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The reasons why Mabo is not
just another land rights case
By PHILLIP TOYNE
It is a measure of the massive im-
portance of the decision in Eddie
Mabo and others v Queensland that
vast amounts of work evaluating its
significance has been done by Gov-
ernment, the mining industry, black
groups and, of course, academics, in
the year since the result was handed
down — and there is much more to
come.
As Sir Harry Gibbs, the former
Chief Justice of the High Court, says:
"Many decisions of the High Court
have resulted in controversy, but
few, if any, have given rise to such a
diversity of responses, ranging from
euphoria to deep anxiety . . ."
There are other indications that
this was not just another land rights
case.
When the Prime Minister's office
learned that Eddie Mabo's widow
was not able to afford a headstone for
her husband's grave, it ordered a spe-
cial grant to be made, for the purpose.
This reflects just how quickly the
Mabo decision has become a part of
our history — but its outcome was
often in doubt.
The Commonwealth, now willing
to honour one of the key players and
to react to the issues raised by the
judgment, was extremely tardy in
supporting the case as it went
through years of preparation and
hearings. Its successful conclusion is
testimony to the tenacity of the
plaintiffs.
Eddie Mabo, for instance, trav-
elled by bus to Canberra from
Townsville to be at the High Court
for the hearings when finances were
tight. Their resolve remained un-
shaken during the 10 years that it
took from filing their statement of
claim to the final outcome. Tragical-
ly, three of the five plaintiffs died
before the judgment came down.
There was also the extraordinary
commitment of the lawyers in-
volved.
At various stages during the pre-
parations for hearings in the Su-
preme Court of Queensland, no
money was available for instructing
solicitors. The senior counsel for the
plaintiffs asked his daughter, an
undergraduate law student, and her
economist boyfriend to fill this role.
For many weeks, they voluntarily
kept the litigation alive, proofing wit-
nesses, indexing transcripts and per-
forming the masses of tasks
necessary to run a major case.
The revolution which was ignited
in Mabo is not just because of the law
it makes, but the leap it has taken in
raising the community's awareness
of the need to rethink our relation-
ship with our indigenous peoples.
It has succeeded in this regard
where previous attempts based on
arguments of simple justice and de-
cency have failed. It was only by
providing a legal basis for native title
that the High Court has forced the
nation seriously to address the issues
of Aboriginal dispossession.
The case was indeed a legal revolu-
tion. There has been vigorous debate
over whether the High Court has
gone beyond its traditional, strict ju-
dicial function in conservatively in-
terpreting the common law. Did the
judges engage in political decisions
of a radical nature, in finding that the
fiction of terra nullius is no longer
credible and that a common law na-
tive title exists unless extinguished
by one of a number of circum-
stances? Many believe they did.
Associate Professor Gabriel
Moens says ". . . the majority arro-
gated to themselves the role of lead-
ers, with responsibility for discarding
common law rules that are not in
accord with international mores. In
the ultimate analysis, the majority
were involved in an exercise of poli-
tical policy-making, involving a sig-
nificant alteration to the common
law without having established that
they are responding to real, (as op-
posed to imagined or perceived)
Phillip Toyne Help
Phillip Toyne
changes in the values and aspirations
of the Australian people".
Moens supported the view of the
dissenting judgment of Dawson J.
who said that the wrongs of the past
". . . require(s) . . . new policy . . . and
that is a matter for government rath-
er than the court".
These are somewhat barren argu-
ments in the sense that there are no
limitations on the High Court deter-
mining the common law as it likes. It
is what the justices say it is. High
Court decisions are not appealable
[although it can reverse its earlier
decisions if it chooses to]. Only the
parliaments of Australia can legislate
away the native title the High Court
has now identified, and even this
capacity is limited.
For example, the Queensland
Government's attempt to derail the
Mabo action by passing retrospective
legislation extinguishing native title,
should it exist, was disallowed in an
earlier High Court decision on the
case, as being inconsistent with over-
riding racial discrimination legisla-
tion of the Commonwealth.
This same impediment remains to
stop the states from simply legislat-
ing away the problem of uncertainty
which now exists.
Another legal controversy is the
novel place of native title within the
ancient British system of land ten-
ure, which can be traced back to Wil-
liam the Conqueror. Is it a property
right or only a right to use and enjoy
country? Some lawyers argue that for
the sake of consistency, any surviv-
ing native title should be dealt with
as freehold.
This raises fascinating conse-
quences. For example, in Western
Australia, freeholders enjoy a veto
over mining access, ironically be-
cause the conservative parties have
always protected the interests of
farmers in the state's vast wheat belt.
They would be appalled at the pro-
spect of Aboriginal landowners in
the north and east of the state having
the same power, yet the Racial Dis-
crimination Act may preclude them
from offering lesser rights to blacks.
Indeed, it may be that constraints
imposed on Aboriginals over mining
access under existing land rights leg-
islation, such as those applying in the
Northern Territory or to the Pitjant-
jatjara lands in South Australia, are
invalid if they are found to be dis-
criminatory under the federal legisla-
tion. They were all enacted after
1975.
But how do we deal with native
title now that it has been recognised?
Native title does not uniformly sur-
vive, certainly not on freehold lands
or lands alienated for a purpose in
compatible with it, such as areas for
public works. Neither does it where
all customary links to particular
country have been severed. But
many question marks remain. It ap-
parently survives a "compatible
alienation", such as one creating na-
tional parks.
Does the grant of a pastoral lease
extinguish or partly extinguish na-
tive title? I believe Justice Brennan
was wrong in concluding that it does,
at least where Aboriginal rights to
use and enjoyment are specifically
preserved in pastoral leases in West-
ern Australia, the Northern Territory
and South Australia. What affect
does it have on mining tenements
and does a disruption of those rights
attract compensation, and if so, who
is to pay? There are many more.
This leads, at best, to the situation
most feared by lawyers and business
alike, and that is uncertainty. This is
why the Federal Government is try-
ing rapidly to devise responses to
state and territory governments, and
the resource industry.
The Government's principles re-
leased this week for dealing with na-
tive title provide, for example, for
the validation of all land grants made
up to 30 June 1993, which may have
impinged on native title, with Gov-
ernment compensating blacks able to
demonstrate loss.
Aboriginal groups quite rightly
understand that the complex issues
and wide ramifications of the deci-
sion cannot be dealt with superficial-
ly and quickly. They are seeing this
as the catalyst for a much more com-
prehensive exercise.
The principles are also strong on
the need for close negotiations with
Aboriginal interests, but at their first
test, the validation of the Macarthur
River mine, the Federal Govern-
ment failed. It talked to the Northern
Territory Government, and to the
miners, but not to the Aboriginal
traditional owners until after a deal
had been concluded.
This has been met with under-
standable anger and cynicism by Ab-
original groups. They rightly point to
the failure of the principles adequate
ly to address the interests of the over-
whelming majority of indigenous
people who will not be able to mount
a native title claim.
They are the most disadvantaged
of all, having'been dispossessed of
their country long before Mabo.
The processes of reconciliation
and constitutional reform are essen-
tial to the outcome. These must be
merged with the Mabo decision to
create a treaty through which indi-
genous people are compensated and
given the chance to become part of
the nation and not just the victims of
it.
The range of circumstances that
indigenous people find themselves in
is broad, and so, too, must be the
options opened by a treaty.
There is no formal mechanism for
negotiating such an accord and no
Aboriginal entity with the authority
to represent black Australia. Many
blacks will see a compact acknowl-
edging Australian sovereignty, or ex-
changing native title for freehold or
other rights, as a sellout and the loss
of their identity.
This need not be so, and is entirely
within the ambit of the treaty itself. It
is in seeing how these issues unfold
that the real interest in the Mabo
decision lies.
— Philip Toyne, a former executive director of the
Australian Conservation Foundation, is a visiting fellow
at the ANU law school.
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