Gove land rights case

In December 1968, the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the Supreme Court of the Northern Territory against the Nabalco Corporation, which had secured a twelve-year bauxite mining lease from the Federal Government. Their goal was to establish in law their rightful claim to their homelands. Their action against Nabalco was known informally as the Gove land rights case, and formally as "Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141", and was presided over by Justice Blackburn.

The Yolngu people claimed they enjoyed legal and sovereign rights over their land and sought declarations to occupy the land free from interference pursuant to their native title rights.

The Yolngu people had petitioned the Australian House of Representatives in August 1963 with a bark petition after the government sold part of the Arnhem Land reserve on 13 March of that year to a bauxite mining company. The government had not consulted the traditional owners at the time.

In a historic and controversial decision, 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.

Yolngu applicants asserted before the Court that since time immemorial, they held a “communal native title” that had not been validly extinguished, or acquired under the Lands Acquisition Act 1955 (Cwth), and should be recognized as an enforceable proprietary right. 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 (ie 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 J 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. The decision, criticised at the time as contrary to existing case law, was not overruled or distinguished until Mabo.

The culmination of this lengthy legal battle with the Northern Territory Supreme Court occurred in 1971 with the determination that the Yirrkala people had no legal rights to their traditional lands. [ Foley, Gary 'Teaching the whites a lesson' in "Staining the wattle" (ed) Very Burgmann and Jenny Lee Ringwood; Penguin, 1988 p203 ]

Although the Yolngu cause was defeated in this case, it highlighted a ludicrous provision in Australian law, and so was ultimately a victory for Indigenous Australians, although the law on native title remained for two decades as enunciated by Blackburn, until it was overturned by Mabo. However, Blackburn acknowledged for the first time in an Australian higher court the existence of an Aboriginal system of 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.

The Gove Land Rights Case led to the establishment of the Woodward Commission and the eventual recognition of Aboriginal Land rights in the Northern Territory. In 1975, shortly before he was dismissed, Prime Minister Gough Whitlam drew up the Aboriginal Land Rights (Northern Territory) Act which was later passed (in a slightly diluted form) by the conservative Fraser government on 9 December 1976.

The court interpreter for the case was Galarrwuy Yunupingu, a young man with a Brisbane Methodist Bible College education and son of Gumatj clan leader, Munggurrawuy, who was one of the Yirrkala plaintiffs. Galarrwuy had earlier helped his father draft the bark petition, and was now a key figure in the Gove Land Rights case. He later became chairman of the Northern Land Council and in 1978 became Australian of the Year for his work on Indigenous rights.

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