Aboriginal Land*

AuthorJohn Toohey
Publication Date01 Sep 1985
DOI10.1177/0067205X8501500301
SubjectArticle
ABORIGINAL LAND*
BY
JOHN
TOOHEY··
1INTRODUCTION
Ishall begin with ariddle, in fact three riddles:
1What sort
of
interest in land
is
held as an estate in fee simple but
is
inalienable?
2What sort
of
interest in land
is
held by aregistered proprietor who
has no power to make decisions relating to it, except with the consent
of
another, and who must act
at
the direction
of
that other?
3What sort
of
interest
in
land does not carry with it ownership
of
miner-
als but can preclude mining thereon?
The answer to each
of
these questions
is
-Aboriginal land under the
Aboriginal Land Rights (Northern Territory) Act
1976
(Cth) ("the Land
Rights Act").
The purpose
of
this paper
is
not to trace the course
of
judicial history in
this country, from the robust assertion
of
the Privy Council that the colony
of
New South Wales "consisted
of
atract
of
territory practically unoccupied,
without settled inhabitants or settled law, at the time when it was peacefully
annexed to the British dominions"l to the judgment
of
Blackburn Jin
Mi/irrpum vNaba/co
Ply
Ltd.2His Honour found that evidence relating to
Aboriginals in the Gove Peninsula showed a"government
of
laws, and not
of
men", but that the right
of
the clan to use
or
enjoy land bore so little
resemblance to property, as Anglo-Australian law understands the term, that
the claims made before him were not in the nature
of
proprietary interests.3
The decision has been much debated and there
is
before the High Court,
though not yet heard, afurther attempt to assert the existence
of
Aboriginal
title to land within the conventional legal framework.4
The notion
of
Aboriginal people as
"a
domestic dependent nation", a
concept familiar in the United States since the decision
of
Chief Justice
Marshall in Cherokee Nation vState
of
Georgia5has found no place in
Australian law.6And in this country there has been no history
of
treaties,
as in Canada and the United States, which give some acknowledgement
to
*This article
is
aslightly revised version
of
apaper delivered by the author
at
the Supreme
Court Judges' Conference in January 1984.
**Mr Justice Toohey
is
aJudge
of
the Federal Court
of
Australia and
of
the Supreme Court
of
the Northern Territory. FromApril
1977
to April
1982
he was the Aboriginal Land Com-
missioner in the Northern Territory. In
1983
he wrote, at the request
of
the Federal Minister
for Aboriginal Affairs, areport making recommendations about the Aboriginal Land Rights
(Northern Territory) Act
1976
(Cth) and related matters. The report was published as Seven
Years On (1984).
ICooper vStuart (1889)
14
AC 286, 291.
2(1971)
17
FLR 141.
3
Ibid
267, 273.
4Mabo andothers vQueens/and and the Commonwealth
(1982)
4Aboriginal Law Bulletin
1.
S(1831) 5Peters Supreme Court Reports
1,
17.
6Coe vCommonwealth
of
Australia (1979)
53
ALJR
403, 408.

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