the arrival of European settlers.Further, he said, the Yolngu had not maintained a connection to the land sonative titlecouldnotbe proven.Blackburn J did, however, recognise that the Yolnguhad a system of law that had continued since the start of colonisation, but that this system did not providethem withproperty rights.

    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.

    Detailed Information:

    Background

    The Yolngu People lived in Arnhem Land in the Northern Territory for thousands of years and continued to live in the area post-Britishsettlement. In 1931, the Lyons Commonwealth Governmentproclaimed 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 barkpetition to the Australian Parliament outlining their grievances with this decision. Now known as the Yirrkalabark petitions, they were the first Indigenous Australian documents to be formally recognised by the Australian Government. A Parliamentarystanding 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 heldthat 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 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).However, his Honour could not find it existed in Australian law, norcould helegally recognise thatthere were settled people in Australia before English settlement. Blackburn J rationalised hisposition by sayingthat 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 Commissionproduced 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 theAboriginal Land Rights (Northern Territory) Act 1976(Cth) (the Land Rights Act), whichallowed 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 topossesslandrights under theLand Rights Act.

    In Mabo (No 2), the Milirrpumdecision was heavily referenced and Blackburn J's reasoningwas ultimately overturned. The High Court instead decided that Australian common lawwas capable of recognisingnative title, which meant that Blackburn J's conclusion was incorrect.


    Related Entries

    Organisation
  • Nabalco Pty Ltd - Respondent
  • Event
  • Yirrkala Bark Petitions
  • The Aboriginal Tent Embassy
  • Legislation
  • Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
  • Mining (Gove Peninsula Nabalco Agreement) Act 1968 (Cth)
  • People
  • Yolngu Traditional Owners
  • Yirrkala Bark Petition Signatories
  • Case Law
  • Mabo v Queensland [No 2] (1992) 175 CLR 1
  • Mabo v Queensland 166 CLR 186 (8 December 1988)

  • Glossary

    Native Title (Australia)