Keon-Cohen, Bryan --- "From Slavery to Sovereignty? Mabo, Native Title and the Uluru Statement from the Heart" [2023] JCULawRw 2; (2023) 29 James Cook University Law Review 1

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From Slavery to Sovereignty? Mabo, Native Title and the Uluru Statement from the Heart

The Mayo Lecture for 2023

4^th October 2023

Dr Bryan Keon-Cohen AM KC^[1]*

I Acknowledgements

Thank you for that very generous introduction. It’s as pleasure, and an honor, to be here.

May I commence by acknowledging the traditional owners and custodians of this country, the Bindal and Wulgurukaba peoples, and pay my respects to your elders, past present and emerging. Your sovereignty has never been ceded or extinguished. I shall return to that topic.

I also pay my respects to the Islanders residing here in Townsville, especially Murray Islanders, all of whom were my clients, 40 or so years ago. You have welcomed my wife June, and I, on several visits, since 1982. Many thanks for your generous hospitality.

II Introduction

My topic tonight, ‘From Slavery to Sovereignty? Mabo, Native Title and the Uluru Statement’, seeks to examine the backgrounds, motivation and conduct of the main players – individuals, communities, and governments – both before and during the Mabo litigation, and to explore how the Referendum, and Voice Treaty Truth reforms, could assist to resolve many of the issues that arose then, and continue to challenge us today.

The proposed recognition of Indigenous Peoples and entrenchment of their Voice in our Constitution is, in my view, a long overdue recognition and celebration of the longest continuing culture on the planet, still living amongst us, and heralds, I hope, a sound basis to deliver a more prosperous, and inclusive future for the entire nation.

And, ladies and gentlemen, don’t panic! In the time available, I shall also mention, in support of such Pearson-like rhetoric, some of those dreaded ‘details’.

Let me start with Eddie and Bonita Mabo’s extraordinary achievements, all well documented, including in the History Line in this University’s Mabo Library.^[1] Eddie Koiki Mabo was the driving force: without him, no case. Equally, if only him, the case was doomed since unfortunately, the trial judge rejected all of his personal claims to areas on and around Murray Island. I shall return to the trial later. But I repeat: Eddie Mabo’s leadership, courage, and total commitment to this cause were all crucial, and inspiring. As I said at his funeral: he saw far into the past, and far into the future.

A ‘Slavery’: The Kanaka Connection

I also wish to recall a little of Bonita’s background, and her impressive advocacy for her people – South Sea Islanders.

Bonita’s family history in this country began when her grandfather, a Malanbarra man called Jack Tanna, was ‘black-birded’ from Tanna Island (now part of Vanuatu). He was shipped 1,700 km west to work, as ‘indentured-labour’ in often appalling conditions in Queensland’s cane fields. According to Bonita: ‘My grandfather came from the Tanna Islands and was stolen out here ... to come and clean the country up here.’^[2]

Precisely when he was kidnapped from his island home is unclear to me. The infamous ‘Kanaka’^[3] trade operated between 1863 and 1904 when about 62,000^[4] Pacific Island men, women and children were transported to Australia by plantation and ship owners.^[5] Many were kidnapped or ‘black-birded’ by labor agents^[6], others travelled voluntarily but were told lies about what they could expect in Australia.^[7] Most were paid nothing for their labour and were effectively treated as slaves.

This appalling trade was terminated by the newly-created Commonwealth Parliament enacting the Pacific Islanders Laborers Act 1901.^[8] Pursuant to the then prevailing White Australia policy, this legislation banned further recruitment after 1903 – but also authorized deportation.^[9] Only a minority of Islanders were permitted to stay. A few hid from authorities and stayed illegally.

What befell Bonita’s grandfather is not known to me. But I suspect this traumatic family history carried some inter-generational impact, perhaps further alienating Bonita from Queensland’s oppressive laws, policies and practices that affected her daily life. That regime also motivated her to work for reform, especially in the education and recognition of her people – while also supporting her husband, during his final decade, consumed by ‘that case.’

B Bonita’s Achievements

Three generations on from her Kanaka grandfather, Ernestine Bonita Nehow was born, in 1943, near Ingham in North Queensland.

She grew up a devout Christian in a South Sea Islander community known as ‘The Garden’ near Halifax.^[10]

She married Eddie Koiki Mabo in 1959^[11] and in 1964 they moved to Townsville where they raised ten children, three adopted ‘Islander way.’^[12] Amongst other community activity, Eddie and Bonita co-founded Australia’s first Black Community School, here in Townsville, in 1973.^[13]

After Eddie’s death and the Mabo decision, both in 1992, Bonita continued her advocacy for her people – South Sea Islanders – to be recognized as a distinct ethnic group.^[14]

In 2000 the Queensland government did exactly that, and acknowledged the discrimination and injustice experienced by that community in this country.

Bonita was made an Officer of the Order of Australia and later, was awarded an Honorary Doctorate of Letters by this University, both in recognition of her outstanding contributions to education and human rights.

Aged 75 years, she died in November 2018, and was given an impressive State Funeral. Attended by several hundred people, this occurred at the Townsville cemetery – the same cemetery, it should be said, where her husband was initially buried only to have his tombstone desecrated by despicable racists, still unknown, on the night of his tombstone opening in June 1996.^[15] Such episodes are part of our colonial, and recent, ‘dark’ history. Their truth needs to be told.^[16]

At Bonita’s funeral, the Queensland Premier, Annastacia Palaszczuk, amongst others, spoke highly of her achievements, saying: ‘Bonita’s story is powerful. It’ll be told and retold as a beacon to generations to follow her lead.’^[17]

I found that occasion, like Eddie’s funeral, very moving.

For Bonita’s family, over three generations and about 150 years, their lives, and Indigenous lives generally in Queensland – or, at least, some of them – had changed: from slaving in the colonial cane-fields to challenging the oppressive power, discrimination, and all-embracing control of the Bjelke-Petersen government, to being awarded a state funeral with fulsome, well-earned recognition by her friends, community and the Premier of the State.

Yet, how much more remains to be done? Now, again, important reforms are proposed in the Uluru Statement, and the Voice referendum is upon us, while powerful forces remain opposed. Yes advocates should be encouraged by the examples of Eddie and Bonita Mabo. I hope you are too.

III Relevance to the Uluru Statement?

To me, these family sagas involving Bonita’s ancestors emphasize the importance of Truth Telling. Recounting the abuse and injustice experienced by Jack Tanna is not a national ‘guilt-trip’ but an important recording of historical facts. The nation should know all of its history, in order to better understand First Nations’ dispossession and devastation following 1788, their continuing disadvantage, and many remarkable achievements. Hopefully, we will then be better placed to secure a more prosperous future for all.

In their joint judgement in Mabo (No 2), Justices Deane and Gaudron went a step further, calling out colonial ‘injustices’, thereby providing powerful, moral support for remedial action, now proposed in most states, and already underway in Victoria, as ‘Truth-telling.’ Justices Deane and Gaudron wrote:

The acts and events by which [the] dispossession [of the Aboriginal people of most of their traditional lands] ... was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is acknowledgment of, and retreat from, those past injustices.^[18]

Such work is now proposed by the Uluru Statement: a Makarrata Commission to prepare for a Treaty or Treaties, and Truth-telling.^[19]

A Truth Telling and Native Title Claims

I note, in passing, that considerable ‘incidental’ Truth Telling has occurred as part of land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Native Title regime introduced in 1994. For example, as of last month, 602 native title determinations have been made – 205 in Queensland.^[20] These have generated a large volume of material about, amongst many topics, the historical experiences of traditional owner groups. I suspect at least 602 piles of paper, photos, videos, painting, etc, etc, are lying around, in various offices. These claims processes will continue for some years. The preservation, organization, and development of access and use protocols for these often voluminous collections, incorporating protection for cultural sensitivities, is now being pursued.^[21]

One example is my collection arising from Mabo. Over ten years, the chaotic pile of paper sitting on my chambers floor – such piles breed shamelessly and grow before your eyes! – was transformed into an organized and indexed collection held in 73 arch-lever files by several very capable Monash law students. I provided this collection to the National Library, Canberra during the 1990s: see NLA MS 9518. Astonishingly, that collection, along with Eddie Mabo’s personal papers, and Captain Cook’s journal from the Endeavour, became Australia’s first submission to be accepted into UNESCO’s Memory of the World Register, in June 2001. Thus, land rights and native title claims, and the material they generate, become just one part of Truth-telling.

1 Yoorrook Justice Commission

As to formal Truth-telling, the Victorian Yoorrook Justice Royal Commission was established, by Letters Patent, in May 2021.^[22] This is the first Truth-telling process into the impact of colonisation, still felt today, in the nation. This Inquiry has wide-ranging Terms of Reference and the full powers of a Royal Commission.

Public and private hearings continue. The first Interim Report, delayed by the Covid pandemic, was delivered in June 2022.^[23]

A second Interim Report concerned with Victoria’s seriously flawed Child Protection and Criminal Justice Systems, was released a month ago.^[24] It makes 46 recommendations for substantial reform^[25] and ‘highlights that present injustice has deep roots in the colonial foundations of the state.’^[26]

A final report, concerned with land injustices in Victoria, is due in 2025.^[27]

2 Queensland: Path to Treaty Act 2023

Last May the Queensland government – with the unanimous support – I repeat, unanimous support – of the Liberal National Party opposition – enacted the Path to Treaty Act 2023, a landmark achievement for this State. The Act, currently only partially in force, sets out the legislative framework to establish key bodies, including a Truth-telling and Healing Inquiry to hear and record the historical and ongoing impacts of colonisation on ATSI Queenslanders.^[28] This will proceed for three years, unless extended.

I note that Truth-Telling is seen as an important foundation for, and to be closely connected to, the pursuit of treaty-making. The Queensland Truth-telling Inquiry may, perhaps, hear about the Kanakas and their descendants.

3 Other States and Territories

In other states and territories, especially the Northern Territory, Truth-telling processes are, in various ways, being pursued and are under discussion, but have not yet begun.

4 Federal Truth?

With all these initiatives at state level, being supported across the political spectrum, federal truth telling under the proposed Uluru Makarrata Commission can hardly be objectionable – and presumably, will work in co-operation with, State and Territory Truth-telling programs. In my view, the nation needs them all to be operating. As with the Voice referendum, the nation has nothing to fear, and much to gain.

B Why Mabo? National Land Rights Agitation

Let me turn to further Truth-telling lessons from both the Mabo litigation, and native title claims across the country, which provide, I think, good reasons to pursue ‘Comprehensive Settlements’ or treaties.

First, why Mabo? The personal histories of Eddie and Bonita, already mentioned, and of the other four plaintiffs, plus the national land rights campaigns of the 1970s and 1980s, all contributed to the plaintiffs launching their claim.

Eddie Mabo was very much involved in the national land rights campaign. In Queensland, this was the period – from 1968 to 1987 – of the Bjelke-Petersen Country, later National Party government, its repressive ‘reserve’ system,^[29] called ‘Killoran’s Law’, and active rejection of equal rights for Indigenous people, especially rights to land.

One example only was preventing John Koowarta from purchasing a pastoral lease leading to the High Court decision of 1982.^[30] This both upheld, crucially, the Racial Discrimination Act – thus, ironically securing Mabo – and supported the purchase. However, that decision was promptly circumvented by the government converting the pastoral lease into a national park – all very reminiscent of the government’s conduct during the Mabo litigation, to be mentioned shortly. I note that Greg McIntyre, solicitor, and Ron Castan QC acted for the plaintiffs in Koowarta.

Further, the Queensland Department of Native Affairs,^[31] was run for 20 years by its long-serving Director, Patrick James (or ‘Paddy’) Killoran, from 1964-1985. According to one commentator, it had ‘operated since its inception as a closed, secretive and highly defensive government agency ... exercising almost total control over ... thousands of (Indigenous) lives.’^[32]

I cross-examined Mr Killoran about his Department’s activities on Murray Island, during the Mabo trial of facts conducted in the Queensland Supreme Court – I hope with some effect. For details, see the trial transcript at NLA MS 9518, Volume 35, starting at p. 3,073 - and decide for yourself!

During this period, that is, the 1970s – 1980s, despite the 1967 referendum delivering legislative powers to the Federal government over Indigenous affairs, federal governments of whatever political persuasion had failed to enact national land rights legislation.^[33] The issue was a political hot potato that no politician wanted to touch. And there was no national voice.

1 Personal Concerns

For Eddie Mabo, the land rights campaign had also become very personal. In about 1974, Noel Loos and Henry Reynolds advised Mabo, over lunch, that he did not, in Australian law, own his traditional areas on Murray Island, since the Torres Strait Islands were all ‘Crown Land’. Indeed, to add insult to injury, Murray Island – Mer – was described on a map as ‘Aboriginal Reserve.’ Loos recalls ‘how shocked Koiki was that his traditional rights on Mer were not legally recognized’ and how determined he was that ‘no-one would take his land away.’^[34]

2 Australian Common Law Position

Another significant factor was the failure of the Gove land rights case in the Northern Territory Supreme Court in 1971.^[35] This fueled further debate at the political, academic and community levels. The plaintiffs’ senior counsel in Gove, Ted Woodward QC, decided not to appeal Justice Blackburn’s decision to the High Court, fearing rejection and an adverse precedent. Thus, when we commenced proceedings in the High Court in Mabo in May 1982, the legal issues raised had never been considered by that court.

3 International Context

As to recognition of native title rights in our common law, Australia was, in 1982, centuries behind other former British colonies. For example, the equivalent to Mabo [No 2] was decided in the USA in 1823^[36] and again in 1831, when the Chief Justice, John Marshall, described Indian tribes as ‘domestic dependent nations.’^[37] Similar decisions were made by Supreme Courts in New Zealand, in 1847,^[38] and in Canada in 1973.^[39]

4 Constitutional Recognition

Similarly, when it comes to constitutional recognition of First Nations, Australia lags well behind. Such recognition, now sought as part of the forthcoming referendum – and enjoying, it seems, bi-partisan support – occurred in the USA in 1788, New Zealand in 1840 with the signing of the Treaty of Waitangi, and Canada in 1982. It’s time we caught up.

5 Indigenous Advisory Bodies

Similarly, Indigenous advisory bodies to government, and Parliament, of various types, already exist in several countries. I refer especially to the Sámi Parliament, operating since 1989 in Norway, Sweden and Finland. New Zealand dedicated four seats in its Parliament for Maori representatives in 1867.

6 The Immediate Trigger: the JCU Conference

In this national and international context, Eddie Mabo, and this University’s Students Union, played a significant role in triggering the Mabo litigation. In August 1981, your Students Union, and the Townsville chapter of the then active Treaty Committee (co-chaired by Eddie Mabo and Professor Noel Loos), organized a conference here, at JCU. It was entitled ‘Land Rights and the Future of Australian Race Relations.’^[40]

At that conference, several Aboriginal and Islander speakers suggested that a land rights test-case should be pursued in the High Court. Amongst them were Eddie Mabo, and another future plaintiff, the Revd Dave Passi, an ordained Anglican Minister and Flo Kennedy, a well-known political figure from Thursday Island. She declared: ‘We want our lands, and with them, we want our natural resources.’^[41]

The last session was entitled ‘A High Court Challenge’. Solicitor Greg McIntyre and Melbourne barrister Barbara Hocking^[42] both presented substantial papers, discussing the relevant legal issues.

Mabo, Passi, McIntyre, Hocking, plus several others, held a meeting and emerged to announce that the Murray Islanders wished to pursue a Gove-type test case in the High Court. Instructions were thereupon provided to McIntyre and Hocking to pursue a claim, and to begin by consulting senior counsel in Melbourne – the very eminent human rights advocate, Ron Castan AM QC.

That conference was thus the immediate trigger for the Mabo litigation.

Well done James Cook Student Union. Perhaps some of you here today were there then? Perhaps you need to organize another conference? Heard of Voice, Treaty, Truth?

7 Keon-Cohen

You might ask: Keon-Cohen, where on earth were you? How did you get in on the Mabo act?

At that time I was sitting in my tiny chambers in Melbourne – lonely, unloved, unpaid – trying to look like a barrister. I had no knowledge of this Townsville talk-fest, and did not attend. Just two days after the JCU Conference, on 1^st September, 1981, I signed the Victorian Bar roll, and commenced practice, wondering, as all baby-barristers (and others) do, where the next dollar was to come from.

By that time I had, however, pursued considerable academic and on-the-ground work in the field of Indigenous rights. This included visiting and consulting with Aboriginal groups throughout central Australia as part of the Australian Law Reform Commission’s reference concerning the recognition of Aboriginal customary law within the Australian legal system.^[43]

So, as a baby-barrister in September 1981, I knew a little about this area of law and policy – and I was seriously cheap. ‘Mabo’ started, for me, when, in early October, Ron Castan, who I had met, briefly, rang, out of the blue, and recruited me to the legal team – whereupon my life at the Bar changed – for the better and, it seems, forever.^[44]

Ron Castan led the legal team, with great distinction, for the next decade. He provided the confidence that the best case possible would be presented for our plaintiffs. He (as did we all) gave the case top priority; was a brilliant human-rights advocate, very experienced in, and respected by, the High Court; and was always willing to discuss the sometimes weird ideas from his not-so-learned but enthusiastic juniors. If that wasn’t enough, he also provided financial support over the decade on several occasions when, for example, one of Greg McIntyre’s many legal aid applications was rejected, or funding was delayed.

This included recruiting and supporting his daughter, Melissa – now a Professor and Director of the Castan Centre at the Monash University Law School – and her partner, Robert Lehrer, to live in Brisbane and provide critical logistical support during the trial of facts in 1989. This involved, amongst many tasks, transporting Murray Island witnesses between the airport, my rented house to discuss their evidence (when my wife June cooked everyone a meal), their hotel, the Supreme Court, and back to the airport. Without Melissa and Robert, important witnesses might never have ‘made it to the court on-time’ – or at all!

IV The Mabo Claim

The Mabo claim was commenced in the original jurisdiction of the High Court in May 1982. It is instructive, I think, to review the responses of the plaintiffs, the Meriam community, and the Queensland government in this tortured arena of claiming native title, in terms of assessing the practical utility of the Voice referendum, and the second task of the proposed Makarrata Commission: Treaty-making.

On day one, the claim involved five plaintiffs: Eddie Mabo and four respected elders, being: his aunt Celuia Mapo Salee, two brothers, the Revd Dave and Sam Passi, and James Rice, retired teacher and former Island Councillor.^[45] Each plaintiff claimed identified areas of land, and sea offshore within both Queensland and Commonwealth jurisdictions. Ms Salee died in 1984, when Eddie Mabo assumed all of her claims.

A Personal Community and Government Responses

Until July 1989 – that is, for over seven years – there were two defendants: Queensland and the Commonwealth.^[46]

Responses by the two governments ranged from Queensland’s attempt to extinguish any surviving traditional rights by legislation; to the usual forensic court ‘warfare’ – always conducted within proper professional limits and subject to directions from the trial judge; to flagrant contempt of court by Queensland bureaucrats. By contrast, the Commonwealth’s opposition ranged from in-principle only; to just ‘don’t want to know’. Of Queensland’s two junior counsel, the very competent Margaret White was my major opponent. More of her later.

1 Commonwealth withdraws

In 1989, following cross-examination by the Commonwealth’s counsel, John Logan, the plaintiffs abandoned their claims to Commonwealth sea areas, and the Commonwealth withdrew as a party.^[47] It played no further part, save for providing some legal aid to the plaintiffs’ severely overworked – and as mentioned, sometimes sadly underpaid – legal team.^[48]

2 Queensland

Unsurprisingly, the ‘State of Queensland’ – that is, the Bjelke-Petersen government – fought the case tooth and nail.^[49] As I saw it, Queensland’s defence during the decade^[50] – apart from normal forensic battles already mentioned, and extensive legal arguments before the High Court – included two memorable aspects.

(a) Queensland Coast Islands Declaratory Act 1985 (Qld)

First, was its Queensland Coast Islands Declaratory Act 1985 – all of one page. It declared that upon the Torres Strait being annexed to the colony of Queensland in 1879 the ‘islands were vested in the Crown in right of Queensland free from all other rights, interests and claims of any kind whatsoever and became wastelands of the Crown.^[51]

Further, ‘no compensation’ was payable to anyone for any reason.^[52] If this law was valid and enforceable, Mabo was dead. So, we challenged this legislation as contrary to the Commonwealth Racial Discrimination Act. In December 1988 the High Court decided, 4:3, that the Act was indeed invalid as racially discriminatory. That was a very close thing – but Mabo could continue.

To me, this experience underscores the need to entrench the proposed Voice in our Constitution, to provide independence, security (especially when criticising government) and national standing. Otherwise, like ATSIC – terminated rather than reformed – after 15 years by the Howard government in 2005, and Queensland’s attempt to defeat Mabo through specific legislation, the Voice is exposed to the political priorities and fluctuating policies of our governments.

(b) Contempt of Court

Queensland’s second response was, perhaps, reflective of the inquiry into police corruption – the Fitzgerald Inquiry – underway between 1987 and 1989, for this response involved disgraceful conduct amounting to, in the view of the plaintiffs’ lawyers, at least, an egregious contempt of court.

Sometime prior to the opening of the trial of facts in October 1986, officers of Killoran’s Department of Native Affairs took further action to defeat the claim. Queensland’s legal team, I feel certain, was not involved.

What I am about to say was told to me by the successful plaintiff, Revd Dave Passi, several years before he died in 2017. According to Revd Dave, the Department’s leadership, including, I assume, its long-serving Director, Paddy Killoran, gave instructions to one of its officers, George Passi. George was a long-time, and highly regarded, employee of the Department, a Murray Islander, and a brother of the plaintiffs, Sam and Revd Dave Passi. George was directed to pressure the four surviving plaintiffs – including his two brothers – to withdraw their claim. Such conduct can quickly amount to an abuse of process for which George Passi and the responsible bureaucrats could have been held in contempt of court and possibly jailed. I have always wondered: what pressure was George under, and from whom?

My answer: a lot, from his employer, ‘exercising almost total control.’ I sympathize with what, I assume, was a very distressing personal crisis for George.

Notwithstanding, Eddie Mabo, James Rice, Revd Dave and Sam Passi were all spoken to by George and threatened with various disasters if they persisted: for example, liability for massive costs when they would surely lose; they might be evicted from their Murray Island homes, all leased from Killoran’s Department; funding for the island’s school could be cut; and more.

To their credit, Eddie Mabo and James Rice told George Passi where to go. But Sam and Dave Passi, succumbed. Queensland provided the Passi brothers with new solicitors, who, a week before the commencement of the trial of facts, in Brisbane in October 1986, filed Notices of Discontinuance for their two clients.

We, the lawyers for the suddenly two-only remaining plaintiffs, were astonished and very concerned. Both Dave and Sam Passi were important plaintiffs. But we all adjusted as best we could, and Ron Castan opened the (two) remaining plaintiffs’ case in Brisbane in October 1986. Ron then returned to Melbourne, and I led Eddie Mabo’s evidence-in-chief, our first substantive witness, on and off, over several days. The trial adjourned, part-heard, in April 1987 for two years, to await the outcome of our challenge to Queensland’s Declaratory Act 1985.

The good news is: upon the success of our High Court challenge – that is, Mabo [No 1]^[53] in December 1988 – the trial re-commenced in April 1989. By that time, the Revd Dave Passi, following discussions with anthropologists, had changed his mind. Thus, we applied to the trial judge to allow him to re-join as a plaintiff. He was re-admitted, despite Queensland’s objections, in June 1989 and gave valuable evidence. Indeed, I led his evidence, with him dressed in his clerical robes, explaining how, according to Meriam custom and tradition, both Malo’s law – that is, the source of Meriam custom and tradition – and Christianity continued and worked together on the island.

For example, the Revd Dave recited Malo’s laws, including, in Meriam language: ‘Tag mauki mauki, teter mauki mauki,’ meaning (roughly translated): ‘Do not let your feet tread upon another man’s land.’^[54]

To me – and I hoped, to the trial judge – this evidence sounded very familiar: the law of trespass but founded not upon Medieval English doctrine introduced with colonisation of the Torres Strait in 1879 but upon Meriam custom and tradition, existing since time immemorial and still operating on Murray Island 110 years later in 1989. And this from an ordained Anglican minister.

Sam Passi did not seek to be re-admitted as a plaintiff, suffered a mild stroke, and gave limited evidence generally supporting the plaintiffs. He died in October 1990 – before the case was completed, like Celuia Mapo Salee and Eddie Mabo.

The bad news is that Sam, when giving evidence for the plaintiffs, nevertheless rejected some of Mabo’s claims – as did other Meriam witnesses recruited by Queensland. This was an unexpected and damaging development, especially in regard to Sam, a former co-plaintiff and a highly regarded elder at Mer.^[55]

Thus, the Revd Dave Passi’s return as a plaintiff, and his impressive evidence, proved to be critical. Of the 45 or so areas originally claimed by the five plaintiffs, the trial judge accepted as facts, established on the evidence before him, only two or three village blocks claimed by the Revd Dave Passi as still subject to traditional rights.^[56] Justice Moynihan rejected outright, or seriously questioned, all claims by Eddie Mabo, James Rice and, of course, Sam Passi. Such are the unpredictable outcomes of hard-fought litigation.^[57]

This was the Bjelke-Petersen government’s conduct towards its Indigenous citizens, exercising their rights to pursue justice in Queensland’s courts.

Reflecting its conduct in the Koowarta saga, in the Mabo trial of facts, that government rejected the constitutional principle of separation of powers, introduced from Westminster in 1879, and deliberately interfered with the judicial process to achieve its objectives.

Fortunately, the political situation in Queensland has changed, for the better.

The details: Sir Joh resigned as Premier and from politics in December 1987 and, in 1991, stood trial for corruption and perjury. That trial was aborted. Paddy Killoran retired in 1985 – prior to giving evidence – and died in 2010. Now, constitutional recognition and a Voice, if enshrined, should help prevent any such corrupt conduct in future, by the VOICE speaking out, loudly. It’s called empowering First Nations to assert their rights in a free and open democracy, governed by the Rule of Law. Is this what No advocates fear?

V Reform for Native Title

Such personal traumas, community disputes, and evidential crises arising in contested court proceedings, all experienced in Mabo, have also been suffered by many traditional owner claimant groups when seeking to establish their rights to country under the current native title regime.

Indeed, over the past twenty or so years, traditional owner groups and others have complained, many times, about how this claims process often causes serious intra and inter-community disputes – as occurred on Murray Island during the Mabo decade. This concern particularly applies to claimants who have suffered the most severe dispossession and conflict during settlement and thereafter, often leading to great difficulty ascertaining who, today, still enjoys what traditional rights to what areas. Such details are required by the burdensome onus-of-proof spelt out in the Native Title Act 1993 (Cth), s 223(1), and High Court decisions raising further, and difficult, evidential hurdles.^[58]

To date, these voices have been ignored. No substantial reforms to the Native Title Act have occurred since the Howard government’s Ten-Point-Plan delivering ‘Bucket-loads of extinguishment’^[59] (to quote then-Deputy Prime Minister Tim Fischer) following the Wik decision of 1996.^[60] This is despite the 30 recommendations of the Australian Law Reform Commission in its Report Connection to Country,^[61] of 2015; and calls for reform by many senior lawyers and Indigenous leaders. Former Chief Justice Robert French has, for example, suggested reversing the onus of proof.^[62]

Victoria, however, has, again, led reforms by enacting its Traditional Owner Settlement Act 2010. This introduced, for claimants, whose country lies within Victoria, an alternative negotiation process to the native title scheme, thus avoiding, or at least minimizing, these negative impacts. To date, that scheme has delivered three settlements, with more underway.

VI How Might a Voice Help?

As I see it, if/when a national Voice is legislated and operating, reform of the Native Title Act should be one of its many priorities, since – as in the 1970s – no government is listening to reform advocates. Such Voice schemes have already been legislated in Victoria in 2018 through the First People’s Assembly,^[63] and in South Australia last March,^[64] to advise State Parliaments and governments.

I wonder: whatever the referendum result, might these State voices also advise the Commonwealth regarding federal legislation affecting Indigenous people within their states?

A Native Title and Land Rights Achievements: Basis for Voice and Treaty

Despite these difficulties, the native title and ‘land rights’ schemes have provided traditional owners with specified rights to their traditional lands, and an obvious basis for Treaty-making.

As of August 2023, about 52% of Australia’s land mass, and 40.4% of Queensland, plus further areas offshore, is held under native title by designated traditional owner groups, with a range of stipulated rights to pursue activities on and relating to their land.^[65]

In addition, as of August, 1,450 Indigenous Land Use Agreements – or ILUAs – have been negotiated and concluded, under the native title regime. These concern the management of land and seas subject to native title, and terms and conditions upon which third parties, for example, mining companies, may enter and pursue activities, as agreed by traditional owners.

Further, principles for awarding compensation to traditional owners for the extinguishment of native title rights by past acts of governments, or others, were clarified by the High Court in 2019, in a case called Timber Creek.^[66] These findings about compensation under the native title regime, will provide important guidance for future ‘treaty’ and perhaps, reparation, discussions.

To these developments I add various ‘land rights’ schemes under further Commonwealth and state legislation. For example, South Australian legislation. reaching back to the Dunstan government of 1966;^[67] the Fraser government’s Northern Territory Aboriginal Land Rights Act of 1976;^[68] and the purchase of interests in land and sea areas on the open market for Indigenous groups by the Indigenous Land and Sea Corporation,^[69] introduced by the Keating government as part of its three responses to Mabo [No 2].^[70]

These Indigenous land and sea-owning groups, and the areas they enjoy traditional, rights and interests over, provide one important base, amongst others, for involvement in federal and/or state Voices (plural) and Treaty negotiations, (plural) including rights of self-government.

B Treaty

If a treaty-making option to litigation was available, the abovementioned risks of personal trauma and community conflict often arising in merely preparing a native title claim, let alone in contested court proceedings should be greatly reduced or avoided – to everyone’s benefit. Costs should also be reduced and, importantly, an agreed outcome, hopefully, achieved. The Indigenous communities involved, of course, might still face intra or inter-community argument and conflict regarding treaty issues.

This ‘resolution by agreement’ option is already pursued, to a degree, in the Native Title jurisdiction, by way of first: negotiated ‘consent determinations’; second, by way of negotiating and executing ILUAs regarding access to and use of land and resources; and third, under the Victorian Traditional Owner Settlement Act 2010. These processes, however, do not, normally, include rights of self-government, being central to treaties.

Many ILUAs, for example, do not involve governments as a party to the agreement. Others, where a government is a party, do not extend beyond land matters.

As of September 2023, consent and unopposed determinations of Native Title represent 90% of all determinations across the nation, in Queensland, 87%. How times have changed.

However, the treaty option proposed in the Uluru Statement places an additional significant item on the negotiation table: powers of self-government. Treaty schemes have already been legislated in Victoria^[71] and in Queensland. where the Path to Treaty Act 2023, referred to previously in regard to Truth-telling, also establishes a First Nations Treaty Institute to provide ongoing support for Indigenous people to prepare for, and pursue, treaty negotiations.^[72]

Treaty discussions are also underway in NSW, South Australia, Tasmania and the Northern Territory.

C Noongar Settlement

Western Australia has not, to date, committed to a Voice, Treaty Truth process. However, ironically, the best current example of how the native title ILUA regime has already facilitated substantial agreements is the Noongar settlement in Western Australia. This has been described by Constitutional lawyers George Williams and Harry Hobbs^[73] as Australia’s first ‘Treaty.’^[74]

During the 1990s and early 2000s, six native title claims and ILUAs concerning Noongar country were joined into one, consolidated claim.^[75]

After Federal Court proceedings^[76] and extensive negotiations,^[77] in 2016 the Western Australian Liberal government, under Premier Colin Barnett, legislated a settlement under two acts of Parliament.^[78]

1 A Treaty?

Without doubt, the Noongar ‘settlement package’ is the largest and most comprehensive agreement to settle Aboriginal interests in land in Australia’s history. Its main features include, amongst others:^[79]

• It affects about 30,000 Noongar people and covers 200,000 sq km in the State’s south-west corner;

• It establishes, and resources, governance institutions;^[80]

• It provides to the Noongar people, over time, a $1.3 billion package relating to land, resources, governance, finance and cultural heritage; and

• In exchange, the Noongar surrendered their native title rights to the agreement area,^[81] plus other concessions.

2 Noongar Settlement and Implications for Federal Treaties

This settlement is not an agreement between sovereign states governed by international law but a domestic, legally binding, negotiated agreement between an Indigenous ‘polity’ – that is, a distinct political community, being traditional owners – and a state government, that includes some powers of self-government vested in that polity.^[82] John Howard’s mantra – ‘A country cannot make a treaty with itself’ – is irrelevant. The Noongar settlement is, I think, best described as a ‘domestic treaty.’

This is a different kind of treaty, dealing with a different kind of sovereignty. As I wrote in Pandora’s Box in 2018:

Whether the Noongar Settlement achieves treaty status – domestic or otherwise – is perhaps not critical. The crucial factor, in my view, ... is reaching agreement on self-governing powers concerning the Indigenous party’s economic, social and cultural development; recognition of, and respect for them as a distinct polity; and the establishment and resourcing of ‘culturally appropriate governance and decision-making.^[83]

Treaty-making, clearly, is already happening in this country.

D A Clarification: Crown’s Sovereignty Not Challenged

The Noongar Settlement, current state treaty initiatives, and national treaty-talk as part of the Uluru Statement, triggers an obvious question: what of, for example, the Noongar peoples’ sovereignty, or of the Bindal and Wulgurukaba peoples of Townsville, never ceded in 1829 (the date of Western Australia’s colonisation) nor 1788 (for the eastern seaboard), nor extinguished thereafter, as claimed in the Uluru Statement?

In Mabo, from day one, the issue of sovereignty residing in the Meriam people was deliberately not raised.^[84] That question was, in 1982, and remains today, ‘non-justiciable’. The High Court rejected Indigenous sovereignty claims in Coe in 1979, and subsequent cases.^[85] The question clearly lies in the political, not judicial arena.^[86]

These rejections concern a ‘single, homogenous, Eurocentric, state-kind of sovereignty conceived as ‘adverse to the Crown.’^[87]

However, times, and the High Court, have changed such that today, both the Uluru Statement and a recent High Court decision have, at very different philosophical, political and legal levels, re-examined this ‘sovereignty’ concept. Both statements, in different ways, examine sovereignty not as a European legal concept involving international sovereign states subject to international laws, but as a philosophical or spiritual relationship with country which co-exists with the Crown’s sovereignty within Australia.

E Uluru Statement re Sovereignty

Indigenous understanding of their sovereignty was eloquently expressed in the Uluru Statement of May 2017.^[88] The Statement says, in part:

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature,’ and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors.^[89] This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown .... we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

As Dr Shireen Morris writes:

The Uluru Statement’s ‘conceptual understanding of Indigenous sovereignty is helpful ... because it co-exists peacefully and inclusively with the sovereignty of Australian governments. Recognition of this kind is the middle ground [between] assimilation and annihilation of Indigenous peoples on the one hand, and separatism and fragmentation of the state on the other.’^[90]

F Love and Thoms

In the Love^[91] case, decided by the High Court three years later, in 2020, recognition of Indigenous peoples’ cultural and spiritual connection to the continent by reason of ancestry reaching back 65,000 years – and a unique basis for citizenship – raises new possibilities for sovereignty.

Love concerned whether a person of Aboriginal or Torres Strait Islander ancestry, who is not an Australian citizen, can be classified as an ‘alien’ under the Constitution s 51(xix), the ‘aliens power, and thus be deported.

All seven judges wrote separate opinions. The majority^[92] found, in short, that ‘Aboriginal Australians’ are not embraced by the aliens power and thus could not be deported. As summarised by Dr Morris:

The majority drew upon the common law recognition of native title to acknowledge ... the ‘deeper truth’: that Indigenous people as the ‘first peoples of this country,’ carry a unique ‘spiritual or metaphysical’ connection with the Australian continent. This connection, being ‘older and deeper than the Constitution,’ .... (presents) ... an ‘underlying fundamental truth’ that could not be ‘altered or deemed not to exist by legislation.^[93]

How these sovereignty notions develop along with the impact of recognition in our Constitution, should the referendum succeed, remains to be seen.

VII Conclusion

These developments, especially with 602 native title determinations plus 1,450 ILUAs currently in place, all providing a basis for treaty negotiations; plus the Uluru Statement’s ‘spiritual sovereignty’ concept, plus the High Court’s majority judgments in Love referring to the ‘deeper truth’ of Mabo, suggest interesting times ahead – for Voice, Treaty, Truth. Whatever the result on October 14, these issues are likely to be an important focus of First Nations’ continuing struggle to achieve proper respect, recognition and a lasting settlement in this country. Whatever, that struggle ‘for a fuller expression of Australia’s nationhood’ will continue.^[94]

I encourage you all to vote YES – and, to follow this story.

And please note: in regard to entrenching the Voice: its details may be of interest, but they are not necessary. Its composition, powers and functions are to be resolved by the Parliament. Read the proposed new s 129.

Finally, times have changed. In Townsville this morning, I purchased the latest edition of the Saturday Paper, and discovered, to my delight, a full-page ‘Open Letter to the Australian Public’ supporting the Voice.^[95] It begins: ‘The Voice to Parliament would enhance Australian governance’ and is endorsed by eight retired senior Australian judges. These include ‘The Hon Mary Gaudron KC’, formerly of the High Court; and seven judges of various state courts of appeal including The Hon Margaret White, AO, my abovementioned opponent as junior counsel for the State of Queensland, during the Mabo trial of facts. Well done Your Honour.

Many thanks for your attention.

ooOoo

Postscript

The Voice referendum of October 14 failed – comprehensively. Leading Yes campaign advocate Marcia Langton has declared that Reconciliation is dead;^[96] no alternatives have been proposed by the No campaign to close the gap;^[97] and June Oscar has stressed the ‘real and palpable pain’ rippling through Indigenous communities following the referendum defeat.^[98] An ugly stream of racism, flowing just below the daily social fabric, has exploded, along with widespread dismay and disillusionment with politicians and the political process. The No campaign’s slogan – ‘If you don’t know, vote No’ – deliberately encouraged civic irresponsibility. That issues of constitutional reform should be hijacked and exploited by partisan politics, rather than dealt with rationally and carefully by the electorate – that is, by Australian citizens who own their Constitution – is deeply disturbing, and alienating. This deliberately orchestrated politicisation of a referendum issue is, to me, completely unacceptable.

A Polling Results

Nationwide, 60.2% of the electorate, and each jurisdiction apart from the ACT, rejected recognizing Indigenous peoples in the Constitution by enshrining a Voice to advise parliament and the executive.^[99] In Queensland, 69% voted No.^[100] The strongest support for Yes was recorded in Victoria, at 45%.^[101]

In this disaster, polling in remote Indigenous communities provided some hope. The Kimberley Land Council, for example, recorded that polling places across the north of Western Australia showed 77.5% of residents of remote Indigenous communities voted Yes.^[102] Likewise, undeterred, Yes23 campaign leader Thomas Mayo noted that:

polling booths in predominantly Indigenous communities across the entirety of the country overwhelmingly voted ‘Yes’ ... a great majority of Indigenous people support constitutional recognition through a Voice to Parliament. We seek self-determination over who speaks for us. Claims otherwise are an incontrovertible lie. ^[103]

Further, Mayo observed that:

Though the referendum failed, the movement for Indigenous rights and recognition has grown. In 2017 we were almost 4% of the population calling for Voice, Treaty and Truth-telling. As of (referendum day) we are nearly 40%, walking together. Almost seven million Australians voted Yes.^[104]

B Devastating Impact

Nevertheless, the Indigenous leadership and communities around the country were understandably devastated, and very critical of the No campaign. Amongst extensive reported commentary, perhaps an anonymous open letter written by Indigenous leaders and distributed to politicians the day after the referendum, is representative:

[Indigenous] peoples are in shock and are grieving the result. We feel acutely the repudiation of our peoples and the rejection of our efforts to pursue reconciliation in good faith. That people who came to our country in only the last 235 years would reject the recognition of this continent’s First Peoples – on our sacred land which we have cared for and nurtured for more than 65,000 years – is so appalling and mean-spirited as to be utterly unbelievable a week following. It will remain unbelievable and appalling for decades to come.^[105]

Further, according to one Murdoch Press journalist, ‘[t]he scale of deliberate disinformation and misinformation was unprecedented, and it proliferated, unchecked, on social media, repeated in mainstream media, and unleashed a tsunami of racism against our people.’^[106]

C The Way Forward?

So, what is to be done, going forward? Manifestly, the 90% support for the 1967 referendum which provided the Commonwealth with constitutional power to legislate on matters concerning Indigenous Australians no longer exists. That referendum, however, did not attract a NO campaign: ie there was bi-partisan support. History shows that only 8 of (now) 45 referenda have succeeded – and all eight enjoyed bi-partisan support.

1 Indigenous Policies and Programs

Prominent No campaigner Senator Jacinta Nampijinpa Price and her colleagues have ‘called for a thorough audit of the (Indigenous) structures that exist, to see where problems exist, to identify problems, ascertain what is working and what isn’t, and take action to implement real change where it’s needed.’^[107]

Meanwhile, the Uluru Dialogue organization has flagged its intentions to use the 5.5 million YES voters’ support in a new phase of advocacy for ‘justice and peace.’^[108] According to Pat Anderson: ‘We are not done. We will continue. ... We thank you .... who voted YES. We will need every one of you on the next phase of the journey ... five million voices talking together is a powerful thing.’^[109]

In addition, in the week after the Referendum, ‘a group of about fifty Indigenous leaders and organisations met in Canberra, in person or remotely, for a day of discussion ‘aimed at navigating a pathway forward.’^[110] At that meeting, Sean Gordon, a co-leader of the group ‘Liberals for Yes’, advocated for an expansion of the ‘tried and tested’ Empowered Communities model pioneered by Noel Pearson in Cape York during the Abbott era.^[111] This model now operates in ten regions across the country on an opt-in basis.^[112] The model is underpinned by a partnership arrangement between Indigenous communities and the government. It aims to provide Indigenous people with agency in settling their own priorities for their regions.^[113]

The meeting also proposed to continue pursuing ways to establish an Indigenous Voice, but without constitutional or legislative backing, ‘to take up the cause of justice for our people.’^[114]

As to the Federal government, by 20 December 2023, pressure was reportedly mounting for it to outline its ‘plan B’^[115] and that it was favoring expanding the Empowered Communities option, without legislation, to act as local and regional voices.^[116] Some Indigenous leaders, however, remained unconvinced, saying this option represented ‘more of the same’,^[117] would merely add another ‘layer of bureaucracy’ to regions, such as Alice Springs^[118], and ‘make things more difficult’.^[119] Meanwhile, the government is reported as having made no decision on ‘whether to pursue a Makarrata commission to oversee truth-telling and treaty-making’ being an election commitment and already partly funded.^[120] Minister Linda Burney said that she, and other Aboriginal caucus members were committed to ‘deep listening,’ that she ‘would not be rushed’ and, that ‘it’s not my decision. It will be the decision of the (Indigenous) community.’^[121]

2 Constitutional Reform

The result has also given rise to profound cynicism amongst Yes campaigners, and others, concerning Australia’s constitutional reform processes. Professor George Williams opined that ‘Australia’s system of constitutional reform is broken,’ and called for a ‘root and branch reform’ of the referendum process.^[122] He suggests that ‘a fundamental rethink is needed to establish new ways of finding common political ground and generating proposals that win broad community support.’ Further, ‘Australia should move on from its highly politicised and ad hoc approach to constitutional reform.’^[123]

Williams calls for, first:

a cross-party parliamentary inquiry into the conduct of the voice referendum by the Joint Standing Committee on Electoral Matters.... This is especially needed ... given the emergence of a host of new issues (including) the rise of social media.

Second, he suggests:

... a small, nonpartisan constitutional commission should be established to review the Constitution, develop widely supported proposals for reform, consult with politicians and the public, and recommend ideas to parliament. The best ideas should be debated at a representative constitutional convention held every decade before being put to the people at a referendum.^[124]

Clearly, many significant challenges in Indigenous Affairs remain unresolved – but at least Indigenous determination to achieve a just and prosperous future in this country – their country – remains strong. Watch this space.

---

^* Victorian Bar, retired; Adjunct Professor, College of Business, Law and Governance, James Cook University. I wish to thank Gail Mabo, daughter of Eddie and Bonita; Leanne Hunter, JCU Law Students Society&#82[1]s convenor of this oration, and law students from Deakin University, Melbourne, for their valuable research assistance.

^[1] Noel Loos and Eddie Mabo, ‘Edward Koiki Mabo: His Life and Struggles for Land Rights’ UQP, Brisbane, 1996 (‘Loos and Mabo’).

^[2] JCU Library website.

^[3] ‘Kanaka’ is a Hawaiian word meaning ‘man’. They came from various Pacific islands and were employed in British colonies, such as British Colombia, Fiji, Solomon Islands, Vanuatu, PNG, and Queensland.

^[4] Estimates vary, for example, from between 55,000 and 62,500 Islanders to labour on sugar-cane and cotton farms in Queensland and northern NSW. See https://www.nma.gov.au/defining-moments/resources/islander-labourers.

^[5] They came from 80 different islands including Vanuatu, the Solomon Islands, New Caledonia, Fiji, the Gilbert Islands, New Ireland, and Papua New Guinea. See The National Museum of Australia, Islander Labourers, at https://digital-classroom.nma.gov.au/defining-moments/first-indentured-islander-labourers.

^[6] The recruiters were generally white men who worked on contract with plantation owners, or who recruited with the expectation of selling-on the Islander’s labour. See ibid, National Museum of Australia, Islander Labourers.

^[7] See generally, Edward Wybergh Docker, The Blackbirders, Angus & Robertson, Sydney, 1970.

^[8] This Act provided for ‘the regulation, restriction and prohibition of the introduction of laborers from the Pacific Islands.’ See also attempts to control the trade via Queensland Polynesian Labourers Act 1868; Pacific Island Labourers Act 1880.

^[9] Between 1906 and 1908 more than 7,500 South Sea Islanders were thus returned to their country of origin. About 2,500 remained.

^[10] See JCU Library, ‘Eddie Koiki Mabo: History in the Making’, https://jcu.pressbooks.pub/eddiekoikimabotimeline/chapter/the-mother-of-native-title/ p 70.

^[11] 10 October 1959.

^[12] Two sons, five daughters, plus three adopted pursuant to Islander tradition, being two sons, one daughter.

^[13] Children were taught to read and write, plus Torres Strait Islander history and culture. At its peak, in the late 1970s, 45 students were enrolled. The school closed in 1985 due to lack of funding.

^[14] It’s worth noting here that if the Uluru Statement was expanded to embrace ethnic migrant groups, South Sea Islanders would surely be embraced. But not under current proposals.

^[15] See B A Keon-Cohen, A Mabo Memoir: Islan Kustom to Native Title (Zemvic Press, Melbourne, 2013) 440-41 (‘A Mabo Memoir’).

^[16] Thereafter, with assistance from the Keating government, Eddie Mabo’s body was re-buried at Las, his traditional home, on Murray Island. There he remains.

^[17] JCU Library, ‘Eddie Koiki Mabo: History in the Making’, The Mother of Native Title, Timeline, 6/12/2018, https://jcu.pressbooks.pub/eddiekoikimabotimeline/chapter/the-mother-of-native-title/

^[18] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 109.

^[19] Such Treaty and Truth initiatives have already been legislated in Victoria, and Queensland plus what I have described as a ‘domestic treaty’ concerning the Noongar native title settlement, legislated by a Liberal government in Western Australia in 2016. See Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic).

^[20] K Ryan (research assistant) email, 13/9/23. Native title statistics are available on the National Native Title Tribunal website. See http://www.nntt.gov.au/Pages/Statistics.aspx

^[21] See, for example, Terri Janke, Australian Indigenous Cultural and Intellectual Property (ICIP) Protocol (National Library of Australia, 2023); Exposure Draft: Land Claim Collections Repatriation: Practice Handbook, (AIATSIS, ACU, December 2022).

^[22] According to the Letters Patent, it was set up ‘... to constitute a Royal Commission to be known as the Yoo-rrook Justice Commission ...’. See https://yoorrookjusticecommission.org.au/wp-content/uploads/2021/09/Letters-Patent-Yoo-rrook-Justice-Commission-signed-10-1.pdf. It seems, since, to have forgotten the hyphen. See, for example, Yoorrook with Purpose (Interim Report, June 2022).

^[23] First Interim Report, Yoorrook with Purpose, (4 June 2022).

^[24] Second Interim Report: Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems, tabled 4/9/2023.

^[25] Yoorrook Justice Commission, Newsletter Issue No 10, September, 2023.

^[26] Ibid.

^[27] Victorian First Peoples Assembly Co-Chair Rueben Berg, says that Truth-telling is also an important part of treaty negotiations, because the Commission can make recommendations for reform. He says: ‘Uncovering and understanding all these truths and injustices is a way of saying: ‘This is why we need a treaty.’ Sunday Age, 13/8/2023, 27. Professor Megan Davis, Co-Chair of the Uluru Dialogues says truth-telling can help develop broad support for treaties, which must pass parliament as legislation. ‘You need both sides of parliament on board,’ she says.

^[28] See Path to Treaty Act 2023 (Qld), Part 3, ‘Truth-Telling and Healing Inquiry’, ss 64-93, available at https://www.legislation.qld.gov.au/view/html/asmade/act-2023-012

^[29] The relevant Queensland legislation – conceived in and continuing the abhorrent policies of ‘Protection’ and ‘Assimilation’ – governing Aboriginal and Islander Missions and Reserves, including Murray Island in the Torres Strait, was a major focus of the land rights campaign, and of critical writing, including by prominent human rights lawyers and historians, such as Professors Garth Nettheim, Henry Reynolds and Noel Loos.

^[30] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168.

^[31] A sub-department of the Department of Aboriginal and Islander Affairs.

^[32] R Kidd, The Way We Civilize, (1997) p 346. Discontent with oppressive reserve conditions and widespread opposition to their governing Regulations rose to new heights during the 1970s. This all-embracing system regulating Islanders’ daily lives was called ‘Killoran’s law’ in the Strait after the then Director of the Queensland Department of Aboriginal and Island Affairs – Paddy Killoran.

^[33] Similarly, Bob Hawke failed to deliver on his infamous promise at the 1988 Barunga festival. He said, out loud: ‘There shall be a Treaty negotiated between the Aboriginal people and the government on behalf of all the people of Australia.’ Let us learn the lessons of history. Political promises are just that - notoriously unreliable: one very good reason to entrench the Voice in our Constitution.

^[34] Loos and Mabo (n 1) 11. Another explanation for Mabo’s litigious zeal is that during the early 1980s, the Bjelke-Peterson government was posing a real threat to his island home. By then, 74 islands in the Strait, including Murray, had been ‘permanently reserved’ under the relevant legislation for use by Islanders. During the Queensland election campaign in October 1980, the government announced that it intended, if re-elected, to repeal the relevant legislation, de-gazette the island reserves and, as an alternative, grant 50-year leases to island communities. This proposed scheme was quickly opposed by the Islanders’ then existing peak political body, the Torres Strait Advisory Council – the Islanders’ VOICE at that time! The Bjelke-Peterson government was re-elected, and political agitation concerning these proposed reforms and land rights generally continued.

^[35] Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

^[36] See Johnson v McIntosh 21 US [1823] USSC 22; (8 Wheat) 543 (1823); Worcester v Georgia 31 US [1832] USSC 39; (6 Pet) 515 (1823).

^[37] See Cherokee Nation v Georgia 30 US [1831] USSC 6; (5 Pet) 1 (1831).

^[38] See R v Symmonds (1847) NZPCC 387.

^[39] See Calder v Attorney General (British Columbia) [1973] SCR 313, confirmed in Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193. See also Guerin v R [1985] 13 DLR (4^th) 321, imposing a fiduciary duty upon government when dealing with land subject to native title rights. In Mabo [No 2] by a majority the Court rejected this course of action, while Toohey, Deane and Gaudron JJ supported it. See Mabo [No 2] per Toohey J at 199-205 and Deane and Gaudron JJ at 112-13.

^[40] Loos and Mabo (n 1) 15-16; E Olbrei, (ed) Black Australians: The Prospects for Change, (Students Union, James Cook University, Townsville, 1982), passim, being edited conference proceedings (‘Olbrei’).

^[41] Olbrei (n 40) 163.

^[42] They canvassed the legal issues arising in such a test-case. Barbara Hocking commented, with some foresight: ‘Whether or not such a claim was successful, it might very well act as a catalyst for action at the political level ... A test case brought by a group of Queensland Aboriginals who still live on their tribal lands could influence the attitudes of white Australians and the terms of the (proposed) Makarrata treaty.’ Ibid, 207. Greg McIntyre also encouraged a test case. His substantial paper sought to ‘put forward the theory that Aboriginal land rights do have some existence outside statute law in Australia.’ Ibid, 223.

^[43] The Commission’s final Report, with numerous recommendations (though ‘Land Rights’ issues were excluded) was finally provided to the Federal Attorney General in 1986. See The Recognition of Aboriginal Customary Laws (ALRC Report 31) 11 June 1986.

^[44] See phone call at A Mabo Memoir (n 15) 1.

^[45] The plaintiffs sought declarations that their rights and interests, based on Meriam custom and tradition, to 45 specified land and sea areas located on and around the Murray Islands, were not extinguished, in law or in fact, by the act of colonization in 1879, nor by subsequent settlement, but continued to the present day, and should be recognized as enforceable property rights in Australian law.

^[46] Queensland, obviously, because the claim involved the three Murray islands, plus areas of seas located within Queensland jurisdiction, ie, within the three-mile territorial limit. The Commonwealth was included for two reasons. First, due to claims to sea areas located further out, within Commonwealth seas. Second, we wanted to secure High Court jurisdiction, thus avoiding possible appeals in Queensland’s Supreme Courts.

^[47] Despite serious questions still waiting resolution, concerning, for example, the legal impact of colonisation in 1879 upon Indigenous customs and traditions in a continent supposedly ‘Terra Nullius’ – the Commonwealth did not want to know.

^[48] As to the plaintiffs’ costs and fees, see Answers to Questions on Notice, Hansard, Senate, 17/10/1989, 2044-46, reproduced at A Mabo Memoir, Appendix 15, 496-99.

^[49] Now, 40-plus years later, in a different era, and under a government with very different policies, Queensland has joined Victoria with Path to Treaty legislation enacted last May. Yet, at the same time, the latest polls suggest that Queensland’s voters are about to reject the referendum.

^[50] After almost four years of pleading and various procedural disputes, in February 1986 Gibbs CJ ordered all issues of fact raised by the pleadings to be remitted to the Queensland Supreme Court for hearing and determination. The ultimate legal issues were expressly not referred to but were reserved for the High Court alone. That trial process continued, on and off, for four years, until the trial judge – Justice Martin Moynihan – delivered his Determination of Facts in November 1990.

^[51] Section 3(a) of that Act read:

Effect of annexation of islands to Queensland. For the purpose of removing any doubt that may exist as to the application to the islands of certain legislation upon their becoming part of Queensland, it is hereby declared that upon the islands being annexed to and becoming part of Queensland and subject to the laws in force in Queensland –

(a) the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown in Queensland for the purposes of sections 30 and 40 of the Constitution Act.

^[52] Section 5 of that Act read:

Claims to compensation: No compensation was or is payable to any person –

(a) by reason of the annexation of the islands to Queensland;

(b) in respect of any right, intertest or claim alleged to have existed prior to the annexation of the islands to Queensland or in respect of any right, interest or claim alleged to derive from such a right, interest or claim; or

(c) by reason of any provision of this Act.

^[53] Mabo v Queensland [No 1] (1989) 166 CLR 186.

^[54] For further detail, see trial transcript, at National Library of Australia, MS 9518, Vol 31, starting at 1,886. See also, for a summary of his evidence, A Mabo Memoir (n 15) 280-86. For the trial judge’s response see, ibid 372-73; for Sam Passi’s ‘Malo Law’ ibid, 243.

^[55] We can only surmise what Queensland’s officers, through his brother George and perhaps others, said to Sam prior to him giving evidence. Sam’s behavior arose, I suspect, in part, from Mabo’s unpopularity amongst some of the Meriam community who, perhaps, did not wish to antagonize the Department. To them, Mabo was a radical, an agitator very critical of Queensland’s reserve legislation and By-Laws, AKA ‘Killoran’s Law.’ Mabo was also, to some extent, an outsider. He had been exiled from Mer, when aged sixteen, for trivial breaches of Killoran’s paternalistic ‘Morality laws’: that is, drinking alcohol and talking to girls – all at the same time! He thus had lost contact with the community but, on the positive side, escaped the Department’s control (unlike, it seems, George Passi); was exposed to new ideas, such as when working as a gardener at this University during the 1970s; and learned to think independently and critically for himself.

^[56] See Moynihan J, Determination of Facts (November 1990) passim.

^[57] Further, when finally before the High Court to argue the ultimate legal questions, Queensland, during the first hour on day one, argued that the rulings concerning Dave Passi were so tenuous that the whole case should be immediately thrown out – with costs. Fortunately, that submission failed, and the hearing continued. Another very close call – but a testament to the courage, and determination of Dave Passi, the plaintiffs, and the Meriam witnesses and those in the Murray Island community who supported them.

^[58] See, eg, Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422.

^[59] Per deputy prime minister Tim Fisher, who called the High Court Judges a ‘Bunch of Pissants.’ See interview of PM John Howard, by Kerry O’Brien, ABC TV, 7.30 Report, 12/11/1997, at https://pmtranscripts.pmc.gov.au/release/transcript-10560 where Howard accepts that Fischer made this statement. See also Paul Keating, “The 10-point Plan that undid the good done on native title”, Sydney Morning Herald, posted 1/6/2011, at https://www.smh.com.au/politics/federal/the-10-point-plan-that-undid-the-good-done-on-native-title-20110531-1feec.html.

^[60] Wik Peoples v Queensland (1996) 187 CLR 1.

^[61] Including recommendation 5(1) that, ‘The definition of native title in s 223 of the Native Title Act 1993 (Cth) should be amended to provide that traditional laws and customs may adapt, evolve or otherwise develop’. See ALRC Connection to Country: Review of the Native Title Act (ALRC Report 126, June 2015) (‘ALRC Report 2015’).

^[62] Robert French, ‘Lifting the Burden of Native Title: Some Modest Proposals for Improvement’ (Speech delivered at the Federal Native Title Users Group, Adelaide, 9 July 2009. See also ALRC Report 2015, 216-20.

^[63] Established under the Advancing the Treaty Process with Aboriginal Victorians Act (2018).

^[64] First Nations Voice Act 2023 (SA) enacted 26/3/2023, operative 12/5/2023.

^[65] See NNTT statistics (n 20). The Federal Court had made 481 determinations of the existence of native title on mainland Australia and in the Torres Straits.

^[66] Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1,

^[67] Aboriginal Land Trusts Act 1966 (SA).

^[68] See Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

^[69] The Land Fund, now called the Land Account, and the Indigenous Land Corporation (ILC) were established in 1994 and 1995 respectively: see The Land Fund and Indigenous Land Corporation (ATSIC Amendment Act) 1995 (Cth). In 2019 the ILC became the Indigenous Land and Sea Corporation (ILSC) with an extended remit to include water as well as land. The ILSC and the Land Account now operate under the Aboriginal and Torres Strait Islanders Act 2005 (Cth) to help Indigenous people acquire interests in, and manage, land, salt-water and fresh-water country to provide them with ‘economic, environmental, social or cultural benefit. See Aboriginal and Torres Strait Islanders Act 2005 (Cth), s 191B.

^[70] See also, in Victoria, the Traditional Owner Settlement Act, 2010; Aboriginal Heritage Act 2006

^[71] See Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic); and Treaty Authority and Other Treaty Elements Act 2022 (Vic).

^[72] See Path to Treaty Act 2023 (Qld) Part 2, ss 9-14.

^[73] In this process, six Noongar claims were consolidated for this negotiation. Pursuant to the native title regime, the six groups pursued, and achieved with the WA government, six ILUAs. Between January and March 2015, a series of authorisation meetings were held by the six groups, to approve the settlement. Elements of one group, however, refused to sign-off, leading to Federal Court challenges concerning, inter alia, whether such an authorisation had to be adopted unanimously by the relevant traditional owners, or by a majority, under the relevant Native Title Act provisions. The Federal Court determined that the relevant provisions required a unanimous vote to achieve authorisation: see McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 340 ALR 419. This led, in turn, to the federal Parliament passing, in quick time, amendments to the Act to allow majority-only authorisation: see Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) Thus, the six ILUAs were ‘authorised’ as required by the Native Title Act, by the traditional owners of the six areas involved. Thus, the entire Noongar settlement could proceed.

^[74] Harry Hobbs and George Williams, ‘The Noongar Settlement: Australia’s First Treaty’ [2018] SydLawRw 1; (2018) 40(1) Sydney Law Review 1.

^[75] In December 2009 the Noongar claimants and the state government agreed to pursue a negotiated outcome to a massive area of 200,000 sq km. stretching from north of Perth across to the southern coast east of Albany.

^[76] See McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 340 ALR 419 concerning authorisation questions.

^[77] In October 2014 the parties reached an agreement in principle on the text of the settlement negotiated by the South West Aboriginal Land and Sea Council Noongar Nations Negotiation Team. See https://www.oric.gov.au/publications/spotlight/australias-biggest-native-title-settlement-clears-final-hurdle.

^[78] Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA); Land Administration (South-West Native Title Settlement) Act 2016 (WA). This legislation recognises the Noongar people as the traditional owners of the land and their continued relationship with Country. The settlement formally commenced in February, 2021.

^[79] Further items: The Noongar to be invited to co-manage land and its resources outside their territory; Enhanced socio-economic opportunities and increased employment.

^[80] That is, a Central Services Corporation, and six Noongar Regional Corporations.

^[81] And consented to the validation of any invalid past acts over the area.

^[82] B A Keon-Cohen, ‘From ‘Land-Related Agreements’ to ‘Comprehensive Settlements’ to ‘Domestic Treaties’: An Inevitable Progression?’ (2018) 25 Pandora’s Box 43, at 55-59 (‘Pandora’s Box’).

^[83] Ibid, 59.

^[84] A Mabo Memoir (n 15) 44-45 (when drafting the statement of claim, through various amendments over to the ensuing decade (including on the very last day of the final High Court Hearing).

^[85] Including Mabo (n 18) 57-60, 63, (Brennan J, Mason CJ and McHugh J, agreeing, at 15). See also Wacando v The Commonwealth (1981) 148 CLR 317. Wacando challenged the legality of the Torres Strait Treaty between Australia and PNG, entered into by the Fraser Government in 1978 and argued that his island was not embraced by the Treaty. The High Court held that the island had been part of Queensland since 1879, and part of the Commonwealth since 1901.

^[86] See also Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 200 (Mason CJ). See also Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422, at 443-44 [44] (Gleeson CJ, Gummow and Hayne JJ).

^[87] J Aird and A Ardill, ‘A ‘Kind of Sovereignty’: Toward a Framework for the Recognition of First Nations Sovereignties at Common Law[2022] MelbULawRw 20; ,’ (2023) 46(2) Melbourne University Law Review 1 at 3 (advance copy).

^[88] Uluru Statement from the Heart, (Statement, First Nations Constitutional Convention, 26 May 2017).

^[89] The language follows closely that of Ammoun J’s statement in the Western Sahara case. See Advisory Opinion on the Western Sahara, [1975] ICJ Reports, per Ammoun J, 85-86.

^[90] Shireen Morris, ‘Love in the High Court: Implications for Indigenous Constitutional Recognition’ (2021) 49(3) Federal Law Review 410, 426 (‘Morris’).

^[91] Love v Commonwealth (2020) 270 CLR 152.

^[92] Bell, Gordon, Nettle, and Edelman JJ.

^[93] Morris (n 90) 416.

^[94] J Massola and P Sakkal, ‘Mundine Uses Ploy claim in No argument’, The Age, 27/9/2023, 9, quoting ‘draft speech notes’. Speaking at the National Press Club on 27 September, Noel Pearson expressed the issue before the nation. as follows; ‘This referendum is testing the idea that a nation conceived in the fiction of Terra Nullius – a continent empty of owners – can come to a new understanding of who we are. If affirmed, this referendum will seize our first best chance and last best hope for a lasting settlement. Australia will start a new chapter, and the nations of the earth will learn that with justice, what remains wrong can be put right’.

^[95] Saturday Paper, 30/9 – 6/10/2023, 5.

^[96] See Marcia Langton, ‘Whatever the outcome, reconciliation is dead’, The Saturday Paper, 14-20/10/2023, 1, at https://www.thesaturdaypaper.com.au/news/indigenous-affairs/2023/10/14/marcia-langton-whatever-the-outcome-reconciliation-dead#hrd.

^[97] Just two of seven Closing the Gap targets set in 2008 – early childhood education and year 12 attainment – have been achieved. See Page Taylor, ‘Closing the Gap “doomed to failure”’, Weekend Australian, 11-12/11/2023, 5.

^[98] Lisa Visentin, ‘There was no plan B. So: What’s next after the Voice defeat?’ Sunday Age, 29/10/2023, 14 (‘Visentin’).

^[99] 38.8% voted Yes; 1% voted informal. See Nicholas Biddle, ‘Voicing voter stereotypes’, Sunday Age, 22/10/2023, 31.

^[100] Followed by SA 65%, WA 64%. See Paul Kelly, ‘Legacy of voice’s defeat will endure for a generation,’ The Australian, 18/10/2023, 11.

^[101] Kieran Rooney and Chip Le Grand, ‘Victoria moves on treaty as other states back off.’, Saturday Age, 21/10/2023, 1.

^[102] Paige Taylor, ‘Indigenous leaders: “vote tied to racism”’ Weekend Australian, 21-22/10/2023, 7.

^[103] Thomas Mayo, ‘After the Vote,’ The Saturday Paper, 21-27/10/2023, 3.

^[104] Ibid. As to ‘seven million’ see n 108.

^[105] Quoted in Jacinta Nampijinpa Price, ‘Referendum not a rejection of anyone’, The Weekend Australian, 28-29/10/2023, 24 (‘Price’).

^[106] Paul Garvey, ‘Rebel Yes: our voice will be heard’, The Australian, 23/10/2023, 1.

^[107] Price (n 105) 24.

^[108] See Paige Taylor, ‘Price says leaders of Voice are “cowards”’ The Weekend Australian, 28-29/10/2023, 7. As to ‘5.5 million’ the official number of YES votes cast was 6,286,894.

^[109] Ibid, quoting a video published on Tik-Tok by the Uluru Dialogue.

^[110] Visentin (n 98) 14.

^[111] Ibid.

^[112] Ibid.

^[113] Ibid.

^[114] Ibid.

^[115] Rosie Lewis and Sarah Ison, ‘No vote is no issue for local voices’, The Australian, 5/12/2023, 1, 6. (‘Lewis and Ison’)

^[116] Ibid, 1. ‘Federal governments have provided $47 million to the program from 2016 to mid (2024)’.

^[117] Ibid, per Eddie Synot, Indigenous lawyer and member of the Uluru Dialogue.

^[118] per Alice Springs Mayor Matt Paterson, at Sarah Ison, ‘Local Voices? It’s just more bureaucracy’, Weekend Australian, 16-17/12/2023, 7. (‘Ison’).

^[119] Ibid.

^[120] Lewis and Ison (n 115) 1.

^[121] Ison (n 118) 7.

^[122] George Williams, ‘For referendums to work, voice lessons must drive reform,’ The Australian, 23/10/2023, 13.

^[123] Ibid.

^[124] Ibid.