Bauxite and boundaries: 50 years since Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

Abstract

This year 2021 marks the 50th anniversary of Blackburn J’s decision in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Though it is imprecisely remembered as the first time that the fiction of terra nullius was contested by Indigenous Australians in an Anglo-Australian Court, the case stands as an early attempt to reconcile claims of Indigenous sovereignty and land rights with the colonists' common law of property rights. A half-century later, the authors reflect on the importance of the case. Beyond discrete questions of common law doctrine, the case demonstrates the fundamental tension between the dominant dephysicalised model of Anglo-Australian property law and The Rom - the Yolŋu model of property law that connects human and non-human life in and through Country. Valuable lessons can be learned from a comparative analysis of the two models. The enduring authority, intellectual integrity and practical success of The Rom hinge on its capacity to prescribe adequately and regulate viable human land use and ownership within locally specific conditions and limits over the long-term. It is time to take up the opportunity to recognise the Yolŋu model of property not simply as disruptive, but as educative in the task of adapting Anglo-Australian property law to the land itself.