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Gove Land Rights; Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141

Gove Land Rights; Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141

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Published by evelyn_enduatta
[FEDERAL LAW REPORT]
SUPREME COURT OF NORTHERN TERRITORY
MILIRRPUM AND OTHERS v. NABALCO PTY. LTD.
AND THE COMMONWEALTH OF AUSTRALIA

The Gove land rights case - Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 - was the first litigation on Native Title in Australia. Justice Blackburn ruled against the Yolngu claimants on a number of issues, rejecting the doctrine of Aboriginal Title in favor of terra nullius. His ruling says a great deal about the Balanda (white people, European) concept of ‘private property’ and the social relations that comprise it.
[FEDERAL LAW REPORT]
SUPREME COURT OF NORTHERN TERRITORY
MILIRRPUM AND OTHERS v. NABALCO PTY. LTD.
AND THE COMMONWEALTH OF AUSTRALIA

The Gove land rights case - Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 - was the first litigation on Native Title in Australia. Justice Blackburn ruled against the Yolngu claimants on a number of issues, rejecting the doctrine of Aboriginal Title in favor of terra nullius. His ruling says a great deal about the Balanda (white people, European) concept of ‘private property’ and the social relations that comprise it.

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11/08/2013

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17
F.L.R.]
FEDERALLAWREPORTS
141
[SUPREME
COURTOF
NORTHERN
TERRITORY]
MILIRRPUM
AND
OTHERS
v.
NABALCO
PTY.
LTD.
AND
THE
COMMONWEALTHOFAUSTRALIA
Aborigina18-Triballands-Colonial
settlement-Title
of
Crown--
N.T.
Sur.CT
Effectonparticularareasusedbyaboriginal
natives-Relation
of
nativeclans
to
particularareas-Necessityforcontinuity
of
1970,
relationship-Doctrine
of
communalnativetitle-Generalprin-
JlAJlW;~,
.
ciples-
Whetherdoctrinepart
of
law
of
any
part
of
Australia-
;Y
21:59,
Whetherapplicable
in
settledcolonyexceptbystatutoryrecognition
~~o;'
-Extinguishment
by
statute-
Whetherenactmentmust
be
CANBERRA,
explicit--Aboriginalsocialrulesand
customs-
Whether
recog-
Sept.
7.10,
·--1.l
if
la
Rlat·
h'
ndt
if
nat'
14-18,21-25,
m=u
eassystem
0
w--
e
wns
"'P
u
er
sysem
0
we
28;
clans
to
land-Whether
recogniuibleasright
of
property-Lands
Oct.
1,27-30;
Acquisition
Act
1955-1966,
s.
5
(1)
"
Interest
".
9~~\i~o,
C()'fj,8titutional
Law--Acquisition
of
colonialterritory-Generalprin-
23-25;
ciples-Colonialpoliciesrelating
to
nativelands-Establishment
1971,
of
Province
of
South
Australia-By
LettersPatent
of
1836
S~~~s
(Imp.)-Effectof
provisoreservingrights
of
aboriginalnatives
to
April
27'.
occupationandenjoyment
of
land-
Whetherapplicable
to
after-acquired
territory-
Whetherconstitutionalguarantee
of
aboriginal
BlackbUl'n
1.
rights-
Whethermereaffirmation
of
principle
of
benevolence-Effect
of
subsequentImperiallegislationgrantingsuccession
of
legislativepowersoverterritory-Surrender
of
NorthernTerritory
to
Commonwealthr----Application
of
LandsAcquisition
Act
to
NorthernTerritory-Whetherexclusive
code
forcontrol
of
acquisi-tion
of
land
in
Northern
Territory-Effect
of
subsequentlegislation
of
NorthernTerritory-NorthernTerritory(Administration)Act
1910-1949,
s.
9-Lands
AcquisitionAct
1906-1916-
Minerals(Acquisition)Ordinance
1953
(N.T.).Minesand
Minerals-Mineral
leases-By
Crownoverprivate
land
Effect
of
validatinglegislation-Provisionthat
lease
haveeffectaccording
to
terms-Mining
(Gove
PeninsulaNabalcoAgreement)Ordinance
1968
(N.T.),
s.
6(2).
Evidence-Hearsay--
Reputationevidenre-Statementsby
deceased
ancestors-Aboutmatters
of
publicandgeneral
rights-Testimony
of
aboriginalnatives
of
ancestors'statements-Aboutclanrights
to
particularareas
ofland-About
systemrelating
to
such
rights
Expertopinionr-Anthropological
testimony-
Whether
hearsay
Whetherfoundedonnon-apparent
facts-Testimonyin
terms
of
concepts-Admissibility.
Aboriginal
natives
of
Australiarepresentingnative
clans
sued
a
miningcompany
andthe
Commonwealthclaiming
relief
in
relation
to
the
pos.
session
and
enjoyment
of
areas
of
Arnhem
Land
in
the
Gove
Peninsula
F.LR.
Vol.
17-10
 
142
FEDERAL
LAWREPORTS
[1971
N.T.
SUF.CT
1971
}\{JLIRRPUlI
V.
NABALCO
PTY.LTD.
overwhichmineral
leases
had
been
grantedby
the
Commonwealth
tothe
company,whichminedfor
bauxiteinthe
area.
The
areas
consisted
of
a
number
of
tractsof
land,eachlinked
to
a
native
clan,
thetotalof
which
exhausted
the
areas
in
question.
The
boundariesbetween
thetracts
were
not
precise
but
weresufficientfor
native
purposes.
The
nativesassertedon
behalf
ofthe
native
clans
they
represented
that
thoseclans
and
noothers
had
intheir
several
waY3
occupied
the
areasfromtimeimmemorial
as
of
right.
The
natives
con
tended,as
"the
doctrine
of
communal
nativetitle
",that
at
commonlaw
the
rights
under
nativelaworcustom
of
native
communities
tolandwithinterritory
acquired
by
the
Crown,
provided
that
thoserightswere
intelligible
and
capable
of
recognition
by
the
commonlaw,were
right3
whichpersisted
andmust
be
respected
by
the
Crownitself
andby
its
colonizing
subjects
unless
and
until
they
werevalidly
terminated.The
natives
further
contended,
as
part
of
that
doctrine,
that
thoserightscould
beterminated
only
bythe
Crown
(a)
by
consent
of
the
native
people
orby
forfeiture
after
insurrection
or,
perhaps,
(b)
by
explicit
legislation
or
by
an
act
ofState,
and
that
the
rights
ofthenative
people
to
use
and
enjoy
the
landin
the
manner
in
which
their
ownlaw
orcustomentitledthem
to
dowas
a
right
of
property.The
nativescontended
further
that
the
Minerals
(Acquisition)
Ordinance
1953
(N.T.)
wasinvalid,
that
thebauxite
ores
and
the
land
in
which
they
existed
had
neverceased
to
belong
tothe
natives,
that
the
Mining
(0000
Peninsula
Nabalco
Agreement)
Ordinance
1968(N.T.)
and
leases
grantedin
that
behalf
bythe
Commonwealth
were
invalid
and,
accordingly,
that
the
company's
operations
were
unlawful.
Held:
(1)
Testimony
by
aboriginalnatives
of
statementsmade
by
deceased
ancestors
aboutthe
rights
of
variousclans
toparticular
areas
of
land
and
aboutthesystemof
whichthoserightsformed
part,
woos
admissible
underthe
exception
to
the
hearsayrulerelating
to
deClarations
of
deceasedpersons
aboutmatters
of
public
and
generalrights(commonly
knownasreputation
evidence).
The
special
body
of
law
knownasthe
law
of
"
traditional
evidence"by
which
native
law
and
custom
may
beestablished
before
a
tribunal
responsiblefor
theadministration
of
suchlaw
and
custom
does
not
form
part
of
the
commonlaw
as
it
is
understood
in
Australia.
(2)
Evidencefrom
an
anthropologistin
the
form
of
a
proposition
of
anthropology-a
conclusion
having
significance
in
that
field
ofdiscourse-
was
not
inadmissible
(a)
as
hearsay,
by
the
circumstance
that
the
evidencewas
founded
partlyonstatementsmadeto
the
expertbythe
aboriginals,
(b)
as
opinionfounded
on
factswhichwere
not
apparent,
since
the
factawere
ascertained
by
the
methods
and
described
in
termsappropriate
to
the
expert's
field
of
knowledge,
(c)
as
conceptual
in
terms
rather
than
factual,provided
that
theexpert
spoke
interms
of
concepts
appropriate
bothto
his
field
of
knowledge
andthe
court's
understanding.
(3)
In
the
circumstances
of
the
case,
the
natives
hadnot
established
that,
on
the
balance
of
probabilities,
their
predecessors
had,
at
thetime
of
the
acquisition
oftheirterritory
by
the
Crown
as
part
of
the
colony
of
New
South
Wales,
the
same
links
tothesame
areas
of
landas
tho~
claimed
by
the
natives.Customs,
beliefs
and
social
organization
of
the
aboriginalnativee
of
Australia
in
general,
and
of
the
areas
claimed
in
particular,
considered.
 
17
F.L.R.]FEDERALLAWREPORTS
143
The
doctrine
of
communal
native
titlecontendedfor
bythe
nativesdidnot
form,
and
never
had
formed,
part
ofthe
law
ofany
part
of
Aus-
tralia.Such
a
doctrine
has
noplace
in
a
settledcolony
exceptunder
express
statutory
provisions.
Throughout
the
history
ofthe
settlement
of
Australiaany
consciousness
of
a
nativeland
probleminspired
a
policy
of
protection
and
preservation,
without
provisionfor
the
recognition
ofany
communaltitleto
land.Principlesapplicable
to
the
acquisition
of
colonial
territory
(both
settledor
occupied
and
conquered
or
ceded)
and
colonial
policies
relating
to
native
lands,consideredindetail,
andin
relation
thereto
the
following
matters
considered:
the
application
of
Englishlaw
in
the
overseaspossessions
ofthe
Crown;
colonial
policy
with
regard
to
nativelands
inNorthAmerica;
the
commonlaw
before
and
after1788;
American
casessince
therevolution;
Canadian
cases;
Indian
cases;Mricancases;
the
lawin
NewZealand;the
Australian
authorities;the
Aus-
tralian
historicalmaterial.
(4)
In
the
circumstances
ofthe
case,
the
natives
had
established
a
subtle
and
elaborate
system
of
socialrules
and
customswhichwashighly
adaptedto
the
country
inwhich
the
people
lived
and
whichprovided
a
stable
order
of
society
remarkably
free
from
the
vagaries
of
personal
whim
or
influence.
Thesystem
was
recognized
asobligatory
by
a
de-finable
community
of
aboriginals
which
maderitual
and
economic
use
ofthe
areasclaimed.
Accordingly,
the
systemestablishedwas
recog-nizable
as
a
system
of
law.
However,
the
relationship
of
thenative
clans
to
the
landunder
that
system
was
not
recognizable
as
a
right
of
property
and
was
not
a"
right,power
or
privilege
over,
or
in
connexionwith,
the
land"
within
the
meaning
of
the
definition
of
"
interest"
in
land
containedin
s.
5
(I)
ofthe
Lands
Acquisition
Act
1955-1966,
relating
to
the
acquisition
of
land
on
just
terms.
Thenatives
had
established
a
recognizable
system
of
lawwhich
did
not
providefor
any
proprietaryinterestin
the
clans
in
any
part
of
the
areasclaimed.
(5)
TheLetters
Patent
of
1836
by
which
the
Province
of
South
Aus-
tralia
wasestablished
and
itsboundaries
defined,
by
its
proviso
that
nothing
thereincontainedshouldaffect
orbe
construed
to
affect
"the
rights
ofany
Aboriginal
Natives
ofthe
saidProvince
to
the
actual
occupation
or
enjoymentintheir
ownpersons
or
in
the
persons
of
their
descendants
of
anyLandtherein
nowactually
occupied
or
enjoyed
by
such
Natives
",
(a)
did
not
extend
to
territory
whichbecame
part
of
South
Australiathereafter,
(b)
did
not
operate
as
a
constitutional
guaranteeof
aboriginalrights,
but
(c)
wasnomore
than
the
affirmation
of
a
prin-
ciple
of
benevolenceinserted
inthe
Letters
Patent
to
bestow
upon
it
a
suitably
dignified
status.
Moreover,
laterImperial
legislation,
granting
a
succession
of
legislative
powers
effective
over
the
areas
claimed,
neces-
sarilyimplied
the
repeal
ofany
constitutional
limitationon
legislative
powercontained
in
the
proviso
totheLetters
Patent.
(6)
Section
9
of
the
NorthernTerritory(Administration)
Act
1910-1949,
whichprovides
that
the
provisions
ofthe
Lands
Acquisition
Act
1906-1916
shall
applyto
the
acquisition
by
the
Commonwealth,for
any
publicpurpose,
ofany
landsowned
intheTerritory
byany
person,
did
not
provide
an
exclusive
code
for
the
control
of
acquisition
oflandinthe
N.T.
SUP.
Or
1971
MILIRRl'Ulll
tI.
NABALCO
I'TY.
LTD.

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