By Sean Flood
(This is the abridged text of a speech made in Sydney on August 25 at the launch of the second edition of the author's book Mabo: A Symbol of Sharing. Sean Flood is the NSW public defender.)
Mabo ditched terra nullius, the insulting concept that there was nobody on this continent deserving of rights before the arrival of superior whites. Land laws have not been changed by this case. What has changed is the legal history of land acquisition. The High Court did not create new law.
Mabo shored up all titles granted by the crown since 1788.
Mabo held that Australian common law recognises "native" title. Where it has not been extinguished, this title reflects the entitlements of indigenous inhabitants to their traditional lands in accordance with their laws and customs.
The native title recognised by the High Court allows, where it is applicable, for a form of title but not as good as freehold title.
In the words of Frank Brennan SJ, this leaves traditional owners without remedy except in reliance on the Racial Discrimination Act 1975.
Mabo does not give any land to Aborigines, it merely recognises existing title where it has not been extinguished by adverse grant or by the loss of "traditional connection with the land".
The High Court rejected any challenge to sovereignty.
The sniping begins
As soon as the High Court made its ruling, the sniping started, with Hugh Morgan declaring in October 1992 that "it puts at risk the whole legal framework of property rights in Australia".
For a man who is well described by Hal Wootten as representing nobody, too much attention is paid by the media to his script-written utterances.
Next was John Stone, a former lacklustre National Party senator who in the same month declared: "If the rule of law is to prevail, those who preside over it must be respected. We are at the point where they no longer are."
Followed by Gerard Henderson: "The court is now influenced by sources unknown".
I suppose he had in mind [High Court Justice] Gerry Brennan being influenced by a complete unknown, Frank Brennan SJ, the judge's son, over a cleansing ale!
Then, Geoffrey Blainey, who couldn't help himself and regarded the High Court as "a quiet challenger to democracy".
Coinciding with the first anniversary of the High Court's decision was a host of ill-informed criticism, and deliberate misinformation with the potential for serious harm. Politicians, mining spokespeople and commentators have been like cattle drinking at the pure stream of reason while turning it into mud with their cloven hooves. Instead of the clarity of the High Court decision, we have ended up with Mabo mud.
I am delighted with the Saulwick Herald Poll (Sydney Morning Herald, August 4) which suggests a high level of understanding of and support for the High Court decision. Also most who were polled did not believe the scare mongering and supported a right of veto over mining on Aboriginal land.
At least it is now safe to say that not only has Lang Hancock pegged his last and smallest claim, but also Hugh Morgan is spent, John Stone's words fall on deaf ears and Geoffrey Blainey continues to misinterpret contemporary Australian history in the same slipshod way that his earlier works were written.
I am of the view that Mr Morgan has more recently been engaged in diversionary tactics to cover up his own inadequacies. In March 1993, a judge in Nova Scotia found WMC [Western Mining Corporation] guilty of conspiracy and negligence and awarded damages of $11.3 million against the company; the decision is being appealed. The company has also spent $500 million buying useless North American mining assets.
At home, Justice Cole advised WMC's counsel, in litigation with Savage Resources, that WMC should consider the matter "at the very highest level". That was done and the litigation was brought to a sudden end with a huge settlement in favour of Savage. Allegations of concealing information, with Savage seeking orders that WMC was guilty of fraudulent misrepresentation, should raise sufficient questions from shareholders to place Mr Morgan's job on the line and his credibility under the spotlight.
The politicians
In the political arena, it is very difficult to keep up with the daily developments. Last week, Goss wanted the introduction of what he said is non-discriminatory legislation to protect Comalco's lease at Weipa.
What he really wanted was federal legislation validating leases that may be tainted because of government breaches in their granting. They were first negotiated by the Gair Labor government, with the Nicklin Country Party government passing the Comalco Act in December 1957.
Goss wanted extinguishment of the rights of the Wik people to litigate their claim. All Australians should resist the erosion of the rights of minorities.
If the rich and powerful are the only ones who are left with the financial capacity or legal right to pursue remedies under the law, democracy will fail more than Aborigines.
Last week I supported Paul Keating's refusal to extinguish Aboriginal rights at the behest of CRA or any other mining company. He correctly articulated the justice of the situation in his letter to Wayne Goss:
"I don't accept that immediately a mining company says something everyone must spring to attention and extinguish Aboriginal rights. No, the [Wik] people believe they've got an entitlement to go to the High Court and have these matters tested. Well, I think that is their right.
If projects do not proceed don't blame the Aborigines. Mining companies, like the giant CRA, want to bludgeon state and federal governments into validating past conduct tainted by illegality so that they will not have to treat with Aboriginal claimants.
In the present dispute between the Wik people, the Queensland government and Comalco, Goliath has at last met his match. The Wik people, led by their David, Noel Pearson, a highly educated, sophisticated, tough negotiator, have a very strong moral and legal claim which does not need to be litigated. They have a strong claim in justice. This case should be settled. The problem is that CRA, used to bashing blacks and manipulating politics, refuses to parley.
A mining voice
If you listen to John Ralph, chief executive of CRA, you would think that the mining companies had no responsibility for the present dilemma or for the obfuscation of the Mabo message. In a contribution which he made to the Good Weekend magazine of August 21, he focused on sweeping ambit claims, continuing delay and confusion.
The Wik claim is brought by a group that has maintained connection to the land involved. The Wik claim focuses on an aspect of the Mabo judgment, particularly Justice Toohey's observation on the fiduciary obligations and the taint of illegality affecting the Comalco leases.
If you listen to John Ralph, who states, "Aboriginal people remain among the most disadvantaged in Australia despite expenditure by governments of billions of dollars in an effort to improve their situation. Clearly, something different needs to be done", You might think he would suggest something new, or at least imaginative.
But his contribution for the advancement of the Aboriginal people is programs — perhaps he had gulags in mind. Throw money at the blacks, more economic colonialism — anything and everything except the one thing that is necessary for black culture and survival: land and a say over it.
You can see how economically valuable land is to miners: they are spending hundreds of thousands of dollars in campaigns to bludgeon and bluff governments into validating their interests, their deals, their dubious leases. If leases are not dubious, they do not require retrospective validation; if leases are dubious it is discriminatory to deny only one group in the community the right to litigate and challenge their validity.
Imagine the outrage if federal and state governments legislated to invalidate all inheritance since 1788 so that all titles thus acquired during the past 205 years retrospectively became crown land. Could you see the people of Toorak or Rose Bay copping that?
By contrast, the treatment of the Aboriginal people at Weipa is described by Labor minister Margaret Reynolds, the government representative on the Council for Aboriginal Reconciliation, as one of the worst examples of dispossession in modern times.
The federal government shows no leadership, morality, vision or commitment to justice by caving into the mining lobby.
They might temporarily get away with retrospective validation of dubious leases, but the government legislation will not survive a High Court challenge because it cannot be rigged without falling foul of the Racial Discrimination Act 1975, and the Racial Discrimination Act cannot be amended to allow discrimination without international condemnation.
Mabo does not require such unedifying responses, because the High Court has validated all legal titles granted since 1788. If there are titles tainted by illegality, giving rise to equitable remedies, the right to sue must be preserved.
A solution
There is a very simple solution. Talk. All developers should be prepared and required by law to negotiate with the customary land owners and occupiers.
The Wik claim can and should be settled. The sticking point is that the Australian Mining Industry Council says because the crown has reservation of mineral rights and royalties are paid to governments, mining prospectors "should not have to get permission from or negotiate with Aboriginal land owners".
The simple solution is for overriding federal legislation reserving mineral rights and rights to petroleum and gas deposits and a right of veto to traditional land owners. Then you would get talk and a new respect for Aborigines.
Past attempts at discussion with Comalco have been summarily dismissed, the Queensland government siding with the miners. Coexistence between the mining development and traditional land interests can be achieved, but it is up to CRA and the Queensland government. Noel Pearson is ready to talk for his people. If development does not proceed and jobs are lost, blame Goss and CRA.
Having taken so much and having prospered so well as a result, it is not asking too much to give full effect to the great Mabo judgment and allow traditional land owners or occupiers complete entitlements over all that exists on, above and under their land and waters.
Second thoughts
I am having second thoughts about Mabo. It is a significant decision — in the context of the broad community one could even say brave — but it does legitimise theft. Also, it does not protect Aboriginal inheritance except in those remote areas where traditional title has not been extinguished.
The High Court recognises the existence of traditional title and at the same time that all other titles granted in the past are secure. The judgment thereby disenfranchises traditional owners in favour of those whose freeholds and leaseholds were acquired over the past 205 years by theft.
I wish to emphasise that the High Court judgment is also concerned with social injustice and the disastrous effects of the colonial invasion.
Justices Deane and Gaudron refer in their judgment to the dramatic effect upon Aboriginal people and their environment during the first 150 years of European settlement. Justice Dawson documents the shameful relocation of large numbers of humans for economic purposes.
I argue in Mabo: A Symbol of Sharing that the High Court does not go far enough. But it is certain that it shows the way to a new respectful relationship between black and white people.
Together we could prevent further damage to our fragile environment and repair much of the harm already done.
Mabo decided that no compensation is owing because Aboriginal and Torres Strait Islander people were dispossessed of almost all their land between 1788 and 1975 — land more often than not acquired at gun point. A measure of justice has been achieved by the Racial Discrimination Act 1975.
Liability for compensation flowing from the act should be shared by all Australian taxpayers. We have reaped the advantages and should now pay the rent. Liability for compensation should also be shared by mining companies who have made profits from enterprises that have often resulted in great human cost to Aborigines and in many cases desecration of sacred sites and the ecology.