By Peter Boyle
Since the Australian High Court delivered its judgement in Eddie Mabo & Others vs the State of Queensland nearly a year ago, opinions on the meaning of this decision have multiplied. One sort of opinion, however, has had a much broader distribution — the sort selected for its propaganda value by the powerful mining lobby. On May 14, right-wing academic Geoffrey Blainey told the Minerals Outlook '93 conference that the Mabo case privileged Aborigines over other Australians when "in fact the average Aboriginal who owns land owns 20% more than the average white Australian". Business Review Weekly has run a cover which screamed: "Aboriginal Takeover". And the cover of the May 1993 Australian Farm Journal asks "Land Rights: Is Your Farm Under Threat?".
When Eddie Mabo and others began their action in 1982, Queensland Premier Joh Bjelke-Petersen denounced it as part of a "Communist long-range plan to alienate Aboriginal lands from the Australian nation so that a fragmented north could be used for subversive activities by other countries"!
Has the Mabo decision really significantly strengthened the land rights of Aboriginal people?
In the Mabo case, an Australian court recognised for the first time some form of "native title" to land held by the original inhabitants before European colonisation. However, the court also decided that this title has survived only in limited circumstances. Aborigines can claim native title today only if:
- they can demonstrate traditional rights to the land and occupation according to traditional law;
- they have not moved (or been forced) off the land; and
- the crown has not extinguished native title.
The first two requirements exclude the majority of Aboriginal people — especially those in the most populous and first colonised states. A few communities in remote areas of South Australia, Queensland, Western Australia and the Northern Territory may have a chance.
If that was not restrictive enough, the court majority said that native title could be extinguished, without compensation, by express legislative or administrative government action or simply by making grants in land which were inconsistent with continuing native title.
This means that native title has been totally extinguished on any privately owned land (freehold), leaseholds which give exclusive possession and crown land used for public purpose (like schools, roads). Talk of land claims on cities and suburban backyards is dishonest scare-mongering.
The surviving plaintiffs in the Mabo case (three of the five plaintiffs, including Eddie Mabo, died before the 10-year case came to an end) managed to jump these three new legal hurdles, and their title on Murray Island (the easternmost of the Torres Strait Islands) was recognised. Just how many other Aborigines or Torres Strait Islanders prove to be as lucky has yet to be seen.
The greatest effects of the Mabo decision may arise from the tortuous legal path the High Court judges took to justify their decision under British-based "common law".
Common law is the collection of decisions of principle made by courts over the ages. These decisions are supposedly kept consistent because they are linked by precedent and common principles.
A reading of the Mabo judgments quickly establishes how far this is from reality. Over the years the judges have developed the twisting and turning of words into a fine art as they have sought to justify different decisions as interpretations of the common law. Certainly, the re-interpretations of former court decisions that the judges in the
Mabo case had to make will provide fertile ground for future argument in the courts and academia.
The only previous Australian court case to deal directly with a claim for native title(which it rejected), the 1971 Gove land rights case (Milirrpum v Nabalco Pty Ltd), created three decades of work for quite a few lawyers and academics. Some of this legal work helped the plaintiffs in the Mabo case.
The Mabo decision has left several matters uncertain. For native title to be recognised, what degree of "traditional" connection with the land need survive? What does this mean in terms of recognition of other elements of traditional Aboriginal law? What rights does native title confer? In what circumstances exactly is native title extinguished by the crown? What lesser interests in land granted by the crown do not extinguish native title? While the crown does not normally have to compensate for extinguishment of native title, do the Constitution or federal laws like the Racial Discrimination Act create new duties to compensate for more recent extinguishments?
End of terra nullius
Until Mabo, the accepted common law position was based on the legal fiction that Australia was terra nullius — an uninhabited land — when colonised by the British 200 years ago. If this remained the law, any idea of a pre-existing native title was ruled out.
The High Court majority acknowledged that it was making new law by rejecting the doctrine of terra nullius as justification for acts forming the "darkest aspect of the history of this nation".
"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies", declared Justice Brennan for the majority, "an unjust and discriminatory doctrine of this kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people."
However, the High Court also clearly stated that it in no way questioned the crown's sovereignty over the continent, even if in the past that sovereignty was thought to have been obtained through the settlement of uninhabited lands.
Furthermore, the High Court held that upon asserting its sovereignty, the crown obtained a "radical title" to all land in Australia. This did not automatically extinguish pre-existing native rights, but it gave the crown the power to extinguish those rights at will. Native rights exist today only where the crown has not exercised this right, the court said.
This same "radical title" allows the crown to avoid paying compensation unless it creates such a duty for itself through legislation, according to the court majority. But the Australian constitutional requirement that the federal government pay "fair and just" compensation for acquisition of land could create such a right, according to some lawyers. While state governments face no such requirement, the Racial Discrimination Act 1975 may create compensation rights for state extinguishment of native titles after 1975.
Ironically, the crown's "radical title" rests on another legal fiction — that the monarch really owns all land and only grants certain tenures in return for services to the crown. The court said that this relic of feudal times had to be upheld because it is an "essential principle of our land law".
The court's firm statement on crown sovereignty appears to have convinced two outspoken Aboriginal lawyers/activists that future attempts to get justice from Australian courts will be a waste of time and money.
"The court refused to follow precedent on the issue of terra nullius for to do so would be to maintain a legal fiction based on political convenience. Yet the very same convenience was relied on by the judges to shut the door to any Aboriginal hopes for arguing Aboriginal sovereignty in the
courts", writes Michael Mansell in an article in the Aboriginal Law Bulletin.
Mansell, who heads the controversial group which calls itself the "Aboriginal Provisional Government", believes that the Mabo decision "gave an inch and took a mile".
After Mabo, Paul Coe, from the National Aboriginal and Islander Legal Services Secretariat and the NSW Aboriginal Lands Council, believes:
"The only way Aboriginal people in this country are ever going to receive justice is when we become subject to international law ... We will not be subject to the domestic law of this country because they can decide the parameters of that law and decide how and when they will apply it to us."
At present only member states of the United Nations have standing before the International Court of Justice, but human rights activists from several countries have been working on ways to create direct or indirect access for indigenous people who have been denied rights. Their hope centres on the deliberations of the Working Group on Indigenous People, a subcommittee of a UN body working on new human rights conventions.
However, even if indigenous people do get some access to international courts, the enforcement of international law has been very uneven and one-sided. The powerful western nations and their friends and allies assume a licence to ignore international law when it suits them.
But while one might be sceptical about the prospects of indigenous rights activists in international law, the Mabo case illustrates that international laws and conventions do have some persuasive value in the High Court of Australia.
The court recognised that international law is a "legitimate and important influence on the development of common law" and referred to the decision by the International Court of Justice in its 1975 Advisory Opinion on Western Sahara which pilloried a legal determination by the former Spanish
colonial authorities that land inhabited by nomadic tribes was terra nullius. The Optional Protocol to the International Convention on Civil and Political Rights, to which Australia is a signatory, was also cited as an influence.
New and old agendas
Despite the limitations of the Mabo decision, there are many people who believe the case has put Aboriginal land rights back on the national agenda.
Sydney lawyer and former High Court researcher Mark Gregory believes that the great value of Mabo will not be as a precedent for future litigation but as a mark of a "paradigm shift in the underlying legal and moral assumptions of European colonisation".
It is the lateness of this shift that may have partly embarrassed the federal Labor government into talking about Aboriginal land rights once again. The fact that land rights had to be put on the federal government's agenda (just before the International Year of Indigenous People) by the High Court hardly does credit to a Labor government which came to office a decade ago promising national land rights legislation.
The Hawke government dropped its (already watered-down) draft legislation in 1985 in the wake of a big propaganda campaign by the mining companies. An independent report on the resulting public "backlash" against Aboriginal rights recommended that the government conduct a public education campaign, but it was ignored and kept secret. A far too outspoken National Aboriginal Congress, chaired by Rob Riley, was promptly disbanded.
The Aboriginal rights movement had to claw back ground by itself through large campaigns around the bicentenary of European colonisation and the issue of Aboriginal deaths in custody. But even the new pressure brought to bear by these movements and the damning evidence of the Royal Commission into Aboriginal Deaths in Custody failed to halt the mining lobby's campaign against land rights.
The mining companies have begun a campaign that has a sickeningly familiar ring. Rob Riley, now executive officer of the Aboriginal Legal Service of Western Australia, remembers the advertising campaigns run by the mining industry in 1984-85. They appealed to prejudice and bigotry, he says.
The mining companies claim that recognition of native title may discourage investment in mining ventures. But Riley argues that the recognition of native title in Canada in the 1970s did not cause an exodus of mining companies and developers. Native title has been recognise by United States courts since the 1830s.
"Multinational companies like BHP, CRA and the governments in North America have been obliged to negotiate with indigenous people on this basis. What's so different about Australia?", asks Riley.
Meanwhile the anti-land rights lobby is exaggerating the Aboriginal land rights gains flowing from Mabo despite contrary advice from its own lawyers. A paper prepared for the WA Chamber of Mines and Energy by the legal firm Arthur Robinson & Heddericks concludes:
"It is likely ... that the mainland Aboriginal groups, seeking to establish native title based on the principles of Mabo will not have such an easy task of proving a traditional connection with the land or occupation in accordance with their traditional laws and customs."
But the paper also warned that Aboriginal groups "now have the opportunity to delay natural resources projects by asserting native title to land".
This power is also recognised as a powerful bargaining chip by lawyer Frank Brennan, who has been advising several Aboriginal groups on Mabo.
"It will not be necessary for Aboriginal groups claiming native title to obtain a court declaration to such effect. Enjoying those rights, they can simply assert them here and now. It will then be for the state to challenge the existence of those rights in legal proceedings", according to Brennan.
So the mining companies and pastoral interests have also approached the federal government for action. They are also aware that Mabo showed that attempts by state governments to extinguish native title could fall foul of the federal Racial Discrimination Act (1975), as did a 1985 attempt by the former Bjelke-Petersen government of Queensland to pre-empt Mabo through legislation. So they are putting some pressure on the federal government to amend the Racial Discrimination Act and take other action to contain Mabo-style actions, a handful of which are already being prepared.
Recently the Keating government has turned up the volume of its vague promises of "reconciliation" with the Aboriginal people. A Council for Reconciliation was set up in September 1991 but so far has produced only meetings and a few glossy pamphlets. Earlier this month, NSW magistrate Pat O'Shane described it as a "very, very expensive gabfest".
Now "reconciliation" has been given a front seat on Keating's grand republican campaign wagon. A special group on the subject has been set up in the Prime Minister's Department and has met with mining industry representatives. On April 27 it met with a selected group of Aboriginal leaders. The details of this meeting have been kept secret, though the secrecy and Keating's restricted invitation list are the subject of controversy among Aboriginal activists.
Some activists from the southern states say they were deliberately excluded in an attempt to split the Aboriginal voice and sew up a quick deal which might benefit only a minority who may be able to prove ongoing traditional ties and occupation of land. Others say that Aboriginal groups present at the meeting presented a series of claims that addressed the needs of all Aborigines.
There was a call for a national land claims process, to avoid a costly and anarchic spate of Mabo-style court cases. Minister for Aboriginal affairs Robert Tickner has since called for a moratorium on native title land claims until federal negotiations are completed in September.
If a national claims process is restricted to the narrow basis for native title recognised in Mabo, this will be a backward step. The Woodward Royal Commission which preceded the NT Land Rights Act 1976 and the more recent Royal Commission into Aboriginal Deaths in Custody both recognised the inadequacy of land rights based solely on continuing traditional ties to land.
Because the basis of the oppression of Aboriginal people is the systematic dispossession of their land, any fair land rights settlement cannot be restricted to groups with continuous occupation. Land rights claims on the basis of need should also be recognised, both royal commissions concluded. But the judges in Mabo never even considered this.
In this sense, the Mabo decision assists the Keating government to continue its tactic of divide and rule in Aboriginal affairs, discriminating between "traditional" and "non-traditional" Aborigines.