Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case

Abstract

Mr Priestley disagrees with the view expressed by Dr Hookey in his article “The Gove Land Rights Case”, that to a limited extent the common law recognized native communal title to land. Instead he suggests that the decision in Johnson v. M'Intosh which Dr Hookey regards as an exposition of this common law position, was an exposition of the law of Virginia as it had developed to the end of the 18th century. As such it may give guidance in the development of Australian law but similar conclusions should be drawn only in circumstances of sufficiently similar commencement and development. Mr Priestley concludes that in Milirrpum v. Nabalco Pty Ltd there was not evidence of such similarity before the court.