Milirrpum v Nabalco

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Citation: Milirrpum v Nabalco (1971) 17 FLR 141

This information can be found in the Textbook: Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 129-30.


Background facts

  • Federal Govt granted mining leases to the Defendant [Nabalco] without consulting the Plaintiffs [Milirrpum, the Yurrkala people].
  • The Plaintiffs claimed that their sacred sites were in danger (submitted petition).
  • The Plaintiffs sued. They sought:
    1. A declaration that they were entitled to occupy the land without interference and that they had land rights based on a common law doctrine of Aboriginal title.
    2. That terra nullius be overturned.

Legal issues


  1. The aboriginals have a connection to the land, but not proprietary one:
    • A proprietary relationship implied ‘the right to use or enjoy, the right to exclude others, and the right to alienate’.
    • This was not demonstrated by the Plaintiffs, who only had a ‘religious relationship’ with the land.
  2. The court did recognise the existence of Aboriginal laws, which challenges the second criterion for terra nullius.
    • Though no sovereign government existed, laws which regulated the lives of Indigenous Australians did exist.
    • However, the court was not willing to overturn terra nullius.


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