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Wootten, Hal --- "Guest Editorial- A Cheer for the Mabo Nudgers" [1993] AboriginalLawB 16; (1993) 3(62) Aboriginal Law Bulletin 2


Guest Editorial

A Cheer for the Mabo Nudgers

by Hal Wootten

An English Law Lord once said that not often did a judge have the opportunity to rule, as Lord Mansfield did "Let the slave go free", but sometimes a judge does have the opportunity to give the law a little nudge in the right direction.

Every citizen can give the law, and society generally, little nudges in the right direction. Without them to prepare the ground, judges and statesmen would not be able to seize the opportunities for more definitive action.

The High Court last year seized such an opportunity in the Mabo case, when it reversed the manifestly unjust legal doctrine that Captain Cook's annexation of Australia had taken away from Aboriginal people all rights to the land on which they and their ancestors had lived for more than 40 000 years.

Captain Cook was barely back in England when the courts were asked to order the release of a Negro slave who was being sent back to Jamaica to be resold. On June 22, 1772, Chief Justice Mansfield on the practice of bringing slaves to England.

'It is so odious that nothing can be suffered to support it but positive law [by which he meant legislation]. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England, and therefore the black must be discharges.'

Although Lord Mansfield had the last word, his personal contribution was only a little nudge - all that was left to do after many other people had given their little nudges. He could speak only because many people before him had created the climate to reject slavery, standing up to be counted, not only in public but in casual conversations in their dining rooms and clubs and pubs and cabs. He could adjudicate only because individuals had assisted the slave and lawyers had taken his case to court.

Historians give credit for the famous decision to Granville Sharp, 'a civil servant inconspicuous wealth and station, but of rare warmth of heart and persistence of character, who once, fired by the cruel usage of a Negro slave in the streets of London, never rested until he had obtained the verdict which for ever afterwards rid the British islands of the taint of slavery'. Obviously one of those little nudgers who can't mind their own business!

Lord Mansfield's decision was modest. He said, in effect: 'Stop denying this man the rights that every human being has in this country.' Although his words freed 15 000 slaves in England, he did not outlaw the British slave trade - that came 30 years later, after little nudges from Wilberforce, Clarkson, Macaulay, Stephen and other compassionate people. Nor did Lord Mansfield outlaw slavery in the colonies; that took 60 years, and the little nudges of many other people.

Today slavery is so obnoxious that it may seem a small thing to have given its abolition a little nudge. But in every age, vested interests can see the more dire consequences of the smallest concession to justice. Year after year, motions to abolish the slave trade were defeated in Parliament by slave-owning interests who predicted the end of the Empire and British prosperity. Lord Nelson declared that abolition of the slave trade would be the min of the British navy.

All of which is reminiscent of the reaction to the little nudge that the High Court gave Australia.

Hugh Morgan, managing director of one of our largest mining companies, found the first signpost pointing to Mabo in a Communist Party policy published in 1931. We have been told that mining companies will abandon Australian to our great financial detriment. Many people believe the Mabo decision has given Aborigines special rights not available to other citizens.

The truth is that the Mabo decision, like Mansfield's decision, was the minimum that could have been given with any decency. Far from giving Aborigines greater rights than other people, it has left them with less. From 1788, all citizens in this country have had their title to land protected by law - all that is except Aborigines, whose 40 000-year-old native title was not even recognised.

The Mabo decision improved the position a little. Those few Aborigines who have managed to hold onto their land despite 200 years of expropriation may now have their title protected against anyone except the Crown, which can wipe it out with a stroke of the pen, without compensation.

The only thing stopping State Governments wiping out native title is that it would be racial discrimination which was outlawed by the Commonwealth Parliament in 1975.

The remote, inhospitable areas so long shunned by white settlers are now of potential interest to mining companies. We are told that the Mabo decision lays vast areas of Australia open to claim by 1.53 per cent of the population to the exclusion of the remaining 98.47 per cent. But the vast areas which the 98.47 per cent had the chance to take for 20D years but did not want. The 1.53 per cent is the remnant of a much larger population wiped out from the more fertile areas that the 98.47 per cent chose to take without payment at the point of a gun.

The critics have been joined by eminent lawyers and others who castigate the court for not following precedent. We are gravely told that native land title is an 'invention' of the High Court that 'cannot be reconciled with title to land as previously developed by the common law over nearly a millenium'.

The High Court judges may take comfort from the fact that Lord Mansfield's modest effort was also seen as presaging the end of civilisation and condemned by another eniment judge for abandoning 'decisions of great authority delivered by lawyers of the greatest ability'.

What were the longstanding precedents which the High Court over-ruled? Cases in which the whites who had driven Aborigines off their land were squabbling amongst themselves about their titles! Never was the possibility of subsisting Aboriginal rights even considered; never was an Aboriginal represented. Some precedents!

Far from being an invention of the High Court, native land title has been recognised by European scholars since the 15th century and was given effect to in many countries- But unlike the United States, Canada and New Zealand, Australia proceeded on the assumption that its indigenous people did not have a system of rights to land, with the most horrendous consequences when Aborigines tried to defend those rights against the settlers. An error bom in ignorance and racial arrogance, the assumption became a lie when its falsity was exposed.

In 1841 the head of the Colonial Office noted 'the important and unexpected fact that these tribes had proprietary rights to the Soil'. In 1888, Sir Henry Parkes declined to invite Aborigines to the Centenary celebrations with the words: 'And remind them that we have robbed them?' In 1992 there were pitifully few who had not been dispossessed, but a common law which prided itself on respect for property could hardly have denied them what by every honest reason was theirs.

We hear alot about guilt these days, but only from people who are denying their guilt. Some say that they should not be called upon to do justice to Aborigines because they are not personally responsible for what happened to them. They work themselves into positive paroxysms of guiltlessness. In what other sphere of public affairs do we regard guilt as the only reason for action? Should Granville Sharp and Wilberforce have ignored slavery because they had not caused it?

Many people gave the world little nudges in the direction of the Mabo decision. Aborigines and Islanders who had the courage and persistence to fight for their rights, lawyers who supported them in a hard slog over 12 years, citizens who encouraged them, are now being painted as the contemporary tools of a communist conspiracy.

What a sinister bunch of little nudgers! Every bit as bad as that other six on the High Court! I salute them all.

As for the mining industry, it needs defending against some of the spokesmen who give it such a bad name. To listen to them ranting against conservationists and denigrating Aborigines you might think the industry was incurably destructive and racist.

Don't be misled. Many parts of it are making great efforts to be environmentally sensitive, and some are learning to do business constructively with Aborigines.

The industry has some legitimate concerns about uncertainties arising

from the Mabo decision, and these should be addressed in a sensible way. That does not however mean, as some current proposals imply, that mining interests should automatically be given precedence over Aboriginal rights.

This article first appeared In the Sydney Morning Herald as an edited version of an occasional address delivered by Hat Woollen at The University of Technology, Sydney.


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