Happy Birthday, Mabo!

Sunday, June 3rd, 2012 was the twentieth anniversary of the historic Mabo decision by the High Court of Australia. Happy Birthday Mabo!

The case, Mabo and others v Queensland (No 2) (1992) was a landmark case recognising native title in Australia for the first time. To do this, the court had to reject the concept of terra nullius, which had been the basis for the take-over of aboriginal land by white settlers.

It was brought in 1982 by Eddie Mabo and four other Meriam people of the Murray Islands in the Torres Strait. They claimed that their land had been continuously inhabited and exclusively possessed by their people, and that they had their own culture and laws.

I think it is very sad that Eddie Mabo died five months before the decision was handed down, and three other plaintiffs did not live to see the decision.

The judges sitting on the case were Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. All judges, with the exception of Dawson J, dissenting, affirmed the common law doctrine of native title. However, this was not without limitations: 1. there was no compensation payable, and 2. native title could be extinguished in certain circumstances, such as if there had been a grant of Crown land..

This was a case heard by all seven judges of the Court, since it was a case of national importance, as well as having constitutional implications. It also had repercussions for indigenous people in other countries.

“Terra nullius” is usually translated as “empty land” or land not owned or occupied by anyone. I think of it as “no-man’s land”. This is particularly offensive and hurtful to the descendants of aboriginal people, who were being told that their ancestors simply didn’t exist. I think that one of the worst things you can do to a person is treat them as if they don’t exist. That’s more than a put-down, it’s an obliteration.

The rationale for discounting the aboriginal occupants of the land according to the doctrine of terra nullius was that they were “uncivilised” and didn’t have sufficient culture to warrant recognition. The court found that there is ample evidence that aboriginal people prior to white settlement had culture, customs and laws. I know that some white Australians believe that the aboriginal people didn’t do anything with their land prior to white settlement, so they didn’t deserve to keep it – but since when were sealed roads, high rise buildings and industrial-scale mining ventures a prerequisite for fundamental human rights?

The ABC’s Four Corners program aired one of its best documentaries ever in April 2012. They looked at the Mabo decision, and the political aftermath of the decision, which led to the introduction of the Native Title Act (1993). The Prime Minister of the day, Paul Keating, was interviewed, along with the Chief Justice of the High Court at the time of the decision, Sir Anthony Mason, who both spoke about the significance and impact of the case (see link below).

English: Paul Keating in 2007.

Paul Keating in 2007. (Photo credit: Wikipedia)

I have never had much time for Paul Keating. However, I admit I was impressed by what he had to say on the Four Corners program. His government was under a lot of pressure from the Opposition Liberal Party and the mining companies to overturn the court’s decision. Not only that, the decision was unpopular, and made the mainstream Australian community very nervous, despite the two limitations placed on native title that I mention above. Keating could have taken the easy way out, but he chose to be principled and after long and intense negotiations with all the interested parties, the Government introduced legislation, which became the Native Title Act (1993).

According to the ABC’s 100 Years: The Australian Story, “Prime Minister Paul Keating seized the Mabo judgement as a basis for a new relationship between black and white Australians.”

“We’re the ones that brought the diseases, the alcohol. We’re the ones that did the murders. We’re the ones who took the children. Either we did or we didn’t. And if we did, where should the act of recognition begin. It should begin with the Prime Minister” – Paul Keating, words reminiscent of his famous Redfern Speech: on December 10th 1993, Paul Keating delivered  a speech, now regarded as perhaps the greatest Australian speech ever made. In it he said “We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion. It was our ignorance and our prejudice.” Credit for the speech has been claimed by Don Watson, Keating’s principal speech writer, although Keating has disputed this, and said it was his own.

For clips from the speeach, go to http://aso.gov.au/titles/spoken-word/keating-speech-redfern-address/

To see Paul Keating’s Address to the Nation, made in 1993, go to http://aso.gov.au/titles/tv/mabo-an-address-to-the-nation/

When the Mabo decision was released by the High Court, I was a member of the Melbourne University Law Review (an academic journal that is edited by students). We had been waiting for a long time – ten years in fact – for the case to be decided, we knew it as going to be important, and we were very excited when it was finally published. We had someone lined up to write a Case Note in the Law Review.

The Native Title Section of the Department of Prime Minister and Cabinet said in an article that:

“The judgment contained statements to the effect that it could not perpetuate a view of the common law which is unjust, does not respect all Australians as equal before the law, is out of step with international human rights norms, and is inconsistent with historical reality. The High Court recognised the fact that Aboriginal people had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. They had been dispossessed of their lands piece by piece as the colony grew and that very dispossession underwrote the development of Australia into a nation.”

The notion that the Court “could not perpetuate a view of the common law which is unjust” is vintage Mason – a judge who was famous for his doctrine of “unconscionability”, which meant that he would reject legal principles which were unjust or led to injustice.

Interviewed in the ABC’s 100 Years: The Australian Story, he said “I have an overwhelming conviction that Mabo was right and that no self-respecting court could come to a conclusion other than the conclusion reached in Mabo.” 

I was lucky to be a law student when Mason was Chief Justice (his term was 1987-95), and the rest of the line-up of the High Court bench was pretty impressive – arguably one of the best in the history of the High Court. Mason CJ was brilliant intellectually, incisive in his knowledge of the law, and brought a moral dimension to his judgments that is often lacking – although he would probably say that his decisions were made purely on legal grounds.

The legal issues considered in the case were quite complex. For example Deane J, was of the opinion that when the British colonised Australia, they brought the English common law with them, including native title. Dawson J, in his dissenting judgment, said that when the British took over the land, their assertion of sovereignty extinguished native title. The two were poles apart.

Deane went on to become the most sensitive Governor-General in Australian history – and I say that as a republican from the age of 11! His symbolic gesture of throwing sprigs of wattle, brought from his own garden, over the bridge into the water to commemorate each young Australian who died in a canyoning accident in Switzerland, was personal, touching and non-sectarian, meeting the need in the Australian community to have a non-political leader who could articulate people’s sense of grief over this incident.

By the way, as I was doing background research for this article I came across the information that Mason lectured in law at the University of Sydney, his students including two future High Court Justices, Mary Gaudron (our first woman appointed to the High Court, who was a member of the “Mabo bench”) and William Gummow, currently on the bench (whose text books on trusts and equity I had to read when I was a student – and who is expected to retire this year). When I was in Canberra in April this year my friend Brett (who knows everyone and everything in Canberra) pointed out an apartment block that we were driving past: “See that apartment?” he said, “Bill Gummow lives there. I know because I used to run a furniture shop and we delivered furniture to him.”

Evaluations of Mabo

There were mixed reactions at the time of the decision. Mining magnate Hugh Morgan said it was “an exercise in the politics of guilt”. Some people wanted a referendum on the issue – which would inevitably have been lost. When the Government introduced the Native Title Bill, it led to the longest debate in Australian legislative history. Vintage economic journalist Padraic McGuiness said it gave rise to “an army of white parasites”.

Dr Lowitja O’Donoghue has commented that “the judgment that Eddie Mabo fought has changed the world in which we live. It has changed the legal and political landscape of Australia.”

In March 1990 Dr O‘Donoghue was appointed the founding chairperson of the Aboriginal and Torres Strait Islander Commission (ATSIC) and, during this time, played a key role in drafting the Native Title legislation that arose from the High Court’s historic Mabo decision.

To mark the 20th anniversary of the decision, a forum was held in the Melbourne Town Hall on Sunday 3rd June 2012. Margaret Gardner (a Warundjeri Elder), Gary Murray, who has a long involvement in native title issues and Matthew Storey, CEO of Legal Title Services spoke at the forum. They said that the Act worked better in the Northern Territory (where a lot of land was held under pastoral leases) but not so well in Victoria, where there was little land where native title hadn’t been extinguished. Margaret Gardner made the point that indigenous people needed “skills, knowledge and education to pursue autonomy”. Gary Murray added that native title gives people the right to hunt, fish and gather food to feed themselves, but it doesn’t  allow people to make a living, in the sense of running a business. A Reconciliation Action Plan needs more than this.

The ABC will be screening a feature film in June 2012 about Edie Mabo and his love affair with his wife.

This is one not to be missed.

NEWSFLASH! The Attorney-General, Nicola Roxon, has just announced some amendments to the Native Title Act, However, this falls short of reversing the onus of proof – the idea that claimants have to prove their continuous connection to the land (which is hard when they have been displaced from it). However, this does raise an interesting question about the role of culture in determining people’s rights. In theory, I don’t believe in inheritance (although I will still take my share when my mother dies). Inherited property is one of the biggest factors determining inequality in our society. Shouldn’t every baby come into the world equal, with no predetermined ownership of property, and no greater entitlement than anyone else, regardless of their culture? Is native title really consistent with equal human rights for all? The main reason for supporting it, in my opinion, is to help improve the status of indigenous people, but this needs education and business or employment opportunities, not just hunting and fishing rights.

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