The Gove Case Issues
The issue of recognition of pre-existing Aboriginal land rights was presented to an Australian court, for the first time, in what is known as The Gove Land Rights Case.
The court was the Supreme Court of the Northern Territory, constituted by a single judge, Justice Blackburn. While the judge held, firmly, that the evidence before him showed that the Yolgnu plaintiffs before him had a system of law, he felt bound by the precedents to conclude that 'the doctrine [of native title] does not form, and has never formed, part of the law of any part of Australia.'
He said: 'On the foundation of New South Wales, ... every square inch of territory in the colony became the property of the Crown. All titles, rights, and interests whatever in land which existed thereafter in subjects of the Crown were the direct consequence of some grant from the Crown. The plaintiffs, who cannot point to any grant from the Crown as the basis for the title which they claim, cannot succeed...'
Justice Blackburn also decided that, even if native title did form a part of Australian law, that the claim would fail for other reasons. One such reason was his conclusion that the plaintiffs' relationship to their land was not 'proprietary'. Another reason was the proposition that any surviving native title would have been extinguished by legislation or executive policy authorising grants of land throughout the territory.
No appeal was taken from the decision by Justice Blackburn at the time. What did happen was that the Australian Labour Party promised that, when it was elected to form the Commonwealth Government, it would recognise Aboriginal land rights in the Northern Territory. The ALP, led by Gough Whitlam, was elected in 1972. It established an inquiry to recommend how to recognise such land rights. The report by Sir Edward Woodward formed the basis for the Aboriginal Land Rights (Northern Territory) Act 1976 as eventually enacted by the Coalition Government led by Malcolm Fraser.
Acts providing for statutory Aboriginal land rights were also passed by most of the State Parliaments.
The court was the Supreme Court of the Northern Territory, constituted by a single judge, Justice Blackburn. While the judge held, firmly, that the evidence before him showed that the Yolgnu plaintiffs before him had a system of law, he felt bound by the precedents to conclude that 'the doctrine [of native title] does not form, and has never formed, part of the law of any part of Australia.'
He said: 'On the foundation of New South Wales, ... every square inch of territory in the colony became the property of the Crown. All titles, rights, and interests whatever in land which existed thereafter in subjects of the Crown were the direct consequence of some grant from the Crown. The plaintiffs, who cannot point to any grant from the Crown as the basis for the title which they claim, cannot succeed...'
Justice Blackburn also decided that, even if native title did form a part of Australian law, that the claim would fail for other reasons. One such reason was his conclusion that the plaintiffs' relationship to their land was not 'proprietary'. Another reason was the proposition that any surviving native title would have been extinguished by legislation or executive policy authorising grants of land throughout the territory.
No appeal was taken from the decision by Justice Blackburn at the time. What did happen was that the Australian Labour Party promised that, when it was elected to form the Commonwealth Government, it would recognise Aboriginal land rights in the Northern Territory. The ALP, led by Gough Whitlam, was elected in 1972. It established an inquiry to recommend how to recognise such land rights. The report by Sir Edward Woodward formed the basis for the Aboriginal Land Rights (Northern Territory) Act 1976 as eventually enacted by the Coalition Government led by Malcolm Fraser.
Acts providing for statutory Aboriginal land rights were also passed by most of the State Parliaments.
Keywords: Blackburn, Justice, extinguishment, Gove, land rights, native title, Northern Territory, recognition, Supreme Court of the Northern Territory, Yolgnu, 1971
Author: Nettheim, Garth