Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case
| Author | L. J. Priestley |
| DOI | 10.1177/0067205X7400600105 |
| Published date | 01 March 1974 |
| Date | 01 March 1974 |
| Subject Matter | Article |
COMMUNAL NATIVE
TITLE
AND
THE
COMMON LAW:
FURTHER
THOUCHTS ON
THE
GOVE LAND RIGHTS CASE
BY
L. J.
PRIESTLEY*
Mr Priestley disagrees with the view expressed by Dr Hookey
in
his article "The Gove Land Rights Case", that to a limited extent
the common
law
recognized native communal title
to
land.
Instead
he suggests that the decision
in
Johnson
v.
M'Intosh which Dr
Hookey
regards
as
an
exposition of this common
law
position,
was
an
exposition of the
law
of Virginia
as
it had developed to the end
of
the 18th century.
As
such it may give guidance
in
the develop-
ment
of
Australian
law
but similar conclusions should
be
drawn
only
in
circumstances of sufficiently similar commencement and
development. Mr Priestley concludes that
in
Milirrpum
v.
Nabalco
Pty
Ltd
there
was
not evidence of such similarity before the court.
Dr
Hookey in his article "The Gove Land Rights Case"1 made a
detailed analysis of the judgment of Blackburn J. in M ilirrpum
v.
Nabalco Pty Ltd.2 He dealt particularly with the finding of Blackburn J.
that the contention of the plaintiffs in Milirrpum that the common law
recognized "communal native title" in a settled colony such
as
New
South Wales failed for want of authority to support it.3
Dr
Hookey's
criticism of this conclusion appears to have two distinct bases. First, he
appears to argue that certain authorities in the United States and New
Zealand in the first half of the 19th century established a "fundamentalist
common law principle of recognition"4 of native communal rights in
land. Secondly, he asserts that the Privy Council in African appeals at
a later date expounded very similar common law principles of recogni-
tion to those developed in the American Courts5 which presumed the
recognition by the Crown of existing rights in the land following a
change of sovereignty.6 He suggests that the plaintiffs
in
Milirrpum
would have done better to formulate their problem in accordance with
the principles adopted by the Privy Council rather than seeking to
bring themselves within the principles of the United States and New
Zealand cases.
In
this article I seek to examine one aspect of the first line of argu-
ment and no more. This
is
because after re-reading the judgment of
* Q.C., B.A., LL.M. (Syd.)
of
the New South Wales Bar.
1 (1972) 5 F.L. Rev. 85.
Dr
Hookey replies to this article
infra
p. 174.
2 (1971)
17
F.L.R. 141.
3 (1972) 5 F.L. Rev. 85, 103.
4Id. 102.
5Jd. 94.
6Jd. 103.
150
1974] Communal Native Title and the Common Law
151
Blackburn J. in light of
Dr
Hookey's article, it appears to me that the
arguments in answer to his two lines of criticism are to be found fully
expounded in the judgment. To me, the reasoning of Blackburn J. in
both instances seems more persuasive than the criticisms of Dr Hookey.
But in any event the opposing views are canvassed in sufficient detail
in the article and the judgment for the interested reader to be able to
form his own opinion one way or the other. Further analysis or exposi-
tion, at least from me, would be superfluous.
One aspect of the first line of argument singled out
by
Dr
Hookey,
namely the United States and New Zealand authorities of the first half
of the 19th century seems to me to bear a more detailed examin-
ation than it has so far received. That
is
the origin of the doctrines
expounded by Chief Justice Marshall in Johnson
v.
M'lntosh.7 This case
has been taken
by
all commentators
as
the starting point of the first line
of authority to which Dr Hookey refers. The judgment
was
delivered in
1823 and its doctrines were immediately taken up and expounded in
two influential American texts: Kent's Commentaries and Story on the
Constitution.
In
the years following the delivery of the judgment the
words of Marshall C.J. were again and again referred to
as
being the
classic exposition of native rights to land; in successive United States
judgments,8 in the speech of Governor Gipps in the New South Wales
Legislative Council when justifying legislative intervention to prevent
an enormous purchase of land by Wentworth from the Maoris in New
Zealand,9 in the judgment of Chapman J. in the Queen
v.
Symonds
10
when similar questions arose in the Supreme Court of New Zealand and
in argument in cases in the Privy Council.U
In
the Queen
v.
Symonds
Chapman J. referred to the "Colonial Courts, and the Courts of such of
the United States of America as have adopted the common law of
England",
as
having invariably affirmed and supported certain principles
applicable to the intercourse of civilized nations with aboriginal natives
of various countries "so that at this day, a line of judicial decision, the
current of legal opinion, and above all, the settled practice of the
colonial Governments, have concurred to clothe with certainty and
precision what would otherwise have remained vague and unsettled" .
12
The line of judicial decision referred to was that beginning with Johnson
v.
M'Intosh.
(It
is
noteworthy incidentally that in this passage Chap-
man J. did not assert that recognition of native title was a doctrine of
7 (1823) 8 Wheaton 543.
8 A short list
is
collected
in
argument in St Catherine's Milling and
Lumber
Company
v.
The Queen (1888) L.R. 14 A.C. 46, 48.
9 (9 July 1840) Parliamentary Papers, Correspondence Respecting the Colonis-
ation of New Zealand 63-78.
1o
(1847) N.Z. P.C.C. 387.
11
St Catherine's Milling case supra n. 8 Note in this case id.
58
the adoption
of
the phraseology
of
Johnson
v.
M'Intosh.
12
I
d.
388.
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