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Mabo vs Queensland
Summary
Like many forms of symbolism, the Mabo judgement was a turd covered in honey and sold as if it were a delicious dessert. In the sales pitch, it was said to be the day the High Court set a new precedent with judge-made law that overturned the legal fiction that Australia was unoccupied when annexed by Captain Cook in 1772.
When justifying his verdict, one of the High Court judges, 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."
While the moralising made the High Court justices seem noble, even if the British had recognised the existence of Aborigines, they would still have taken the land, just as they took land in Africa, China, India, Europe, North America and South America. These conquests were within British law. In the eyes of the British, the only difference between lands that were settled and lands that were conquered were that the laws of conquered lands were to be recognised until the British crown passed new laws. In settled lands, the laws of Britain were immediately in force.
Contrary to myth, British law didn’t require that people who lost their land be compensated on "just" terms. As a result, the British didn’t compensate the Irish when they invaded and took Irish land. They just sent Irish dissidents to Australia. Likewise, when common land was enclosed in England and given to wealthy individuals, no compensation was paid to English communities plunged into poverty. Dissidents and the newly made poor were just exported to Australia.
If the High Court justices found British colonial laws to be morally objectionable, then they should had said that they found them to be morally objectionable. Fabricating lies about Australian colonists dehumanising Aborigines so that they wouldn't have to apply British laws served neither the study of history nor the evolution of the Australian legal system. All they served were justices that wanted to portray themselves as having some kind of superior morality to the Australians who hadn't lived up to the higher morality of their British ancestors.
As well being dubious by misleading people regarding the legal significance of terra nullius, the High Court was also dubious in that the new laws it created were racist. The High Court said that Aborigines could only claim land if they could prove continuous occupation of the land since 1788. If that occupation had been lost at anytime since 1788, irrespective of the reason, then title could not be revived. As a consequence, no prime city land could be claimed, nor could any land stolen from Aborigines be claimed. Because 70% of Aborigines lived in urban areas, 70% of Aborigines were told that there land had been stolen from them but that they could not get it back. This just left the desert where Aborigines had been living continously since 1788 because no one else had ever wanted the land.
In addition to legitimising theft while simultaneously denouncing theft, the High Court said that if title were recognised, then Aborigines could not sell the land, nor own it individually. Although the restrictions were well-intentioned, no other race was ever subjected to the same restrictions about what they could or could not do with their land. In some ways, the restrictions were a throwback to the era where governments controlled the salaries of Aborigines to “protect” them.
Basically, the judges wanted the Aborigines to walk off into the sunset, stand on one leg and become basket weavers or handicraft makers. They didn't want Aborigines to use the land to become farmers, property developers, eco-tourist operators or in any way corrupted by the modern capitalist world. Arguably then, the judgment was more in the interests of the emotional sensibilities of the High Court than the Aborigines it claimed to be fighting for. It allowed the High Court judges to show that they had a heart while they enjoyed their rich mansions with ocean views and "gave" the desert back to the Aborigines.
A final act of racism was the High Court’s failure to recognise Aboriginal laws. From the perspective of British law in the 18th century, the only difference between conquered lands and terra nullius lands was that the laws of conquered lands needed to be recognised until the British passed new laws. By failing to recognise Aboriginal legal systems, the justices were acting as if Australia still was terra nullius. Ironically, they were guilty of the same act as Arthur Phillip, who didn't announce that he was extinguishing the laws of the various Aboriginal tribes when making new laws for the colony. If Arthur Phillip had been racist, the justices were most definately racist as well.
Terra nullius - the law
In its colonising era, England had laws governing how its citizens should behave in new lands. The Doctrine of Terra Nullius applied to "uncultivated or desert lands". In such lands, the common law of England applied from the moment of colonisation.
When land was acquired by conquest or ceded in a treaty, the land's existing laws would be recognised; subject to the right of the English Crown to override them. This included the right of the Crown to override land laws.
The differences between lands that were settled and those that were conquered 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."
In regards to countries gained by conquest, Blackstone wrote
"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."
In regards to terra nullius lands, Blackstone wrote:
"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."
The High Court basically said that the British had treated Australia as unclaimed land when they should have treated it as a conquested land. Therefore, Aboriginal land laws could still have been in existence at the time of the Mabo versus Queensland judgement. Although past governments had extinguished some Aboriginal laws by granting title to colonists, and the present government of Australia could extinguish the rest if they wanted to, any laws extinguished after 1975 would need to consider the racial discrimination act introduced by the Whitlam Labor government.
Arthur Phillip's application of terra nullius
When Arthur Phillip arrived in Australia , there was no High Court, no elected parliament, no appeals process and no democracy. The Crown had vested in Arthur Phillip the authority to make decisions on its behalf in respect to the colony. Within the confines of the colony, Arthur Phillip was the law. He had the power to decide if Australia was terra nullius, and if it wasn't, he could override any local laws that existed.
Because the various Aboriginal communities were nomadic and didn't display the signs of land ownership familiar to the European community, Arthur Phillip acted as if Australia was terra nullius. For example, there were no permanent dwellings, villages, towns, farms, herds, cultivation, enclosures, ditches, hedges, earthworks or clearings that Europeans recognised as signs of land ownership. There were no boundary markers, or defensive walls, signalling the end of one tribe's land, and the beginning of another. There was no central land register recording which tribe owned which piece of land.
Usually when new territory was gained, it wasn't by pushing soldiers into a new region and defeating a resisting army, rather it was by granting ownership over land that appeared to be unused. Thus the perception in the minds of the Europeans was that Australia was being settled rather than conquered.
When the returning Aborigines speared sheep and cows on farms, in the minds of the Europeans, the Aborigines were like bushrangers taking what didn't belong to them.
Further clouding the issue were the mixed signals coming from the Aborigines themselves. Although some Aborigines led a guerrilla war of resistance, others were friendly. Watkin Tench, a military officer of the colonial era writing:
“Our greatest source of entertainment now lay in cultivating the acquaintance of our new friends, the natives.”
Even if Arthur Phillip didn't extinguish land laws, in 1835, an event did in fact indicate that the native laws relating to land ownership had been extinguished by a subsequent governor. A colonist, John Batman, negotiated to buy 240,000 hectares of land from the Kulin people. 8 Aboriginal chiefs 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.
Judgement - Mabo Vs Queensland (1992)
Mabo Vs Queensland (1992) was solely about native title on Murray Islands in the Torres Straight which had been annexed by Queensland in 1879. Australian legal precedent 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.) But against precedent, the High Court found that Queensland's annexing of the Islands had not extinguished native title.
After giving their judgement in the Mabo case, the Justices said their verdict would also apply to the Aborigines on the mainland. This was a surprising statement as the High Court was never presented material in relation to Arthur Phillip's actions nor the laws of the 700 or so distinct mainland tribes. Furthermore, unlike the Torres Straight Islanders who were an agricultural people, the mainland Aborigines were nomadic. Had the Aborigines not been nomadic, then the British might have found it easier to recognise their laws.
What land can be claimed and how?
The English common law of possession basically proposes that if people occupy land for a specific period of time, then they have a ownership claim over it. Instead of applying the common law to Aborigines, the Justices created a much more strict (and difficult to prove) set of guidelines. The Justices ruled that when there had been no crown interference, native title exists if an applicant can show an unbroken continuity since 1788. This association was not restricted to living on the land. It could have been a fishing, hunting or a religious affiliation.
Irrespective of whether a tribe occupied a region for the past 100 years, ownership was lost if the tribe was removed from the land in a previous period.
In effect, these guidelines prevented Aborigines from claiming prime real-estate or any land that was being commercially used. Irrespective of whether their ancestors owned the land, if the association had been temporary lost anytime since 1788, the Justices ruled the title could not be revived.
Although this requirement made land claims more difficult for Aborigines, it did create a lot of work for white lawyers, anthropologists, historians and archaeologists wanting to "help" Aborigines. Not surprising, white anthropologists, historians, lawyers and archaeologists were full of praise for the judgement. It was very lucrative for them and they had no desire to help Aborigines survive without their "expert" services.
Restrictions on land usage
In the event that Aborigines had title recognised, the Justices ruled that they would be bound by a series of restrictions that would not apply to any other race in Australia. One restriction was that land could not be individually owned. Thus a community would not be allowed to divide up the land among their people. Furthermore, native title would not give the community the right to sell the land.
These restrictions made it almost impossible for Aborigines to develop their land economically. They also called into question what kind of title Aborigines actually had, or whether title was even worth having.
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."
Terra Nullius - Other laws
The Mabo judgement was based on the legal premise that Arthur Phillip had incorrectly applied the Doctrine of Terra Nullius and therefore didn't extinguish native land laws. If land laws had not been extinguished, then it also seemed logical that other laws would still exists. This was tested in Walker Vs New South Wales (95). The Chief Justice of the High Court found that:
"Mabo is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia."
It seemed then, the only Aboriginal laws that had not been extinguished were those relating to land ownership. However all native laws relating to the management of the land or those essential to the functioning of an Aboriginal community had been extinguished.
The great irony of the Mabo judgement was that, while it denounced the application of the Doctrine of Terra Nullius, it showed a complete lack of appreciation for why the preservation of local laws was important. England wanted local laws to be recognised because they knew local laws were essential to keep societies functioning. However, because the Mabo judgement made no provision to recognise tribal law, it made it impossible for Aborigines to live a traditional lifestyle. As a consequence, Aborigines remained trapped between two worlds.
Moralising
Australia is a multicultural society with a diversity of values and beliefs. For this reason, a court's role is not to act as the moral guardian of one set of values to the exclusion of the other. Its role is to interpret the law when disputes arise. To ensure they are able to rationally interpret this law, a judge must distance their own sense of morality from the interpretation that they are being asked to make. But a peculiar feature of the Mabo judgement was the high level of moralising rhetoric, which the Justices themselves acknowledged that some people may find surprising. Alluding to Arthur Phillip's actions, Justice Deane and Justice Gaudron said it was one of the "darkest aspects" in the history of Australia . The Justices also implied that Arthur Phillip had treated Aborigines 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." As for the culpability of present generation of Australians, Justice Deane said the dispossession of Aborigines is "a national legacy of unutterable shame."
Deane's argument that the English ignored the very existence of Aborigines to take their land was a dubious one. The English certainly didn't ignore the existence of the Chinese when they took Hong Kong, nor did they ignore the existence of Indians when they took India. It would seem then, Deane's emotive language probably served an agenda other than communicating the perceptions of English people during the colonising era.
Many of the problems that the judgement caused can be attributed to the Justice's inability to refrain from moralising. Legally, the judgement only affected a small minority of Australians. However all Australians were affected by the moralising of the Justices. Where there is morality, there is division. Psychological experiments have found that even simple moral dilemmas considered by relatively homogenous focus groups invariably fail to reach resolution and usually descend into insults. Pressuring all non-Aborigines to accept moral responsibility for the actions of Arthur Phillip was always going to be a divisive act.
If the Justices had passed clear and concise laws and refrained from getting on the moral high-horse then Australians would not have been plunged into moralistic feuds that never had any hope of reaching consensus. Although a few miners, farmers and most Aborigines would have been unhappy, the rest of Australia would not have been divided the way it was.
There are numerous explanations for why the Justices decided to take the high-moral ground.
Racist judgement
Although the moralising of the Justices made them appear sympathetic to the Aborigine's cause, in substance their judgement stripped Aborigines of equal rights. By using emotive language they successfully poured honey on a turd and sold it to the Aborigines as if it was a delicious dessert. The judgement was racism in its purest institutionalised form. It:
- Denied Aborigines from claiming land owned by their ancestors;
- Was the only court that required claimants to show 200 years of continuous evidence;
- Imposed a series of restrictions on land use that did not apply to any other race in Australia;
- Defined Arthur Phillip's application of terra nullius as racism, then acted in kind by failing to recognise traditional laws.
Aside from calming Aboriginal dissent, showing moral courage proved to be very lucrative for Justice William Deane. Even though Mr Deane was scathing of Australians, Paul Keating subsequently appointed him to the position of Governor General. In 2000 Mr Deane had the honour of opening the Sydney Olympic games. After the expiration of his term, Mr Deane continued to receive very generous Commonwealth superannuation as he travelled Australia giving speeches about the moral courage that his verdict showed. (Not bad for someone who, by his own admission, was the recipient of stolen property - and someone who decided to keep possession of that stolen property. )
The anthropological gold rush
The great virtue of studying anthropology is that one learns the importance of customs, rules and laws to a society. For this reason, anthropologists should have heard alarm bells over the contradiction between Mabo Vs Queensland (1992), which forced communal management of land, and Walker Vs New South Wales (95) which affirmed that Aborigines could not use their traditional laws to manage land communally.
Because the anthropology profession was possessed by gold fever it ignored this contradiction. Anthropologists didn't want to criticise the judgement because it made so much money for them. It seemed then, the actions of anthropologists once more showed that universal trait of humans to manipulate their morality in a way that is conducive to financial gain.
Although the judgement was lucrative for anthropologists, history showed that the return of land didn’t do a great deal to lessen Aboriginal disadvantage. Even after title had been recognised, low life expectancy, over representation in prison, sexual assault and domestic violence were still defining features of Aboriginal communities. In 1998, John Reeves Q.C, issued a report into land returned in the Northern Territory . Reeves' findings were that the return of land per se had done nothing to improve the Aborigines' socio, economic or health indices.
As much as anthropologists wanted to make excuses by blaming these problems on a prime minister not saying "sorry", there remained the inherent contradiction in a High Court judgement that forced communal management of land, yet denied the use of traditional laws necessary to manage the land. This contradiction had an inevitable consequence of social dysfunctional.
Along with anthropologists, archaeologists also saw the financial potential of the judgement. In order to dig up sacred ground, archaeologists used the carrot of a land claim to persuade Aborigines to compromise their beliefs.
Barriers to economic empowerment
After attaining native title, many Aborigines dreamt of attaining economic empowerment. Some wanted to raise a few cows on the land. Some wanted to harvest the land's trees or wild animals. Some wanted to create hotels, eco-tourist resorts or property developments. Unfortunately, significant hurdles made economic empowerment almost impossible. First and foremost was opposition from whites who wanted Aborigines to live like hunter-gatherers. These whites saw native title as a "gift" to Aborigines. They wanted Aborigines to protect the land as if it were a national park. They didn't want to see Aborigines as farmers, as property developers, as loggers or as hotel owners. For these whites, cheap arts and crafts were about the only commercialisation that is acceptable. According to Noel Pearson, director of the Cape York Institute for Policy and Leadership:
"The aspirations of indigenous people in remote Australia to re-establish a real economy underpinning the sustainability of their society are at odds with the vision of urban-based conservation organisations such as the Wilderness Society. The confrontation that has emerged between the advocates of land rights in Cape York and those who advocate for so-called wilderness may be the start of a sharpening clash of values."
Another obstacle was communal decision making. Each individual had his or her own ideas about what should be done. Some wanted to preserve traditional ways while others wanted to engage in property development. In pre-colonial times, Aboriginal tribes had a series of customs and myths that ensured each individual thought alike. They also had customs that motivated individuals to subordinate their will to the will of the tribe. If the individual failed in their communal expectations, senior members of the tribe could exert sanctions to bring them back into line. Most of these customs were outlawed by Australia’s legal system that protects the rights of the individuals as well as ensures gender equality. As a consequence, Aborigines found it difficult to attain consensus.
The final barrier was the reluctance of banks to loan money. Because the land couldn’t be sold, Aborigines couldn’t borrow against it. Furthermore, banks wouldn’t lend money to organizations that do not run on capitalist principles.
Future
Although big business was hostile to the Mabo judgement when it was released, and left-wing environmentalists were heavily in favour of it, in the long run the judgement is likely to be in the interests of big business. Once land has been transferred from the control of governments into the hands of Aborigines, businesses are able to avoid the democratic process. This was seen in America when concerned citizens successfully lobbied government to have gambling outlawed. Gambling businesses subsequently set up casinos on Indian reservations where land owners didn't have to pay attention to the concerned citizens. As a result, America was transformed from a nation of puritans to a nation of gamblers.
In Australia, numerous projects have been halted by concerned citizens lobbying Australian governments. For example, unsightly wind farms have been refused in case they kill a singular bird once a year. Mines have been refused because environmental impact statements have found some rare microscopic organisms would be threatened. Had these politically sensitive business been proposed for Aboriginal land, the business could have used the emotive angle of Aboriginal sovereignty to resist any attempts at government control, or community activism. Businesses find it easier to persuade Aborigines because it is easier to produce a enough money to to bribe small group than it is to bribe a national government.
Unlike America, gambling is unlikely to be the lucrative money spinner for Aborigines because Australians already have ample access to casinos. Instead of casinos, the likely money spinner will renting out the land as a dump for industrial waste. In what is a sign of the future, in 2007 the federal government announced that an agreement had been reached with the Aboriginal people from Muckaty Stationan to let their land be used as a radioactive waste dump. In return, the Ngapa traditional owners would receive a $12 million package, including an $11 million charitable trust and a $1 million education scholarship. Potentially, other Aboriginal tribes, living in cities but retaining title over useless tracts of desert, may well negotiate arrangements with foreign governments or multinational companies to let their land be used to store some variety of toxic materials.
At present, the legal restrictions on ownership and sovereignty prevent Aborigines from being able to fully exploit their land. However, campaigns change with time to reflect the interests of people wanting to make money. At present, the moralistic support for current Mabo legislation comes from anthropologists, lawyers, historians and archaeologists who are making money out getting the title into Aboriginal hands. Once all available land is in Aboriginal hands; however, such groups will be obsolete and there will no longer be voices supporting the legislation. Instead, Aborigines, in partnership with industries, will begin challenging the legislation so that they can profit as well. When that occurs, morality will change.
External links
Mabo Perspectives:
The Aboriginal Provisional Government –
The Court Gives an Inch but Takes another Mile
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