Editing Native title in Australia (section)

===Pre-Mabo===
====1971 – Milirrpum====
{{main|Milirrpum v Nabalco Pty Ltd}}
Australia did not experience litigation involving Aboriginal native title until the 1970s, though several earlier cases tangentially involved issues of native title.<ref name="A-G v Brown">''Attorney-General v Brown'' [http://www.austlii.edu.au/au/cases/nsw/NSWLeggeSC/1847/2.pdf (1847) 1 Legge 312]; 2 SCR (NSW) App 30.</ref><ref>{{cite CommonLII|litigants=Cooper v Stuart |year=1889 |court=UKLawRpAC |num=7 |parallelcite=(1889) 14 [[Appeal Cases Law Reports|App Cas]] 286 |date=3 April 1889 |courtname=[[Judicial Committee of the Privy Council|Privy Council]] (on appeal from NSW)}}.</ref><ref name="Williams v A-G">{{cite AustLII|HCA|33|1913|litigants=Williams v Attorney General (NSW) |parallelcite=[http://www.austlii.edu.au/au/cases/Cth/HCA/1913/33.pdf (1913) 16 {{abbr|CLR|Commonwealth Law Reports}} 404] |courtname=auto}}.</ref><ref name="Randwick v Rutledge">{{cite AustLII|HCA|63|1959|litigants=Randwick Corporation v Rutledge |parallelcite=(1959) 102 [[Commonwealth Law Reports|CLR]] 54 |courtname=auto}}.</ref><ref name="Wade v NSW">{{cite AustLII|HCA|28|1969|litigants=Wade v New South Wales Rutile Mining Co Pty Ltd |parallelcite=(1969) 121 [[Commonwealth Law Reports|CLR]] 177 |courtname=auto}}.</ref> In 1835, John Batman purported to sign [[Batman's Treaty]] with Aboriginal elders in the [[Port Phillip District]]. Governor Bourke declared Batman's Treaty was "void and of no effect as against the rights of the Crown" and declared any person on "vacant land of the Crown" without authorization from the Crown to be trespassing.<ref name="foundingdocs.gov.au">National Archives of Australia, ''[http://www.foundingdocs.gov.au/item.asp?dID=42&aID=8&pID=73 Governor Bourke's Proclamation 1835 (UK)] {{webarchive|url=https://web.archive.org/web/20080725170033/http://www.foundingdocs.gov.au/item.asp?dID=42&aID=8&pID=73 |date=25 July 2008 }}'' Accessed 3 November 2008</ref> The proclamation was approved by the Colonial Office. The official objection to the Treaty was that Batman had attempted to negotiate directly with the Aboriginal people, whom the British did not recognise as having any claim to any lands in Australia.

In 1971, in ''[[Milirrpum v Nabalco Pty Ltd]]'' (the "Gove land rights case") in the [[Supreme Court of the Northern Territory]], [[Richard Blackburn|Justice Richard Blackburn]] explicitly rejected the concept of native title, ruling against the claimants on a number of issues of law and fact.<ref name="Milirrpum">''Milirrpum v Nabalco Pty Ltd'' (1971) 17 [[Federal Law Reports|FLR]] 141 (27 April 1971) [[Supreme Court of the Northern Territory|Supreme Court]] (NT).</ref>

====1972–1976: ''Aboriginal Land Rights Act'' ====
In the wake of ''Milirrpum'' and the election of the [[Whitlam government]] in 1972, the [[Aboriginal Land Rights Commission]] (also known as the Woodward Royal Commission) was established in 1973 to inquire into appropriate ways to recognise Aboriginal land rights in the [[Northern Territory]]. Prime Minister [[Gough Whitlam]] introduced a new policy of Aboriginal [[self-determination]], and initiatives such as the Aboriginal Land Fund and the [[National Aboriginal Consultative Committee]] was set up. The latter consisted of elected Aboriginal representatives, who would advise the Minister of Aboriginal Affairs. The Whitlam government introduced legislation later passed by the [[Fraser government]] as the ''Aboriginal Land Rights Act 1976'',<ref name=Brock>{{cite book|title=Colonialism and its Aftermath: A history of Aboriginal South Australia|url=https://www.wakefieldpress.com.au/product.php?productid=1385|publisher=[[Wakefield Press (Australia)|Wakefield Press]]|isbn= 9781743054994|date=2017|editor1-first=Peggy|editor1-last=Brock|editor2-first=Tom|editor2-last=Gara|chapter=3. From segregation to self-determination in the twentieth century|first1=Peggy|last1=Brock|first2=Tom|last2=Gara|page=57}}</ref><ref name="Aboriginal Land Rights Act">{{cite Legislation AU|Cth|act|alrta1976444|Aboriginal Land Rights (Northern Territory) Act 1976}}.</ref> which established a procedure to transfer almost 50 per cent of land in the Northern Territory (around 600,000 km2) to collective Aboriginal ownership.<ref name="dfat.gov.au">{{cite web|website=[[Department of Foreign Affairs and Trade (Australia)]]|url=http://www.dfat.gov.au/facts/indigenous_land_rights.html|title= Aboriginal land rights and native title|archive-url=https://web.archive.org/web/20120126061620/http://dfat.gov.au/facts/indigenous_land_rights.html |archive-date=26 January 2012|access-date= 30 January 2012}}</ref> The Fraser government continued to implement many of the previous government's initiatives, under the description "self-management" rather than self-determination.<ref name=Brock/>

====1979 – ''Coe v Commonwealth''====
In 1979, [[Paul Coe]], a [[Wiradjuri]] man from [[Cowra, New South Wales]], commenced an action in the [[High Court of Australia]] arguing that Aboriginal people retained rights to land as an Aboriginal nation or nations existed pre-settlement and continues to exist, and that their land had been taken by conquest rather than by settlement.<ref name="Coe v Cth">{{cite AustLII|HCA|68|1979|litigants=[[Coe v Commonwealth]] |parallelcite=(1979) 24 [[Australian Law Reports|ALR]] 118; (1979) 53 [[Australian Law Journal Reports|ALJR]] 403 |courtname=auto |date=5 April 1979}}.</ref> The court held in ''Coe v Commonwealth'' (1979) that no [[Australian Indigenous sovereignty|Aboriginal nation holds any kind of sovereignty]], distinguishing the US case of [[Cherokee Nation v. Georgia|Cherokee Nation v Georgia (1831)]].<ref>{{cite AustLII|litigants=Coe v Commonwealth|court=HCA|num=68|year=1979|pinpoint=[12]|parallelcite=(1979) 53 ALJR 403|courtname=auto}}</ref> However, the substantive issue of continuing land rights was not heard due to the lack of precision, vagueness and other serious deficiencies with the statement of claim presented to the court.<ref>{{citation |last=Kelly |first=G M |title=Constitutional Confusion in the Cocos Islands: The Strange Deliverance of Lim Keng}} [https://www.austlii.edu.au/au/journals/FedLawRw/1983/2.html (1982-1983) 13(3) Federal Law Review 229].</ref> [[Harry Gibbs|Justice Gibbs]] said, at paragraph 21, 'The question what rights the aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better, but the resolution of such questions by the courts will not be assisted by imprecise, emotional or intemperate claims. In this, as in any other litigation, the claimants will be best served if their claims are put before the court dispassionately, lucidly and in proper form'.<ref name="Coe v Cth"/>

====1981 – ''Pitjantjatjara Yankunytjatjara Land Rights Act''====
{{main|Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981}}
The [[South Australia]]n ''Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981''<ref name="APY Act">{{cite Legislation AU|SA|act|apylra1981489|Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981}}.</ref> was introduced by Premier [[Don Dunstan]] in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the [[David Tonkin|Tonkin Liberal government]] in March 1981. This legislation gave significant rights well in advance of any other to date in Australia.<ref>{{cite web|archive-url=https://web.archive.org/web/20070711065123/http://www.foundingdocs.gov.au/item.asp?sdID=46 |title=Pitjantjatjara Land Rights Act 1981 (SA)|archive-date=11 July 2007|url=http://www.foundingdocs.gov.au/item.asp?sdID=46|website=Documenting a Democracy|access-date=21 June 2019}}</ref> In 1981, SA Premier Tonkin returned {{convert|102650|km2|mi2}} of land (10.2% of the state's land area) to the [[Pitjantjara]] and [[Yankunytjatjara]] people. However, it did not give the people the power of veto over mining activities; any disputes would need to be resolved by an independent arbitrator.<ref name=Brock/>

In 1984 Premier [[John Bannon]]'s Labor government passed legislation to return lands to the [[Maralinga Tjarutja]] people. The legislation was proclaimed in January 1985 and was followed by a ceremony in the desert attended by Maralinga Tjarutja leader [[Archie Barton]], John Bannon and Aboriginal Affairs Minister [[Greg Crafter]].<ref>Sydney Morning Herald, 3 Dec 2008, "Hero of the Maralinga People"</ref> This granted rights over {{convert|75000|km2|mi2}} of land in the [[Great Victoria Desert]], including the land contaminated by the [[British nuclear tests at Maralinga|British nuclear weapons testing at Maralinga]].<ref name=Brock/>