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Monday, 5 July 2021

50 years after the Gove land rights judgment

Graeme Neate AM, President of the ACT Civil and Administrative Tribunal, delivered the 35th Annual Sir Richard Blackburn Lecture during Law Week on 11 May 2021.

The 2021 Annual Blackburn Lecture explores the context of the Gove judgment, and Sir Richard Blackburn’s role in encouraging legislation to overcome the effect of the decision, and the circumstances in Australia and Canada in which the judgment has been quoted.

 

Introduction

Most people are unable to ensure that their legacy is precisely as they would wish it to be.

Some people are able to build a significant business enterprise, demonstrate philanthropic generosity, steer significant legislation through parliament, or perform feats as an athlete or artist.

Judges have less choice in the matter. Some might aspire to make profound contributions to the development of the law. But judges can only decide those cases which come before them and then, usually, only the issues raised by the parties in those cases. However much one might hope to plug a gap in the common law or develop the law in a particular way, a judge is constrained by the cases in their list and by the applicable law.

Occasionally a case might appear which raises novel issues and invites deep critical analysis and breadth of thinking in order to fashion an intellectually rigorous and legally defensible judgment in relation to those issues.

On 27 April 1971, almost exactly 50 years ago, Mr Justice Blackburn, as a single judge of the Supreme Court of the Northern Territory, delivered judgment in such a case, Milirrpum v Nabalco Pty Ltd[1] which became known as the Gove land rights case.

What he wrote in that judgment became the subject of political controversy, critical academic analysis, legislative response, and judicial comment in Australia and overseas. Passages from it are still quoted with approval in judgments of the High Court of Australia, even though his main conclusions were reversed nearly three decades ago.

It is, I imagine, unlikely that his Honour anticipated the long-term implications of his judgment. Indeed, he took steps to promote a legislative policy to overcome the result in that case. But that one judgment commenced the development of the common law in Australia and Aboriginal land rights legislation. It has informed the interpretation of that and other legislation, as well as the analysis of two sections of the Australian Constitution.

Personal recollections

It was my privilege and pleasure to meet Sir Richard Blackburn when, having completed my law degree at the Australian National University, I became an associate to Mr Justice McGregor of the ACT Supreme Court. Sir Richard was the Chief Justice of the ACT at that time. The court was much smaller then. There were three resident judges and I recall when I first met the Chief Justice he said he was in the process of writing again to the Attorney-General to seek the appointment of an additional judge.

As many of you will know, Sir Richard was a man of considerable intellect, achievement and dignity. The expression a gentleman and a scholar aptly, although inadequately, describes him.

Distinguished judges have paid tribute to Sir Richard’s qualities. In the second Blackburn Lecture, Sir Harry Gibbs described him as:

an exemplar of all the best judicial qualities: a deep and scholarly knowledge of the law together with the experience and ability necessary to apply that knowledge in practice, complete dedication to the duties, often onerous, of his office, patience, courtesy, dignity and absolute integrity and propriety in his public and private life.[2]

Sir Gerard Brennan in his Blackburn Lecture said that those who knew Sir Richard “bear his memory in affection and respect.” Sir Gerard continued:

He was an outstanding judge: a man of undoubted integrity, patient and courteous, industrious, with a capacity for dispassionate analysis of fact and a deep love for and understanding of the law, a helpful colleague who held a high yet humble conceit of the importance of the judicial office. He was one of my first judicial colleagues, and one of the best. I owe him a great personal and professional debt which I acknowledge with gratitude and some pride.[3]

In researching this lecture, I read among Sir Richard’s personal papers many handwritten personal tributes which reenforce those statements.

My only regret from that time is that I did not take the opportunity to discuss with him the Gove land rights case and his judgment, which I had studied at university.

What follows in this lecture is drawn from that judgment, records held by the National Archives and the National Library, and subsequent judgments of courts in Australia and Canada over the past half-century.

The Gove land rights case[4]

Background

In February 1968, the Commonwealth of Australia and Nabalco Pty Ltd entered an agreement whereby the Commonwealth promised to grant a special mineral lease to the company to enable it to mine bauxite on the Gove Peninsula, located in the north-eastern corner of Arnhem Land, Northern Territory. The Commonwealth also promised to grant special purpose leases for the establishment of a township and for other purposes ancillary to Nabalco’s mining operations. The agreement came into effect when the Ordinance approving it came into effect. Leases were duly granted and Nabalco commenced operations.

On 13 December 1968, a writ was issued in the Supreme Court of the Northern Territory[5] on behalf of Aboriginal people from that area who claimed that their interest in the land had been unlawfully invaded by the defendants (Nabalco and the Commonwealth).

The plaintiffs’ case was that their clans and no others had occupied the subject land from time immemorial as of right; that the rights of the clans were proprietary rights; that those rights were still in existence; and that Nabalco’s activities were unlawful in that they were an invasion of such proprietary rights.[6]

By way of historical background, in 1963 the Yolngu People of Yirrkala in East Arnhem Land petitioned the Federal Parliament to recognise that the land was theirs.[7]

The hearing went for 50 days between 25 May and 25 October 1970. It was held in Darwin and Canberra. Judgement was delivered in Alice Springs on 27 April 1971.

Before the Court were eminent counsel – AE Woodward QC for the plaintiffs, LJ Priestley QC for Nabalco and RJ Ellicott QC, Solicitor-General for the Commonwealth. Each would later be appointed to senior judicial positions, and for each the case would have significance beyond the delivery of the judgment.

The interpreter was the young Galarrwuy Yunupingu. He became a prominent Aboriginal leader, particularly in relation to Aboriginal land rights matters. He was recognised in various ways for his contributions including by becoming Australian of the Year in 1978 and being made a Member of the Order of Australia in 1985.

The hearing of the case had some unusual features, including outside the court proceedings. On one weekend during the Canberra hearings, Solicitor-General Ellicott, himself a Methodist and knowing that most of the plaintiffs were Methodist, asked their barrister whether he could invite them to join him at the service in the National Methodist Church and then take them to his Canberra home for lunch. Mr Woodward agreed and they came. After lunch they set around the open fire and started chanting traditional songs in their own language. Galarrwuy Yunupingu, who had trained at a Methodist Bible College, also joined in singing Methodist hymns. Mr Ellicott later observed “It’s not every Solicitor-General who appeared for a defendant Commonwealth would be able to say that he sat down and sang hymns with Aboriginal plaintiffs after taking them to Church and inviting them to his home, or that Galarrwuy as interpreter was there singing gospel songs as well has own traditional songs.”^[8]

Justice Blackburn expressly put the case in a broader context. He described it as a “heavy case, which I know is of great importance to all parties”[9] and stated at the outset of his reasons for judgment that “There are great and difficult moral issues involved in the colonization by a more advanced people of a country inhabited by less advanced people.”[10]

Rulings on evidentiary issues

The case raised not only novel legal issues but also difficult issues around the admissibility of some evidence in Supreme Court proceedings where the rules of evidence applied.

A question of fact before the court was what, in the plaintiffs’ own eyes, was their relationship to the subject land? To answer that question required the answer to a question on the law of evidence, namely how may such matters be proved? There was what his Honour described as the “central question”, namely whether there exists at common law a doctrine of native title and, if so, whether the nature of the plaintiffs’ relationship with their land, as proved, required the application of that doctrine.^[11]

His Honour turned first to deal with what was logically the first of those questions – that of how the plaintiffs may prove their case.

The plaintiffs sought to do so by oral evidence of two kinds of witnesses: Aboriginal people, each of whom was a member of one of the plaintiff clans, and expert witnesses, anthropologists Professor WEH Stanner and Professor RM Berndt.^[12]

The defendants objected to the admission of much of the plaintiffs’ evidence but consented to the court receiving it subject to a later decision on its admissibility.^[13]

No difficulty arose in the reception of the oral testimony of the Aboriginal people as to their religious beliefs, the manner of life, their relationship to other Aboriginal people, their clan organisation and so forth where the witness spoke from their own recollection and experience. However, there was an issue about evidence in relation to a clan’s relationship to particular land or the relevant rules.^[14]

Mr Ellicott QC, as the Solicitor-General for the Commonwealth, insisted that proof of all the facts asserted by the plaintiffs must be by evidence admissible at common law, and that the court had no power to override or extend the ordinary rules of evidence, either because of the novelty of the matters in issue or because of the difficulty of communicating with Aboriginal witnesses and understanding their evidence.^[15] The Solicitor General made detailed submissions about the applicable rules of evidence.

Justice Blackburn set out what he described as the “proper approach of the Court to the difficult problems of evidence which the case poses.” The court was bound to apply the rules of the law of evidence, but those rules were to be applied “rationally, not mechanically.” The application of a rule of evidence to proof of novel facts in the context of novel issues of substantive law “must be in accordance with the true rationale of the rule, not merely in accordance with its past application to analogous facts.”^[16]

His Honour expressly acknowledged that Aboriginal people had no written language and therefore all matters of tribal custom and organisation must be discussed and communicated orally. Much of the evidence was in the form of “My father told me that this was Rirratjingu land.”^[17] His Honour dealt in detail with objections about the admissibility of such hearsay evidence, holding that it fell under a well-known exception to the hearsay rule when declarations made by deceased persons of competent knowledge are admissible as proof of ancient rights of a public or general nature, otherwise known as reputation evidence.^[18] His Honour, in rejecting the reasoning of the Solicitor-General in his objections to that evidence, wrote:

Here the plaintiffs are trying to show, rightly or wrongly, that their system is recognised at common law. It is not the function of law of evidence to operate by way of anticipating the decision of substantive law upon the facts which the evidence in question seeks to prove. In my opinion it is mechanical, not rational, application of the law, to apply the hearsay rule so as to exclude this evidence, solely on the ground that the reputation principle can apply to the proof of rights only of a kind which the law has already recognized.^[19]

His Honour also rejected the submission based on the absence of English or American authority where the matter of a public right was sought to be proved as a complex totality of rights rather than a single right. In Justice Blackburn’s opinion:

the proper conclusion from that is not that there is no authority for the admission of reputation evidence in such circumstances, but that the situation is a new one and that the true rationale of the reputation principle allows, indeed requires, that it be applied.^[20]

Counsel for the defendants objected to the admission of most of the evidence given by the two anthropologists, including the evidence giving an account of the social organisation or laws of the Aboriginal people. One such ground of attack was the hearsay rule. It was contended that the anthropologists’ source of knowledge of the facts upon which they based their opinions included what they had been told by the Aboriginals.^[21] The novelty of the issue before the court is illustrated by his Honour’s observation that counsel were able to refer him to only one case in which the expert evidence of an anthropologist was judicially discussed, a judgment from Canada.^[22]

Again, his Honour rejected those submissions, reasoning that it was not correct to apply the hearsay rule so as to exclude evidence from an anthropologist in the form of a proposition of anthropology – a conclusion which has significance in that field the discourse. His Honour accepted that there is a valid field of study and knowledge called anthropology and that the process of investigation in the field of anthropology “manifestly includes communicating with human beings and considering what they say.” He held that the anthropologist should be able to give his opinion, based on his investigation by processes normal to his field of study, just as any other expert does, and drew an analogy with medical evidence from doctors.^[23]

His Honour also referred to objections that the facts upon which the experts based their opinions were not apparent. He accepted the principle that every expert opinion must be shown to be based either on proved facts or understated assumptions, but noted that the expert is an expert observer and his special skill enables him to select and state the “facts” which are relevant and significant, and reject and omit to mention those which are not. Having discussed the issue in some detail his Honour held that the “question was one of weight, rather than of the admissibility, of the evidence.”^[24]

In overruling those and other general objections to the admissibility of the expert evidence, Justice Blackburn noted that whether he should make a finding in accordance with that evidence was “a totally different question.”^[25]

Rulings on facts and law

His Honour noted^[26] that it was an essential part of the plaintiffs' case that there had existed, from a time in the indefinite past and in particular from 1788, not merely the same system of clan membership and organisation and the same system of land ownership, but also the ownership by the Rirratjingu and the Gumatj of the very land to which they now respectively lay claim. The plaintiffs thus set themselves the task of proving on the balance of probabilities that the land now claimed by them to be Rirratjingu land was Rirratjingu land in 1788; and so for Gumatj land.

In his conclusion on this aspect of the case, Justice Blackburn wrote:

This question of fact has been for me by far the most difficult of all the difficult questions of fact in the case. I can, in the last resort, do no more than express that degree of conviction which all the evidence has left upon my mind, and it is this: that I am not persuaded that the plaintiffs’ contention is more probably correct than incorrect. In other words, I am not satisfied, on the balance of probabilities, that the plaintiffs’ predecessors had in 1788 the same links to the same areas of land as those which the plaintiffs now claim.^[27]

Although that finding effectively disposed of the case, Justice Blackburn made findings in relation to whether the plaintiff’s links to their traditional land could be characterised as property rights and whether doctrine of communal native title formed part of the law of Australia.

Mr Woodward for the plaintiffs had submitted that as well as putting their case on the basis of the legal position, there were questions of “high moral principle involved and that the law is not so sterile that it must ignore such questions.” He conceded that a decision in favour of the plaintiffs would run contrary to the mainstream of Australia’s treatment of its Aboriginal people over 180 years, but contended that such a decision would “satisfy the requirements of natural justice and fair dealing as they would be seen by most people today.” He characterised the litigation as “one of those cases which occur rarely but which, when they do occur, test the genius of the British common law. It is one of those cases which lead the court along seldom trodden paths, with few recognisable signposts in the form of relevant authority.” In his submission, because “authority is comparatively sparse and uncertain, the Court should have regard to fundamental considerations of natural justice, fair dealing, the preservation of the peace, respect for property and for deeply held spiritual convictions.”^[28]

As noted earlier, Justice Blackburn described the communal native title issue as a question of law which was the central question in the case.^[29] He dealt in detail with the judgments of courts around the world and “considered this aspect of the case with very great care, since it may possibly have the most far-reaching results.”^[30]

Justice Blackburn held that the doctrine of communal native title did not form and never had formed part of the law of any part of Australia. Australia was considered at law to have been a settled, rather than conquered, colony.

When considering his judicial method for reaching that conclusion it is worth noting his Honour’s own observations:

I have tried to remember that the common law has often grown by way of generalization from diverse instances, and that practice has often grown into, or helped to produce, new doctrine.

But these considerations do not alter my conviction that the plaintiffs’ contention must fail for want of authority to support it. It is possible for a decision of a court of first instance to contribute to, or perhaps even to found, a body of legal doctrine. But I cannot come to a decision of that kind on the materials before me.[31]

In order to understand the plaintiffs’ concept of their relationship to their traditional country, and particularly whether that relationship could be characterised as proprietary in nature, his Honour had to come to grips with the linguistic issues. That involved not only the interpretation of words from the plaintiffs’ languages into English,^[32] but also the use by anthropologists of words such as “right”, “claim”, “law” and “ownership”. His Honour noted that it was for the court to determine whether the plaintiffs had legally recognised rights and that in deciding the issue, the court “must be alert to the danger of allowing its conclusions to be unjustifiably affected by the use of words which are only tentatively appropriate.”^[33]

His Honour also referred to judicial authority to the effect that there is “a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely.” With that “formidable warning ringing in my ears”, his Honour proceeded to decide the questions before the court.^[34]

Justice Blackburn concluded that:

The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.^[35]

Accordingly, he held that he “must recognize the system revealed by the evidence as a system of law.”^[36]

The next question was whether the proved relationship of the plaintiffs to their defined areas of land was a relationship which ought to be described as proprietary.^[37]

Although the plaintiffs had established a “system of law” concerning the conduct of people in relation to land,[38] his Honour felt unable to characterise the relationship of the clan to the land as proprietary. Rather, it was a spiritual or religious relationship under which Aboriginals have a “more cogent feeling of obligation to the land than of ownership of it.”[39] It seemed “easier, on the evidence, to say that the clan belongs to the land than that the land belongs to the clan.”[40] He concluded that the evidence showed a system of law which did not provide for any proprietary interest in the plaintiffs in any part of the land in issue.[41]

Justice Blackburn wrote that he had solved the problem by considering the “substance of proprietary interests rather than their outward indicia.” He considered that property, in its many forms, generally implied the right to use or enjoy, the right to exclude others, and the right to alienate. By that standard, he thought that he could not characterise the relationship of the clan to the land as proprietary. In summary, the clan had a duty to care for the land but it was members of the clan, rather than the clan itself, that had a right to use or enjoy the land. The clan’s right to exclude others was not apparent, and the right to alienate was expressly repudiated by the plaintiffs in their statement of claim.[42]

Judicial approach to the decision

In writing the judgment, Justice Blackburn adopted an orthodox approach to the ascertainment and application of legal principle and binding judicial authority, together with an analytical appreciation of the plaintiffs’ culturally distinct concepts of law and their relationship to land.

That approach was, it seems, consistent with his Honour’s judicial method generally.

At the ceremony marking the official farewell to Justice Blackburn from the Supreme Court of the Northern Territory on 25 June 1971, Mr Barker, the President of the Law Society said:

Your Honour, it is not the function of a judge, as I conceive it, to make new law, and Your Honour has consistently declined to do so. … It is however, with respect, a judge’s function to develop the law by applying it according to the framework of the society in which it arises, and this Your Honour has not hesitated to do. … And Your Honour, again, whilst declining to bend the law, you have never hesitated to point the way to legislative reform, and so both the common law and the statute law of the Territory are greatly in Your Honour’s debt.[43]

Mr Barker referred to the Gove land rights case, his Honour’s “longest written judgment,” where “again, whilst your Honour did not make new law, Your Honour did point to an injustice and with great respect I commend your Honour for it.”[44]

In his obituary for Sir Richard Blackburn published in The Canberra Times on 2 October 1987, Jack Waterford referred to “two cases upon which Sir Richard’s fame will endure” as being those which Sir Richard thought least pleasant. One was the Gove land rights case,[45] in which his Honour “demonstrated qualities which showed throughout his career: a strong sense of duty, a fearlessness in interpreting the law as it was rather than as it might be, and a quality of tight legal reasoning which made him one of the most respected judges in the land.”[46] Waterford continued:

But, if the law seemed to require the wrong result, he was not one to hesitate to say so, to outline possible reforms and to join in efforts to achieve them. And sometimes the consequence was that the right result came out.

I will return to evidence in support of that observation later in this lecture.

Responses to the Gove land rights case judgment

Press coverage

The West Australian carried a front-page story “N.T. Aborigines lose claim to Gove riches”,[47] The Sydney Morning Herald led with “Tribes lose land claim”,[48] and The Courier-Mail announced, “Aboriginals fail in land rights claim.”[49]

The Advertiser noted in its editorial that although Mr Justice Blackburn had indicated that “Great and difficult moral issues” were involved in the colonisation of Australia, “Legal rather than moral considerations also determined the refusal of the claim.” The editorial opined that “few Australians will be completely satisfied with the position of Aborigines as now defined.”[50]

The New York Times of 28 April 1971 reported that “Australia’s 180,000 aborigines have no legal title to their ancient tribal lands, according to a judgment handed down in the Supreme Court of the Northern Territory in Alive Springs today.”[51] The report noted that an appeal could be made to the High Court of Australia. It continued:

The judgment appears to doom all other aboriginal land claims, although some experts detect a hint in the judgment that parliamentary or executive action might be indicated.

The front page of The Northern Territory News of 28 April 1971 carried the headlines “Aboriginals lose the Gove land case”, “Native title to land not a part of Australian law”. It set out in detail the findings in the judgment. In a side story, Melbourne lawyer Frank Purcell (who was one of the lawyers representing the plaintiffs) was reported as saying “If we had to lose we couldn’t have lost better. Mr Justice Blackburn accepted the views of the Aboriginals and the anthropologists.”[52]

Another newspaper article noted that Mr Justice Blackburn had “a deep personal interest in the welfare of Aborigines”. The article quoted a supporter of the land rights claim as saying:

We could not have had a better judge hear the test case – from our point of view. The judge has always shown a sympathetic attitude towards the problems of unsophisticated tribesmen suddenly thrust unto the 20th century. He is a keen student of native culture.^[53]

On 29 April 1971, The Northern Territory News reported that the Aboriginal people of Yirrkala on Gove Peninsula were “disappointed and angry” at the decision.[54] Its editorial described the reaction as “understandable” but stated that “Any anger or criticism levelled at Mr Justice Blackburn for his findings would be misplaced and utterly unjustified.” Not only had his Honour brought down a decision of law (which was his “heavy task”), he had drawn “attention to Australia’s past neglect and brutal disinterest in this country’s original inhabitants.” According to the editorial, “There can be no question now that the law in respect to land rights must be changed.”

The Australian newspaper, which had covered the judgment on its front page,[55] commissioned legal academic Tony Blackshield to write a four-part study of the judgment. Blackshield was critical of aspects of the judgment. He wrote that it gave “many reasons for gratitude and many for disappointment.”[56] In one article he suggested that “the legal defeat may yet turn out to have been a political victory” and noted that the government had “reacted to the judgment with the most constructive proposals on the subject of Aboriginal lands that it has ever produced.”[57]

Critical responses but no appeal

As well as being the subject of public debate, the correctness of the decision was extensively argued in academic writings.[58]

Although there was criticism of the outcome in that case, there was no appeal against the judgment. Many years later, Mr Woodward, wrote:

I took the view that the finding of close identification between particular groups of people and particular land was sufficient to mount claim for recognition of Aboriginal title at a political level. I had no confidence that the High Court, as it was then constituted, would produce any better result for the Aboriginal people than had already been achieved. Indeed, I was afraid that doubts might be cast on Blackburn J’s findings about Aboriginal law. I therefore advised against an appeal.^[59]

His view was supported by the other lawyers advising the plaintiffs, and so their clients were advised “to pursue a political, rather than a legal, solution to their needs.”[60]

Political response and the Aboriginal tent embassy

The public and political responses to the judgment were immediate.[61] Liberal Party Prime Minister William McMahon, in answer to a question in the House of Representatives on 29 April 1971, emphasised the distinction between the legal position and a moral approach and an approach based on justice for the Australian Aborigines.[62] He informed the House that he had invited the Ministers directly concerned, with the advice of the Council for Aboriginal Affairs,[63] to prepare policy recommendations on this matter, and that the Government would, within a short period of time, be able to consider these recommendations and come to a sensible resolution of this problem.

In Cabinet Submission No 76 dated 29 April 1971, Ministers Alan Hulme[64] and WC Wentworth[65] stated that the response of the press and other organs of public opinion to the judgment “has practically without exception been to assert that since this is the law it should be changed by Parliamentary action to recognise or compensate for traditional rights for Aborigines to such land.” The Ministers had “no doubt” that there was “widespread and deeply emotional support among the community for the claims of the Aborigines to land.”[66]

Assessing the political consequences of this response, they cautioned that if the Government “allows the initiative to slip from its hands in this matter it is likely to be forced with apparent reluctance, damaging to its national and international standing, to policy decisions which may appear as triumphs for the Opposition, the Trade Unions, and militant protestors.” In their view, it was “important … for the Government to act promptly and boldly … to establish its determination to act justly and morally towards the Aborigines” while not being “rushed into premature decisions the full import of which it cannot hope to assess without detailed study.”[67]

On 4 May 1971, Cabinet adopted almost completely the submission recommendations,[68] confirming that a Ministerial Committee on Aboriginal Affairs be constituted immediately, to consider, inter alia, policies and the Northern Territory designed:

1. to give protection to lands reserved for the use and benefit of Aborigines and within such lands –

1. to ensure to continuing groups of Aborigines the use of land for ceremonial, religious and recreational purposes; and
2. to make available on appropriate tenure to individual Aborigines and groups of Aborigines land necessary for the conduct of commercial enterprises;

2. to set up an Aboriginal Land Fund to acquire land coming on the market which can be made available on appropriate tenure to Aboriginal groups for commercial, and other purposes;
3. to ensure that, subject to the requirements of national development, Aborigines on land is reserved for the use and benefit be given:

1. reasonable preference in mineral prospecting and exploration; and
2. the opportunity to participate effectively in mining and related development;

4. to provide that commercial enterprises which offer reasonable prospects of success on land held by Aboriginal communities (particularly where they are isolated and without alternative opportunities) can be supported by grants from the Aboriginal Advancement Trust Account as well as by loans from the Capital Fund.

What was the “appropriate tenure” and which land should be subject to it were among the contentious issues to be dealt with in relation to the Northern Territory and elsewhere in Australia.

In early May 1971, three Yolngu elders and their solicitor met with Prime Minister McMahon, another minister and senior government officials, including Sir John Bunting the Secretary of the Department of Prime Minister and Cabinet. The elders presented the Prime Minister with a signed statement expressing the deep shock at the court decision. They wrote: “We cannot be satisfied with anything less than ownership of the land. The land and law, sacred places, songs, dance and language were given to our ancestors.” They listed five demands: “title to our land; a direct share of all royalties paid by Nabalco; royalties from other business on Aboriginal reserves; no other industries to be started without consent of the Yirrkala Council; and land to be included in our title after mining is finished.” They wanted the law changed including to recognise their ownership of the land. Apparently the Prime Minister undertook to fund any appeal to the High Court and proffered the view that “until they had tested their rights in the High Court it was perhaps premature to say that they had lost the case.”^[69]

There followed months of discussion.[70] By late October 1971, it was apparent that, after the consideration in the Interdepartmental Committee and in the Cabinet Committee on Aboriginal Affairs, there was agreement on some issues. For example, it appears that a form of leasehold was considered to be the preferred interest in land for this purpose. But there was continued disagreement between the Council for Aboriginal Affairs and the Department of the Interior on some matters.

Justice Blackburn’s advice on possible legislation

Others offered advice to the Federal Government. In a somewhat unusual move, Justice Blackburn provided an undated five-page typed document “Some thoughts on Aboriginal title to land in Australia”[71] to friends including Dr HC ‘Nugget’ Coombs, chair of the Council for Aboriginal Affairs, who provided a copy to Prime Minister McMahon. Justice Blackburn then provided a copy to Gough Whitlam, the leader of the opposition.[72]

In that paper, Justice Blackburn outlined a legislative Aboriginal land rights scheme. The opinions expressed in the paper were “entirely personal and unofficial” and he did not wish anything in it to be reproduced, or publicly attributed to him, without his express consent.[73] Furthermore, he made “no claim to any special authority for expressing these opinions” which he described as, “in varying degrees, tentative” and “obviously superficial” requiring “a vast amount of further consideration in detail.”

Starting from the assumption that “at present the law does not recognise aboriginal title to land”,[74] he confined his attention to rights of property and not “any other aspects of aboriginal status”. He used the phrase “Aboriginal Title” to mean a hitherto unrecognised kind of property right which exists, not in a person, but in a group based on blood relationship, having linguistic, religious and cultural bonds, that is, communal rather than individual property rights. He presumed that the reason why the question of Aboriginal title to land was being considered was because “some aboriginals are asking for it”. He suggested that no one should take it for granted that the introduction of a system of Aboriginal title is either morally right or socially expedient[75] (although he thought it was probably both). Rather:

Our moral duty to the aboriginal people is to do for them what most clearly seems to be in their best interests. This necessarily implies a fundamental duty to be sure as we can that what we propose to do is, on balance, the best.[76]

In his view, “the questions whether, and why, any system of aboriginal title to land should be introduced, are of great importance.” The answers to them would “affect the nature of the scheme which is adopted, its administration once it is in force, and possibly the question whether it should be at some later stage altered or even abolished.”

Justice Blackburn proposed a scheme which, in summary, would create by legislation the system of Aboriginal title that would be integrated within the framework of Australian law and would provide proper machinery for its practical application and development.

He identified four distinct problems that would have to be dealt with, namely:

1. The determination of what tribes are to be recognized as still in existence as such, and as having some foreseeable future existence.
2. The determination of what land is to be linked with each tribe.
3. The determination of what system or systems, of law must be adopted or invented, to regulate the holding of land by aboriginals.
4. The decision whether or not to place each particular piece of land under the system so adopted.[77]

And he outlined what to do. He preferred that a “leasehold” type of tenure (rather than “freehold”) should be adopted, in part because “the whole idea is new and experimental, and flexibility will be necessary in the future.” Restrictions on alienation without approval should be included in the terms of leases.[78]

In his view, the legal vesting of various portions of land in its new owners, according to the system decided on, “does not create any difficulty save those of political acceptance, and finance.” He anticipated that the possible reactions to such a scheme would include “much popular misunderstanding on the question of tenure.”[79]

Justice Blackburn’s focus was national. He expressly referred to the Commonwealth’s power under the Australian Constitution to acquire land in any State for purposes for which the Commonwealth may legislate (including Aboriginal welfare), subject to the requirement to pay “just terms” compensation to the existing owners of the land acquired.[80]

The decision to create Aboriginal title for each piece of land could “only be a political decision, at the highest level.” The problems involved with each piece of land would be different. His Honour anticipated that “A lot of hard decisions would have to be made, and most of them would displease somebody – probably some blacks and some whites. The decisions would not only be hard, but often very expensive, since compensation to existing owners may be required.”[81]

Although a system of tribal land based on tribal affiliation would not prevent the economic exploitation of the land by its tribal owners, he noted that some tribal lands would be economically valuable and some would not. He expressly did not consider the merits, or the machinery, of making land available to Aboriginal people for purely economic purposes on purely economic grounds, that is, without regard to the tribal affiliations of the grantees or the tribal delineation of the land. But he cautioned against assuming that the Commonwealth “can contemplate only one basis of land allotment to aboriginals – either economic or tribal.”[82]

Justice Blackburn concluded that it would take “several years” to put his ideas into effect. Nothing that could be done more rapidly would be likely to be worth doing, and it would be “morally wrong to mislead aboriginals” by suggesting that what they are asking for could be granted in 1971 or 1972. But that was “no reason for not starting soon.”[83]

RJ Ellicott’s advice on possible legislation

Mr RJ Ellicott QC as Commonwealth Solicitor-General had appeared for the Commonwealth in the Gove land rights case and, in broad terms, the Commonwealth had been successful. Some six months after the judgment, he provided the Federal Government with a 28 page document titled, Recognition of Aboriginal Land Claims on Reserves in the Northern Territory, in which he proceeded on the basis that “if a practicable way can be found, claims by Aboriginal people to land situated within reserves within the Northern Territory should be recognised.” In his view, “the problem we ought to be facing is not should we recognise but – what is the method of recognition most likely to be in the interests of the Australian community.”[84] He continued:

When, as counsel for the Commonwealth in the Gove Case, I first became familiar with this problem, I was sceptical as to whether recognition was in the interests of the Australian community as a whole, including the aboriginals. However, in studying it a strong view formed in favour of recognition.[85]

As well as providing details of a proposed scheme, Mr Ellicott identified and responded to reasons advanced against recognition, such as assertions of Aboriginal sovereignty and the precedent potential for claims to be made elsewhere in the Northern Territory and the Commonwealth. In his view:

…when confronted with a difficult human problem such as this, which does not admit of obvious solutions, … we are more likely to find the wise answer if we seek to apply to it our basic notions of justice, rather than if we allow fear or expedience or similar criteria to determine our judgement. If we do the latter we are likely to create more problems for the future then we solve.[86]

Mr Ellicott concluded:

It is clear that legal recognition will not provide the complete answer to the aboriginal problem. However, I am convinced that it is one of the bases on which our future aboriginal policy should be structured.[87]

The documents prepared by Justice Blackburn and Mr Ellicott received some ministerial attention and prompted the preparation of a submission from the Minister for the Interior circulating Justice Blackburn’s notes. The Secretary of the Department of Prime Minister and Cabinet, Sir John Bunting, in a Confidential Minute Paper to the Prime Minister dated 29 November 1971,[88] described the notes as “an excellent analysis of the legal position” which “appear to reach some very level headed conclusions.”

However, Bunting thought it “very questionable whether it is proper to circulate in any official way notes prepared by a Judge on a matter of Government policy – particularly where the Judge was himself involved in the leading case on the subject.” Bunting thought that it was “important that the principle of separation of the Judiciary from the Executive be preserved and that the Executive take no action which could be the subject of misconstruction.” The judgment in the Gove land rights case “must be allowed to stand as it is, and without any imputation that by any means the Judge is seeking to influence the Government’s reaction to it.” Accordingly, he recommended that the Minister’s paper should not be circulated officially (as an attachment to a Cabinet paper) or personally to other Ministers. Handwritten annotations to the note indicate that the Prime Minister agreed. Bunting put the Solicitor-General’s paper in “a different category – he is a law officer of the crown and a professional advocate rather than Judge.”

The McMahon Government’s policy response

In the end, the McMahon Government did not seek to legislate for Aboriginal land rights, either in the Northern Territory or nationally. Rather, in a statement titled Australian Aborigines: Commonwealth Policy and Achievements dated 26 January 1972, the Prime Minister announced a new form of general-purpose leases for Aborigines to give continuing groups and communities the opportunity of obtaining appropriate title over reserve lands which they were interested in to use and develop for economic and social purposes. Leases would be granted upon their demonstrating the “intention and ability to make reasonable economic and social use of the land.” It was considered that recognising a legal right to land on the basis of Aboriginal affinity with the land “could lead to uncertainty and possible challenge in relation to land titles elsewhere in Australia which are not at present unquestioned and secure.”[89]

But the debate continued, with the public focus being on a tent embassy erected by Aboriginal activists on the lawn outside Parliament House in Canberra following the Prime Minister’s statement on Australia Day.[90] This was an attempt to raise public awareness of the injustice experienced by Aboriginal people and to demand recognition from the Federal Government. It was called an “embassy” to symbolise the feeling of many Aboriginal people that they were “foreigners in their own country so long as they have no legal freehold title to any part of Australia.”[91]

On 20 and 23 July 1972, the embassy was torn down after a clash with police. It was re-erected and, on 30 July, a demonstration by about 1,500 people prevented its removal by police. It was removed again on 13 September but was subsequently re-established and remained until February 1975 when Charles Perkins and the Minister for the Australian Capital Territory negotiated its removal.[92]

The site continues to be occupied by Aboriginal people almost 50 years after the first tents were erected there.

The legislative response

Aboriginal land rights became a point of policy difference between the Liberal/Country Party Government led by Prime Minister McMahon and the Labor opposition. In 1969, the ALP adopted a policy that it would recognise Aboriginal land rights in the Northern Territory. In his policy speech for the December 1972 federal election, ALP leader Gough Whitlam pledged that a Labor government would legislate to recognise Aboriginal land rights, “not just because their case is beyond argument, but because all of us as Australians are diminished while the Aboriginals are denied their rightful place in this nation.”[93]

Aboriginal Land Rights (Northern Territory) Act 1976

The ALP was elected to form government in the 1972 election, and one of the first actions by Prime Minister Whitlam was to commence a process for the development of Aboriginal land rights legislation.

By Letters Patent dated 8 February 1973, Justice Woodward (formerly counsel for the plaintiffs in the Gove land rights case and now a judge of the Northern Territory Supreme Court and the ACT Supreme Court) received a Commission to inquire into and report upon:

The appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land.

Following a wide-ranging enquiry and the production of two reports, legislation was introduced into the House of Representatives in 1975.

The legislation lapsed with the dismissal of the Whitlam Government on 11 November 1975 but, in an amended form, the Aboriginal Land Rights (Northern Territory) Act 1976 was passed by the government led by Prime Minister Malcolm Fraser. When Minister Ian Viner introduced the legislation into the Federal Parliament, Justice Blackburn sent his paper to him with a covering letter acknowledging that Justice Woodward had provided comprehensive reports on land rights and referring to his views, while still insisting that Aboriginal land should be perpetual leasehold. Justice Blackburn outlined the moral issues and principles in relation to a scheme of Aboriginal title integrated within the framework of Australian law.^[94]

The Land Rights Act commenced on Australia Day 1977, five years after the tent embassy appeared.

For present purposes it is sufficient to note that the Act created a scheme for the grant of fee simple title to scheduled areas of land (primarily Aboriginal reserves) and a land claims process with hearings before Aboriginal Land Commissioners, the first of whom was Justice John Toohey, later a justice of the High Court of Australia. Claims were made on behalf of “traditional Aboriginal owners” who are defined to be, in relation to land:

a local descent group of Aboriginals who:

a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

b) are entitled by Aboriginal tradition to forage as of right over that land.[95]

Under that Act, fee simple titles have been granted over extensive areas of the Northern Territory. Approximately 47 percent of land in the Northern Territory and approximately 85 percent of its coastline is Aboriginal free-hold under that Act.

The development and enactment of the legislation was surrounded by much controversy, particularly in the Northern Territory in the years before self-government. In the early years of land claims, cases were taken directly from the Aboriginal Land Commissioner to the High Court to test the meaning and operation of key provisions of the Act.

Interpreting the Aboriginal Land Rights Act

In R v Toohey; Ex parte Meneling Station Pty Ltd, Brennan J referred to the Gove land rights case judgment as both an impetus for the Land Rights Act and of use in understanding that Act.

He recited that the Act was enacted:

[C]onsequent upon the final Report made by the Hon. Mr. Justice A. E. Woodward under a Commission to inquire into and report upon, inter alia, the appropriate means to recognize and establish the traditional rights and interests of Aboriginals in and in relation to land. The stimulus for the inquiry was the judgment of Blackburn J., then a judge of the Supreme Court of the Northern Territory, in Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141. In that case, Blackburn J. had held that the traditional rights and interests of Aboriginals in land situated on the Gove Peninsula in the Northern Territory were not capable of recognition by the common law as property or, alternatively, that no Aboriginal rights or interests in land had survived the Crown’s acquisition of the radical title to the land in dispute (1971) 17 FLR, at pp 147, 198, 244, 245, 247, 252, 262, 273, 274.[96]

Having referred to the statutory definitions of “traditional Aboriginal owners” and “Aboriginal tradition,” Brennan J wrote:

Aboriginal traditions, observances, customs and beliefs applied in relation to sites and areas of land are different from non-Aboriginal traditions, observances, customs and beliefs. Upon the evidence placed before him in Milirrpum, Blackburn J. commented (1971) 17 FLR, at p 167:

“As I understand it, the fundamental truth about the Aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship.”

The religious relationship of particular Aboriginal groups with their “country” (the term customarily used to describe the land with which there is a traditional connexion) invests the country of each group with a unique significance for that group.[97]

The common law of native title and the Native Title Act 1993 (Cth)

The Commonwealth Parliament’s legislative response to the Gove land rights case and other political stimuli operated only in the Northern Territory, apparently relying on the Territories power in section 122 of the Australian Constitution.[98] The Commonwealth did not seek to use its power under section 52(xxvi) of the Australian Constitution[99] to legislate nationally.

Other State and Federal legislation since then has been fashioned to reflect social and historical circumstances in individual jurisdictions.

Independently of legislative activity, the common law continued to develop in Australia and Canada.

Canadian judicial comments on the Gove land rights case judgment

The first court to consider the Gove land rights decision was the Supreme Court of Canada in the long-running Calder v Attorney-General of British Columbia[100] litigation. That was the next step in an ongoing form of dialogue through judgments of Australian and Canadian courts as the law of each country developed in relation to Aboriginal title (as Canadian courts describe it) and native title (as that term is used in Australia).

In the Gove land rights decision, Justice Blackburn considered the trial judgment of Gould J and the British Columbia Court of Appeal judgments in the Calder case and said:

I consider, with respect, that Calder’s case, though it is not binding on this Court, is weighty authority for these propositions:

1. In a settled colony there is no principle of communal native title except such as can be shown by prerogative or legislative act, or a course of dealing.

2. In a settled colony a legislative and executive policy of treating the land of the colony as open to grant by the Crown, together with the establishment of native reserves, operates as an extinguishment of aboriginal title, if that ever existed.^[101]

On appeal, the Supreme Court of Canada recognised Aboriginal title but by majority dismissed the appeal from the Court of Appeal on the question of whether Aboriginal title had been extinguished.^[102]

The Court’s attention was drawn to Justice Blackburn’s judgment, the report of which was not available until after the hearing of the appeal had finished.

In their reasons for judgment, Justices Hall, Spence and Laskin (dissenting) who would have allowed the appeal, wrote that Justice Blackburn:

[F]ell into the same errors as did Gould J. and the Court of Appeal. The essence of his concurrence with the Court of Appeal judgment lies in his acceptance of the proposition that after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognized by the conqueror or discoverer, [t]hat proposition is wholly wrong as the mass of authorities previously cited, including Johnson v. McIntosh and Campbell v. Hall, establishes.^[103]

Other aspects of Justice Blackburn’s judgment were referred to subsequently without criticism or were followed in the judgments of courts at first instance in cases such as Re Paulette and Registrar of Titles (No 2),^[104] Attorney-General of Ontario v Bear Island Foundation,^[105] and Delgamuukw v British Columbia.^[106]

Australian judicial comments on the Gove land rights case judgment

Papua & New Guinea v Daera Guba

In 1973, in Papua & New Guinea v Daera Guba,[107] the High Court considered an appeal from the Supreme Court of Papua and New Guinea in relation to a contest between the two Papuan clans and, as well, a contest between each of them and the Administration of the Territory of Papua-New Guinea, as to the ownership of an area of land. Each member of the High Court allowed the appeal.

For present purposes it is only relevant to note that Chief Justice Barwick wrote:

I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. Whatever the traditional view in this connexion (as to which see generally Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141, and more recently Calder v. Attorney-General (British Columbia) (1973) SCR 313 in the Supreme Court of Canada), the title of the Papuans whatever its nature according to native custom was confirmed in them expressly by legislative acts from time to time on the part of the Territorial Administration. I find no need to detail these or to discuss further that matter.[108]

Subsequently, Justice Blackburn’s judgment was referred to in other cases, apparently on the basis that it contained the current state of the common law.

Coe v Commonwealth

An attempt to expose the High Court to the issues raised in the Gove land rights case was made in the 1979 case of Coe v The Commonwealth.^[109] The case concerned whether Mr Paul Coe, an Aboriginal man, should be granted leave to file and serve an amended statement of claim, including claims for a declaration that lands and waterways in Australia “are and shall remain at the absolute command of the aboriginal people.”

Justice Mason dismissed the application for leave to amend. In the course of their reasons for judgment on appeal, other members of the Court commented on whether some of the issues raised were arguable, and alluded to the possibility that the High Court might rule that the Gove land rights case was decided wrongly.

Justice Gibbs, with whom Justice Aickin agreed, decided to dismiss the appeal. He stated that the allegations summarised in parts of the pleadings:

[M]ay have been intended to raise a claim that the aboriginal people had rights and interests in land which were recognised by the common law and are still subsisting. In other words it may have been desired to attack the correctness of the decision of Blackburn J in Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141. That would be an arguable question if properly raised. However, the assertions made are perfectly general; no particular land is identified…^[110]

However, Justice Jacobs did not think the objection that the lands which were the subject of the claim were not identified was a “valid one in view of the particular nature of the claim which is made.” As he put it:

The object of these paragraphs in the Statement of Claim is to have determined by this Court the question whether the aboriginals had, and now have, any rights under the Australian Crown and the common law principles applicable to any of the lands in those parts of Australia which are Commonwealth territory. It is public knowledge that there are large tracts of land in the Northern Territory which have never been alienated by grant from the Crown, and it is public knowledge that in those tracts of land there are aboriginal people in considerable numbers.[111]

It seemed to him that the matters stated in those parts of the statement of claim were sufficient to raise for consideration the kinds of question which were dealt with by Blackburn J in Milirrpum v. Nabalco Pty. Ltd. He continued:

I wish on an application of this kind carefully to avoid any discussion or consideration of the problem of aboriginal land rights and I only say that the problem is one which is difficult and complex and the subject of no small body of authority in relation to colonies or former colonies of the British Crown. Much of that authority is referred to by Blackburn J in the Milirrpum Case. See also articles upon the subject in the Federal Law Review (1972) Vol 5, pp. 85-114 and (1974) Vol. 6, pp. 150-177, and in the Alberta Law Review (1973), Vol. 11, pp. 189-237.[112]

Justice Murphy took a broader view of the issues raised by the statement of claim. He wrote:

Several obstacles to success were mentioned during argument: one was Blackburn J’s judgment in Milirrpum v. Nabalco Pty Ltd (1971), 17 FLR 141 which is not binding on this Court. It has been subjected to reasoned criticism (see John Hookey, “The Gove Land Rights Case: A Judicial Dispensation for the taking of Aboriginal Lands in Australia?” (1972), 5 Fed L Rev 85). Another was Cooper v. Stuart (1883), 14 AC 286. In that case, the Privy Council stated that the colony of New South Wales was not acquired by conquest, but was “practically unoccupied, without settled inhabitants or settled law at the time it was peacefully annexed to the British dominions” (at p. 291). That view is not binding on us (see Viro v. The Queen [1978] HCA 9; (1978), 52 ALJR. 418). “Occupation” was originally a legal means of peaceably acquiring sovereignty over territory otherwise than by secession or conquest. It was a cardinal condition of a valid “occupation” that the territory should be terra nullius - a territory belonging to no-one - at the time of the act alleged to constitute the occupation. “Territory inhabited by tribes or peoples having a social and political organisation cannot be of the nature terra nullius” (see Prof. J. G. Starke, International Law (8th ed. 1977), at p. 185, and generally). The extent to which the international law of occupation is incorporated in Australian municipal law is a question which would arise for determination in the proceedings.

The plaintiff claims that the fact is that Australia was at (or during) the time of its acquisition inhabited by the aboriginal people who had a complex social, religious, cultural and legal system and that their lands were acquired by the British Crown by conquest. There is a wealth of historical material to support the claim that the aboriginal people had occupied Australia for many thousands of years; that although they were nomadic, the various tribal groups were attached to defined areas of land over which they passed and stayed from time to time in an established pattern; that they had a complex social and political organisation; that their laws were settled and of great antiquity (for example, see D.C. Biernoff, Land and law in Eastern Arnhem Land: Traditional Models for Social and Political Organisation (1975).[113]

Gerhardy v Brown

The next opportunity for judicial comment on the Gove land rights case arose in the 1985 case of Gerhardy v Brown,[114] a High Court judgment dealing with racial discrimination. Justice Deane noted:

It would seem that the Aboriginal people had inhabited this country for at least forty milleniums [sic] before the arrival of the first white settlers less than two hundred years ago. To the extent that one can generalize, their society was not institutionalized and drew no clear distinction between the spiritual and the temporal. The core of existence was the relationship with and the responsibility for their homelands which neither individual nor clan “owned” in a European sense but which provided identity of both in a way which the European settlers did not trouble to comprehend and which the imposed law, based on an assertion of terrae nullius, failed completely to acknowledge, let alone protect. The almost two centuries that have elapsed since white settlement have seen the extinction of some Aboriginal clans and the dispersal, with consequent loss of identity and tradition, of others. Particularly where the clan has survived as a unit living on ancestral lands however, the relationship between the Aboriginal people and their land remains unobliterated.[115]

His Honour continued:

Yet, almost two centuries on, the generally accepted view remains that the common law is ignorant of any communal native title or other legal claim of the Aboriginal clans or peoples even to ancestral tribal lands on which they still live: see Milirrpum v. Nabalco. If that view of the law be correct, and I do not suggest that it is not, the common law of this land has still not reached the stage of retreat from injustice which the law of Illinois and Virginia had reached in 1823 when Marshall C.J., in Johnson v. McIntosh, accepted that, subject to the assertion of ultimate dominion (including the power to convey title by grant) by the State, the “original inhabitants” should be recognised as having “a legal as well as just claim” to retain the occupancy of their traditional lands.[116]

Northern Land Council v Commonwealth

In 1987 a case involving the Ranger land, “Aboriginal land”[117] in Arnhem Land in the Northern Territory, might have raised the question whether, contrary to the decision in the Gove land rights case, native title was recognised by the common law of Australia. The issue was raised in amendments to a statement of claim.[118] But the case did not proceed.

Mabo v Queensland (No 2)

At the time of the judgment in Gerhardy v Brown, the Mabo litigation had commenced. Proceedings started in the High Court in 1982.[119] The Court sent the matter for trial in the Supreme Court of Queensland in February 1986. After state legislation, which purported retrospectively to abolish all rights and interests of the Merriam people in relation to the subject islands in the Torres Strait, was held to be inconsistent with the Racial Discrimination Act 1975 (Cth),[120] the trial in the Supreme Court concluded in September 1989. The legal issues were argued before the High Court in May 1991.

The Mabo case created an opportunity for the facts of history, the demands of justice and the relevant legal principles to be brought into alignment.

The High Court delivered its judgment in Mabo v Queensland (No 2) on 3 June 1992, 10 years after the proceedings were commenced and 4 ½ months after Edward Koiki ‘Eddie’ Mabo died in Brisbane.[121]

When the five sets of reasons delivered by seven judges were published, they filled 212 pages of the Commonwealth Law Reports and had 661 footnotes. But their essence was set out in the brief summary judgment of Chief Justice Mason and Justice McHugh who recorded that, by a majority of 6 to 1, the members of the Court had agreed that:

The common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands.[122]

In the following months, the judgment was variously described as a “landmark decision”[123] which constituted either a “judicial revolution”[124] or a “cautious correction to Australian law,”[125] a decision creating “a legal, political and constitutional crisis,”[126] and a decision that “must be seen, not as a threat, but as a breakthrough offering enormous promise.”[127]

This lecture is not concerned to analyse the judgment in Mabo (No 2) or what followed, both by way of the passage and operation of the Native Title Act 1993 (Cth) or the hundreds of cases in the High Court, Federal Court of Australia and other courts dealing with native title issues.

For present purposes, it is sufficient to note that the decision in Mabo (No 2) was the first time that an Australian court had recognised the entitlements of indigenous people to their traditional lands under their traditional laws. The Crown could not grant those rights. The people already had, and in some cases have retained, them.

In significant respects, the decision in Mabo (No 2) was the antithesis of key findings of Justice Blackburn in the Gove land rights case. For example:

1. native title is part of the common law of Australia; and
2. for native title rights and interests to be recognised it is not necessary to find some equivalence between them and real property as characterised by the common law.

As Justice Toohey observed in Mabo (No 2), although Blackburn J “recognized the system before him as a system of law …on the other requirement of proof, that the aboriginal interests be proprietary, the plaintiffs failed. Blackburn J. held that the clan's relationship with the land was not proprietary because it failed to satisfy the essential elements of a proprietary interest under the common law, those elements being: the right to use or enjoy, the right to exclude others and the right to alienate.”[128]

In their judgment, Justices Deane and Gaudron wrote:

The importance of the case for present purposes lies in Blackburn J.’s conclusion that, quite apart from that finding, there were general reasons of principle which precluded the plaintiffs’ success. One was that a doctrine of common law native title had no place in a settled Colony except under express statutory provisions. Another was that, under any such doctrine, the narrow and somewhat rigid approach referred to in In re Southern Rhodesia would be appropriate and that the plaintiffs had failed to establish any pre-existing interest in relation to the land which satisfied the requirement that it be of the category of “rights of property”.

It should be apparent from what has been written above that we disagree with each of the above conclusions of general principle reached by Blackburn J. in Milirrpum.[129]

Although key conclusions in the Gove land rights case judgment were overturned, five justices of the High Court wrote respectfully of Justice Blackburn’s judgment.

Justice Dawson referred to a “full and scholarly examination” of the overseas authorities to be found in that judgment.[130]

Justices Deane and Gaudron expressly “acknowledged that Blackburn J.’s ultimate conclusion that the doctrine of common law native title had never formed part of the law of any part of Australia derives support from some general statements of great authority in earlier Australian cases.”[131] Among them was the Privy Council’s decision in Cooper v Stuart.

Justice Toohey, himself a former Judge of the Northern Territory Supreme Court, observed that Justice Blackburn, followed a particular line of judicial authority. Justice Toohey stated, “This perhaps is not surprising, at least in so far as the Privy Council decisions were concerned, since they were binding on him where applicable.”[132]

Justice Brennan wrote:

When it was sought to apply Lord Watson’s assumption in Cooper v. Stuart that the colony of New South Wales was “without settled inhabitants or settled law” to Aboriginal society in the Northern Territory, the assumption proved false. In Milirrpum v. Nabalco Pty. Ltd. Blackburn J. said:

“The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me.”

Faced with a contradiction between the authority of the Privy Council and the evidence, his Honour held that the class to which a colony belonged was a question of law, not of fact.[133]

The Gove land rights case judgment through the prism of Mabo (No 2)

Arguably, the perception of the Gove land rights case judgment seems to have shifted in the decades since 1971 as the common law, as well as statutory schemes in different parts of Australia, have recognised the rights and interests of Aboriginal peoples and Torres Strait Islanders in relation to their traditional lands and seas.

In Western Australia v Ward, Callinan J wrote:

Before Mabo [No 2], although the indigenous people and some anthropologists and others had regarded it as an unjust, and at least an arguably incorrect result, it had generally been assumed that the law in relation to claims of land rights by indigenous peoples was as stated in Milirrpum v Nabalco Pty Ltd:

“The doctrine of communal native title contended for by the natives did not form, and never had formed, part of the law of any part of Australia. Such a doctrine has no place in a settled colony except under express statutory provisions. Throughout the history of the settlement of Australia any consciousness of a native land problem inspired a policy of protection and preservation, without provision for the recognition of any communal title to land … [T]he natives had established a subtle and elaborate system of social rules and customs which was highly adapted to the country in which the people lived and which provided a stable order of society remarkably free from the vagaries of personal whim or influence. The system was recognized as obligatory by a definable community of aboriginals which made ritual and economic use of the areas claimed.”[134]

Justice Kirby characterised the judgment in slightly different ways in two judgments. In Griffiths v Minister for Lands, Planning and Environment he wrote that “native title interests are now recognised as legal interests, after more than a century and a half of denial by the Australian legal system,”^[135] listing cases including the Gove land rights case judgment. In Wilson v Anderson, however, he referred to the “legal advance that commenced with Mabo v Queensland [No 2], or perhaps earlier” citing the Gove land rights case judgment as that “possibly earlier” event.[136] In Wik Peoples v Queensland,^[137] he noted that the Gove land rights case judgment criticised the apparently unjust and uncompensated deprivation of pre-existing rights which distinguished the treatment by the Crown of the indigenous peoples in Australia.

Interpreting the Native Title Act

The High Court has quoted passages from the Gove land rights case judgment in the course of interpreting the Native Title Act 1993 (Cth).

In Western Australia v Ward,[138] Gleeson CJ, Gaudron, Gummow and Hayne JJ wrote:[139]

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that:

“the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship. … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.”

That passage was quoted subsequently by Kiefel CJ, Bell, Gordon, Keane and Nettle JJ in Northern Territory v Griffiths,^[140] a major compensation for native title case.

In Griffiths v Minister for Lands, Planning and Environment, Kirby J drew together statements quoted above and others in the following passage:

In Toohey, Brennan J stated that “Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights.” This statement of Brennan J was cited with approval by Gleeson CJ, Gaudron and Hayne JJ and myself in joint reasons in Yanner v Eaton. The Court there specifically acknowledged that there is a “connection with the land”, specifically, a “spiritual, cultural and social connection”. In the Federal Court in Western Australia v Ward, Beaumont and von Doussa JJ cited Toohey and specifically the statement of Brennan J extracted above. In Ward, Beaumont and von Doussa JJ also referred to the “religious relationship” described by Blackburn J in Milirrpum v Nabalco Pty Ltd, and to a “spiritual connection” and “religious or spiritual” relationship. When Western Australia v Ward was considered by this Court, Gleeson CJ, Gaudron, Gummow and Hayne JJ expressly affirmed that “[a]s is now well recognised, the connection which Aboriginal peoples have with ‘country’ is essentially spiritual”.^[141]

In Members of the Yorta Yorta Aboriginal Community v Victoria, Gleeson CJ, Gummow and Hayne JJ considered the “inextricable link between a society and its laws and customs.” They wrote:^[142]

Laws and customs do not exist in a vacuum. …Law and custom arise out of and, in important respects, go to define a particular society. In this context, “society” is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs. Some of these issues were considered in Milirrpum v Nabalco Pty Ltd where there appears to have been detailed evidence about the social organisation of the Aboriginal peoples concerned.

Their Honours also noted that the kinds of evidentiary questions which may arise under the rules of evidence “are well illustrated by Milirrpum”[143] but it was neither necessary nor appropriate to consider whether the answers given to the questions that arose in that case were right. Were they to arise again, in proceedings in the Federal Court, it would be necessary to consider them by reference to the Evidence Act 1995 (Cth).^[144]

Other judicial references to the Gove land rights case judgment

The Gove land rights case judgment has been cited with approval by the High Court in judgments dealing with other subjects.

Justice Blackburn’s rulings in relation to expert evidence have been cited in a case from the Dust Diseases Tribunal of New South Wales^[145] and a case involving a claim for damages for the tort of injurious falsehood.^[146]

In Western Australia v Ward, Kirby J mentioned a possible constitutional argument for the protection of the right of Aboriginal peoples to their cultural knowledge, so far as it is based upon the spirituality of Australia's indigenous people. The argument involves the application of section 116 of the Constitution, which provides a prohibition on laws affecting the free exercise of religion. His Honour noted that the operation of that section was not argued in the appeals in that case but had been the subject of academic comment in relation to the Native Title Act and its impact on indigenous culture and spirituality.[147] He continued:

The full significance of s 116 of the Constitution regarding freedom of religion has not yet been explored in relation to Aboriginal spirituality and its significance for Aboriginal civil rights. Yet there is at least one judicial comment that the “Aboriginal religion of Australia … must be included” in the definition, given that Aboriginal societies ordinarily have a religious basis.[148]

For that last proposition he cited Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at page 167.

A section 116 submission was made in Kruger v Commonwealth, the Stolen Generations case, and Justice Gaudron noted that “there are some statements in the decided cases to the effect that Aboriginal beliefs are properly classified as religious beliefs”^[149] citing Milirrpum at page 167.

In Love v Commonwealth of Australia,[150] the High Court was asked to decide whether an Aboriginal Australian could be an “alien” within the meaning of section 51(xix) of the Australian Constitution. The majority considered that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2][151]) are not within the reach of the “aliens” power conferred by section 51(xix) of the Constitution.

In his reasons for judgment, Justice Nettle wrote:

Referring to the fact that Aboriginal people first inhabited Australia at least 40,000 years before Australia was settled by Great Britain, that aboriginal people have lived in Australia continuously ever since, and that Aboriginal people have a consequent, unique spiritual connection to land and waters in Australia, each plaintiff argued that a person of Australian aboriginal descent who identifies as a member of an Australian Aboriginal community, and is accepted as such by one or more members of an Australian Aboriginal community, is so essentially “Australian” (as that concept is ordinarily understood) that such a person cannot possibly answer the description of “alien” in the ordinary sense of that word, and therefore cannot be treated as an unlawful non-citizen and liable to deportation on that basis.[152]

Among the cases cited in support of that submission were a passage from the decision in the Gove land rights case.[153]

Justice Nettle wrote:

As is now understood, central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.[154]

His Honour cited in support of that proposition a passage from the judgment in the Gove land rights case.[155]

At the outset of her reasons, Justice Gordon observed that the fundamental premise from which the decision in Mabo [No 2] proceeds – “the deeper truth – is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European ‘settlement’.”[156] Her Honour continued,[157] quoting from the Gove land rights case:

That connection is spiritual or metaphysical: “[t]here is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”.

Justice Edelman quoted briefly two extracts from the Gove land rights judgment when he referred to the “religious relationship” which comprises the powerful spiritual and cultural connection that Aboriginal people have with the land,[158] and recited the statement quoted by Justice Gordon that “underlying a connection to any particular land is a general, “fundamental truth … an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on it and in it, are organic parts of one indissoluble whole”.[159]

Conclusion

In focusing on Sir Richard Blackburn’s judgment in the Gove land rights case I have not sought to suggest that his Honour was, to use the colloquial, a “one-hit wonder.” Rather, I have attempted to demonstrate that, in dealing with concepts from one legal system which were so different from the legal system in which he was trained and which he administered, his Honour delivered a judgment which dealt with the novel legal, factual and social issues before the court on the basis of his understanding and analysis of legal principle. That judgment became a stimulus or at least the catalyst for substantial legislative change to overcome the legal position.

The fact that a judgment provokes a legislative response is unusual but not unique. What is remarkable in this case is that, having delivered such an intellectually rigorous and legally thorough analysis and application of the law, Justice Blackburn took it upon himself to advise the Commonwealth government of the day about ways to overcome the decision legislatively and so effect a just outcome for Aboriginal people in the Northern Territory.

Earlier in this lecture I referred to a similar initiative by counsel for the Commonwealth, RJ Ellicott QC, and to the work of counsel for the plaintiffs, AE Woodward QC, in developing detailed proposals for what became the Aboriginal Land Rights (Northern Territory) Act 1976. Each of them played a role beyond their advocacy in the case.

The Gove land rights case also had a personal effect on counsel for Nabalco Pty Ltd, LJ ‘Bill’ Priestley, later a judge of the New South Wales Court of Appeal. In the homily at the Requiem Mass for Bill Priestley on 22 January 2021, Father Frank Brennan said:

Like all of us, Bill felt challenged by Jesus Beatitudes: “Blessed are the meek, for they will inherit the land. Blessed are they who hunger and thirst for righteousness, for they will be satisfied.” I first heard Bill’s name when I was a first year law student 50 years ago. The Northern Territory Supreme Court had just delivered judgment in the epic land rights case Milirrpum v Nabalco. Bill had appeared for the mining company. Forty years later, Bill told me, “The case affected me in many ways, some are still continuing.” He had commenced his submissions to the court “by expressing an unfeigned admiration for the extraordinarily thorough and complete submissions that have been put to the court by Counsel for the Commonwealth.” He continued, “Might I respectfully put to Your Honour that they are, one and all, submissions of very great force”. In our discussions about the case, he assured me, “A moral judgement would start from different premises and apply different criteria.”

The Gove land rights case is an example of the challenges which lawyers and legislators sometimes face when difficult or novel cases with broad implications are litigated.

As I observed at the outset, few of us can decide what our legacy will be.

By upholding their oath of office and dealing with the matters that come before them, appropriately and with due independence and intellectual rigour, judges perform an essential function in civil society. Some of them are fortunate enough to be able to contribute even more by writing landmark judgments. Sir Richard was one of those judges.

The 50^th anniversary of the Gove land rights judgment is not simply an occasion to acknowledge the significance of a judgment of its time for its time, but which in key respects is no longer legally authoritative. Rather, it is an occasion to pay tribute to a legal scholar, jurist and citizen who looked not only at the law as he understood it to be, but beyond, to what the law could become in the interests of Aboriginal peoples in particular, and the broader Australian community.

It is been a privilege to pay that tribute.