I’m interested more on hearing how, exactly, you guys think property rights originate. So let’s take a specific example.
Milirrpum v Nabalco Pty Ltd, full name Milirrpum and Others v Nabalco Pty Ltd and the Commonwealth of Australia and commonly known as the Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory, was the first litigation on native title in Australia, and the first significant legal case for Aboriginal land rights in Australia, decided on 27 April 1971. The decision of Justice Richard Blackburn ruled against the Yolngu claimants on a number of iss...
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.
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.
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. The lengthy legal battle culminated in 1971.[3]
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 basis 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.
So, in short, in 1971 a group of aborigines claimed ownership of a part of Australia which they had occupied before an Australian company (Nabalco) built a mine there. The court’s response was simply that the tribe’s title to the land never existed. Who really owned the land?
Were they actively using the land without any external prior claims to it? Then it’s “theirs”
I guess the court decided they weren’t.
Is that it? Okay.