The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?
| Author | John Hookey |
| Published date | 01 March 1972 |
| Date | 01 March 1972 |
| DOI | http://doi.org/10.1177/0067205X7200500105 |
| Subject Matter | Article |
THE GOVE LAND RIGI-ITS CASE: AJUDICIAL
I)ISPENSATION
FOR
TIlE
TAKll~G
OF
ABORIGINAL
LANDS
IN
AUSTRALIA?
By
JOHN
HOOKEY·
In 1971,
Blackburn
J., delivering aswingeing judgment
in
the
Supreme J
('ourt
of the
Northern
Territory,
held
that
the
members
of
three
Arnhem
I.]nd clans
had
no
legally recognizable
rights
in
their
ancestral lands, <i
,~nd
thereby decided
what
was
thought
to
be
the
first case.
brought
by
t\ustralian aboriginals seeking legal recognition
of
their customary land
rights,!
British settlements were frrst established
in
Australia
in 1788. Ever
'1~nl,~c.
it is anotorious
fact
that
aboriginals
have
been
consistently de-
pri\'cd
of
their land
by
settlers, miners
and
governments.
The
surprising
:hi:lg. therefore, to lawyers unfamiliar with
the
history
of
Australian
race
relations, is
that
aboriginal rights
in
land
do
not
appear
to
have
been
.~l)crtcd
in
the
courts
by
aboriginal plaintiffs before
the
present
proceed-
;nr:~
began.2The absence of reported cases dealing specifically with the
rights
of Australian aboriginals
in
their
lands
is all
the
more
exceptional
:n
the light
of
the
wide
range
of
decisions
on
indigenous claims in
other
lUrisdictions.3
Even though the
primary
finding against the plaintiff clansmen in
\ftlirrpum
v. Nabalco
Ply
Ltd
was one of
fact-making
his Honour's
c,haustive
comments
on
the
recognition
of
communal
rights
in
land,
and
the other issues
of
law, essentially
obiter-the
novelty
of
the case,
the significance
of
the
issues,
and
the
surprising failure
of
the
unsuc-
('~~SflIl
plaintiffs
to
appeal
to
the
High
Court~
combine
to
compel a
critical analysis of the
place
of
this decision
in
the history
of
land
rights
Et;gation
in
former
British colonies
and
the
few
remaining
dependent
~
:'rri
tories.
The plaintiffs in Milirrpum v. Nabalco
Pty
Ltd
had
apparently
only
~:!t
compelled,
or
perhaps
able,
to
assert
what
they believed to
be
their
'l~hts.
comparatively recently.
Although
at
various
times
since
1886,
\Uccessive
governments
had
purported
to
alienate in whole
or
in
part
the
lands
claimed
by
the
plaintiffs, these alienations
had
not, it would seem,
r
~
B.A.
(Melb.),
LL.B., Ph.D.
(Lond.),
Senior
Lecturer
in Law, School
of
,ctneral StUdies, Australian National University.
\f't
!7FI
lrrpum
v.
Nabalco
Pty
Ltd
and
The
Commonwealth
of
Australia
(1971)
.L,R.
14l.
2'd., 150 199
3A ' .
C',
.number are discussed by Sir K.
Roberts-\Vray
in
Commonwealth
and
-
('J;n:al
Law
(t
966)
Chap.
14.
85
'.
~
.
86 Federal
Law
Review
[VOLUMB
;~
,,,."- I
resulted in an alien occupation of the lands sufficiently adverse
to
th~::
day to day interests of
the
plaintiffs to drive them into the courts.
Ind~',
for significant periods since the Common\vealth
Government
assum~t
I
control of the
Northern
Territory in 1911 the lands claimed eithett
formed
part
of
the
Arnhem
Land
Reserve
or
were leased to friendlyt, :
Missions.
-~
Ho\vever, in 1968, bauxite mining operations conducted
by
NabalcoFi'
Pty
Ltd
(the
first defendants) and authorized
by
the
Commonweal~;_
Government
(the
second defendants) began
on
the Gove
Peninsular~'
Probably, for the first time, the plaintiffs' possession
of
their lands
\vas.
7
_
sufficiently invaded to
make
it impossible for them to
stand
idly by
and;'
at
the
same time remain secure
in
their traditional belief
that
the
lands~'.
they claimed as their own were truly theirs.
The
time
had
come
for
theIa.i
to assert rights
in
their
own
country, and it had
come
at
atime
wherr{<
their cause
had
,vide support, and when their struggle would
be
of
sig~
nificance
to
all black Australians. But, unfortunately, it was also a
tim~;
when
the
judicial climate, in countries \vith indigenous minorities,
w~~~
unfavourable
to
this type
of
claim.4
The
plaintiffs sought declaratory relief, injunctions
and
damages,
th~~
key declaration asked
for
being
that
they were entitled to the
occupatio~
and
enjoyment
of
the
subject
land
free from interference.
In
additionij~~
declarations were sought, firstly,
that
aTerritory Ordinance,
the
Miner~
(Acquisition) Ordinance 1953, was ultra vires and void insofar
as-dr~~;
purported
to
acquire compulsorily bauxite ores
and
other
minerals.~i~
the Northern
Territory;
and, secondly,
that
the
Commonwealth had
~~;
interest
in
the
lands
concerned enabling it to alienate them
validl~f
Thus,
the
plaintiffs
had
the task
not
only of proving their traditional:<.
rights
to
the Gove lands,
but
also of showing that these rights
had
not1i-
been
effectively extinguished by legislation
and
grant,
at
least insofar
as;',:'
the rights concerned the minerals naturally present in their lands.
Theoretically,
it
\vould have been possible for the plaintiffs
to
hav~
I
succeeded in obtaining judicial recognition of their traditional
righ~
and
yet for them
to
have ultimately failed; for the
Court
could
have~~
recognized
that
their title once existed, yet have held that
it
had
be~~_
at
least in
part,
recently extinguished, say,
by
the legislation of
1953{~
acquiring Northern Territory minerals. Such adecision might have
givea:S
some solace
to
the plaintiffs and considerable encouragement
to
would
..
~~;~
aboriginal litigants elsewhere. Further,
it
would have indirectly
eIl1~\
barrassed the
Commonwealth
Government, which would
be
shown
to:"
have expropriated
in
recent times the plaintiffs' minerals without
payingi~
._~------------=<:
4E.g., Tee-Hit-Toll Indians
v.
United States (1954) 348 U.S. 272; In
Re
Th"~;,
Ninety-lt,1ile Beach r1963] N.Z.L.R. 461; Calder
v.
Attorney-General
of
BritiS~~':
COlumbia
(1969)
8D.L.R.
(3d)
59,
(1970)
13
D.L.R.
(3d)
64. '
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