Milirrpum v Nabalco Pty Ltd facts for kids

Quick facts for kids Milirrpum v Nabalco Pty Ltd.
Court	Supreme Court (NT)
Decided	27 April 1971
Citation(s)	(1971) 17 FLR 141
Court membership
Judge(s) sitting	Blackburn J

The case of Milirrpum v Nabalco Pty Ltd, also known as the Gove land rights case, was a very important legal battle in Australia. It was the first time a court looked closely at native title and Aboriginal land rights. The case was about land in the Gove Peninsula in the Northern Territory. The decision was made on 27 April 1971.

Justice Richard Blackburn ruled against the Yolngu people, who were the Aboriginal claimants. He said that the idea of Aboriginal title (Aboriginal ownership of land) was not part of Australian law at that time. He also said that when the British came to Australia, they saw the land as "desert and uncultivated." This meant they could claim it as their own. The court also noted that the government had the power to take away native title, even if it did exist.

The idea of terra nullius (meaning "nobody's land") was not directly discussed in this case. However, the Milirrpum decision was later overturned. This happened about 20 years later by the High Court of Australia in the Mabo v Queensland (No 2) case. The Mabo case found that the idea of terra nullius was wrong.

Why the Case Happened

The Yolngu people are the traditional owners of Arnhem Land, which includes the Gove Peninsula. In 1963, the Australian government sold part of this land to a company called Nabalco. This company wanted to mine for bauxite, a type of rock used to make aluminium. The government did this without asking the Yolngu people first.

Because of this, the Yolngu people sent a special message to the Australian Parliament. This message was called the bark petition. It was made on sheets of bark in August 1963. Even so, in 1968, the government gave Nabalco a special lease to mine on the land for 42 years.

In December 1968, the Yolngu people from Yirrkala decided to take legal action. Three Yolngu elders, Milirrpum Marika, Munffaraway, and Daymbalipu, started a case in the Supreme Court of the Northern Territory. They represented their own clans and 11 other groups who had connections to the land. They argued that they had always owned their land and wanted to be free to live on it.

The Yolngu people told the court that they had a "communal native title" to their land. This meant they believed their community had owned the land for a very long time. They argued that this ownership had not been properly taken away by the government. They wanted the court to recognise their rights to the land. This long legal fight ended in 1971.

What the Judge Decided

Justice Blackburn decided that the Yolngu people could not stop the mining on their lands. He ruled that native title was not a part of Australian law at that time. He also said that even if native title had existed, any rights had already been "extinguished" (taken away). On top of that, he felt the Yolngu people could not fully prove their native title.

Blackburn gave several reasons for his decision:

• He said that native title could not exist in a "settled colony" unless specific laws were made to recognise it. Australia was seen as a "settled colony."
• He believed that old land rights were only recognised if they were private property rights. He said that while the Yolngu had a legal system, it was not proven that their system gave them private property rights over the land.
• He also said that the Yolngu's connection to the land was not a "right... in connection with the land" under the Lands Acquisition Act 1955.
• Finally, he said that the Yolngu people could not prove that their ancestors had the same strong links to the exact same areas of land in 1788 (when the British arrived) as they were claiming in court.

The judge explained that "settled" colonies included places where "uncivilized inhabitants in a primitive state of society" lived. In such places, English laws were brought in when the British took control. He said that if there were no local laws about property, then there were no property rights to respect. He made a difference between "settled" and "conquered" colonies. He also noted that the government had the power to take away native title if it existed.

Justice Blackburn looked at similar cases from Canada, New Zealand, and the United States. He agreed that the Yolngu had shown that, under their traditional laws, certain parts of the land belonged to specific clans. However, he said this did not mean they had a "proprietary interest" (a legal right of ownership). He also found that the way they described their land ownership was not fully proven.

Even though he ruled against them, Blackburn was the first judge in a higher Australian court to recognise that Aboriginal law existed. He also said that oral evidence (stories passed down by word of mouth) could be used to prove property rights. This was very important for future land rights cases. He also recognised that the Yolngu people used the land for their ceremonies and for getting food and resources.

Blackburn understood the Yolngu people's deep connection to the land. He knew they had a "subtle and highly elaborate" system of laws called Madayin. He ended his judgment by saying he knew how much the case meant to the Yolngu people personally. In a private note to the government, he even said that a system of Aboriginal land rights was "morally right and socially expedient" (meaning it was fair and good for society).

What Happened Next

After the Milirrpum case, the Yolngu people and their supporters decided not to appeal the decision to the High Court of Australia. This was a careful choice. They thought the High Court at that time might completely reject Justice Blackburn's idea that Aboriginal law about land existed. By not appealing, they kept the possibility of land rights alive for the future, hoping the High Court's members would change.

The Milirrpum case led to the creation of the Aboriginal Land Rights Commission, also known as the Woodward Royal Commission. This commission was set up by the Whitlam Government in 1973–74. Its work eventually led to the recognition of Aboriginal Land rights in the Northern Territory. In 1975, Prime Minister Gough Whitlam started to create the Aboriginal Land Rights Act 1976. This law was later passed in 1976 by the Fraser Government, though it was slightly changed.

Galarrwuy Yunupingu was the court interpreter for the case. He was the son of Munggurrawuy, a Gumatj clan leader and one of the Yolngu plaintiffs. Galarrwuy had also helped his father write the Yirrkala bark petitions. He later became the chairman of the Northern Land Council and was named Australian of the Year in 1978 for his work on Indigenous rights.

The idea of terra nullius was not a main part of the Milirrpum decision. However, it became a key issue in the Mabo v Queensland (No 2) case in 1992. The Mabo decision overturned the Milirrpum ruling and said that terra nullius was false.

See also

• List of Australian Native Title court cases
• Where the Green Ants Dream