Mabo and 25 years of Native Title

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

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

Native title, the idea of some form of lease prior to European arrival, was established in other settler countries. The landmark decisions of US Chief Justice John Marshall in the 1820s and 1830s laid the path for native title and treaties in  New Zealand and Canada. But no case in Australia succeeded until Mabo. The 1971 Gove case came close – a legal failure but a pioneering land rights case never appealed to the High Court. What existed was the 1836 New South Wales Supreme Court proposition no law existed in the colony before 1788. That was upheld by the Privy Council in London in 1889 (a decision Justice Lionel Murphy called a “convenient falsehood” in 1979) and wasn’t an issue 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 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 led to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which recognised traditional rights to land in the Territory.

In Queensland the authoritarian 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” by updating the Land Act 1910 (Qld). Torres Strait Islanders led the charge against that move. About 5000 people live in the islands with 500 on the far eastern island of Mer (renamed Murray Island by white newcomers). Rich volcanic soil allowed Meriam residents to do gardening. The gardening had 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” and featured prominently in evidence.

Mer was too far east to be in Cook’s 1770 claim of possession of eastern Australia. Between 1872 and 1879 the Torres Strait Islands were annexed to Queensland by Whitehall and Brisbane, with Thursday Island the administrative centre.  Because this was later than the mainland the Islanders had fewer destructive influences though the Queensland system affected all aspects of island life. In the first year, Christianity arrived with the London Missionary Society. For 30 years their violent evangelical Christianity profoundly impacted Meriam practices. The arrival of the LMS “The Coming of the Light” is celebrated every July 1, which Queensland used in court to argue Meriam customs had vanished with traditional rights to land.

First Government Resident John Douglas was appointed in 1886. When he died in 1904 control passed to the Aboriginal Chief Protector. The Protector’s powers were established under the 1897 Protection Act subjecting islanders to the same restrictive controls as mainland Aboriginal reserves.

In the 1930s Meriam people went on a three-year strike for better conditions ended by the arrest of island ringleaders. A new Torres Strait Islanders Act 1939 vested local control in councils but maintained the repression of prior laws and Queensland “native” departmental control. By-laws made offenses of fornication, adultery, “message-carrying” and domestic squabbling, with penalties including fines, imprisonment and banishment from the island. The Department established “birth-to-death” cards with an ongoing record of most aspects of person’s life. In court Queensland used its knowledge of Eddie Mabo through these cards to great effect to attack his character.

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

Eddie Mabo was born on Mer on 29 June 1936. His mother died five days later and Eddie claimed he was eventually adopted by her brother Bennie Mabo. When Bennie and his wife died without offspring, Mabo claimed to inherit his land under Meriam custom and tradition, a claim contested by his cousin and adoptive sister and eventually denied him at the trial. Mabo seemed set for a good life on the island, educated in Meriam lore, traditional land management, Christianity and traditional beliefs. But in 1956 he pleaded guilty to an offence against community by-laws which led to fights with Meriam leaders. Mabo left, first to Thursday Island 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.

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

Aboriginal and Islander groups contested the government’s plan to allow trustees to lease DOGIT areas to outsiders. 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 Meriam land 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. The Mer delegates agreed to take a Gove-type case to the High Court. This was about land rights and not about independence or sovereignty.  They knew other cases found sovereignty not justiciable in an Australian court.

In 1982 five plaintiffs came forward to represent the Meriam group: Eddie Mabo, his elderly aunt Celuia Mapo Salee, brothers Dave and Sam Passi and Councillor James Rice. They handed a 32-page statement of claim to the High Court based on relevant facts, law and detailed testimony about gardening and fishing activities. They served proceedings 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 Queensland 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. It included an affidavit sworn by Patrick Killoran, Director of Queensland’s Aboriginal Affairs department. Killoran claimed the “former modes of life” of Meriam people were “fundamentally and irrevocably modified by outsiders”. The plaintiffs counter-applied to have the case immediately referred to the full High Court for hearing. Neither application succeeded and the parties compromised on an agreed statement of facts and questions of law 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, one of many attempts 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”. Queensland’s lawyers amended their case to rely on the new act as a complete defence to the action.

The plaintiffs issued a “demurrer” proceeding to have the High Court declare the Act unconstitutional. Their grounds were 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”. None of these arguments succeeded. Remaining under High Court jurisdiction, the matter was referred to the Queensland Supreme Court in 1986 to establish findings of fact.

Justice Martin Moynihan opened the case in late 1986 with the plaintiffs suffering blows of illness of judge and lawyers, the death of Mabo’s aunt and the withdrawal of the Passi brothers from the case. That left Mabo and Rice as plaintiffs. When Mabo gave testimony Queensland’s objections as “hearsay” were so frequent it broke the flow of evidence and the judge deferred 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. That was more persuasive. Mabo described the 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 as Mabo (No 1). There was another directions hearing which left the matter of evidence in Moynihan’s hands but established some traditional evidence was valid. Ten days later Moynihan decided to “let it all in and rule at the end”, to let the 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 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 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. But did English common law recognise pre-existing traditional land rights when introduced into the Straits in 1879? That was 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 were relieved 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 the 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.” The court did not accept Queensland’s assertion it could not be re-examined by re-assessing historical facts.

Queensland’s lawyers said “they were instructed” (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 nonetheless existed and made decisions signed off by the government. The hearing lasted three days with 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. It was an important decision which meant native title interests must be dealt with on an equal footing as all other equivalent property rights.

Preparation for Mabo (No 2) was helped by a successful Native American rights case Guerin, in the Canadian Supreme Court in 1984. However having done little for seven years the Commonwealth suddenly hardened 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, 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 descendant of traditional leaders and and he claimed the title “Aiet” which the state said was a personal name. It 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. His description of gardening on the island was a system that looked like land law.

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

The following morning Moynihan J opened court at the community hall calling it an “historic occasion”. He said being there helped him understand the evidence about Murray Island, its people and culture. The court heard 11 witnesses and then moved to Thursday Island for another five witnesses. Meriam evidence touched on 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. Encouraged by events, Dave Passi applied to be re-admitted as plaintiff though brother Sam stayed out due to costs fears. 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 any rent. 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 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.” It 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 was a recognisable system of law.

Among the Brisbane witnesses was Meriam elder Henry Kabere, a close friend of Rice and a source of traditional knowledge. Kabere told a story his grandmother told him of a gunship that landed with the LMS in 1879, which fitted the plaintiff narrative the area was colonised by conquest not settlement. Kabere testified the Island Courts used Malo law in 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 said the Malo precepts were a system with “fairly simple principles” but it was “in the majority of cases, effective”.

The plaintiffs withdrew part of its claim for Eddie Mabo on July 3 based in the fact they could not prove he was a leader. Queensland began its defence the same day. Queensland denied the existence of traditional rights to land, and even if they did exist they were extinguished by 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 “terrifying”.

Queensland’s most significant witness was former DAIA director (1964-1985) Patrick Killoran. He ran a secretive and defensive government agency exercising total control of Indigenous lives in Queensland. Killoran spoke extensively of the paternalistic administration and tendered the social history cards that governed islander lives. He avoided concessions that might preserve native-title rights using obfuscation and irrelevancies. Killoran dismissed the Island Court as “minor stuff” and would not concede 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 dismissed Mabo’s adoption calling it “shuffling of kiddies” to get the maximum child benefit payment.

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 vast changes”. Queensland produced a lengthy document disputing the facts which had to be replied to before the judge produced his own fourth version of each numbered fact in his Determination.

Oral submission began in September 1989. Queensland argued the island court records showed 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”.

Moynihan’s 497-page Determination of Facts was handed down in Brisbane November 16, 1990. The key chapter was on Murray Islands Society and Land which the High Court focused on rather than individual claims. Moynihan J acknowledged the islanders’ strong relationship to their islands saying “they have no doubt that the Murray Islands are theirs” later relied on by one of the High Court judges. Moynihan noted 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 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 was what happened to traditional rights on annexation.

The biggest difficulty the plaintiffs had in trial was determining whether the claims were individual or communal. This encouraged Queensland to claim Moynihan’s findings were inadequate to allow legal argument to proceed. Queensland had problems too, its argument no ordered system of land tenure survived annexation did not impress the judges. They accepted Moynihan’s Determination possession existed under an identifiable system. Deane J asked Queensland if the Islanders were trespassers after annexation. 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 stressed they had protected the Islanders on a reserve for their benefit.

Queensland mentioned the Irish case of Tanistrywhere 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 Marshall’s American judgement in Johnson v McIntosh gave the sovereign power 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 “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 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 on provable customs and traditions – native title – which was not extinguished by British sovereignty in Australia or the introduction of common law in 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. This decision saved the commonwealth, states and grantees from Indigenous claims of invalidity and compensation.

Mason CJ later said terra nullius was not central to the decision nor was there any challenge to British sovereignty. He also denied the court was influenced by Henry Reynolds’ 1987 book The Law of the Land. The 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.”

This judgement made Mabo important for all Australia’s Indigenous people. Any group who exhibited systems of custom and tradition had rights and interests in their traditional country. Deane and Gaudron JJ described 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 disagreed. 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 national crisis provoked by Mabo arose from the challenge some saw the decision posed to Australia’s sense of self. Its enduring legacy was the Keating government’s 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 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 claims still before the court as of 2010. The legislation’s success has been agreement-making with 470 Indigenous Land Use Agreements signed off by 2010, using native title for 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 roads and services.

But the law remains, as Justice Michael Kirby said in 2002, “an impenetrable jungle of legislation” 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 help the Indigenous cause.