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Does Aboriginal Law Now Run in Australia?

Published online by Cambridge University Press:  24 January 2025

Barbara Hocking
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Abstract

The author examines development through the cases of recognition by the common law of the doctrine that customary traditional native law and native title is recognized in colonies settled by the British, She concludes that at common law when the British Crown acquires sovereignty over a territory, pre-existing property rights are preserved and that a clear expression of intention to the contrary is necessary to extinguish them. She then notes a number of relevant United States and Canadian cases on the issue of the land rights of their aboriginal inhabitants. The decision in Millirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia is subjected to critical scrutiny and it is concluded that the decision does not concur with the established common law. Finally, some of the legal problems involved in the recognition, by statute, of aboriginal land rights are discussed.

Type
Research Article
Information
Federal Law Review , Volume 10 , Issue 2 , June 1979 , pp. 161 - 187
Copyright
Copyright © 1979 The Australian National University

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References

1 Sees. 3(1) for definitions of “Aboriginal land”, “Aboriginal tradition”, “traditional Aboriginal owners” and “traditional land claim” (see n. 1 infra). The Act was gazetted on Australia Day (Gaz. S6 of 26 January 1977, opn. 26 February 1977). Ratification of I.L.O. Convention 107 (Article 11) by the Federal Government of Australia would be further evidence of this.

2 For an outline of the legal history of Australian Aboriginal Land Rights, see Hocking, Native Land Rights (LL.M. thesis, Monash University, 1970 unpublished), Chapter V.

3 Cooper v. Stuart (1889) 14 A.C. 286, 291.

4 Anonymous (1722) 2 P. Wms. 75, 24 E.R. 646. A Privy Council Memorandum quoted by the Master of the Rolls upon an appeal from the foreign plantations. It is an enlargement of a dictum of Holt C.J. in Blankard v. Galdy (1703) 2 Salk. 411, 412, 91 E.R. 356. There is a detailed discussion in Hocking, op. cit.s. 13.

5 Skelton v. Collins (1966) 115 C.L.R. 94, 134 per Windeyer J. See too Brisbane v. Cross [1978) V.R. 49, 52 per Young C.J.

6 Tee-Hit-Ton Indians v. United States (1954) 348 U.S. 272, 279. Referred to throughout as the Tee Hit Ton Case. See the comments on this point by Hookey, “The Gove Land Rights Case: a Judicial Dispensation for the Taking of Aboriginal Lands in Australia?” (1972) 5 F.L. Rev. 85; Priestley, “Communal native title and the common law: further thoughts on the Gove Land Rights Case” (1974) 6 F.L. Rev. 150, 172-173; and Hookey, “Chief Justice Marshall and the English oak: a comment” (1974) 6 F.L. Rev. 174.

7 Calder v. Attorney-General of British Columbia, No. 1 (1970) 8 D.L.R. (3d) 59; No. 2 (1971) 13 D.L.R. (3d) 64; No. 3 (1973) 34 D.L.R. (3d) 145. Referred to throughout as Calder's case.

8 No. 1, Mathaman v. Nabalco Pty Ltd (1969) 14 F.L.R. 10; No. 2, Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 253. Referred to throughout as the Aboriginal Land Rights Case.

9 [1919) A.C. 211, 215-216 per Lord Sumner on behalf of the Privy Council.

10 (1971) 17 F.L.R. 141, 253.

11 [1919] A.C. 211, 215-216 per Lord Sumner on behalf of the Privy Council.

12 The conditions for recognition of a customary rule by the common law courts have been said to be:

(a) that the rule concerned had existed as a rule of conduct from time immemorial;

(b) that it had been continuously observed;

(c) that enjoyment of its benefits had been peaceable;

(d) that it had been recognised as having force as an obligatory rule;

(e) that it had sufficient certainty in operation;

(f) that it could be seen to be reasonable;

(g) that it did not conflict with another rule accepted as having obligatory force. Derham, “Law and custom in the Australian Territory of Papua and New Guinea”, 30 University of Chicago Law Review (1963) 495, 500. See, too, Hanasiki v. O.J. Symes (1951) Solomon Islands (unreported) a judgment of Charles J. wherein the common law rules for upholding customary law and title were applied in a Protectorate before their statutory recognition, reprinted in Hocking, op. cit., Appendix B; Tito v. Waddell (No. 2) [1977) 2 W.L.R. 496.

13 It was not uncommon for both private and native title to exist in the one colony as was the case in Florida: a colony with an Indian population “discovered” and settled originally by Spain; sovereignty was then ceded to England (Treaty of Paris, 1763, Article XX), then once again (1783) to Spain and then to the U.S.A. (the treaty of 1795). See Mitchel v. United States (1835) 9 Pet. 711, 745-746, 759 per Baldwin J.

14 Anonymous supra n. 4.

15 St. Catherine's Milling and Lumber Co. v. The Queen (1888) L.R. 14 App. Cas. 46, 55 per Lord Watson.

16 Amodu Tijani v. The Secretary, Southern Nigeria [1921] 2 A.C. 399, 402 per Viscount Haldane on behalf of the Privy Council. Referred to throughout as Amodu Tijani's case.

17 Ibid.

18 [1927] A.C. 881.

19 [1929] A.C. 679.

20 [1930] A.C. 667.

21 [1953] A.C. 207.

22 Supra n. 15.

23 [1907] A.C. 186.

24 [1915] A.C. 599.

25 Supra n. 9.

26 [1921] 1 A.C. 401.

27 Supra n. 15.

28 Supra n. 16.

29 Supra n. 19.

30 Supra n. 16.

31 Supra n.26.

32 Supran. 15.

33 [1941] A.C. 308, 324-325.

34 Hocking, op. cit., Chapter VI, part 2, s. 46, 218-234. New Zealand, too, was a settled colony.

35 Nissan v. Attorney-General [1967] 3 W.L.R. 1044, 1054 per Lord Denning: M.R. “the treaty ... is an act of state not cognisable in the municipal courts”. See Hookey, (1972) 5 F.L. Rev. 85, 103-113. The common law itself of course applies the rules of international law and one such is that a change of sovereignty does not affect existing private rights, e.g. U.S. v. Percheman (1833) 7 Pet. 51, 86 per Marshall C.J.

36 Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 634.

37 Roberts-Wray op. cit. 636 could only “ ... venture to suggest the following general principles:

(1) Whether by applying feudal law or otherwise, in any Colony the radical or ultimate title to the land vests in the Crown. Apart from such matters as escheat and foreshore rights, its practical importance is likely to be small; but the Crown has a right to dispose of land which has no owner.

(2) In a Protectorate, feudalism, as such, has no operation, but the common law rights flowing from it may apply if they are either major Prerogatives or imported as part of the common law; and if jurisdiction is acquired by conquest or agreement (provided, perhaps, there is no local Ruler) the land (subject to the qualifications which follow) is at the disposal of the Crown.

(3) The Courts will not construe a Treaty, which is an Act of State, or enforce rights accorded by a Treaty.

(4) To ascertain the intention of the Crown with respect to matters within its own judgment, such as land ownership after conquest or dependent upon treaty, one must look to the conduct of the Crown.

(5) The Crown is, however, assumed to intend that rights of property are to be respected; with the result that private ownership is unimpaired and the tribal or other rights of the inhabitants (not amounting to private ownership) can be extinguished only by the consent of the occupiers or in accordance with statute, and they continue to exist unless the contrary is established.”

38 [1919] A.C. 211.

39 The point arose in The Vilander Concessions Syndicate v. The Cape of Good Hope Government supra n. 23; Attorney-General of Southern Nigeria v. John Holt and Co. (Liverpool) Ltd supra n. 24 and in Hanasiki v. O.J. Symes (1951), Solomon Islands (unreported)supran. 12.

40 Prucha, American Indian Policy in the Formative Years (Harvard University Press, Mass., 1962) 10-11.

41 “The Congress shall have power . . . To regulate commerce with foreign Nations and among the several States, and with the Indian tribes ... To declare war.” The Constitution of the United States, S. VIII.

42 Fletcher v. Peck (1810) 6 Cranch. 87,142, 146-147 per Johnson J.; Worcester v. Georgia (1832) 6 Pet. 515, 591-592 per M'Lean J.; St. Catherine's Milling and Lumber Co. v. The Queen (1888) L.R. 14 App. Cas. 46, 59 per Lord Watson: “The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title”; Attorney-General for the Province of Quebec v. Attorney-General for the Dominion of Canada supra n. 26.

43 Fletcher v. Peck (1810) 6 Cranch. 87, 142-143 per Marshall C.J.; Worcester v. Georgia (1832) 6 Pet. 515, 541 per Marshall C.J.

44 Ibid.

45 Buttz v. Northern Pacific Railroad (1886) 119 U.S. 55; Cramer v. United States (1923) 261 U.S. 219.

46 Mitchel v. United States (1835) 9 Pet. 711.

47 Johnson and Graham's Lessee v. M'lntosh (1823) 8 Wheat. 543.

48 Chouteau v. Molony (1853) 16 How. 203.

49 United States as Guardian of Hualpai v. Santa Fe Pacific Railroad Co. (1941) 314 U.S. 339.

50 United States v. Alcea Band of Tillamooks (1946) 329 U.S. 40.

51 United States v. Shoshone Tribe (1938) 304 U.S. 111.

52 That such a principle exists reflects legal recognition of biological facts; see, e.g. the “natural law” of older authorities, e.g. Vittoria, De Indis (1557) (New York, Oceana, 1964) and Vattel, The Law of Nations (1758) (New York, Oceana, 1964) and the “natch boss” jurisprudence of Cohen, “Dialogue on private property” (1954) 9 Rut8ers Law Review 357,385.

53 Fletcher v. Peck supra n. 42; Johnson v. M'lntosh supra n. 47; The Cherokee Nation v. The State of Georgia (1831) 5 Pet. 1; Worcester v. Georgia supra n. 42; Mitchel v. The United States supra n. 46.

54 Constitution Alteration (Aboriginals) 1967 (Cth), now s. 51(xxvi) of the Constitution.

55 S.C.: Worcester v. Georgia (1832) 6 Pet. 515; The Cherokee Nation v. The State of Georgia (1831) 5 Pet. 1; Fletcher v. Peck (1810) 6 Cranch. 87. Cf. the P.C.: The Case of the Mohegan Indians v. Connecticut reported in 1770 (begun in the previous century), J. H. Smith, Appeals to the Privy Council from the American Plantations (New York, Columbia University Press, 1950) 422-442 and referred to by Marshall C.J. in Johnson v. M'lntosh (1823) 8 Wheat. 543, 598; St. Catherine's Milling and Lumber Co. v. The Queen supra n. 15; Attorney General of Quebec v. Attorney-General of Canada supra n. 26.

56 (1810) 6 Cranch. 87.

57 Id., 142-143 per Marshall C.J.: “the question, whether the vacant lands within the United States became a joint property, or belonged to the separate States, was a momentous question which, at one time, threatened to shake the American confederacy to its foundation. This important and dangerous contest has been compromised, and the compromise is not now to be disturbed”.

58 Id. 147.

59 Ibid.

60 (1832) 6 Pet. 515, 591-592. The judgments treat the U.S. colonies as ones that were discovered and settled; see, too, n. 42.

61 (1831) 5 Pet. 1.

62 Cf. United States as Guardian of Hualpai v. Santa Fe Pacific Railroad Company (1941) 314 U.S. 339, 347.

63 Supra n. 60.

64 541.

65 Mathaman v. Nabalco Pty Ltd (1969) 14 F.L.R. 10.

66 (1970) 8 D.L.R. (3d} 59.

67 Id. 61.

68 Referred to as Indian or aboriginal title in the judgment, e.g. Id. 82.

69 Supra n. 66.

70 (1823) 8 Wheat. 543, 572-574, 587-588, 591-592, 595-596.

71 (1970) 8 D.L.R. (3d) 59, 69.

72 Johnson v. M'lntosh (1823) 8 Wheat. 543, 573-574 per Marshall C.J.

73 Id. 587.

74 United States as Guardian of Hualpai v. Santa Fe Pacific Railroad Co. (1941) 314 U.S. 339, 347 perDouglas J. on behalf of the Court.

75 Ibid.

76 Calder's case (1970) 8 D.L.R. (3d) 59, 72.

77 Claimed by the Indians.

78 Following Johnson v. M'lntosh (1823) 8 Wheat. 543.

79 Calder's case (1970) 8 D.L.R. (3d) 59, 83.

80 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141.

81 Calder's case (No. 1) (1970) 8 D.L.R. (3d) 59, 83 per Gould J.

82 Calder's case (No. 3) (1973) 34 D.L.R. (3d) 145.

83 Calder's case (No. 2) (1971) 13 D.L.R. (3d) 64.

84 Mathaman v. Nabalco Pty Ltd.(1969) 14 F.L.R. 10; Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141.

85 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 198 per Blackburn J. Sed quaere whether such a chain of proof is required (supra text accompanying n. 21).

86 Calder v. Attorney-General of British Columbia No. 3 (1973) 34 D.L.R. (3d) 145, 218 per Hall J.; Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 151.

87 Calder v. Attorney-General of British Columbia No. 1 (1970) 8 D.L.R. (3d) 59.

88 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 244 per Blackburn J.; 252: “On one view, the question of extinction never arose in Australia. If the doctrine of communal native title never formed part of the law of Australia ... there was nothing to be extinguished. That view in my opinion is the correct one”; 262: “The most striking feature of all these materials, in my opinion, is that wherever the principles for which . . . [the plaintiffs] contended have to any extent been put into practice, that has been done by statute or by executive policy.”

89 Id. 262: “It is possible for a decision of a court of first instance to contribute to, or perhaps even to found, a body of legal doctrine. But I cannot come to a decision of that kind on the materials before me.”

90 Simonds (ed.), 5 Halsbury's Laws of England (3rd ed. 1953) 698.

91 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 198.

92 Id. 149-150; 198.

93 Id. 268 per Blackburn J., 267: “What is shown by the evidence is, in my opinion, that the system of law was recognised as obligatory upon them by the members of a community which, in principle, is definable, in that it is the community of aboriginals which made ritual and economic use of the subject land”.

94 Id. 266.

95 Ibid. Another special element in “the real character of the native title to land” is the ownership of minerals and both these aspects are recognised by the provisions for Aboriginal Land Trusts and powers of control over mining found in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Cf., too, the Report of the Pitjantjatjara Land Rights Working Party of South Australia, 1978, Recommendations for the S.A. Pitjantjatjara Land Rights Act, 8 Part V-Mining, pp. 99-102.

96 Id. 270 per Blackburn J. One of the other factors that he found decisive was the inalienability of native title to anyone other than the Crown, whereas of course inalienability is an almost universal feature of tribal systems of land tenure and, from the constitutional point of view, this doctrine of pre-emption merely confirmed that the native title was created and existed before the acquisition of sovereignty over the area by the Crown (272).

97 Id. 265 quoting Amodu Tijani v. Secretary Southern Nigeria [1921] 2 A.C. 399, 402-403.

98 Id. 270.

99 Id. 273. What then was the equivalent in Aboriginal law of the common law concept of property as it operated in England, if not the relationships with their lands claimed by the plaintiffs? The Aboriginal Land Rights Act has provided the answer to this question by enacting that the spiritual relationship of aboriginals with their land is traditional ownership.

1 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s. 3 (1): “Traditional Aboriginal owners”, in relation to land, means a local descent group of Aboriginals who

(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b) are entitled by Aboriginal tradition to forage as of right over that land.

2 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 252.

3 Id. 262.

4 Calder v. Attorney-General of British Columbia, (No. 3) (1973) 34 D.L.R. (3d) 145, 218 per Hall J. Having denied that Aboriginal traditional ownership was a form of property that could be recognised by the common law, e.g. under the rules for the recognition of native custom, Blackburn J. then went on to deny its constitutional existence for the same reason. Only one of the eleven judges in Calder's Case similarly held that there was no Indian title to extinguish because there was “no evidence ... that the rights claimed ... [were] of a kind that it should be assumed the Crown recognised them when it acquired the mainland of British Columbia by occupation”; and it can be seen that even he did not deny that common law in a settled colony recognised native title (Davey C.J. in the British Columbia Provincial Court of Appeal, Calder's case (No. 2) 66-67)). It was held by Gould J. (No. 1), Tysoe and Maclean JJ. (No. 2) and Judson, Martland and Ritchie JJ. (No. 3) that the title if it had existed had been extinguished by the conduct of the Crown, and by Hall, Spence and Laskin JJ. (No. 3) that it had existed and had not been extinguished.

5 Supra n. 6.

6 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 214.

7 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 218.

8 Tee-Hit-Ton Indians v. United States (1954) 348 U.S. 272, 285, see, too, 279.

9 United States v. Tillamooks (1946) 329 U.S. 40; (1951) 341 U.S. 48.

10 The relevant portion of the Fifth Amendment provides-"nor shall private property be taken for public use, without just compensation”. The Australian Act has a different operation: see Grace Bros Pty Ltd v. Commonwealth (1946) 72 C.L.R. 288 in particular at 289-290 per Dixon J. See too n. 42 infra and the definition of “property”-"not to be confined pedantically”-given by Dixon J. in Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R. 1, 349.

11 Tee-Hit-Ton Indians v. United States (1954) 348 U.S. 272, 279. The preceding sentence is as follows: “It is well settled that in all the States of the Union the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. That description means mere possession ... “. No significance is attached to the way sovereignty was acquired, the judgment referring to 'all the States of the Union' as if they were 'after conquest' (279). Alaska in the instant case however was ceded by treaty whereas Marshall C.J. considered sovereignty over the areas involved in the cases with which he was concerned to have been acquired by discovery followed by settlement (settled colonies). It would seem therefore that on the primary question of the recognition of native title there is no legal significance resulting from the nature of the acquisition of sovereignty. On this point Calder's case properly follows Johnson v. M'Intosh since both concerned settled colonies, whilst on the secondary question of the extinction of native title it follows In re Southern Rhodesia (a conquered colony) as well as Johnson v. M'lntosh where any conquest of the Indians was subsequent to the discovery of the country: 'conquest gives a title which the Courts of the conqueror cannot deny' 588; see too, Marshall C.J., 590-591. There is then a distinction to be drawn between the internal conquest of native tribes as a matter of fact in a colony that is as a matter of law a settled one, and the acquisition of a conquered or ceded colony as a matter of law.

12 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1911) 17 F.L.R. 141, 218.

13 Calder v. Attorney-General of British Columbia, (No. 3) (1973) 34 D.L.R. (3d) 145, 218 per Hall J.

14 Tee-Hit-Ton Indians v. United States (1954) 348 U.S. 272, 284-285 following Johnson v. M'lntosh (1823) 8 Wheat. 543; see too, 279-280: “This position of the Indian has long been rationalised by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained.” 1 Wheaton's International Law, c.v. The great case of Johnson v. M'lntosh 8 Wheat. 543, denied the power of an Indian tribe to pass their right of occupancy to another. It confirmed the practice of two hundred years of American history, “that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest”. (587).

15 The Cherokee Nation v. The State of Georgia (1831) 5 Pet. 1 per Marshall C.J.; United States as Guardian of Hualpai v. Santa Fe Pacific Railroad Co. (1941) 314 U.S. 339, 347. In the strong dissenting judgment in the Tee-Hit-Ton Case, the statute upon which the judgment turned was interpreted as “saving to the Indians all rights claimed . . . the future course of action was made clear onflicting claims would be reconciled and the Indian lands would be put into reservations”. (1954) 348 U.S. 272, 295 per Douglas J., Warren C.J. and Frankfurter J. concurring.

16 St. Catherine's Milling and Lumber Co. v. The Queen (1889) L.R. 14 App. Cas. 46 and Attorney-General for the Province of Quebec v. Attorney-General for the Dominion of Canada [1921) 1 A.C. 401.

17 Tee-Hit-Ton Indians v. United States (1954) 348 U.S. 272, 279.

18 Including conquest. In Re Southern Rhodesia [1919) A.C. 211 and the three Calder's cases.

19 I.e. a proprietary right (of private property) within the particular meaning of the theoretical fiction of the common law that all “ownership” stems only from the Crown.

20 I.e. original in their creation. In Scotland where some civil law traces remain there are still allodial titles to be found.

21 (1823) 8 Wheat 543. See also text accompanying footnotes 72 and 73 supra.

22 Cohen, , “Original Indian Title” reprinted in Cohen (ed.) The Legal Conscience (Yale University Press, New Haven, 1960) 273, 294Google Scholar.

23 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141.

24 Constitution Alteration (Aboriginals) 1967. There are, arguably, two heads of power under which Aboriginal traditional ownership could be recognised by the Commonwealth Government: that conferred by the 1967 Referendum and that conferred by the external affairs power (s. 51(xxix)) to ratify international treaties and conventions.

25 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The States of South Australia and Victoria had already upheld Aboriginal ownership of reserve lands: Aboriginal Lands Trust Act, 1966 (S.A.); Aboriginal Lands Act 1970 (Vic.). See Hocking, op. cit., s. 38, 146-148.

26 Constitution of Australia, s. 109. E.g. “It is s. 109 of the Constitution that applies when the Commonwealth makes a law that is inconsistent with a State law upon a matter within its legislative power. This section does not deal with legislative power at all; it resolves cases of conflict of valid State and Commonwealth laws in favour of the Commonwealth law to the extent of any inconsistency but no further”. R. v. Phillips (1970) 44 A.L.J.R. 497, 502 per Menzies J.

27 Various enabling Acts have also been enacted: Aboriginal Affairs (Arrangements with the States) Act 1973 (Cth); Aboriginal Land Fund Act 1974 (Cth); National Parks and Wildlife Conservation Act 1975 (Cth); Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 (Cth); Aboriginal Councils and Associations Act 1976 (Cth); an Aboriginal Land Fund Commission has been set up and operates throughout Australia; various Aboriginal Land Councils have been set up; and Aboriginal Land Trusts-used to give legal form not only to traditional ownership but also to Aboriginal ownership not based on native title-have been established throughout Australia (but not yet officially in Queensland); an Aboriginal Land Commissioner has been appointed and the Ranger Uranium Environmental Inquiry acted as an Aboriginal Land Commissioner to determine traditional ownership in relation to the areas with which its report dealt, pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976, s. 11(2) (Cth).

28 Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 252.

29 Following Amodu Tijani v. The Secretary, Southern Nigeria [1921] 2 A.C. 399; Attorney-General for the Province of Quebec v. Attorney-General for the Dominion of Canada [1921] 1 A.C. 401; St. Catherine's Milling and Lumber Co. v. The Queen (1888) L.R. 14 App. Cas. 46; Calder v. Attorney-General of British Columbia (1973) 34 D.L.R. (3d) 145; Tee-Hit-Ton Indians v. United States (1954) 348 U.S. 272 and Johnson v. M'Intosh (1823) 8 Wheat. 543 inter alia.

30 A.-G. Quebec v. A.-G. Canada [1921] 1 A.C. 401; St. Catherine's Milling and Lumber Co. v. The Queen (1888) L.R. 14 App. Cas. 46; Fletcher v. Peck (1810) 6 Cranch. 87.

31 (1954) 348 U.S. 272.

32 The Constitution of Australia, s. 51(xxxi); it must be remembered that a Treaty does not give rise to legally enforceable rights (nn. 35 and 37 supra).

33 (1954) 348 U.S. 272, 278-279.

34 Calder v. Attorney-General of British Columbia (1970) 8 D.L.R. (3d) 59; (1971) 13 D.L.R. (3d) 64; (1973) 34 D.L.R. (3d) 145.

35 See the map delineating these areas in Rowley, The Destruction of Aboriginal Society, Outcasts in White Australia, The Remote Aborigines (1972). That this is the original meaning of Reserves is confirmed by the wording of the first Waste Lands Acts passed last century.

36 Calder v. Attorney-General of British Columbia (1973) 34 D.L.R. (3d) 145, 167 per Judson J., Martland and Ritchie JJ. concurring: “In my opinion ... the sovereign authority elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside” (italics added) ; 168 per Hall J., Spence and Laskin JJ. concurring: ''The Crown has never granted the lands in issue in this action other than a few small parcels later referred to prior to the commencement of the action.”

37 [19191 A.C. 211.

38 As occurred in the non-colonial areas of Australia that were settled by the white population.

39 As it is doing under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

40 Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978 (Cth) and the Aboriginal Councils and Associations Act 1976 (Cth). See also Local Government (Aboriginal Lands) Act 1978, s. 16 (Qld) which modifies the State power to dissolve Shire councils by requiring “consultation with the Minister for Aboriginal and Island Affairs and the Minister of State for the Commonwealth for Aboriginal Affairs”.

41 Local Government (Aboriginal Lands) Act 1978, Schedule Clause 5: (Qld) “... compensation shall be limited to the value of any improvements thereon ... ”.

42 E.g. Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R. 1, 326 per Dixon J.: “'Unconstitutional' means beyond the powers which the Constitution affirmatively grants to the Commonwealth Parliament or contrary to the restrictions or limitations which the Constitution imposes upon them.”

43 In the author's opinion, no compensation would be due-see the earlier comments on this. Of course, if there is no unextinguished traditional ownership remaining in these areas, then the point is merely an academic one after all.

44 Reference pursuant to the Law Reform Commission Act 1973 (Cth) on Aboriginal Customary Laws dated 9 February 1977. Note how this policy differs from the previous one of assimilation (qua integration into white society) by allowing Aboriginals a genuine choice of life styles. It is a new policy that I called “bi-culturalism” in Hocking, Aboriginal Land Rights: An Australian Injustice (preliminary M. A. Thesis, Monash University, 1974) Chapters 3(iv) and 4. In the Report of the Pitjantjatjara Land Rights Working Party of South Australia (June 1978) it is referred to as “self determination”. In 1978 South Australia set up a Committee to investigate the recognition of Aboriginal traditional law.

45 Mitchel v. The United States (1835) 9 Pet. 711, 750 per Baldwin J.

46 United States as Guardian of Hualpai v. Santa Fe Pacific Railroad Company (1941) 314 U.S. 339, 347.

47 Cf. the judgments of Lord Mansfield in R. v. Vaughan (1769) 4 Burr. 2495; 98 E.R. 308 and Campbell v. Hall (1774) 1 Cowp. Rep. 204; 98 E.R. 1045 with that of Holt C.J. in Blankard v. Galdy (1693) 2 Salk. 411; 91 E.R. 356.

48 Hocking, Native Land Rights (LL.M. Thesis, Monash University, 1970) Chapters II and III.

49 Johnson v. M'Intosh (1823) 8 Wheat. 543, 589 per Marshall C.J.

50 Cohen (ed.), The Legal Conscience, (New Haven, Yale University Press, 1960) 164.

51 Cohen, “Dialogue on Private Property” (1954) 9 Rutgers Law Review 357, 383Google Scholar.

52 Derham, “Theories of Legal Personality” in Webb (ed.) Legal Personality and Political Pluralism (1958) 12Google Scholar.

53 Ibid.

54 Id. 14.

55 Id. 15.

56 Worcester v. Georgia (1832) 6 Pet. 515, 541 per Marshall C.J.