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Mansell, Michael --- "Mabo Perspectives: The Aboriginal Provisional Government -- The Court Gives an Inch but Takes another Mile" [1992] AboriginalLawB 35; (1992) 1(57) Aboriginal Law Bulletin 4


Mabo Perspectives:
The Aboriginal Provisional Government –

The Court Gives an Inch but Takes another Mile

by Michael Mansell

An Overview of the Decision

The Murray Islands lie well to the east of the gap between Cape York Peninsula and New Guinea. The total land mass of the three Islands is a mere 9 square kilometres. These Islands have been owned and occupied by the Meriam people for longer than anyone knows.

In 1982, a number of Murray Islanders, including Eddie Mabo, initiated legal proceedings in response to the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld) which established a system of deed of grant in trust which the Murray Islanders refused to accept.

In 1988, the case survived an attempt by the Queensland Government to retroactively extinguish any rights which the Islanders, at that stage, may or may not have had.[1]

The High Court finally heard legal arguments in May 1991 after Moynihan J. of the Queensland Supreme Court completed his finding of fact. On 3 June 1992, the High Court handed down its decision. The Court held that:

1. Native title to lands in the Murray Islands were recognised and had survived the take-over of this country by whites.

2. The previous view by the courts, that neither Aborigines nor Murray Islanders existed at the time whites invaded this country, was wrong.

3. The rights of the Meriam people to their land could be taken away at any time by government, now or in the past, provided it is, or was, done legally.

4. It was possible that Aborigines in the same situation as the Murray Islanders could likewise have their right to their traditional lands recognised.

5. Neither Aborigines nor, for that matter, anyone else could challenge in court the legitimacy of the white take-over of this country.

6. By a narrow majority, where native rights were recognised as having existed but have been taken away by government legally, either in the past or in the future, no compensation is payable.

Native title is the right of occupation of a certain area of land, by a particular group who practice their traditions over it. The title may be used by the people to prevent interference with their occupation.

The use of the term 'title' may be misleading. It is unlike a form of ownership as Australians know it. In fact, it is based on occupation, not ownership and is more appropriate to be described in that way. Its status in relation to other interests in land is well down on the scale. It provides less than freehold, or land held under land rights legislation, or leasehold or even perhaps 'deeds of grant in trust'. It cannot be sold, traded or dealt with in any way except to be returned to the Crown.

The starting point for Aboriginal people claiming native title is to show:

(i) they were in occupation of their traditional lands since before the white man came and have retained their connection their land; and

(ii) that their connection to the land is based on traditions, customs and law.

Whether these two starting points can be established is a matter of fact to be decided by hearing from people themselves, and others, as to how these customs etc., connect them to the land. If native title is established, the next question is - has native title survived white occupation?

The usual way for the title to be lost is, according to the Court, when:

(i) the people lose their connection with the land, even where they have been forcibly removed;

(ii) the particular clan or tribe or individuals in whom title is recognised, have died out (the test for the demise of the relevant people is a genetic one); or

(iii) the title has been effectively extinguished by some act inconsistent with native title.

Extinguishment will usually result from legislation or a Crown grant which allows for:

(a) a church, school or other public facility to be built on the land; or

(b) grants of interest to private individuals; or

(c) land is set aside for a public purpose inconsistent with native title.

It is not enough, however, if such public purpose land –

It would need to specifically refer to the particular Aboriginal group.

Although three of the seven Judges were in favour of compensating people for their loss of native title in certain circumstances, the majority were opposed to it. Therefore, the court ruling is that Aboriginal people forced from traditional lands may not only have recognition of their native title denied, but they will not be entitled to compensation for loss of land either. This is another factor showing the lack of worth of native title compared with other forms of title to land.

The High Court also considered the questions arising out of wrongful termination of Aboriginal title. If wrongful termination occurred many years ago, it is not possible to get a remedy through the courts because time limits are placed on such actions. Where governments attempt nowadays to get rid of native title illegally - i.e., through invalid legislation - it has no effect on the title. The attempt may be invalidated because, for instance, it may offend against the Racial Discrimination Act 1976 (Cth) because it was especially aimed at a 'racial' group and would have denied them equal treatment.

There are a number of other aspects of the Mabo case which must be mentioned. Firstly, it has to be remembered that the Murray Islanders did not argue against the claim by whites that the whole continent, including the Murray Islands, passed into the hands of the British when a flag was stuck in a beach at Botany Bay and proclamations read. The Islanders did not dispute this point. Consequently the case did not dispute the sovereign rights exercised by Australian governments. Secondly, the Islanders also did not contest that from the day the British stepped on Australian shores, the common law of England applied throughout the length and breadth of the continent and its islands. In fact the case was dependant on that being so. The issue was whether the Crown, as well as attaining sovereignty when the flag was struck, became the "universal and absolute beneficial owner"[2] of all Aboriginal lands, or whether the common law recognised a right to possession by the Murray Islanders arising from their traditional laws and customs. The Queensland Government argued that the Crown had an absolute right to land and that pre-existing rights of Aboriginal people are abolished upon annexation unless they are expressly recognised by the Crown. It was on this point that the majority of the High Court ruled in favour of the Islanders and rejected the Government argument.

If the Murray Islanders sought no more than some legal protection from the Queensland Government's efforts to dictate the nature of traditional land ownership on the Islands, then for them the case was good news. However, the importance of the case is its anticipated bearing on the land rights of Aborigines elsewhere. In arriving at its decision, the Court had to comment on the Aboriginal situation generally, because of the striking similarity of the Aborigines and their claims, to that of the Murray Islanders. Speaking of the form of title recognised as belonging to the Murray Islanders, the Court wondered how extensive were these rights. It was said:

"Obviously the proportion [of the continent affected by native title] was a significant one. Conceivably, it was the whole."[3]

Some Other Issue Raised by the Case

(1) The Effect of the White Invasion: Terra Nullius and Sovereignty

The first and most positive new step taken by the Court was to abandon the long held legal fiction that Australia was 'no-man's' land when the whites first arrived. In the Court's view:

"Inevitably, one is compelled to acknowledge the role played, in the dispossession and oppression of the Aborigines, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or inhabited for legal purposes and that full legal and beneficial ownership of all the lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. These propositions provide a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use. The official endorsement ... provided the environment in which the Aboriginal people of the continent came to be 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]

Despite normally being constrained by legal precedent, the High Court, after pondering the problem and concluding that this fictitious legal theory provided a basis for ads forming the "darkest aspect of the history of this nation..."[5], felt compelled to review the previously accepted doctrine of terra nullius, and duly reject it.

As a result of the rejection of terra nullius, the sovereign rights of Aboriginal people, notwithstanding that the Islanders did not argue it, necessarily arose during the case for consideration. The Court was at pains to point out that it was the Crown and not the Judges who took away the territory of Aborigines. In their view, the courts have failed only by not recognising any form of Aboriginal title. Aboriginal peoples' physical loss of territory and sovereignty was nothing to do with the courts. This attempt at distinguishing one area of injustice attracting the Court's attention from another is palpably absurd and unsustainable.

With regard to the use of the doctrine of terra nullius to justify the non-recognition of Aboriginal title, the Court stated:

"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted."[6]

However, the Court was silent on the equally unjust use of the doctrine to deny sovereignty. The Court refused to follow precedent on the issue of terra nullius for to do so would be to maintain a legal fiction based on political convenience. Yet the very same convenience was relied on by the Judges to shut the door to any Aboriginal hopes for arguing Aboriginal sovereignty in the courts. This aspect of the judgment is pure hypocrisy.

The Court sought to justify their pulling of the shades after having made their token responses to the cries for justice from Aboriginal people, by suggesting that taking issue with the actions of the Crown on sovereignty is a matter for the politicians, not the Court. How even more convenient. The politicians have not urged this view on the Courts, making it all too obvious that the Judges themselves want to wipe their hands of the whole issue.

What then is the practical effect of the courts closing their doors to Aborigines in this way, given that even the most sympathetic politicians refuse to consider, let alone discuss, Aboriginal sovereignty? The Court knew full well the difficulties associated with Aborigines getting access to the international law courts, and must be taken to know the politicians' attitudes. The Judges have effectively sought to quell any Aboriginal thoughts of sovereignty by dosing off access to the usual forum, the courts.

The Court has given a clear and unambiguous message that if Aborigines want sovereignty, they'll have to retrieve it by the same process which led them to lose it. It amounts to tacit approval for self-help, perhaps not in the form of outright war, because the Court would undoubtedly render unlawful such acts despite being done "to protect traditional occupation and use" of land (reasoning the Court found unacceptable in the past[7]).

The inconsistencies in the judgment highlight the difficulties white people have (whether they be professionals or not) in wanting to be seen as sympathetic, whilst at the same time supporting by their actions, white domination of not just Aboriginal people, but also our inherent rights.

(2) Treating Aboriginal Society as being Inferior

There were three matters discussed in detail by the High Court which are important if for no other reason than to show the inability of judges to pay due regard to Aboriginal legal rights without fearing the white backlash. It appears the Court had predetermined not to upset the established white control over Aborigines, and in going about their task let slip some pretty shoddy thoughts on the subject. They provided an insight into the difficulties Aborigines will continue to have in seeking justice under the white law. The three matters were:

(a) Seeing Aboriginal society as 'primitive'

The Court quite rightly examined contemporary international developments which showed that nomadic people in the Western Sahara[8] had rights demanding recognition, and that it was no longer acceptable to draw adverse inferences from cultural differences.[9] But having made the statement, the Court must only have paid it lip service. The Court went on to rule that the status of Aboriginal rights to land at the time of the invasion was not equivalent to that of Europeans, but something less. The Court justified the existence of native title on the basis that the Aboriginal relationship to land was "no less clear, substantial and strong than were the interests of the Indian tribes and bands of North America ..."[10] The Court decided that accordingly, the common law should recognise the same interest in land for the Murray Islanders as has been recognised for indigenous peoples in North America - an interest which amounts only to a right to occupy. The analogy drawn with other native people and not whites reinforces the view that indigenous peoples interests in land are something less than the interests of Europeans, a racist position indeed. The judgments are heavy with positive information about Aboriginal political and social organisation, and connection with land. What was it then, apart from some underlying philosophy, which led the Court to presume that Aborigines' interests in land weren't quite up to scratch with that of Europeans? There was certainly nothing in the elaborate forms of material from which they quoted.

(b) Seeing Aborigines as a 'race', not a 'nation' of people

It is clear from the judgments that the Court was dealing with Aborigines as a race and not a nation of people. One has some sympathy for the Judges here, for there has been too much acceptance by Aborigines themselves of white-imposed definitions of who are Aborigines. This acceptance without a murmur places the judiciary in something of a predicament: alter the definition of Aborigines away from 'race', a term accepted by Aborigines as applying to them, and thereby run the risk of being attacked for imposing yet another white definition; or suffer attack for sticking with the term which found its suitability in bygone days and thereby reduce the rights of Aborigines accordingly.

The importance of this distinction is critical in the finding of the existence of native title.

Interests in land, whether held by individuals or collectively, are, as we all know, capable of being handed down or disposed of. According to the Court, however, Aboriginal native title is not so disposable - the group must retain its identity in a 'biological' manner[11], the right being a personal one only.[12] This reduces the test of survival of Aboriginal rights to land to 'strains of blood', and it is but a short step to once again class Aborigines as animals capable of having their entitlement accorded with the degree of 'original blood'.

At a time when Aborigines are moving in the direction of nationhood and joining all other peoples, including Australians, in determining their membership on non-biological lines, the High Court is marching to the tune of a different drum. The Court was unable to explain, let alone justify, its acceptance of the right of all peoples, except Aborigines, to determine the make-up of their communities in this way.

(c) Setting the scene for assimilation

Enabling any community to exist in a non-dependant way involves having an economic base. Land, or rights over it, is the common foundation. For the Murray Islanders or Aborigines generally to be able to provide for their people independently of whites, land sufficient for their changing future needs is essential. The High Court ruled that:

'The rights are not, however, assignable outside the overall native system. They can be voluntarily extinguished by surrender to the Crown. They can also be lost by the abandonment of the connection with the land or by extinction of the relevant tribe or group."[13]

It seems that what the gods give, they can taketh away. Meanwhile, native rights are lost by loss of connection by the group with, and removal of the group from, the area, provided the removal is lawful. Australians can do as they wish with 'their' land, unlike Aborigines. Effectively, these impositions on Aboriginal title anticipate the eventual dispersal of the communities, with the title reverting to the Crown. The so-called title amounts to no more than occupational rights. It is also made abundantly clear that the occupational rights are meant to represent a humane gesture by white authority.

Conclusion

The Mabo decision will find support in two groups: firstly, among Aboriginal groups seeking application of the more useful aspects of the case. Groups in isolated areas who have, in substance, maintained their traditions and their relationship with the land, can arguably rely on the decision as an effective device to prevent interference with their occupation of those areas. Drafters of legislation will not find much difficulty however, in circumventing the defence lines put up by the case, where governments are intent upon extinguishing Aboriginal rights in these areas.

The second group to find joy in the decision will be those whose ideas on the destiny of Aboriginal people rests entirely upon manipulation of white compassion to our advantage. For them, our only hope is to remain loyal to whites, their institutions and forms of justice. They would portray the decision in the best possible light, as a most symbolic turn in the direction of Aboriginal matters. On analysis however, it is difficult to see any substance in this view.

On the other hand, the decision will find many critics within the Aboriginal community, all of whom justifiably expected more. Out of the 300 000 Aborigines in Australia, no more than a third live in rural areas.[14] Of these, very few live in the isolated areas so necessary to attract the cover of Mabo. What then of the remaining 250 000 or more Aborigines? Is their fate pre-determined by the extent to which they have suffered even more hardship through being more exposed to white contact?

The Court did not overturn anything of substance, but merely propounded white domination and superiority over Aborigines by recognising such a meagre Aboriginal form of rights over land. The High Court had the opportunity to pronounce against the racism so evident in Australian beliefs of white supremacy and denial of justice for Aborigines. History will judge that it passed the opportunity by.

If Mabo represents the best that the legal system has to offer; then Aborigines will be put off by the effort and costs involved in litigating for such a puny reward. Mabo offers something for those who are grateful for small blessings, but nothing in the way of justice.


[1] 1. See Mabo v Queensland (1988) 166 CLR 186.

[2] Eddie Mabo and Ors v The State of Queensland, High Court of Australia, Full Bench, 3 June 1992, noted by Brennan J. at p.15. (Now reported- [1992] HCA 23; (1992) 66 ALJR 408).

[3] ibid., per Deane and Gaudron JJ. at p.92.

[4] Ibid., p.100.

[5] Ibid.

[6] Ibid., per Brennan J. at p20.

[7] Ibid., per Deane and Gaudron JJ. at p.100.

[8] Western Sahara (Advisory Opinion) [1975] I.C.J.R 12.

[9] See for e.g., Eddie Mabo and Ors v The State of Queensland, High Court of Australia, Full Bench, 3 June 1992, per Toohey J. at pp.178-9

[10] Ibid., per Brennan J. at p.91.

[11] Ibid., See Brennan J. at p.59.

[12] 1bid., Deane and Gaudron JJ. at p.101.

[13] Ibid.

[14] 1986 Census.


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