Easter rising: The Rwandan genocide 25 years on

“When I came out, there were no birds, said one survivor who had hidden
throughout the genocide. There was sunshine and the stench of death.”

Introduction to Leave None to Tell the Story

I don’t get much time off at Easter but I’ve always enjoyed the time. Four days off is a reasonable time to plan something, whether a resurrection or a holiday.  I like it too as a moveable feast whether it is the spring of the north or the autumn of the south. One Easter I decided I needed to understand why the massacres in Rwanda happened. And so 13 years ago an Easter that started as a holiday for me changed into something else.  I decided to lock myself away and devour a dry Human Rights Watch 900-page explainer in the Easter of 2005 to see if I could understand why. I had printed it off in the office, on two sided-copy four pages up, still 100 sheets of dense A4 reading to get through, when the weather was probably nice outside.

But what I wanted, weather could not provide. 2005 was when I no longer wanted to work in IT but hadn’t yet figured out what to do. So I learned widely. Through a love of history, Aboriginal studies was the subject that compelled my return. What happened here when the neolithic era met European naval might and germs from Malaysia was inevitable, though the spoils less inevitably went to Britain. If the Arabs had worked out the Australian coast the same way they worked out the winds, it would have happened earlier. Or else China would have peeked up just over the horizon. But there remains no firm evidence of any European landing before the Dutch in Queensland.  There meetings set the tone and the template for European human behaviour over the next 300 years. It was a topic I would return to again and again. This is the unacknowledged theft of a continent and the categoric rejection that it was genocide that enabled it.

Around that time, Hotel Rwanda was released at the cinema in memory of the killing in that country just over a decade earlier.  It was the story of Paul Rusesabagina, the son of mixed Hutu/Tutsi parentage, caught up in the killing,  as a relatively powerful position of a conscierge in an exclusive white hotel.  The Hôtel des Mille Collines shared its name with the thousands of hills that dominated the capital Kigali but its picturesque setting belied astonishing violence. As the Europeans fled Kigali Rusesabagina turned the hotel into a refuge and the story tells how he and his refugees narrowly avoided the slaughter.

But a slaughter it was. Genocide was certainly possible in Australia in the 19th century,  it was possible in Europe in the 1940s and now we were seeing it was still possible in Africa 50 years later. No convention of human rights could stop it nor police nor courts.  The name of that report I began reading on Good Friday told the moral: “Leave None to Tell the Story”. The killers knew the more they killed, the less would be around to inform on them. Tens of thousands influenced by fear, hatred, promotion or money, made the choice to kill quickly and easily.

But that barely began to explain what was happening in Rwanda between April and July 1994. In Australia the battleground is identity politics (foolishly forgetting Australian politics has always been about identity). In Rwanda the battle was for real,  your identity could kill you. Over half a million people were killed either for being labelled a Tutsi or for being a Hutu who tried to protect Tutsis. Given Hutus grossly outnumbered in Tutsi in Rwanda, it was this latter action that spread widespread fear.

Yet it was a bogus distinction, they are the same people. Hutus and Tutsis had for centuries shared a single language, a common history, the same ideas and cultural practices. They intermarried, they looked alike. Today they are no longer different save arbitrary classifications based on birth.  The ancient kings of Rwanda were Tutsi and when the Germans, and then the Belgians ruled, it was convenient for the colonisers to keep the Tutsi elite and marked anyone Tutsi as an elite – as long as they kowtowed to European bosses. But when a gusty democracy was in the air in the Africa of the 1950s, the Belgians saw the numbers and switched sides. From independence in 1963 the Hutus ruled with implicit support of the French who replaced the Belgians as the regional hegemon. The French were happy to deal with a Hutu government and looked away while many Rwandan Tutsis were exiled or killed in the years that followed.

Long-term leader Juvénal Habyarimana was not easily identified as a Communist or capitalist so Rwanda was a powerful pawn in the Cold War, and tactically important to the east and west. Hutus still ruled Rwanda in 1994 but the collapse of the Soviet Union and a surge from a confident Tutsi-refugee army in Uganda (the Rwandan People’s Front or RPF)  threatened to change the balance of power again. Habyarimana was in power for over 20 years, increasingly unpopular and facing multi-party elections for the first time. He was increasingly useless to the west and like all unpopular leaders he played to far-right fear. He egged on a Hutu Power group, and drumming up hatred and suspicion of Tutsis by exaggerating the threat of the rebels.  State-controlled radio played a crucial role in getting that message out. Habyarimana backed up his talking with violence with several massacres of opponents in the years leading up to the genocide.

He had his supporters. As well as the loyalty of a large standing army, Habyarmina also trained up a young militia, some with guns, but mostly with machetes, and called them “Interihamwe”. Interihamwe was a Rwandan pun meaning “those who stand together” or in a more apt context, “those who attack together”.

Habyarimana had released a demon he could not control. He was growing weaker in his own organisation. There was no longer a Soviet Union to play off against the United States. Worse still the JPF was winning the war. Habyarimana agreed to a peace settlement on their terms. This antagonised Hutu Power who picked up the internal anti-Tutsi spoils. When Tutsis in next-door Burundi decided to overthrow its Hutu president for a Tutsi, Hutu Power decided to act in case Rwanda was next. It decided on large-scale massacres of Tutsis and “sympathisers” to derail the peace process and get the country behind them.

They started at the top. On April 9 Habyarimana’s plane, which he shared with Burundi’s new Tutsi president was gunned down near Kigali Airport killing all aboard. The culprit for this attack was never identified (nor the likely European support it received) but it left his lieutenants free to enact the planned massacre.

Enter Colonel Théoneste Bagosora. Bagosora led the Presidential Guard, other troops and militia in a murder frenzy of Hutu government officials and opposition leaders. The death spree created a power vacuum which Bagosora and his clique filled. The spread of the killing was tacitly condoned and other soldiers and militia also began systematically slaughtering Tutsi as well as Tutsi and Hutu political leaders across the country.  Within a day Bagosora’s government was accepted as fact by the army which was now on a war footing again, as the RPF had used Habyarimana’s death to launch another invasion.

The rest of the world looked away. The UN were ordered to withdrew to their posts leaving the local population at the mercy of assailants. Opposition forces appealed to the three colonial powers, France, Belgium and the US not to desert Rwanda. Bill Clinton’s US still smarting from their humbling experience in Somalia in 1993 did nothing. But all a joint European force of French, Belgian, and Italian troops did was evacuate the foreigners, and then departed. The Belgians were also cowarded into withdraw their troops from the UN peacekeeping force after 10 were killed in clashes with Hutu Power.

Bagosora recruited administrators and political leaders for the killing campaign, getting support first from Habyarimana loyalists and then from administrators and local leaders from the other parties who were predominant in central and southern Rwanda. By April 12 state radio stressed partisan interests must be put aside in the battle against the Tutsi enemy across the nation.

By April 17 the last few administrators opposed to the killing were removed and often killed.  Radio was used to ridicule and threaten those preaching calm. With no sign of foreign intervention the new government was ready to act. The processes were now in place. As well as the army, the administrators and the militia, a fourth movement sprung up dedicated to a “civilian self-defense” program which put a useful euphemism to the killing task.

Zeal to that task took on more significance than rank: subordinates could prevail over their superiors if they showed greater commitment to genocide. This encouraged ambition and initiative for those willing to trade in lives. In the early days killer systematically targetted opponents’ names and houses but this was not quick enough so a new strategy became driving Tutsi out to public sites, to be then massacred in large-scale operations. Towards the end of April, authorities sensitive to what little international condemnation there was, declared “pacification,” another dangerous euphemism. This was not an end to the killing but greater control over killing.

Like the Nazis the Hutu leadership was too distracted by genocide to ensure its own survival. By mid-May, the RPF were advancing through the country yet the genocide continued into its final phase: tracking down the last surviving Tutsi such as those hidden. or women and children who had been spared so far, or those protected by priestly or medical status. The rush was on to eliminate survivors who could testify to the slaughter.

But history is written by the winners. The RPF overthrew the Hutu leadership later that year and turned the country into a dictatorship under Paul Kagame. Many of the hardlines in the Interihamwe and military did what the Tutsi rebels did and continue the fight from exile. Some like Bagosora were caught and sentenced to prison but the majority slid back into obscurity. A few like Rusesabagina also stayed in exile because only there was it safe from Kagame’s wrath to say that Rwanda itself had not learned the lesson as it was subsequently turned into a nation governed by and for the benefit of a small group of elite Tutsis.

The rest of the world was culpable too, wary of interfering in a war-torn country with few resources and dependent on foreign aid. So no one cried “never again” and the conditions for massacre were allowed to fester. If there is a lesson from the Rwandan genocide to the Australian one it is that sometime in the future it will be denied that it ever happened.

On April Fools and fake news

My dodgied up 1859 map of Queensland. The border is accurate though there was no Mount Isa or NT at the time.

As is my wont at this time of year I published an April Fool’s story  on our North West Star newspaper website on Saturday April 1 . Headlined “Mount Isa to return to Northern Territory in border revision plan” it was a story by “Alan Border” purporting to reveal a plan seen by the North West Star where the westernmost part of Queensland from the Gulf to the South Australian border could return to the NT. Needless to say, the story was false. There is no such plan and those that followed the plan’s link in the story were rickrolled.

Many other details were false or invented. There is no journalist Alan Border. There is no such Professor “Hugh Jerar” (a huge error, surely, though I drag the good prof out regularly as a credible source each April 1) or is there any “Grating Institute”. There is no plan to rename Mt Isa to NT Isa and there is no constitutional crisis over Queensland’s western border (though the bit about the west being added to Queensland in 1862 three years after the rest in 1859 is true). The map we printed where Queensland’s step-like western border is turned into a straight line was semi-false – it was the original 1859 map but it was dodgied up (with five minutes of poor Paint skills). However the giveaway is Queensland and the NT agreeing to the proposal. It’s hard to imagine two governments agreeing on anything.

At the end of the day, I added an editor’s note. “Sorry/Not Sorry” it read, and a clarification. “This article was not written by the cricketer. He is ‘Allan Border’”. Our fake news was patently ridiculous but funny and while the serious tone (or reading the headline only) fooled some, almost everyone enjoyed the joke.

The grain of truth was the story of Queensland’s birth and how its border was revised in 1862. I’ve told that story on this blog before. It is based on the Peter Saenger book “Queensland’s Western Afterthought”. The trigger for Queensland taking the unclaimed land west of the 141st meridian was the search for the missing Burke and Wills in that region in 1861. The Queensland governor assured the Colonial Office his colony would protect settlers in the area as long as the western boundary was redrawn to include the Gulf of Carpentaria.

However I changed the 1859 map to show a fictional Mount Isa (it wasn’t founded until the 20th century) in an equally fictional “NT” (it was still part of NSW at the time). I believe it was this map shown the Facebook excerpt for my story that hoodwinked a lot of people who read no further.

However no more like that. Fake news is fraught with hazard especially in 2017. Last year Macedonian youths made a lot of money when they invented shocking stories to gain large advertising revenue. They were exposed within days but millions believed the fiction. Donald Trump profited from that fiction then turned fake news on its head when he attached it to media giving him a hard time. The fake fake news practice has quickly spread across the world as a way to dismiss news you don’t like. Even truth itself has become muddied by “truthiness” and “alternative facts”.

So despite a long tradition of newspapers writing April Fool stories, I was concerned how people might react to my deliberately false piece. Looking at the Facebook feedback I needn’t have worried.  One reader told me “I was really taken in by the border story! Whoever came up with this deserves a pat on the back. I love starting the day with a smile!” Many others were highly amused with many people picking out different favourite lines from the piece. There was hardly any negative remarks and even those who were fooled accepted their fate with good grace.

The story was shared over 300 times as people who got the joke then tried to fool their friends. There were those who while understanding the joke, still grappled with the issue: “If there are to be any border changes it should be new border along the Tropic of Capricorn to create the great state of North Queensland,” said one. Others though moving north west Queensland to NT was a good idea. Another said “It actually makes me sad this is fake”.

All in all, I’ll call it a viral success – at least in our remote part of the world. But it’s worth handling with care. I’ll stick to reporting the truth – at least until April 1, 2018.

Martin McGuinness is dead

Martin McGuinness 1950-2017. Getty Images

Former Northern Ireland Deputy First Minister Martin McGuinness has died, aged 66. Along with Ian Paisley, McGuinness was one of the two key figures in making the Northern Ireland Good Friday peace agreement work. The partnership of Paisley, a hard-line Unionist preacher and McGuinness, a former-IRA leader was unlikely but somehow worked in a relationship that was so friendly at the end the pair earned the nickname The Chuckle Brothers. These tribal warriors both surprised us as men of peace and brought the province back from the precipice of deadly conflict and made it boringly normal.

Born in Derry in 1950 McGuinness grew up in a city with a long history of sectarian violence. He was educated in Catholic schools but it was Unionists and the British that made him a republican not the Christian Brothers. Derry was predominately Catholic but ruled by Protestants in a gerrymander across provincial and local council boundaries. He spent school holidays on his grandmother’s small farm across the border in Co Donegal and the difference was palpable. “Even at a very young age, I could never understand why, when you went over that line, you were supposed to be in a different country,” he said in a 1998 interview. “Coming back to the North again was always like coming back under a big black cloud.” When aged 15, he was interviewed for a job in a Protestant-owned firm and he said it came down to two questions. “What’s your name? What school did you go to? And out the door.”

Derry Catholics suffered discrimination in other ways. They lived in crowded and inadequate housing and suffered massive unemployment. Decades of resentment blew up in the seminal rebellion year of 1968. A new breed of charismatic leaders like Bernadette Devlin and John Hume demanded change and universal civil rights. Derry was the focus of groups such as the Northern Ireland Civil Rights Association and the Derry Housing Action Committee aimed at fixing sectarian injustice. However many Protestants saw them as a front for republican organisations and many marches were banned. By the end of the decade tensions in Derry had broken out into violence with the 1969 Battle of the Bogside one of the key starting points of the Troubles. McGuinness, then 19, would later admit that Battle had hardened his republican attitudes.

McGuinness did get a job as an apprentice in a Catholic-owned butchery but butchery elsewhere convinced him his service lay elsewhere. By then he had joined the Provisional IRA though they were not very active in Derry. Most violence in the early days was between soldiers and stone-throwing youths. Matters escalated in 1971 when a British Army soldier was killed when his vehicle was petrol bombed in the Bogside. When two rioters were shot dead in July it was the cue for an IRA campaign in the city. The government introduced internment without trial in August 1971 directed almost exclusively against republicans and 21 people were killed in three days of rioting across Northern Ireland.

McGuinness worked his last day at the bacon counter on 8 August 1971. As internment began he went on the run rarely sleeping in the same bed twice. By 1972, he was second-in-command in the city as Bloody Sunday unfolded in the city. He always denied claims he was involved in bomb handling on the day and the 1990s Saville Inquiry found “he did not engage in any activity that provided any of the soldiers with any justification for opening fire”. Regardless “the Butcher’s Boy” gained notoriety while the Provos bombed Derry commercial centre methodically, with far less civilian casualties than Belfast.

McGuinness was never convicted of any offence in Northern Ireland but served time in the Republic. In 1973, he was convicted by the juryless Special Criminal Court, after being arrested near a car containing 110 kg of explosives and 5000 rounds of ammunition. Like many republicans, McGuinness refused to recognise the court but declared his membership of the Provisional IRA : ‘We have fought against the killing of our people… I am a member of Óglaigh na hÉireann and very, very proud of it”. He was sentenced to six months imprisonment at Port Laoise.

He claims to have left the IRA when he was released in 1974. He joined the IRA’s political wing Sinn Fein eventually becoming its best-known face after Belfast boss Gerry Adams. He was elected to the Northern Ireland Assembly at Stormont in 1982. He did not take his seat but was involved in irregular contact with the British government. As the war dragged on towards an unsatisfactory stalemate the Army used its intelligence unit to infiltrate the IRA in Northern Ireland but the Republicans continued to have success with its operations on the British mainland. The bomb with the largest economic impact was the 1992 attack on the Baltic exchange in the City of London. Three people died but the £800m damage bill eclipsing by £200m the entire damage of the conflict to date and raised the prospect of devastating the British economy. The British made coded messages to the IRA that if they were prepared to call off the violence, anything might be possible.

In 1997 McGuinness was elected to Westminster as the MP for Mid Ulster and in April the following year he was Sinn Féin’s chief negotiator in the talks that led to the Good Friday Agreement, ending years of violence. Following its agreement he was nominated by his party for minister for education in the power-sharing executive. Suspicions between republicans and unionists dogged the new body with many talks failing. However when McGuinness helped secure IRA arms decommissioning in 2005 a significant roadblock to peace was achieved. His success helped him lead negotiations during talks that paved the way for the 2007 St Andrew’s Agreement. It resulted in the restoration of the Northern Ireland Assembly, a new Northern Ireland Executive and Sinn Fein’s support for the Police Service of Northern Ireland, courts and rule of law.

In May 2007 McGuinness became deputy first minister of Northern Ireland, with former Democratic Unionist Party leader Ian Paisley elected first minister. While the disagreements about the status of Northern Ireland never went away, the pair forged a remarkable partnership successfully bringing investment and business confidence back to the province and a sense of optimism.  When Paisley died, McGuinness held back the tears as he said “Over a number of decades we were political opponents and held very different views on many, many issues but the one thing we were absolutely united on was the principle that our people were better able to govern themselves than any British government.” McGuinness, like Paisley, proved to be just as astute in peace as he was in war.

Saving the Great Artesian Basin

gab-mapOne of Australia’s greatest hidden gifts to the life that colonised it is an enormous water resource far below the ground. Spanning four states and territories over a fifth of the continent and continuing out into the Gulf of Carpentaria it is the Great Artesian Basin, and is the largest and deepest artesian water basin in the world. In some places it does resemble a basin, but it is mostly solid rock with water stored in the pores.

The GAB’s water is ancient, falling as rain or leaks from rivers west of the Great Dividing Range over a million years ago. That water takes a slow journey of one to five metres a year percolating through cracks in sandstone sheets (aquifers) held together under pressure from the impermeable stones (aquitards) above and beneath. As well as heading roughly west the water also trickles down under gravity.

Over time water is stored in vast quantities. It emerges to the ground naturally under pressure through springs and geological faults. Native plants and animals relied on springs in parched landscapes, particularly in the south-west where the Basin is shallower. Humans arrived on the continent 50,000 years ago and quickly fanned out to every corner. It is likely they swiftly found this precious resource. Burial sites 20,000 years old showed evidence of trading posts alongside artesian springs. Use of bore water dramatically increased with the arrival of Europeans into central Australia.

The first bore in 1878 found water 53m below the surface at Killara in north-west New South Wales. Within ten years, substantial finds were made at Cunnamulla and especially Barcaldine, both in Queensland. The Barcaldine bore pumped 700,000 litres a day unleashing a drilling boom and pastoral settlement in the central west. By 1900 there were more than 500 bores in the Basin thought it wasn’t easy to find water and not all were successful.

Enough reliable water was pumped out to support 120 towns and hundreds of properties in Outback Australia. Initially the pastoral industries took the most water but more recently water release by oil and gas has caught up. Mining of copper, uranium, coal, bauxite and opals also depends on water, much of it artesian, while tourist spas are also an intensive user of Basin water.

Human activity will unlikely ever dry up the Basin. In 120 years of bores about 0.1 percent of the total water was extracted from the Basin. But what it has done is lower the pressure declining the flow of water, sometimes by 80%. A third of bores have stopped flowing altogether. The springs have been severely damaged by excavation, stock and humans while exotic pests degrade the area around springs.  Early bore technology was flawed too with many leaking and most were uncontrolled in their discharge of water, and 95% of the water ended up into open drains.

Diminishing flow was recognised as early as 1912 when New South Wales introduced licensing of bores and eventually vested groundwater to the state. They also brought in bore construction standards. In 1990 governments agreed on a Great Artesian Basin Sustainability Initiative (GABSI) to cap and pipe bores. Across Australia capping programs rehabilitated free-flowing bores and replaced drains with pipes but the majority of the 3000 uncontrolled bores and 34,000km of open drains remain in place.

A Strategic Management Plan was put in place in 2000 and agreed by the Council Of Australian Governments.  But just like the Murray Darling (river) Basin plan,  the issue of licences and multiple jurisdictions means the issue is inescapably political. The jury remains out on the impact of the extraction of large use of water for mining, especially coal seam gas mining.  Graziers have to be convinced capping and piping will help them decrease their operating costs as well as increasing the pressure of the water and the reliability of its supply.

In Queensland the GAB is managed by a 10-year-plan which expires in June this year. Queensland’s government wants to cap and pipe all its uncapped bores and bore drains in the next 10-year cycle. It is, as the government policy maker I spoke to told me, “an aspirational target” but it helps show the state is serious about the problem. The new draft plan (now out for community consultation) allows for action if a licence holder fails to comply with conditions.

There are estimated to be more than 25,000 bores tapping the Queensland GAB, taking 315,000 ML a year. A diagram from the draft plan I saw at a Mount Isa community meeting showed that in 2016 around 90,400 ML was accounted for in losses through seepage and evaporation from uncontrolled bores and open bore drains. This exceeds the amount extracted by stock and domestic of 66,000 ML and the oil and gas industries 64,000 ML with other uses accounting for 93,000 ML.

Since 1989 almost 1000 bores have been rehabilitated under government-funded program but an estimated one in five uncapped bores in Queensland remain untreated while 28% of bore drains have yet to be replaced with pipelines. Under the plan all stock and domestic water users will be required to deliver water through water-tight delivery systems by the time the plan expires in 2027. Stock and domestic licences that permit free flowing bores or bore drains will require a bore management plan outlining what steps will be taken to deliver a water-tight delivery system.

The future of the Great Artesian Basin is exciting if it is managed properly. GAB water has a future as an energy source. Birdsville already has a geothermal power plant and other towns such as Winton are looking to copy it. It will make water available for future development and social and cultural activities that depend on water, including for the aspirations of Indigenous peoples in native title areas. It is crucial it is not destroyed in the same way humans are destroying Australia’s other natural wonder: the Great Barrier Reef.


Pixilated: A night at the Pixies in Brisbane

When I was planning a long weekend in Brisbane, I asked my up-with-the-music-pulse mate Muddy were there any interesting bands playing the city that weekend. Well, he said, the Pixies are playing the Thursday night and a few mutual friends were going. That was enough for me. Though not a huge fan, I did have a Pixies album in my collection (admittedly it’s a “best of” but whatever,). I was also aware of their reputation as one of the most influential bands of the 90s, though I missed them at their peak. Importantly there were still tickets available and with my credit card still smoking from the cost of the flights from Mount Isa, I forked out another $100 there and then to join the fun.


The gig was on in the Riverstage, a new venue for me and on the Thursday night the meeting point was the Buffalo Bar before a pleasant walk through the Botanical Gardens. Just outside the Riverstage venue was this Polo with the personalised plates “Pixi35”. The car was empty but we presume there was a big fan nearby somewhere.


Then it was inside the venue which was far from packed on the night. The venue holds 15,000 but there was only 3000-4000 or so inside. Yet the queue for the bar was a mile long so it was a dry concert for us. The other annoying fact was the 10pm curfew, crass stupidity imposed by Brisbane City Council. Given there are no homes for at least 500m in any direction, perhaps they are worried we’d keep the fruit bats awake. Dumb.

pixies11I took a photo on my phone of the foursome I went with but Muddy and Hugh have disappeared into the gloom while JD is visible but engrossed in his phone. That made the photo all about Joe, who at least looks happy to be here.


Muddy and I took a spot towards the front. Hugh claims they were only a row or so behind us, but that’s a quantum difference in moshpitness. In any case, it’s lights on and excitement building as the band is about to come to the stage around 8.15pm.

pixies7Finally the band take the stage and blast into their set without too much formality. As the Brisbane Times reviewer said, the Pixies don’t leave time to draw breath with 28 songs in 90 minutes. And it wasn’t long before I was dancing along with their pounding rhythm. The other comment I made to Muddy was that I like a band that does the old-fashioned thing of putting their name on the drums.pixies10

Singer and lead guitarist Black Francis didn’t interact much with the crowd preferring to let the music do the talking for him. I was surprised how many songs I knew Veloria, Where is My Mind, Monkey’s Gone to Heaven, Here Comes Your Man, Debaser and finishing up with Into the White. Plus several more I’ve forgotten.


Paz Lenchantin has been the bass player since 2014 replacing original female bassist Kim Deal. She was ace and sang a couple of songs too.pixies6

The Pixies were wrapped up and encored out by 9.45pm (at least plenty of time to find another pub). Wouldn’t rush to go back to see them again but they have a great catalogue and entertained with their performance. They were a tight outfit on stage and the drummer/bass combo was top notch. Yeah Blank Frank’s bantz was a disappointment but there is an undoubted aura of something special.


For a far more musically considered take on the Pixies – and better photos – check out Muddy’s blog piece with links to other reviews. While I admitted took it a bit for granted on the night, reading the reviews reminds me of their importance in the scheme of things and it was a privilege to watch them play.  When I got back to Mount Isa and told people I was at a big concert in Brisbane on the weekend, the usual response was, “oh, did you enjoy Adele?”


The Bengal Lion

Dev Patel  in a scene from the Australian film Lion

I hate to admit it but I shed tears while watching the new film Australian film Lion. I’ve always hating crying at the movies ever since I was kid and used to laugh at my mum when she cried at the drop of a hat in any emotional scene of a movie, no matter how silly the premise. “Stop it, you” she would say to me while drying her tears, her anger at me betrayed by a smile. Mum has been dead ten years now but I remembered her and her tears as I watched the first meeting of a man and his mother in 25 years at the end of Lion. I was annoyed at myself, knowing full well my emotions were being played on by the filmmakers but like my own mother all those years ago, I could not help myself. My eyes are capable of betraying me again at the memory the following morning.

Lion tells an incredible true story and it has been turned into one of the best Australian films in years. Saroo Brierley was born in 1981 in a small village near the Central Indian city of Khandwa. His father had left home and the desperately poor family relied on the money his mother made from carrying rocks from a quarry. Saroo’s older brother Guddu supplemented their income by stealing coal from trains to sell for food and would take the five-year-old Saroo with him on adventures. One night Guddu and Saroo travel to a nearby city on a train where Guddu earned money working as a sweeper. The pair get separated and Saroo falls asleep on a train. When he wakes up his brother is gone and the train was moving.

Saroo could not escape from an empty locked cabin and his calls for help at stations at were unheeded. After two days the train ended up in faraway Calcutta – 1500km from Khandwa. At the station Saroo escapes into the throng but is lost in a strange city where no one speaks his native Hindi. Sleeping rough, he narrowly avoids being kidnapped at night into child slavery and according to the film he meets a woman who befriends him and takes him home (in real life it was a male railway worker) .

But Saroo becomes suspicious of her intentions when she invites a man over who checks him out and he distrusts their promises to help him find his family. Saroo escapes once more until he befriends a man, who takes him to the police station. The illiterate Saroo tells police he from “Ganatelay” but no one knows of a place of that name.

Saroo is placed in an orphanage but ads in the Calcutta paper fail to locate his family. Eventually he agrees to be adopted by a Tasmanian couple and he flies alone to Tasmania, where the Brierley couple played by Nicole Kidman and David Wenham take him home. They fill his life with love so he is happy though he is affected by a second Indian adoption into the family a year later. The second boy is less happy and practises self harm but they get on with life regardless.

The timeframe moves forward from the late 1980s to 2008 when Saroo Brierley is now an Australianised young man, played by Dev Patel. Saroo moves from Tasmania to Melbourne to learn hotel management and becomes involved with an American student (Rooney Mara). They are invited to a meal at the house of an Indian couple where the sight of traditional Indian food stirs long hidden memories in Saroo. He tells them his story of travelling two days on a train to Calcutta and all he can remember is a train station with a water tank. Someone suggests he work out how fast Indian trains travelled in the 1980s and to use Google Earth to find his home.

It was a massive undertaking but it was a search that was to obsess Saroo. Working out in a 1500km radius from Calcutta he finally found landmarks in Google earth that matched his childhood memories: a waterfall where he played as a boy, the quarry where his mother worked, a train station with a water tower and a town called Ganesh Talai. This was his hme town he garbled as “Ganatelay”. From memory he followed the route to where he believed his house was and knew he had found his home.

In 2013 Saroo flew to Ganesh Talai. To his disappointment the old house was long abandoned and turned into an animal compound. With his Hindi long forgotten, he had difficulty making people understand his quest. Finally he told an English-speaking local he was born here and the man took him to meet an old woman. It was Saroo’s mother, who instantly recognised her son. The proof was a bump on the head from a long-forgotten accident when he was run over by a bike while carrying a watermelon and the melon smashed against his head.

After many tears of happiness (theirs and mine), Saroo asks about his older brother. he was dead, he was told. There were tears of sadness soon replaced with more tears of joy when his mother told him a younger sister was still alive. The film closes with the real Saroo bring his real Tasmanian mother to India to see his real real Indian mother. The end credits tell three important facts. Firstly Saroo’s brother Guddu died the night he went missing, after being struck by a train. Secondly Saroo’s mother never gave up hope of finding her other boy and deliberately stayed in the same village so that she would be easy to find. Lastly, Seroo found out that not only did he pronounce the name of the town wrong, he also pronounced his own name wrong. He was Sheru, not Saroo. In Hindi Sheru means Lion.

The New Yorker was right to say the second half of the film was a slow and muted affair after “the Dickensian punch of the first” but the story of Saroo’s disappearance and rediscovery remains remarkable. It also throws necessary light on the fact that over 90,000 children go missing in India each year, something authorities prefer to ignore, with public officials complicit in the problem.  According to children’s rights group Bachpan Bachao Andolan 10 times that number are trafficked, and forced to beg or work in farms, factories and homes, or sold for sex and marriage. The tears of Lion are nothing compared to the thousands of innocent young lives destroyed every year for profit.


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.