Mabo and 25 years of Native Title

Bryan Keon-Cohen (suited) with the Mabo case plaintiffs in 1989.

With Native Title changes in the news again, it seems timely to look back on the 25th anniversary of the Mabo High Court case that started it all. In 1992 a High Court case was heard for a group of remote Torres Strait Islanders that would have profound impact on land law in Australia, indeed in all settler nations.  The case, known as Mabo for its most well-known plaintiff, built on a rich judicial heritage to establish native title in Australia. The story that follows is a greatly condensed summary of Bryan Keon-Cohen’s A Mabo Memoir” with the author being one of the lawyers for Mabo and his fellow plaintiffs in a case that lasted 10 years.

The landmark decisions of US Chief Justice John Marshall in the 1820s and 1830s established the modern doctrines followed in New Zealand and Canada that recognise native title but no case in Australia succeeded until Mabo. Mabo was built on the Gove case of 1971 which was a legal failure but a pioneering case never appealed to the High Court. The 1836 New South Wales Supreme Court proposition that no law existed in the colony before 1788 was upheld by the Privy Council in 1889 (a decision Justice Lionel Murphy called a “convenient falsehood” in 1979) and was never debated or challenged in the constitutional debates of the 1890s.

In the Gove case (Milirrpum v Nabalco) the Yolgnu people of Arnhem Land argued the common law recognised pre-existing traditional rights to land founded on prior occupation, customs and traditions, enforceable even after British colonisation. Justice Blackburn decided no such doctrine was known to Australian law “for want of authority to support it” though he admitted customary laws were a recognisable system of law. The case did eventually lead to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which recognised traditional rights to land in the Territory.

However in Queensland the Bjelke-Petersen government went in the opposite direction proposing to remove the minimal protection of Aboriginals and Islanders to reside on lands gazetted as “reserves” under the Land Act 1910 (Qld) and it was the Torres Strait Islanders who led the charge against that move.

About four to five thousand people live in the Torres with less than 500 on the western island of Mer (renamed Murray Island by the white newcomers). Rich volcanic soil allowed Meriam residents to do gardening with associated customs and traditions, which became the core of the Mabo case. Cultivation of bananas and yams was associated with a local cult called “Bomai-Malo” which featured prominently in evidence.

Mer was not included in Cook’s 1770 claim of possession of eastern Australia. Christianity arrived with the London Missionary Society one hundred years later and over 30 years their violent evangelical Christianity profoundly impacted Meriam practices. The LMS arrival “The Coming of the Light” is still celebrated every July 1, a fact Queensland used to argue Meriam customs had vanished along with traditional rights to land.

Between 1872 and 1879 the Torres Strait Islands were annexed to Queensland through instruments issued by Whitehall and Brisbane, administered through Thursday Island. This late arrival meant Islanders were subject to fewer destructive influences than the mainland though the Queensland system soon affected all aspects of Islanders’ life. The first Government Resident John Douglas was appointed in 1886 and when he died in 1904 control passed to the Aboriginal Chief Protector whose powers were established under the 1897 Protection Act making islanders subject to the same extensive and restrictive controls as those on mainland Aboriginal reserves.

After a three-year strike on Mer in the 1930s was ended by the arrest of island ringleaders a new Torres Strait Islanders Act 1939 vested some local control in councils but maintained the repression of prior laws and Queensland departmental control. By-laws established offenses such as fornication, adultery, “message-carrying” and domestic squabbling, with fines, imprisonment and banishment from the island for “offenders”. The Department established “birth-to-death” cards which contained an ongoing record of most aspects of person’s life, cards which were used to great effect to attack Eddie Mabo in the court case.

In 1980-81 the Bjelke-Petersen government decided to repeal the 1939 act, revoke island reserves and introduce Deeds of Grant in Trust (DOGITs) in their place. This was Joh’s attempt to head off land rights, but this decision helped trigger the Mabo case. 

Eddie Mabo was born on Mer on 29 June 1936 but his mother died just five days later. Mabo claimed he was eventually adopted by her brother Bennie Mabo. When Bennie and his wife died without producing offspring of their own, Mabo claimed to inherit his land under Meriam custom and tradition, a claim hotly contested by his cousin and adoptive sister and eventually denied at the trial. Mabo was educated in Meriam lore, traditional land management, Christianity and traditional beliefs. In 1956 Mabo pleaded guilty to an offence against the community by-laws which contributed to his alienation from Meriam leaders and he left the island first to Thursday Island and then to the mainland. In 1959 then a 23-year-old labourer at Halifax he married 16-year-old Bonita, a descendant of Kanakas from Vanuatu.

Mabo became involved with Indigenous organisations in Townsville and established a Black Community School there in 1971. Working as a gardener at James Cook University he began researching his background and discovered that under Australian law he did not own his traditional land at Mer.

As the Bjelke-Petersen rammed through its DOGIT legislation it was opposed by Aboriginal and Islander groups who contested the autonomy of trustees to lease DOGIT areas to outsiders. Eddie Mabo and Noel Loos organised a lands rights conference in Townsville in 1981 where Mabo spoke about traditional land ownership on Mer. Reverend Dave Passi also spoke of his ownership of Meriam land which he said was threatened by the DOGIT system. The conference discussed a possible High Court challenge which Barbara Hocking of the Melbourne Bar said might prompt political action even if unsuccessful. A group of Mer delegates decided they would take a Gove-type case to the High Court.  This was purely about land rights and not an issue of independence or sovereignty. Other court cases had found sovereignty not justiciable in an Australian court. 

In 1982 five plaintiffs representing the Meriam group (Mabo, his elderly aunt Celuia Mapo Salee, brothers Dave and Sam Passi and Councillor James Rice) handed a 32-page statement of claim to the High Court based on relevant facts, law and the detailed testimony about their gardening and fishing activities with proceedings served against Queensland and the Commonwealth. A fact-finding trip to Mer uncovered records of a 1913 sale of a block of land by an Islander to Queenslander for use as “Jail House, Court House and Recreation Reserve” and also a Murray Island Community Council and Court which operated from the 1890s.

In August 1982 Queensland issued a summons to strike out the claim as not worthy of consideration accompanied by an affidavit sworn by Patrick Killoran, Director of Queensland’s Aboriginal Affairs department. Killoran claimed the “former modes of life” of Meriam people was “fundamentally and irrevocably modified by outsiders”. The plaintiffs counter-applied to have the case heard immediately referred to the full High Court for hearing. Neither application succeeded in court and the parties compromised on an agreed statement of facts and questions of law to be presented to a single High Court judge. After two years however, Queensland agreed to none of the facts making a complex and lengthy trial inevitable.

A 1984 directions hearing achieved little other than a Queensland request for the plaintiffs to amend the statement of claim, an attempt to bury them in paperwork. But with Queensland’s legal options dwindling the Bjelke-Petersen government decided to pass legislation to stop it dead. Claiming the case challenged Queensland’s annexation of Mer (it didn’t), the government passed the Queensland Coast Islands Declaratory Bill 1985 to vest the island in the Crown and free it from “any right, interest or claim that the occupants of the land may have claimed to have existed prior to annexation”. Once passed, Queensland’s lawyers amended their case with new material which relied on the new act as a complete defence to the action.

In response the plaintiffs issued a “demurrer”proceeding designed to have the High Court declare the Act unconstitutional. Their grounds were that the 1985 parliament could not retrospectively change the meaning of the 1879 law, Queensland did not have the power to pass laws to extinguish traditional land rights, and it did not address the Commonwealth-controlled “reefs and seas”. However in the end they succeeded only because the law was inconsistent with the Racial Discrimination Act 1975. Remaining under High Court jurisdiction, the matter was referred to the Queensland Supreme Court in 1986 to establish findings of fact.

The first phase of the trial under Justice Martin Moynihan came in late 1986 with the plaintiffs suffering blows of illness of judge and lawyers, and the withdrawal of the Passi brothers from the case (with Mabo’s aunt now dead that left just him and Rice as plaintiffs). Queensland’s objections to Mabo’s testimony as hearsay  were so frequent it broke the flow of evidence and the judge decided defer all rulings on admissibility until the end of the evidence. Moynihan ruled Mabo’s witness statement inadmissible meaning his lawyers had to rely solely on oral evidence. Mabo did describe the legend of octopus-shaped Malo who designated the eight tribes into eight distinct parts of the island with inheritance passing down the eldest male line.

The court adjourned until early 1987 but was abandoned when the plaintiffs convinced Toohey J to hear the demurrer in the High Court in what would become known as Mabo (No 1).  There was another directions hearing which left the matter of evidence in Moynihan’s hands but established that some traditional evidence was valid. Ten days later Moynihan decided to “let it all in and rule at the end”, in other words let High Court decide on admissibility, a decision the plaintiffs supported and Queensland did not appeal.

Mabo (No 1) was served in the High Court in March 1987 with a directions hearing in April. The parties agreed that if the demurrer failed the case would be over but if they did strike down the Declaratory Act the trial must continue. A full High Court was scheduled to hear the demurrer case in 1988. That allowed enough time to study the case history of “terra nullius”. Australian law was based on the Privy Council 1889 case Cooper v Stuart about English law relating to estates and had nothing to do with Indigenous people in colonies. The question did English common law recognise pre-existing traditional land rights when introduced into the Straits in 1879 would be the core question in Mabo (No 2).

Mabo (No 1) was almost undone on Day 1 when J Gerard Brennan admitted his son Jesuit priest Frank Brennan was an adviser to Aboriginal people but the plaintiffs breathed a sigh of relief when he was not asked to disqualify himself. The plaintiffs argued the Queensland Act was inconsistent with Commonwealth laws especially the 1975 Racial Discrimination Act. Queensland argued native title was extinguished in 1879 when, according to Queensland’s Solicitor General, “there was a peaceful annexation of people who were, at the time, thought to be uncivilised and who were thought not to have an organised society with an established system of law.” However the court did not accept Queensland’s assertion it could not be re-examined by re-assessing historical facts.

Queensland’s lawyers told the court “they were instructed” (which was code for “they would rather not say this”) there was no record of any by-law approving the island courts. The plaintiffs replied the court did exist and it made decisions which were signed off by the government. The hearing lasted three days and then there was a nine month delay for the outcome.

The case succeeded 4-3 with Justices Brennan, Deane, Toohey and Gaudron agreeing the Declaratory Act was racially discriminatory. The Mabo (No 1) decision meant the claim could continue though whether it would succeed remained open. It was also an important decision for native title as it meant those interests must be dealt with on an equal footing as all other equivalent property rights. 

Preparation for Mabo (No 2) helped by another development, a successful Indian rights case Guerin, handed down by the Canadian Supreme Court in 1984. However having done little for seven years the Commonwealth now hardened its interest in the case’s offshore claims and threatened another demurrer case about proprietary rights on the high seas. After two and a half years the Brisbane Supreme Court trial resumed in front of Moynihan J in May 1989. Queensland used its detailed and intrusive knowledge of Islander family details to undermine Mabo’s testimony especially about claimed inheritance and adoption. 

Mabo disputed records that showed him returned to his birth father in 1947 however Moynihan J preferred the written record over Mabo’s evidence. Queensland undermined his testimony to be a descendent of traditional leaders or “Aiet” which the state showed was a personal name, a fact that contributed to the judge disbelieving Mabo’s testimony about his own interests. But while Mabo’s personal claim was jeopardised his evidence on the system was untarnished and compelling.  For the plaintiffs’ case it was the recognition of the system upon which rights and interests were founded that was the critical question for the High Court.

On May 22, the court moved from Brisbane to Mer so Mabo could point out the boundary-markers. They arrived in the middle of an industrial dispute with island municipal garbage collectors on strike forcing Mabo and his supporters to cart rubbish away on a Sunday so the judge would not see the mess. On the first day Mabo showed a mound of rocks to the court which he said were boundary markers and the court visited the nearby island of Dawar which had an area of claim of plaintiff James Rice.

The following morning Moynihan J opened court at the community hall calling it an “historic occasion” and he said sitting there helped him understand the evidence about Murray Island, its people and culture. The court heard 11 witnesses and then moved to Thursday Island where another five witnesses were heard. Meriam evidence touched on aspects of customs and traditions of land and sea, ownership and stewardship, and boundaries and Island Court disputes. It also revealed islander opposition to plaintiff claims, especially Mabo’s on account of him leaving the island many years ago. However encouraged by events in Mer, Dave Passi applied to be re-admitted as plaintiff though brother Sam stayed out due to fear of costs. Dave Passi’s readmittance was critical as Moynihan’s Determination would later show, because only his claims had a factual foundation solid enough to proceed to the High Court.

Another significant moment came in July 1989 when the plaintiffs dropped the claim against the “outer seas” outside the jurisdiction of Queensland which dismissed the Commonwealth from the proceedings. Evidence concluded in Brisbane with the testimony of Rice and Passi. Rice was a retired school teacher, an island councillor and an Assembly of God official who supported Mabo’s territorial claim but denied Mabo was an island leader. Queensland claimed Rice was subject to a tenancy agreement but Rice could not recall ever paying anything to anyone. Anglican minister Dave Passi was the final witness. Passi said his ministry was influenced by traditional custom “Malo’s Law” which he said was a “law of preservation of land, soil, trees”. Passi said he could see God sending Malo to the island “to prepare the place for the Coming of the Gospel.” For Passi the ancient Bomai-Malo cult with its laws of Malo and the LMS Coming of the Light in 1871 fused together in one philosophy. His oral testimony of how land was transferred by the Passi clan was the clearest display of traditional landholding arrangements and when asked how he “inherited interests” to his land, he replied “I am a Passi. I am born into it, and I am born into the ownership of the land.” That ownership did not extend to the women. “If my sister wants to use the land, she may use it, but will not own it.” It was patriarchal but it did establish to the court it was a recognisable system of law.

Among the other witnesses in Brisbane was Meriam elder Henry Kabere, a close friend and supporter of Rice and a huge source of traditional knowledge. Kabere described a story his grandmother told him of a gunship that landed with the LMS in 1879, which fitted the narrative of the plaintiffs that the area was colonised by conquest not settlement. Kabere also testified the Island Courts used Malo law in their decision-making, including island adoption of extended families members. Expert witness Dr Jeremy Beckett, who studied on Mer, agreed most social interaction on the island was based on kinship. Dr Beckett also agreed the Malo precepts were a system with “fairly simple principles” but it was “in the majority of cases, effective”. It was also the only thing the LMS did not try to suppress or affect the rules and regulations.

On July 3, the plaintiffs withdrew part of its claim for Eddie Mabo based in the fact they could not prove he was a leader, the same day as Queensland began its defence. Queensland denied the existence of traditional rights to land, and even if they did exist they were extinguished by the extension of sovereignty in 1879. Nor, they said, was Mabo adopted by Benny Mabo and had no right to Benny’s land. Their historical evidence included the infamous exhibit 80, 42 massive bound volumes of archival records and the whole of the Island Courts record, (which suited the plaintiffs but the judge called it “terrifying”.

Queensland’s most significant witness was former DAIA director (1964-1985) Patrick Killoran.  Reportedly close to Bjelke-Petersen, his Department ran as a secretive and defensive government agency exercising almost total control of Indigenous lives in the state. Killoran spoke extensively of the paternalistic administration of island life and tendered the social history cards that governed all aspects of islander lives.  The thrust of his evidence under questioning was to avoid any concessions that might preserve native-title rights using obfuscation and irrelevancies. Killoran dismissed the Island Court as dealing with “minor stuff” and would not conceded it fixed land disputes on traditional island principles. Even where evidence was found of a government land payment for a kindergarten in 1968, Queensland claimed this was an ex-gratia payment to keep Islanders quiet and comfortable. Killoran said it was Crown land and the word “purchase” in the correspondence was merely “intended by my Department to be a convenient shorthand method of referring to those persons’ loss of use of the land concerned.” Killoran also dismissed Mabo’s adoption calling it “shuffling of kiddies” to get the maximum child benefit payment.

On completion of the evidence Moynihan J asked for written submissions on “the crunch issues” – the existence and nature of “the system”. The plaintiffs submitted 150 pages drawing an analogy with the common law system as it evolved over 500 years. “Few of its details are the same… Yet we have no difficulty in dealing with the system as a continuity over such a vast period, and despite such vast changes”. Queensland produced a lengthy document in reply disputing the facts of the case which had to be replied to before the judge produced his own fourth version of each numbered fact in his Determination.

Oral submission then began in September 1989. Queensland argued the island court records showed little about a system with no reference to Malo’s Law. It said Britain did not recognise native custom in the Torres Strait Islanders in 1879 because there was no system in place “to deal with the problems of administration”.

Justice Martin Moynihan’s 497-page Determination of Facts was handed down in Brisbane on November 16, 1990. The key chapter was on Murray Islands Society and Land which the High Court focussed on rather than the individual claims. Moynihan J acknowledged the islanders strong sense of relationship to their islands saying “they have no doubt that the Murray Islands are theirs” which was later relied on by one of the High Court judges. Moynihan noted the knowledge of boundaries and the shame of trespass were cultural attitudes “rooted in the pre-contact past”. He rejected the plaintiff rights to the reefs and reef flats ruling out the tidal zone from the high-water mark. He also rejected Mabo’s claim of adoption and therefore his personal land claim.  However he agreed the plaintiffs’ traditional rights and interest in land founded on Meriam customs and traditions had survived in legally recognisable form.

Neither side appealed the Determination and the case proceeded to the High Court for final appeal. The common law precedent standing against the plaintiffs was a Privy Council decision on 1889 Cooper v Stuart which purported to confirm the legal assumption underpinning colonisation: Australian colonies were settled not conquered by Britain and the doctrine of terra nullius (land belonging to no one) applied. However while terra nullius provided legal and policy context, it was rarely mentioned in court. Mabo was set for a three-day hearing in May 1991 (and took four), a lengthy time for the High Court and an indication of its importance as a test case. The key issue would be what happened to traditional rights on annexation.

The biggest difficulty the plaintiffs had in trial was in determining whether the claims were individual or communal which encouraged Queensland to claim Moynihan J’s findings were inadequate to allow legal argument to proceed. However Queensland had problems too, its argument no ordered system of land tenure survived annexation did not impress the judges. They accepted Moynihan’s Determination that possession did exist under an identifiable system.  Deane J asked Queensland’s team if the Islanders’ status was trespassers after annexation. And after some squirming they admitted Gaudron J’s point “the native population could have lawfully been driven into the sea”. This was not a good look for Queensland which had stressed the state had protected the Islanders on a reserve created for their benefit.

Queensland mentioned the Irish case of Tanistry, where land held under the Tanistry tenure was inherited by the deceased eldest son. The state argued this custom was abolished by the introduction of the English Common Law to Ireland, as were the customs and traditions of Mer in 1879. Queensland also attempted to show that Marshall’s American judgement in Johnson v McIntosh gave the sovereign power free right to terminate right of occupancy.  When challenged by Brennan J this was not an “enabling doctrine” for the common law, Queensland’s solicitor-general Geoff Davies reluctantly agreed that “unfortunately the position seems to have been very much in those days that might was right and that those who controlled the country determined what the rights were”.

Following the hearing Eddie Mabo was diagnosed with cancer and his health declined rapidly. He died in Townsville on January 21, 1992. After his grave was vandalised by unknown offenders his family eventually re-buried him on Mer. His death left just two plaintiffs Dave Passi and James Rice to face the High Court judgement on June 3, 1992. Five judgements were delivered, two joint decisions, two separate decisions by Brennan and Toohey JJ (all supporting the plaintiff) and a dissenting decision by Dawson J. Brennan J’s was regarded as the most comprehensive and influential judgement. The six assenting judges agreed the common law recognised an enforceable traditional property right based on provable customs and traditions – native title – which was not extinguished by British sovereignty in Australia or the introduction of British common law in each of the colonies. However being a subsidiary of the ultimate title of lands vested in the Crown at the time of colonisation, native title could be extinguished or impaired by subsequent Crown acts especially in the granting of fee simple titles or commercial leases to settlers. At a stroke this decision saved the commonwealth, states and grantees from Indigenous claims of invalidity and compensation.

Mason CJ later said the doctrine of terra nullius was not central to the decision nor was there any challenge to British sovereignty. He also denied the court was influenced by writings of Henry Reynolds, especially in his 1987 book The Law of the Land. The central question was whether native title was recognised by the common law at the colonisation of a “settled” country to which the answer was “yes”. He said settlement was appropriate, because “the indigenous inhabitants were regarded as barbarous or unsettled, and without a settled law.” However Brennan, Deane and Gaudron JJ rejected terra nullius as outmoded and unacceptable. Brennan J said it was unjust to characterise pre-colonial Australian inhabitants as “people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.”

It was this judgement that made Mabo so important not just for Torres Strait Islanders but also Australia’s Aboriginal people. Any group who exhibited systems of custom and tradition had rights and interests in their traditional country. Deane and Gaudron JJ reached into Australian colonial history to describe Governor King’s 1804 actions on the Hawkesbury River as the “first stages of the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame”.

While the Australian’s editorial (January 26, 1993) applauded the decision as common sense saying “European settlers did not occupy a country free of inhabitants”, others were less measured. Historian Geoffrey Blainey claimed the decision could “turn Australia in two separate nations” while Victorian premier Jeff Kennett said “back yards were at risk” (they weren’t). Most hysterical was Western Mining chairman Hugh Morgan who claimed the High Court pandered to “the guilt industry” and gave substance to the “Bolshevik left for a separate Aboriginal state”.

Historian Bain Attwood argued the sense of national crisis provoked by Mabo arose from the challenge some saw the decision posed to Australia’s sense of self. But its enduring legacy was the Keating government’s legislative response. The Native Title Bill 1993 initially had three elements; native title legislation, an Indigenous land acquisition and management fund, and a “social justice” package which never saw the light of day. The land acquisition fund was operated by the Indigenous Land Corporation and by 2009 had acquired 222 properties in a land area of 5.7 million hectares.

States followed with their own legislation but the Native Title Act was substantially amended by the Howard government’s Ten Point Plan in 1998 following the Wik decision. Deputy prime minister Tim Fischer infamously claimed those changes provided “bucket loads of extinguishment” and indeed validly extinguished native title for thousands of land interests granted by the Crown since 1788. It also restricted the “future act” regime stopping claimants from negotiating terms with miners on claimed land prior to resolution of the claim.

From 1994 to 2010 indigenous groups made 1556 applications for native title covering 13% of Australia’s land mass with 458 of those claims still before the court as of 2010. The real success of the legislation has been agreement-making with 470 Indigenous Land Use Agreements signed off by 2010, using native title for community purposes such as energy facilities, health care centres and gas pipelines. The people of Mer negotiated an ILUA in 2010 to permit the building of a new primary school and associated roads and services.

But the law remains, as Justice Michael Kirby said in 2002,  “an impenetrable jungle of legislation” that was difficult to navigate.  In 2008 Rudd minister Jenny Macklin delivered the Mabo lecture where she highlighted three areas for reform: the complex and slow claims processes, inadequate representation for claimants, and the flow of payments to claimants and native title holders. Political will remains lacking to make these necessary changes happen. It is unlikely current changes before parliament will in any way help the Indigenous cause.