Police v Yunupingu
In Police v Yunupingu (unreported decision, NT CSJ 20 Feb 1998) a prominent Aboriginal political leader, Galarrwuy Yunupingu, successfully defended criminal assault charges.
The basis of the defence was two pronged, first, under native title, and second, under an old common law defence of 'honest claim of right'.
It was argued that native title could be used as defence to criminal and civil charges as was foreshadowed by Justices Deane and Gaudron in Mabo v Queensland [No.2] (at p 94) and by Justice Gummow in Wik Peoples v Queensland (at pp. 193-4). In contrast to the Walker case it was not asserted that Yolngu law, in this case, overrides the laws of the Northern Territory, but that in the circumstances relating to trespass and other laws relating to the land, the Yolngu law had been incorporated into the laws of the Northern Territory. The Magistrate accepted the arguments, stating that, 'I must recognise the rights of the defendant to enforce Yolngu law on Yolngu land.' (p16)
The basis of the defence was two pronged, first, under native title, and second, under an old common law defence of 'honest claim of right'.
It was argued that native title could be used as defence to criminal and civil charges as was foreshadowed by Justices Deane and Gaudron in Mabo v Queensland [No.2] (at p 94) and by Justice Gummow in Wik Peoples v Queensland (at pp. 193-4). In contrast to the Walker case it was not asserted that Yolngu law, in this case, overrides the laws of the Northern Territory, but that in the circumstances relating to trespass and other laws relating to the land, the Yolngu law had been incorporated into the laws of the Northern Territory. The Magistrate accepted the arguments, stating that, 'I must recognise the rights of the defendant to enforce Yolngu law on Yolngu land.' (p16)
Keywords: aboriginal law, Deane, Sir William, Gaudron, Justice Mary, Gummow, Justice, Mabo v Queensland No.2, Northern Territory, Police v Yunupingu (1998), Wik & Co-Existence, Wik peoples v Queensland, Yolgnu, Yunupingu, Galarrwuy, 1998
Author: Strelein, Lisa