Land Rights: The Australian Aborigines Have Lost a Legal Battle, But
![handle is hein.journals/alblr11 and id is 203 raw text is: LAND RIGHTS: THE AUSTRALIAN ABORIGINES HAVE LOST A
LEGAL BATTLE, BUT...
GEOFFREY LESTER* and GRAHAM PARKER
Concern for aboriginal rights has been mounting in many former British
colonies in the last decade. Nowhere is this more true than in Australia
where there are no treaties and few statutes which make any attempt to
protect the rights of the original inhabitants of the continent. But the decision
in Milirrpum & Ors. v. Nabalco Pty. Ltd. & The Commonwealth of Australia
appears to have blocked further action through the courts and . . . forced
the debate into the political arena by refusing to recognize any legal obliga-
tion on the Crown to take cognizance of aboriginal rights based on customary
native tenure as their relationship with the land could not be characterized
as a proprietary interest. But the authors submit that the Milirrpum court
failed to discover the existence of communal native title because they
operated in a conceptual framework, the law of real property, which was not
equal to the task. Instead the authors suggest that such rights stem from the
aborigines'status as British subjects (and central to this issue is the distinc-
tion between colonies acquired by conquest and those acquired by peaceful
settlement). In colonies acquired by peaceful settlement or annexation the
aborigines were British subjects under the protection of the common law.
And on the basis of case law, aborigines do have some rights at common law:
their title has been characterized as a right of qualified or modified
dominion over the land, to the extent, at least, of occupation or enjoyment of
the land, which is consistent with the Crown's right of pre-emption (exclusive
right to extinguish native title).
The authors cite the example of New Zealand and the British experience
with the Maoris (where the theory was cessation with consent), offering a
detailed and careful examination of historical materials to support their view
that there does exist a doctrine of communal native title. They suggest that
where aborigines enjoy the status of British subjects, the Crown's pre-emptive
right can only be exercised under the common law, and therefore aboriginal
rights could only be extinguished with their consent, by compensation or
pursuant to some statutory authority. In Milirrpum, Blackburn J. rejected the
New Zealand example, because it involved only a statutory policy, but the
authors submit that this view was incorrect, as a careful analysis of the cases
reveal that the legislation was only declaratory of the common law, and that
aborigines were not aliens at the mercy of the Crown's prerogative power
The,authors further suggest that the cases reveal that the traditional reasons
for denying aborigines their land rights are illusory as in Tamaki, the court
rejected arguments that aboriginal land tenure was not cognizable at law,
and that extinguishment by the state was not examinable by the courts.
The authors suggest that a more cogent reason for the differences be-
tween the Australian and N.Z. experience, is that aborigines in Australia
were considered more primitive than the N.Z. Maoris, but the authors state
that the doctrine of communal native title should not depend on tribal
sophistication but upon a system of tenure known to lawyers or discoverable
by evidence. The authors therefore submit that the expropriation of lands
subject to customary tenure has been and still is contrary to the common law
unless the Crown can point to consent, compensation or some statutory
authority and that the Milirrpum court was wrong in holding that the
plaintiff's rights could be extinguished by the manifest policy of the executive
government, and was wrong in rejecting the existence of a doctrine of com-
munal native title.
The reader is also referred to the following article by Professor Peter
Cumming which concentrates on the Canadian experience in this area.
*LL.B. (Melbourne).
**Senior Fellow, Department of Law, Research School of Social Sciences, Australian National University.
1973]
LAND RIGHTS](ViewImageLocal?handle=hein.journals/alblr11&div=23&collection=&method=preview&ext=.png&size=3)
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Land Rights: The Australian Aborigines Have Lost a Legal Battle, But
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