Land Rights: The Australian Aborigines Have Lost a Legal Battle, But

Abstract

Concern for aboriginal rights has been mounting in many former British colonies in the last decade. Nowhere is this more true than in Australia where there are no treaties and few statutes which make any attempt to protect the rights of the original inhabitants of the continent. But the decision in Milirrpum Ors. v. Nabalco Pty. Ltd. The Commonwealth of Australia appears to have "blocked further action through the courts and . . forced the debate into the political arena" by refusing to recognize any legal obliga tion on the Crown to take cognizance of aboriginal rights based on customary native tenure as "their relationship with the land could not be characterized as proprietary interest." But the authors submit that the Milirrpum court "failed to discover the existence of communal native title" because they operated in conceptual framework, the law of real property, which was not equal to the task. Instead the authors suggest that such rights stem from the aborigines'status as British subjects (and "central to this issue is the distinc tion between colonies acquired by conquest and those acquired by peaceful settlement"). In colonies acquired by peaceful settlement or annexation the aborigines were British subjects under the protection of the common law. And on the basis of case law, aborigines do have some rights at common law: their title has been characterized as right of "qualified" or "modified" dominion over the land, to the extent, at least, of occupation or enjoyment of the land, which is consistent with the Crown's right of pre-emption (exclusive right to extinguish native title). The authors cite the example of New Zealand and the British experience with the Maoris (where the theory was cessation with consent), offering detailed and careful examination of historical materials to support their view that there does exist doctrine of communal native title. They suggest that where aborigines enjoy the status of British subjects, the Crown's pre-emptive right