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47-601: In 1971 the court decided that the ordinances and mining leases were valid, and that the Yolngu people were not able to establish their native title at common law, in a decision known as the Milirrpum decision , or the Gove land rights case. Wali Wunungmurra, one of the 12 signatories to the petitions, describes the background of the petitions as follows: "In the late 1950s Yolngu became aware of people prospecting for minerals in

94-545: A Gumatj clan leader, Munggurrawuy Yunupingu , was Galarrwuy Yunupingu , who assisted in drafting the petitions. The petitions stated that "the land in question has been hunting and food gathering land for the Yirrkala tribes from time immemorial" and "that places sacred to the Yirrkala people, as well as vital to their livelihood are in the excised land". They expressed the petitioners' "fear that their needs and interests will be completely ignored as they have been ignored in

141-630: 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. In December 1968, the Yolngu people living in Yirrkala , represented by three plaintiffs , obtained writs in

188-657: A digging stick known as the Djang'kawu digging stick, associated with the creation story of the Yolngu people. A third petition is in the National Museum of Australia , also in Canberra. The fourth petition was found by historian Clare Wright at La Trobe University to be privately owned by the first wife of Stan Davey, who had been secretary of the Federal Council for Aboriginal Advancement in 1963. In

235-614: A biographical entry in the Australian Dictionary of Biography about his father. In keeping with Blackburn's nature of not seeking honours, he failed to note in the entry that he had himself gone on to become a distinguished judge. He was Patron of the St John Council for Australian Capital Territory from 1981 to 1984. In 1981, he became a Commander of the Order of St John of Jerusalem in honour of his service. He

282-669: A judge of the Federal Court of Australia in 1977 on that court's establishment and served as a judge in that latter court until 1984. He was appointed chief judge of Supreme Court on 7 November 1977. He was appointed chief justice on 7 May 1982 when that position replaced the former position of chief judge. He was the chairperson of the Law Reform Commission of the Australian Capital Territory from 1971 to 1976. In 1979, Blackburn authored

329-553: A judge under the Australian Constitution. Blackburn concluded: '[P]roved misbehaviour' means such misconduct, whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for office of the judge in question." Blackburn died on 1 October 1987. He was survived by his wife Bryony Helen Blackburn, who died in 2005, and children Charlotte Calder and Tom Blackburn SC . In 1986,

376-722: A partner in the Adelaide law firm Finlaysons; however, he continued as a member of the Faculty until 1965. His daughter and son were born while he was teaching at the Adelaide University. In 1957 he was commissioned as a lieutenant colonel and given command of the Adelaide University Regiment . In 1962 he was commissioned as a colonel and given command of the 1st Battalion, Royal South Australia Regiment . He served there until 1965. Blackburn

423-406: A primitive state of society". In such a territory, the laws of England (unless inconsistent with local laws) were imported when sovereignty was acquired. The doctrine of continuity did not relate to settled colonies, and therefore, "if there were no local laws then there were no rights of property to respect". A distinction between settled and conquered colonies was drawn. The decision also noted that

470-700: The Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory , was the first litigation on native title in Australia , and the first significant legal case for Aboriginal land rights in Australia , decided on 27 April 1971. The decision of Justice Richard Blackburn ruled against the Yolngu claimants on a number of issues of law and fact, rejecting

517-649: The Milirrpum decision, in 1973 the Whitlam government established the Aboriginal Land Rights Commission , headed by Justice Edward Woodward , to inquire into "the appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to the land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land". The 1963 Yirrkala petitions were

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564-830: The Second World War . On 14 May 1940, during the Second World War, Blackburn enlisted in the Australian Army at Adelaide. He served with the Second Australian Imperial Force (2nd AIF) on active service in North Africa and Papua New Guinea until his discharge on 7 November 1945 as a captain in the 2/9th Division Cavalry Regiment . At the end of the war, he took up his Rhodes Scholarship at Magdalen College , University of Oxford . He and another South Australian,

611-850: The Supreme Court of the Northern Territory against the Nabalco Corporation, which had secured a 12-year bauxite mining lease from the Federal Government . The plaintiffs were Milirrpum Marika , elder of the Rirratjingu clan; Munffaraway, elder of the Gumatj clan, and Daymbalipu, an elder of the Djapu clan, who represented that clan as well as acting on behalf of 11 other peoples with interests in

658-716: 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 . The impact of the international law doctrine of terra nullius on domestic laws, which was not contemplated in this decision, was later addressed in Mabo v Queensland (No 2) (1992), where it was found to not precluded the common law recognition of native title. Richard Blackburn Sir Richard Arthur Blackburn OBE (26 July 1918 – 1 October 1987)

705-512: The 1980s, Davey's ex-wife Joan McKie had moved to Western Australia and was living in Derby . In November 2022 Wright organised the handover of the petition to descendants of the original signatories. It was initially restored and conserved at Artlab Australia in Adelaide , before being repatriated to Arnhem Land, to go on permanent display at Buku-Larnŋgay Mulka Centre . The typewriter on which

752-540: The British common law did not recognise communal interests and in any event, those interests were extinguished by the assertion of British sovereignty over the land in question. The case led to the eventual introduction of the Aboriginal Land Rights Act 1976. In May 1971 he was appointed as a judge of the Supreme Court of the Australian Capital Territory . In that same year, he was also appointed

799-471: The Crown had the power to extinguish native title, if it existed. 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

846-909: The Honourable Justice Andrew Wells, became the first Dominion students to be awarded the Eldon Law Scholarship . As a result, he attended the University of Oxford in 1949 and graduated with a Bachelor of Civil Law. Blackburn was called to the Bar in the United Kingdom in Inner Temple in 1949. Blackburn returned to Australia after his Oxford studies. He was admitted as a legal practitioner in South Australia in 1951. Between 1950 and 1957 he

893-636: The Yirrkala Aboriginal reserve in order to enable Nabalco to develop the mine. The Aboriginal clans whose traditional lands were affected by the Gove project were so strongly opposed to the making of the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 that they challenged it in the Supreme Court of the Northern Territory in 1968 in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"). In 1971 Justice Richard Blackburn held that

940-467: 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. Blackburn rejected the claim on the bases that: The terms "settled" and "desert and uncultivated" included territory in which resided "uncivilized inhabitants in

987-518: The area of the Gove Peninsula , and shortly after, discovered that mining leases had been taken out over a considerable area of our traditional land. Our response, in 1963, was to send a petition framed by painted bark to the Commonwealth Government demanding that our rights be recognised." Five brothers of the Rirratjingu clan, Mawalan Marika , Mathaman Marika , Milirrpum Marika , Dhunggala Marika and Dadaynga "Roy" Marika led

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1034-487: 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". In a confidential memorandum to the Government and Opposition, he opined that a system of Aboriginal land rights

1081-439: The conduct of Justice Lionel Murphy concerning allegations that Murphy had attempted to pervert the course of justice in the criminal proceeding involving solicitor Morgan Ryan. He was appointed notwithstanding his ill-health because of his skills and abilities. While the inquiry did not proceed to conclusion because of Murphy's own illness and subsequent death, the commissioners did make a report on what constituted misconduct for

1128-426: The doctrine of Aboriginal title . Instead his ruling recognised that in the law of the time of British colonisation of Australia there was a distinction between settled colonies, where the land, being "desert and uncultivated", was claimed by right of occupancy, and conquered or ceded colonies. The decision also noted that the Crown had the power to extinguish native title, if it existed. The issue of terra nullius

1175-589: The federal government established a select committee known as the House of Representatives Select Committee on Grievances of the Yirrkala Aborigines, Arnhem Land Reserve, chaired by Liberal MP Roger Dean . In its report, the Select Committee recommended that the Yirrkala people should be compensated for the loss of their traditional occupancy, by way of (1) land grant; (2) payment of at least

1222-469: The first A$ 300,000 received in mining royalties; and (3) direct monetary compensation, even though Aboriginal land rights were not expressly recognised under Northern Territory laws. However, the recommendations of the House of Representatives Select Committee regarding compensation payments were ignored in the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT), which unilaterally revoked part of

1269-421: The first significant case concerning Aboriginal Land Rights in Australia. This was the case of Milirrpum v. Nabalco in which important issues of aboriginal land rights were canvassed. In that case he held that the communal system in which Australian Aborigines had lived could be called a “government of law, and not of men”, accepting that was a system of law predating British settlement. However, he ruled that

1316-601: The first traditional documents prepared by Indigenous Australians recognised by the Australian Parliament, and are the first documentary recognition of Indigenous people in Australian law. They were also the first formal assertion of native title in Australia . As of December 2023, the only surviving signatory of the petitions is Dhuŋgala Mununggurr. The two petitions presented to Parliament are on permanent display at Parliament House, Canberra , along with

1363-689: The land. 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. 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. Justice Blackburn found that

1410-430: 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

1457-445: The ordinances and mining leases were valid and that the Yolngu people were not able to establish their native title at common law . Justice Blackburn stated that the "doctrine of communal native title does not form and never has formed, part of the law of any part of Australia". The Milirrpum decision had wide-ranging impacts on relations between Aboriginal people and the mining industry generally throughout Australia. In response to

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1504-460: The past". The petitions called on the House of Representatives to "appoint a Committee, accompanied by competent interpreters, to hear the views of the people of Yirrkala before permitting the excision" of the land for the mine and to ensure "that no arrangements be entered into with any company which will destroy the livelihood and independence of the Yirrkala people". Thus, the petitions are the first formal assertion of native title . Later in 1963,

1551-459: The petitions were typed has also been donated to the centre by the son of Ann and Edgar Wells. A repatriation ceremony was held on Thursday 7 December 2023 at the centre. Among the attendees was Rirratjiŋu clan elder Witiyana Marika . The Yolŋu people are still contesting mining being carried out on their land without proper legal consultation through the courts. Milirrpum v Nabalco Pty Ltd Milirrpum v Nabalco Pty Ltd , also known as

1598-568: 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. Milirrpum led to the establishment of the Woodward Royal Commission by the Whitlam government in 1973–4, and the eventual recognition of Aboriginal Land rights in the Northern Territory . In 1975, shortly before he

1645-504: The practise of the law. These qualities have been demonstrated again and again during your time on the Bench. .... Your Honour has also shown us that excellence in knowledge and even in ability is nothing without true humanity and concern for others. Your Honour has shown in word and in example that humility and an appreciation of the other's point of view are the hallmarks of a good lawyer, whether he be judge, solicitor or barrister. In 1986 he

1692-612: The thirteen clans, being traditional owners of the land in question. Wandjuk Marika (son of Mawalan) helped to draft the bark petitions, of which two of the four original petitions, which were signed by nine men and three women, were sent to the Australian House of Representatives . The petitions were written in the Yolngu language, together with an English translation. They were tabled on 14 and 28 August 1963. They are called bark petitions because, although typed on paper they were framed by traditional bark paintings . The typing

1739-575: Was knighted in the New Years Honours of 1983 for his services to the law. He became Chancellor of the Australian National University in 1984. Blackburn retired as Chief Justice due to ill health on 31 March 1985. At his retirement ceremony, Faulks J, speaking on behalf of the legal profession said: Amongst the lessons we have learned from you, Chief Justice, is the importance of humanity and understanding in

1786-505: Was "morally right and socially expedient". 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

1833-549: Was an Australian judge, prominent legal academic and military officer. He became a judge of three courts in Australia, and eventually became chief justice of the Australian Capital Territory . In the 1970s he decided one of Australia's earliest Aboriginal Land rights cases. The annual Sir Richard Blackburn Memorial lectures in Canberra commemorate his service to the Australian legal community. Blackburn

1880-667: Was an undergraduate at St Mark's College at the University of Adelaide . He graduated with First Class Honours in English Literature from the University of Adelaide. He won the John Howard Clark Prize as the candidate who was placed highest in the final examination. He was chosen as the Rhodes Scholar for South Australia in 1940, but did not take it up immediately because of the outbreak of

1927-531: Was appointed an Officer of the Order of the British Empire (OBE) on 1 January 1965 in honour of his military service. Richard Blackburn left academic life and was appointed a judge of the Supreme Court of the Northern Territory in 1966. During this time, he became President of the Arts Council of the Northern Territory . It was during his judicial life in the Northern Territory that he decided

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1974-469: Was born on 26 July 1918 in Mount Lofty , South Australia . He was the son of Brigadier Arthur Blackburn VC and Rose Ada Blackburn (née Kelly). His father was at that time a prominent legal practitioner in South Australia, and was later to serve as a Commissioner of the now defunct Commonwealth Court of Conciliation and Arbitration . Blackburn was educated at St Peter's College , Adelaide and

2021-483: Was dismissed, Prime Minister Gough Whitlam drew up the Aboriginal Land Rights Act 1976 which was later passed (in a slightly diluted form) by the conservative Fraser government on 9 December 1976. 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

2068-577: Was done on a Remington typewriter by author Ann E. Wells, wife of Rev. Edgar Wells, who was superintendent of the Yirrkala Methodist Mission at the time. The bark petitions asserted that the Yolngu people owned the land and protested the Commonwealth Government's granting of mining rights to Nabalco of land excised from the Arnhem Aboriginal Land reserve. The son of one of the Yirrkala plaintiffs and painters,

2115-646: Was elected an Honorary Fellow of St Mark's College. Blackburn was also invited to give the first Harrison Memorial Lecture at the Royal Military College at Duntroon after the Officer Training School was moved from Portsea . In May of that year, Blackburn was one of three former chief justices appointed by the Australian Government to be Parliamentary Commissioners in a Special Commission of Inquiry to investigate

2162-579: Was not contemplated in the case. Although Milirrpum was not appealed beyond the Supreme Court of the Northern Territory , it was overruled by the High Court of Australia two decades later in Mabo v Queensland (No 2) , when native title was recognised under Australian Law. 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

2209-583: Was the Bonython Professor of Law at the Adelaide University. He married his wife Bryony Helen Dutton Curkeet, the daughter of the late Henry Hampden Dutton and Emily Martin Dutton of Anlaby, Kapunda , South Australia, on 1 December 1951 at her brother's home at Anlaby. He became the Dean of the Faculty of Law in 1951 and served as Dean there until 1957. In 1957 he left full-time academic life to become

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