Milirrpum v Nabalco Pty Ltd

The Yolngu people, the traditional owners of Arnhem Land (which includes the Gove Peninsula), had petitioned the Australian House of Representatives in August 1963 with a bark petition after the government had sold part of the Arnhem Land reserve on 13 March of that year to a bauxite mining company, Nabalco without consultation with the traditional owners at the time. However, in 1968 the Commonwealth government granted a special mineral lease to the company over the land for a period of 42 years. ==The case==

In December 1968, the Yolngu people living in Yirrkala, represented by three plaintiffs, obtained writs in the Supreme Court of the Northern Territory against the Nabalco Corporation, which had secured a 12-year bauxite mining lease from the Federal Government. an elder of the Djapu clan, who represented that clan as well as acting on behalf of 11 other peoples with interests in the land. The claim was amended on 6 January 1970, and listed these three as representing their own clans, and the "Marrakuli, Galpu, Munyuku, Ngamil, Wangurri, Djambarrpuyngu, Manggalili, Dhalwangu, Warramirri and Madarrpa clans, who normally reside on the land in the Melville Bay to Port Bradshaw area of the Northern Territory commonly referred to as the Cove(sic) Peninsula". It also specifically referred to the Letters Patent establishing the Province of South Australia in 1836, which recognised the rights of Aboriginal peoples in that colony, now a state, which stated: "that nothing in these our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any lands therein now actually occupied or enjoyed by such Natives". The plaintiffs' lawyers were Edward Woodward, Frank Purcell, John Little, and John Fogarty. The plaintiffs claimed they enjoyed sovereignty over their land, and sought the freedom to occupy their lands, including the right to perform sacred rituals on the land leased to Nabalco. The 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 (Cth), and should be recognised as an enforceable proprietary right. The lengthy legal battle culminated in 1971. The court interpreter for the case was Galarrwuy Yunupingu, the son of a Gumatj clan leader, Munggurrawuy, who was one of the Yirrkala plaintiffs. Galarrwuy had earlier helped his father draft the Yirrkala bark petitions. He later became chairman of the Northern Land Council and in 1978 became Australian of the Year for his work on Indigenous rights. Yunupingu went on to successfully win the case Commonwealth v Yunupingu, relating to compensation for government actions in violation of Section 51(xxxi) of the Australian Constitution. ==Ruling==

Justice Blackburn found that the Yolngu people could not prevent mining on their lands. He held that native title was not part of the law of Australia, and even had it existed, any native title rights had been extinguished. Further, even if extinguishment had not occurred, the plaintiffs were not able to prove native title. The decision also noted that the Crown had the power to extinguish native title, if it existed. Although the plaintiffs had shown "their long association with the land, and its central place in their law and culture they had not demonstrated exclusive ownership of the land, which therefore belonged to the Crown which had 'settled' it". 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. Blackburn acknowledged the claimants' ritual and economic use of the land and that they had an established system of law "a subtle and highly elaborate" system of laws (Madayin). The judgement concludes: "I cannot help being specially conscious that for the plaintiffs it is a matter in which their personal feelings are involved". ==Subsequent developments==

Aboriginal Land Rights Act 1976 There was a deliberate decision to pursue a political course rather than legal challenge to the High Court of Australia, which at the time because of the membership of the Court was likely to reject Blackburn's finding that there was a coherent system of Aboriginal law relating to land. By not having the appeal rejected by the High Court, the findings of Justice Blackburn that were favourable to the plaintiffs (and by extension to other Aboriginal Australian peoples), and thus the concept of land rights, was maintained as a possibility, at least until the membership of the High Court had changed. where it was found to not precluded the common law recognition of native title. The case was heard in 2023, and found in favour of Yunupingu on a number of questions of law, holding that native title rights are equivalent to property rights for the purposes of Section 51(xxxi) of the Australian Constitution. The High Court upheld this decision on 12 March 2025 in Commonwealth v Yunupingu, affirming that any extinguishment of native title does amount to an acquisition, which should me made "on just terms". The case would then go back to the Federal Court to determine what compensation may be due to the people for native title that was extinguished between 1911 and 1978, when the Northern Territory was administered by the Commonwealth Government. Under the NTA, these were invalid acquisitions of property, contravening the "just terms" guarantee in section 51(xxxi). The decision potentially opens the possibility for other Indigenous groups to seek compensation for past government extinguishments of their native title, but only relating to the Commonwealth Government, not state governments. Compensation had not yet been decided by the end of 2025. ==See also==