The Mabo decade
Frank Brennan reviews Mabo ten years on.
Ten years ago, on 3 June, the High Court handed down its decision in the Mabo case. Don Watson in his recent book, Recollections of a Bleeding Heart: A Portrait of Paul Keating PM, recalls: 'The historic significance of the decision was obvious to everyone, except all those who either had no history or something else on at the time. As this meant about 80 per cent of the population and up to 90 per cent of the [press] gallery, panic and excitement took some time to set in.' Indeed.
Mabo
was the first case where the full bench of the High Court was asked to
consider the common-law recognition of land rights. Justice Brennan, who
wrote the lead judgment, offered this general comment on the occasion
of his retirement from the bench six years later:
The agenda of the courts are defined by the litigants. The courts decide the controversies that the people bring to the courts for decision. They are the people's problems. The Court has no agenda of its own. But, as the issues that arise for decision are contemporary issues arising in contemporary circumstances, the work of the Court in each generation reflects that generation's concerns.
Eddie Mabo was the driving force behind the litigation, having commenced the proceedings ten years before. He'd had to run the gauntlet of Joh Bjelke-Petersen's invalid law that sought to extinguish all native title rights - retrospectively and without compensation. Though the case bears Eddie's name, he actually lost his particular case, being unable to establish the evidence of his claim to land in the Murray Islands because of his long absence from the Torres Strait. His fellow claimants, David Passi and James Rice, carried the day. Eddie's widow, Bonita, still carries the pain of Eddie's loss and some feelings of rejection as the Murray Islanders celebrate the tenth anniversary.
Although, in Mabo, Indigenous Australians won recognition of their traditional rights to land, the High Court by the narrowest majority (four to three) decided that these fragile rights were readily extinguishable. From 1788 and until 1975 when the Commonwealth parliament passed the Racial Discrimination Act, state parliaments and state governments could extinguish native title at their whim without payment of compensation simply by granting the land to some other person. In Mabo, due process and compensation for native-title holders would be available only to those fortunate enough to have retained their lands during two centuries of colonial dispossession premised on the terra nullius mindset. That is why Noel Pearson describes Mabo as the High Court peace plan with a three-part compromise: 'Whitefellas keep what's theirs, blackfellas get what's left over, and there's an area of land in the middle, in relation to which the court has prescribed co-existence. Moreover, in relation to the co-existence, the court's formula is very simple. That is, that the crown title will prevail over the native title if there is any inconsistency.' As Noel says, 'There could be no more peaceful a proposition for peace than the one put forward by the High Court.'
Since Mabo, a newly constituted High Court has had to apply the principles of the decision to pastoral leases in the Wik case and to offshore areas in the Croker Island case. Both the Howard and Keating governments have tried their hands at legislative responses to the High Court decisions. Even John Howard as prime minister has told parliament, 'The substance of [the Mabo] decision, now with the passage of time, seems completely unexceptionable to me. It appears to have been based on a good deal of logic and fairness and proper principle.'
That view is shared by both sides of the political chamber and by most lawyers at home and abroad. So the dust has settled. The original decision is no longer seen as a revolution but as a belated commonsense piece of legal reasoning. Hugh Morgan's 1994 declaration now seems a little melodramatic: 'In Mabo, and all that followed from it, we are engaged in a struggle for the political and territorial future of Australia.' That struggle has focused on our borders and on the few thousand 'boat people' who have turned up in the last year.
The Mabo decision has withstood the test of time and is now seen by most commentators as being in accordance with contemporary Australian values. Universal respect for property and the principle of non-discrimination might even be thought to be 'the vibe of the Constitution' - to quote The Castle.
Eddie Mabo and his QC, Ron Castan, have died. The majority of the Mabo bench has retired. But native title is here to stay, helping to put right what Justices Deane and Gaudron described as our 'national legacy of unutterable shame'.
The anthropologist W.E.H. Stanner once reflected on his own contribution to the granting of Aboriginal land rights: 'All I can say is that they seemed to me the right things to strive for. I am not foolish or wise enough to be certain that Aboriginal tomorrows will really be the better for it.' But as reconciled Australians we so hope.
Frank Brennan SJ is Associate Director of Uniya, the Jesuit Social Justice Centre, Adjunct Fellow in Law at the ANU and author of One Land One Nation.
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