Milirrpum V Nabalco Pty Ltd - Ruling

Ruling

Justice Blackburn found that the Yolngu people could not prevent mining on their lands. He categorically held that native title was not part of the law of Australia and went on to add that even had it existed, any native title rights were extinguished.

Blackburn rejected the claim on the bases that:

• A doctrine of common law native title had no place in a settled colony except under express statutory provisions (i.e. the recognition doctrine).
• Under the recognition doctrine, pre-existing interests were not recognised unless they were rights of private property and, while the community possessed a legal system, it was not proved that under that legal system, the claimant clans possessed such rights.
• The clan’s relationship to land was therefore not a “right … in connection with the land” under the Lands Acquisition Act.
• On the balance of probabilities, the applicants had not shown that their ancestors, in 1788 had the same links to the same areas of land that they were now claiming.

Blackburn examined comparative Commonwealth, Canadian, New Zealand and US jurisprudence. He accepted that the applicants had established that under traditional law any given part of the land could be “attributed” to a particular clan, but held that this did not amount to a proprietary interest. He also found that the evidence did not establish the landholding model asserted. Blackburn acknowledged for the first time in an Australian higher court the existence of a system of Aboriginal law. He also recognised the validity of the use of oral evidence to establish property rights, normally inadmissible, but a vital precondition for a successful land rights case, and he also acknowledged the claimants' ritual and economic use of the land.