Public reaction to Gove decision
The legal defeat of the Yolngu attracted public sympathy for their complaint, which was reflected in some newspaper editorials.
However, the recommendations made in 'The Age' editorial of 29 April fell short of recognising an Indigenous right to land:
'The Aboriginal tribes of the Gove Peninsula have lost their two-year battle for ownership of their land. In an historic judgment handed down on Tuesday, Mr. Justice Blackburn set aside their claims to traditional ownership (and, by implication, those of other Aboriginal groups throughout Australia). Instead he held that when Captain Arthur Phillip laid claim to Australia in 1788 every square inch of the colony became the property of the Crown. Mr. Justice Blackburn took 262 pages to explain and justify his decision. In the process he leant heavily on a principle which has a long history of acceptance among nations - at least among victorious ones. In crude terms it is the Darwinian principle; the strong survive, the weak go to the wall. In the judge's more elegant terminology, it is the principle that in the past the whole Earth was open to the industry and enterprise of the human race, and the more advanced peoples were therefore justified in dispossessing the less advanced.
It is hard to see how Mr.Justice Blackburn could have come to any other conclusion, regrettable though it be. To have found for the Gove tribesmen would have been to turn the clock of history back. In legal terms it would have meant setting aside the explicit canons of British law for the unwritten and largely unknown ones of tribal custom. How could any court ever decide what laws applied with any tribe in the period before the First Fleet's arrival? In the absence of records too, how could a court decide where any particular group or tribe's traditional boundaries began and ended?
But while Mr. Justice Blackburn's judgment may be realistic when viewed through the white man's eyes, we can hardly expect it will seem the same to the Gove tribesmen and to the other 130,00-odd Aborigines throughout Australia. They are entitled to feel dismayed and disappointed. Not only have they lost the land rights argument; they have also lost a measure of security. None of the nation's native reservations is safe any longer from industrial depredation. Today it is a $310 million bauxite-mining consortium, which is dispossessing them at Gove. Who knows what projects tomorrow will bring?
To Aborigines this will seem as further proof of the white man's willingness to trample on the rights of native people and to exploit them as they did in the early dark days of colonising. To avoid this charge the Federal Government has an obligation to legislate to give Aborigines a much stronger measure of protection than they now enjoy. As an act of conscience, if not as an act of justice too, the Government should also be prepared to make freehold land grants to groups which can prove they have the necessary skills and economic know-how. In America, Canada and New Zealand, land grants have been made by statute or by executive policy, as Mr.Justice Blackburn noted. This should be Australia's policy too. On grounds of humanity alone, this is the least we can do.'
However, the recommendations made in 'The Age' editorial of 29 April fell short of recognising an Indigenous right to land:
'The Aboriginal tribes of the Gove Peninsula have lost their two-year battle for ownership of their land. In an historic judgment handed down on Tuesday, Mr. Justice Blackburn set aside their claims to traditional ownership (and, by implication, those of other Aboriginal groups throughout Australia). Instead he held that when Captain Arthur Phillip laid claim to Australia in 1788 every square inch of the colony became the property of the Crown. Mr. Justice Blackburn took 262 pages to explain and justify his decision. In the process he leant heavily on a principle which has a long history of acceptance among nations - at least among victorious ones. In crude terms it is the Darwinian principle; the strong survive, the weak go to the wall. In the judge's more elegant terminology, it is the principle that in the past the whole Earth was open to the industry and enterprise of the human race, and the more advanced peoples were therefore justified in dispossessing the less advanced.
It is hard to see how Mr.Justice Blackburn could have come to any other conclusion, regrettable though it be. To have found for the Gove tribesmen would have been to turn the clock of history back. In legal terms it would have meant setting aside the explicit canons of British law for the unwritten and largely unknown ones of tribal custom. How could any court ever decide what laws applied with any tribe in the period before the First Fleet's arrival? In the absence of records too, how could a court decide where any particular group or tribe's traditional boundaries began and ended?
But while Mr. Justice Blackburn's judgment may be realistic when viewed through the white man's eyes, we can hardly expect it will seem the same to the Gove tribesmen and to the other 130,00-odd Aborigines throughout Australia. They are entitled to feel dismayed and disappointed. Not only have they lost the land rights argument; they have also lost a measure of security. None of the nation's native reservations is safe any longer from industrial depredation. Today it is a $310 million bauxite-mining consortium, which is dispossessing them at Gove. Who knows what projects tomorrow will bring?
To Aborigines this will seem as further proof of the white man's willingness to trample on the rights of native people and to exploit them as they did in the early dark days of colonising. To avoid this charge the Federal Government has an obligation to legislate to give Aborigines a much stronger measure of protection than they now enjoy. As an act of conscience, if not as an act of justice too, the Government should also be prepared to make freehold land grants to groups which can prove they have the necessary skills and economic know-how. In America, Canada and New Zealand, land grants have been made by statute or by executive policy, as Mr.Justice Blackburn noted. This should be Australia's policy too. On grounds of humanity alone, this is the least we can do.'
Keywords: Blackburn judgement, Blackburn, Justice, crown land, First Fleet, Gove, Gove Case, land rights, Milirrpum v Nabalco Pty Ltd, 1971 , mining, Nabalco, Northern Territory, terra nullius, Yirrkala, Yolgnu, 1971
Author: Rowse, Tim and Graham, Trevor
Source: The Age, 29 April 1971.
Source: The Age, 29 April 1971.