VanderLans, Loretta --- "Guest Editorial: the Myths of Mabo" [1992] AboriginalLawB 49; (1992) 1(59) Aboriginal Law Bulletin 3

• Guest Editorial The Myths Of Mabo

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Guest Editorial
The Myths of Mabo

by Loretta VanderLans

When the judgments in Mabo were delivered in June this year there was an out-pouring of emotion from many Aborigines and Torres Strait Islanders and caution from the Government and the mining and pastoral industries. Now these positions have reversed somewhat, with the representatives of industry and their supporters criticising Mabo by exaggerating its implications and sensationalising the decision. At the same time, various governments have either remained neutral or in some instances joined the hysterical bandwagon. Some Aboriginal leaders, on the other hand, have downplayed the likely effects of Mabo in order to derail the bandwagon before it skittles land rights like it did in 1985 when the mining industry's multi-media campaign (focussed on WA) successfully erased national land rights legislation from the Federal Government's agenda.

Following are some of the fallacies propagated by a number of (supposedly) well-educated non-Aborigines recently: "[The Mabo decision] has put at risk the whole legal framework of property rights throughout the whole community."[1] This is a gross distortion - by Hugh Morgan, Managing Director of Western Mining Corporation - of the decision, as Mabo will not affect freehold or leasehold land. Morgan also called for the coalition (presuming they are elected to power at the next federal election) to legislate to override Mabo and repeal the Racial Discrimination Act 1975 (Cth).[2] He also stated that "the capacity of anyone in the community to own land ... should take place without reference to race, religion or any other consideration whatsoever."[3] The hyperbole of Mr Morgan must have blinded him to the paradox that such freedoms are protected by the very Act he seeks to abolish. One wonders whose freedoms Mr Morgan is trying to protect!

Padraic McGuinness called for the Federal Government to hold a referendum on the Mabo issue.[4] He stated that litigation will take many years and hundreds of millions of dollars in legal costs. Hal Woollen responded to this by suggesting a speedy, intelligent resolution (thereby reducing costs) could be achieved by the courts focussing on the 'legal' rather than the 'factual' issues.[5] One only needs to look to the lengthy land claims process in the NT to see the effects of a factual focus. McGuinness concluded that "the impact on ... our standard of living is quite unpredictable."[6] Such statements can only engender irrational fear and contempt for Aborigines.

Dr Colin Howard has written in a similar vein recently (in an article commissioned by the Australian Mining Industry Council)[7], however a response to his rhetoric would require an article in itself.

John Stone and Gerard Henderson have both been critical of a High Court which acknowledges that the common law is no longer the revelation of a Divine Will'. Gerard Henderson wrote that the Mabo decision means "the court is now influenced by sources unknown."[8] John Stone wrote less subtly that if the "rule of law is to prevail, those who preside over it must be respected. We are at the point where they no longer are."[9] Mr Stone is obviously outraged by Mabo: "I defy anyone to justify the so-called Mabo decision last June when 145 years of settled property law [was overturned] ... on the basis of the most emotional and political arguments ever uttered by the court."[10] Perhaps Mr Stone would realize the irony in his comment if it were pointed out that the invasion of this country overturned more than 40,000 years of settled property law.

Robert Tickner, Federal Minister for Aboriginal and Islander Affairs, insists he is 'broadly comfortable' with the standard of debate about Mabo: "The wild fabrications of selected newspapers are not where the heads of most serious industry representatives are at."[11] After reading at least ten recent wide-circulation newspaper articles critical of the decision (with few reports to rebut them) I am not so sure. Some writers are no doubt intent on protecting the interests of the industries they represent by arousing bigotry in the general community. Other writers are also playing on the ignorance and latent racism in the non-Aboriginal community in order to deny the legal and moral rights we, as indigenous people, have over our land.

The reaction to the statement of claim in the Kimberley (Utenorrah) case has displayed the fear, mockery and complete dismissal of Aboriginal and Islander sovereignty by much of the white community. It appears that Aboriginal and Islander rights must always be subservient to, and under the control of, whites. Our land is now under the control of whites and I will not get my land back under Mabo, as most Aborigines also will not. I personally do not believe that monetary compensation for the theft of my land will suffice. When I can see justice and true self-determination for my people, that will be my compensation.

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[1] Morgan, Hugh, "Mining Head Angry Over Land Judgment", Sydney Morning Herald, 13-10-92.

[2] Ibid, p6.

[3] Hugh Morgan quoted in Pryer, Wendy, "Mine boss raps race law", The West Australian, 13-10-92.

[4] McGuinness, Padraic, "Costly Complications of Land Ownership Issue', The Australian, 17-10-92.

[5] Wootten, Hal, "Mabo - the right follow-up", letter to the Sydney Morning Herald, 21-10-92.

[6] McGuinness, Padraic, Ibid.

[7] Howard, Colin, "A Nation within a nation", Sydney Morning Herald, 14-9-92, p.15.

[8] Henderson, Gerard, "March of the High Court Murphyites", Sydney Morning Herald, 142-92, p.17.

[9] Stone, John, "Upholding rule of law', Financial Review, 22-10-92

[10] Ibid.

[11] Robert Tickner quoted in Wilson, Peter, 'The Lies Of The Land", Weekend Australian, 14/15-11-97, p.24.