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Mabo Versus Queensland (1992)

The officially sanctioned history of the Mabo versus Queensland judgement (1992) shows how history is written to suit those with power. It basically said that the British did the equivalent of invading someone’s house and tossing the occupants outside. However, the judgement celebrated the inheritors of the stolen house for taking a shit sandwich from the fridge and giving it to the descendants of the original owners. For former Prime Minister Paul Keating, this was a highly moral act because the judgement recognised that the shit sandwich had always been owned by Aborigines, rather than being a gift of his government.

This "moral" act effectively dealt with pressure on the Keating government to recognise Aboriginal land rights and helped Keating build an image that he was the Aborigines' champion.

Dealing with land rights campaigns

After World War 2, various lobby groups started pressuring Australian governments to recognise Aboriginal land rights. In the 1970s, states started recognising native title. In addition, the Federal Liberal and Labor governments recognised native title in the Northern Territory which they had administered.

By the 1980s, the Labor Party realised that there was significant votes for a party that supported Aboriginal land rights. Consequently, at its 1984 national conference, it developed a five principles approach to land rights that proposed 1) Aboriginal land be held under freehold title 2) full legal protection of Aboriginal sites 3) Aboriginal control in relation to mining on Aboriginal land 4) access to mining royalty payments and 5) negotiated compensation for lost land.

As is often the case in politics, talk prevailed over action and the five principles were never implemented. By the late 80s, many sections of Australia were becoming impatient and bands like Midnight Oil had a number hit with Beds are Burning, which advocated ‘giving it(land) back’ and ‘paying the rent.'

In a stroke of political genius, prime minister Paul Keating dissipated the pressure by supporting the Mabo versus Queensland land rights judgment and vilifying the "racists" who didn’t. The judgement didn’t actually require that Keating give anything back, rather, it used emotive language to say Aborigines had been treated as less than human when the British took possession of Australia. Keating then passed legislation and sold it with proclamations that a series of committees and tribunals would ensure Aboriginal rights were protected. Pressure on Keating subsequently disappeared because the general public believed that Aborigines had finally had their rights recognised. In truth; however, the judgement was a legal mess that resulted in white anthropologists and lawyers making a fortune. In addition, it imposed restrictions over what Aborigines could do with their land if ownership were recognised and made no provisions to compensate Aborigines who lost it. In short, it was a case of honey being poured on a turd and sold as if it were a delicious dessert.

The Story of Eddie Mabo

The Mabo case was brought by Eddie Mabo from the Meriam people of the Torres Strait islands on the urgings of Henry Reynolds, a white academic married to a Labor Party Senator. The Meriam islands had not been claimed by Captain Cook in 1772, but they were annexed by Queensland in 1879 and became part of Australia as a result of Federation in 1901.

Most history books and journalists alike recite a slogan that the Mabo judgement overturned the legal fiction that Australia was terra nullius (empty) at the time of British annexation in 1772. For example, to mark the 20-year anniversay of the judgment, the ABC pushed the line that:

"Eddie Koiki Mabo won his way into history when the highest court in the country ruled in his favour and disproved the law of terra nullius."

The terra nullius slogan was an attempt at simplification because few people could understand what the Mabo judgement was about and if they did, many ended up disputing it on legal, historic or moral grounds.

The law of terra nullius.

One reason for the moral and legal mess was that the High Court justices recognised that they should work in legal system that was derived from British law, but (presumably) some of them were uncomfortable with the British laws that proposed that Britain could go around conquering other lands and taking possession of them. These laws were spelt out by Sir William Blackstone in 1865 in his Commentaries on the Laws of England. According to Blackstone,

"Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only by finding them desert and uncultivated and peopling them from the mother country; or where, when already cultivated, they have been gained by conquest, or ceded to us in treaties. And both these rights are founded upon the law of nature, or at least upon that of nations… But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change those laws but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God as is the case of an infidel country… But there is a difference between these two species of colonies with respect to laws by which they are bound. For it hath been held, that if an uninhabited country be discovered, and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediately in force."

In more simple language, when lands were conquered, local laws continued to exist until they were extinguished by the king or parliament. When the lands were not occupied (terra nullius), England’s laws were immediately in force.

Instead of saying British colonial laws were an arse and then recommending parliament do something about the legacy of them, the High Court said the laws had been incorrectly applied in Australia. Basically, the High Court said that colonists had treated Australia as unclaimed land (terra nullius) when they should have treated it as conquered land.

Because Australia was a land that was conquered, local laws continued to exist, including land laws, until they were formerly extinguished by governments. The judgement did NOT say that the conquest of Australia by the British was illegal nor that it was illegal for governments to extinquish title.

Selling the judgment by villifying the "racists"

To add some sense of moral empowerment to the decision, justice William Deane said that Aborigines had been treated as a

"different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional lands."

In short, the justices declared that racist colonists had ignored the existence of Aborigines because they didn’t want to suffer the moral crisis of admitting that Australia was being conquered. In the justices' minds, the English colonists were quite happy using British laws to take land from the Irish, Chinese, Africans, Americans, and other Englishmen, but when it came to Aborigines, they felt bad about what they were doing so they pretended that Aborigines didn't exist. The Australian descendants continued to suffer the moral crisis and so they likewise turned to racism to deal with it until Deane and co came along to provide the "moral" pathway.

Judge made law

The conclusion that the whole legal system of Australia was based on a lie brought with it some serious ramifications that the High Court felt needed guidelines to work through. It subsequently took it upon itself to provide the guidelines. Rather than say the all laws of Australia were invalidated because law makers had not explicitly extinguished local laws, the High Court said that any law that had been passed since 1788 extinguished local laws. In regards to land laws, the High Court decided that native land laws were only extinguished when land was granted or sold by the Crown. If it remained in Crown hands, then title was not extinguished and local laws over its use remained if Aborigines could demonstrate continous association with the land since 1788. If Aborigines were not able to demonstrate continous associations since 1788 then title would belong to the crown.

Stating that Aboriginal land use laws had not been invalidated by the Crown's annexation of land was inconsistent with Australian legal precedent, which clearly laid down that customary native land title was extinguished upon the acquisition by the Crown of a colony. (Attorney-General v Brown 1847: 30; Milirrpum v Nabalco Pty Ltd 1971:141; Hasluck 1988:101-2.) For this reason, the Mabo judgment has been seen as an example of judge-made law. In other words, it was laws that the judges made up.

As well as being inconsistent with precedent, the judgment was inconsistent with proclamations of early colonial governments. In 1835, a colonist named John Batman negotiated to buy 240,000 hectares of land from the Kulin people (the Aborigines living around Melbourne). 8 Aboriginal elders made a mark on a contract to indicate their acceptance. The contract was immediately declared invalid by a proclamation of Governor Bourke, who declared that the British Crown owned the entire land of Australia, and that only it could sell or distribute land. In effect, the High Court was cherry picking what acts of government extinguished local laws and what did not. According to the High Court, when the Crown sold Aboriginal land to private individuals it was extinguishing Aboriginal laws but when it said that it owned all of Australia, it was not extinguishing local land laws. Admittedly, Bourke’s proclamation in 1835 was prior to Queensland's annexation of the Torres Straight in 1879, but the justices made a point of declaring that their judgment applied to the mainland and they used 1788 as a milestone year.

Setting up the High Court as the custodians of Aboriginal customary law

After deciding that Aboriginal laws had not been extinguished on Crown land, the High Court justices took it upon themselves to decide what those Aboriginal laws were. Basically, the High Court decided that traditional Aboriginal laws forbade individual ownership of the land or the sale of land. Consequently, if native title were recognised, Aborigines would be bound by these traditional laws. In other words, Aborigines owned the land but not in an equal way to other Australians because they could not sell it, use it as collateral when asking for loans, or divide it up as part of a development project. Furthermore, Aborigines were not allowed to change their traditional laws. It seems that the High Court had decided that it was custodian of Aboriginal laws as well and only it could change them.

The High Court's interpretation about Aboriginal land laws seems to have been influenced by interest groups who had studied recognition of native title in other former European colonies where they discovered that if given the freedom to sell land, the indigenous population often did, which concerned the interest groups. Their conception of native title was that it was a way of protecting Crown land from farmers, miners, and property developers by getting it owned by Aboriginal groups who would then weave baskets on it or become rangers. As explained by Richie Ahmat, chairman of the Cape York Land Council:

"Wilder nullius, which is a vision that TWS (The Wilderness Society) has for indigenous homelands across northern and remote Australia, allows for black people in the landscape but in a highly restricted form. These blacks are not supposed to engage in any form of wealth creation or development. They are only allowed to pursue traditional activities. They are to eschew employment or consumption, and not participate in or be in favour of any form of industry.

If the blacks abide by the role envisioned for them, then TWS will arrange for the environmental agencies of government to provide funding programs for them to be employed as rangers and so on. If they step outside of this role, then TWS will get the government to stop the funding. Only compliance to the TWS vision of wilder nullius will receive support."

Basically, the form of native title outlined by the High Court was one where Aborigines didn’t own the land in the same way as other Australians. As Warren Mundine, head of NSW Native Title Services, said:

 "We own a couple of billion dollars' worth of land and it means sweet bugger-all for the Aboriginal community."

 

Winners and losers

For all the High Court's mighty language about Australians depriving Aborigines of equal rights as British citizens and then Australian citizens, the High Court justices created a judgement that denied Aborigines equal rights as Australian land owners. The judgement was not made to help Aborigines, it was made to help anthropologists, lawyers, environment groups, and political ideologues. It even helped the justices themselves. Justice Deane was subsequently appointed by Prime Minister Paul Keating to the position of Governor General of Australia where he went around giving speeches about the moral courage his verdict showed, as Keating expected him to do.

It was understandable that prime minister Keating would be in favour of the judgement. For Keating, the judgement provided him with the opportunity to portray himself as the great Aboriginal champion, while still passing all the difficult and controversial decisions onto committees, lawyers and government bodies to make money as they argued over them. Keating admitted as much when he said,

"they're a set of rights as distinct from a gift. You know the set of legislative land rights are a gift, whereas this was a set of rights earned by way of traditional association."

As the leader of Australia's governing party, it was within Keating’s power to pass legalisation granting title to Aborigines using whatever criteria he desired, as previous prime ministers had done. Despite seeming to pass the buck, Keating did in fact pass his own legislation. Keating's legislation was different from the legislation of previous prime ministers because, instead of being designed to aid the economic advancement of Aborigines, it was designed to aid the economic advancement of white anthropologists and lawyers that would be the expert witnesses in court. It was these groups that were full of praise for the judgement and Keating, which was understandable considering the amount of money they made from it. It was also these groups that had paid public relation professions on hand to sell the merits of the judgement and Keating's legislation.

In a nutshell, Keating announced that the British did the equivalent of invading someone’s house and tossing the occupants outside; however, he was worthy of respect because he would take a shit sandwich from the fridge and give it to the descendants of the original owners. For Keating, this was a highly moral act because he recognised that the shit sandwich had always been owned by Aborigines, rather than being a gift from his government. For Keating, this moral statement more than compensated for the fact that he had chosen to retain possession of the house and would continue using the kitchen to cook lamb roasts for his dinner parties that wouldn’t include Aborigines. As he frequently pointed out, backyards weren’t under threat of being returned, including his own backyard or his control of the kitchen.

Both Keating and Deane wanted to be seen as men who stood against racism, but the Mabo judgement showed both a respect for the British conservative tradition of the 18th century and a desire to impose restrictions on Aboriginal freedom. This most definitely qualified both Keating and Deane as racists and unqualified to provide moral empowerment over other Australians past or present.

Questions on the Mabo Judgement

1. What was the difference between conquered lands and the settlement of empty lands when it came to the imposition of British law?
2. Explain how Aboriginal land was transferred into the hands of non-Aborigines over the last 200 years
3. Why did justice William Deane say that Aborigines had been treated as a: "different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional lands."
4. Under British law, did the existence of Aborigines have to be ignored in order to determine the legal right to take their land?
5. The Mabo versus Queensland judgement does not allow Aborigine to individually own land or sell land that they have had title recognised over. Do you feel these restrictions are justified?
6. How would feel about an Indigenous tribe having their title over a vacant crown forest recognised and then selling it to a mining company?
7. In your opinion, did the Mabo v Queensland give Aborigines equal land rights as Australian citizens?

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