No native title in Brisbane


In 2017 a long running Brisbane legal battle was ended with “good news for developers”. Two separate cases for native title over the city of Brisbane were finally defeated at appeal in the Supreme Court. As someone with property in the Brisbane area, it should be good news for me personally, though it’s a decision I greet with sadness.

In 2004 I bought an apartment in Wooloowin – more properly Lutwyche, though the difference between the two is one of property values. I was aware of the difference between Lutwyche and Wooloowin, and chose to call my address the latter, but I was unaware and unconcerned about the history of the land on which it stands or any native title aspect of my strata title.

Yet Aboriginal people used to live in this area in large numbers. A 1930 Brisbane Courier article on Lutwyche noted that “blacks” used to frequent the area in large numbers camping on the Kedron Brook and holding corroborees in the area. Though the Courier couldn’t avoid judgement: “no little trouble was caused the earlier white residents by these even earlier residents. For sheer devilment a party of blacks would sometimes gather around the doorstep of a house, singing and making the night a tragedy by their music; while if they knew that the master of the house was away they would sometimes force an entrance and demand food and tobacco.”

No mention was made about the trouble the early white residents caused to those “even earlier residents”, a tragedy even greater that the music. It is a tragedy ongoing with the Turrbul and the neighbouring Yugara now having their native title appeal claim to Brisbane denied by the Full Court of the Federal Court. The Turrbul or Brisbane tribe owned the country as far north as the North Pine River, south to the Logan River, and inland to Moggill Creek. The Yuraga or Jagera populated a wide area from Brisbane to the ranges at Toowoomba.

The Turrbal people lodged their original claim in 1998 and the Yugara people in 2011. The combined claim area covered the bulk of the Brisbane metropolitan area. It didn’t help there were two separate claims but they both failed this year.

In a judgement handed down July 25, Justices John Reeves, Michael Barker and Richard White dismissed separate appeals filed by Desmond Sandy, Ruth James and Pearl Sandy on behalf of the Yugara-Yugarapul People and by Maroochy Barambah for the Turrbal People. The State of Queensland, Commonwealth of Australia and the Moreton Bay Regional Council were respondents in the Yugara action, lodged in April 2015, and the State of Queensland, Commonwealth of Australia and the Yugara group were defendants in the Turrbal appeal, filed in August 2016..

The Turrbal People claimed they were direct descendants of an Indigenous man called the Duke of York in the early settlement days while the Yugara said the Turrbal People were a sub-group of the Yugara. In 2015 Justice Christopher Jessup found the Yugara had not demonstrated that any of their ancestors were present in the claim area at sovereignty and the Turrbal People had failed to prove they were descended from the Duke of York.

The findings ended any hope of any native title over Brisbane, as the Appeals Court agreed with Jessup neither the Turrbul nor the Yugara People could demonstrate they were biological descendants of those who lived here “at sovereignty’ or a society who had continued to observe traditional laws and customs. While the Court acknowledged settler actions likely contributed to this interruption of connection, there was “longstanding authority” in finding that the “explanation of forced removal … is not directly relevant to the continuity finding”.

As Clayton Utz lawyers said the decision brought “certainty for infrastructure proponents and other developers” in Brisbane however it doesn’t mean those proponents and developers can ignore Aboriginal interests.

All land users have a duty of care to take reasonable and practicable measures to avoid harm to Aboriginal cultural heritage, regardless of native title. Compliance with the “cultural heritage duty of care” typically requires consultation with the applicable “Aboriginal party”.  Where there are no current registered native title holders or claimants for an area, the Aboriginal party will be the claimant for the last of the registered claims over the area to have failed. Ordinarily, a former registered claimant will be replaced by a new registered claimant over the same area but the negative determination over Brisbane means the current Aboriginal parties (Turrbul and Yugara) cannot be replaced.

The Aboriginal Cultural Heritage Act 2003 (Qld) provides for Aboriginal parties who aged and die to be succeeded by the members of their old native title claim groups.  How this succession will work in practice if the old claim group becomes become dysfunctional ‒ is an emerging issue. As Clayton Utz says “legislative, judicial or policy guidance will be required.”

That aside, the determination shows, as the lawyers involved in the Mabo case have said the bar is set too high on native title. As the Westender noted after the original 2015 trial, the Brisbane determination indicates the high level of difficulty involved in proving an ongoing connection between the native title claimants and the land since sovereignty, especially where there has been widespread urbanisation or agricultural development.


Remembering the impact of the Queensland Native Police

Qld Native Police 1863

When I think of the many reasons why Australia needs to negotiate with its Indigenous inhabitants, they are all buried in Australian history. Many would like those memories permanently buried, but on Remembrance Day we cannot allow this.

The first Australians came here before there was even a thing called Australia. Where they landed was Sahul, a continent that linked New Guinea with mainland Australia and the island of Tasmania. Their earliest landing sites are long gone buried under the rising shore of warmer times but evidence now suggests a human presence of 68,000 years. They spread across Sahul rapidly – the earliest identifiable human outside of Africa was found in far western New South Wales.

New Guinea and Tasmania eventually split away from Australia but all three had cultures that survived millennia and shaped their environment through adroit use of fire – even Tasmania with a population of just 5000 souls succeeded.

But it was to Queensland where the largest number of people came, attracted by its mostly favourable climate and its rich food sources. White people didn’t land here in numbers until the 1830s. “They are doing nothing with the land and we want it” was their belief but with numbers favouring Aboriginal people, it wasn’t immediately obvious they would get what they want. It wasn’t until advanced weaponry of the 1840s and 1850s that the Europeans began to win the war.

Authorities in Sydney turned a blind eye to the violence on the frontier, speading homilies about British law while enabling Squatters to take “vacant” country. Matters worsened with the separation of Queensland in 1859. Newly penniless authorities in Brisbane had a good reason to sell Aboriginal country as the only thing they could make money from. They had a vested interest in crushing resistance.

Attitudes were hardened by two events just before and after separation.  One was the killing of 11 settlers at Hornet Bank in the Upper Dawson in 1857 and the other was the killing of 19 of the Wills party at Cullin-la-Ringo near Springsure in 1861. The Frazers at Hornet Bank were well known for their interference with Aboriginal women while at Cullin-la-Ringo there was evidence of abduction of two local boys. But these causes were overlooked amid cries of trusting the Aborigines too much and righteous fury about “black savages”.

Both massacres prompted massive revenge sprees, in number well beyond 11 or 18. Few lived to tell the tale. Gordon Reid’s history on Hornet Banks suggest native police and armed settlers killed between 150 to 300 Jiman people. At Cullin-la-Ringo a reprisal gang killed every adult black they found in a 100 mile radius. Settlers killed with impunity. No justice was brought to bear,  and the frontier pushed further west and north.

Yet it was not enough to make settlers feel safe.  That was the job of Native Police. Native Police forces (usually a group of three to eight Indigenous people led by a European officer) were used at Hornet Bank and across the Australian colonies in the 19th century.  Their need came with the expansion of British control of Australia in the 1840s developing from rough convict patrols.  Indigenous Troopers were often recruited at the point of a gun. It was the Empire’s divide and rule tactic to use Native groups with no loyalties to other groups. They enjoyed many important advantages including familiarity with the terrain, and had less medical problems in tropical areas. They were also were paid less and were expected to camp in the open during operations and feed themselves.

They dispossessed Aboriginal people everywhere but nowhere was their impact as great or as long-lasting as Queensland. Yet on this day commemorating military history, no one has heard of them. It is no surprise Jonathan Richards’ defining history of Queensland’s Native Police is called The Secret War. Even in 2017 it remains mostly a secret. Yet the Queensland Native Police were, as Richards says “the symbol of Native policy, invasion and dispossession throughout the second half of the 19th century.”

They were always known as murderous force but the Queensland Native Police survived into the 20th century despite the fury because it suited their employers. They were a successful military enterprise. By quelling resistance on the frontier, they increased the government’s land values.

The Native Police were police in name only,  more properly a “special forces” unit with a specific purpose to suppress Indigenous resistance to colonisation.  The Native Police had the advantage of horses and better firearms while efficient postal and telegraph systems allowed the smooth transmission of orders.

Many officers were former army men from other parts of the Empire and its old boy network ensured many were never punished for misdeeds, up to and including murder. Because the force operated on the frontier it was constantly on the move, westward and northward. Over four decades, the Native Police barracks mapped the moving front.

The official view was that the Native Police operated in response to Aboriginal attacks in “unsettled” areas. In 1872 Colonial Secretary Arthur Palmer claimed the Queensland government “had never followed a policy of extermination” but this was a blatant lie, exposed by newspapers of the era. In 1868 the Burketown correspondent reported casually that “everyone in the district is delighted with the wholesale slaughter dealt out by the native police and thank Mr Uhr (sub inspector of native police) for his energy in ridding the district of fiftynine (59) myalls.”

Energy was one way to describe it, another way was “terror”. Retribution was more practical than prevention. Commanders deliberately terrified and intimidated Aboriginal people with violence and threats, backed by gunfire. Robert Orsted-Jensen’s book Frontier History Revisited (2011) estimated around 11 people died in each “dispersal”.

Long term police commissioner David Seymour claimed their tactics were justified against ferocious fighters though his call to his officers to report full details of every “collision” was mostly ignored. Words like “collisions” and “dispersals” were euphemisms designed to forget that lives were involved.

Many people despised the Native Police, but the main supporters were settlers in remote areas who believed, as Charles Bradley in Bowen did in 1871, that “the Blacks were more dangerous and daring” without police presence. By then the frontier had moved to the northern goldfields and miners were just as determined as settlers to ensure Aboriginal people did not get in their way. With open warfare at the Palmer River goldfield near Cooktown, the Native Police were powerless, other than assisting with revenge parties whenever a white person was killed.

Elsewhere it was collision after collision, safe in the knowledge that as a regional paper said, “You will never get a jury to bring in a verdict of murder for the killing of a black”.  Police admitted little details about their operations, though one officer told an Inquest some people “asked for trouble”.  Top brass turned a blind eye they were breaking British law on the frontier every day.  Settlers, miners and police all knew indiscriminate killing was wrong, so it had to be hidden.

As late as 1897 Native Police commissioner WE Parry-Okeden argued the force was still needed. In a report to parliament called “North Queensland Aborigines and the Native Police” Parry-Okeden wrote it was “a well known fact,  that the only control possible to be obtained at the outset and maintained over wild or uncivilised blacks is by the exercise and exhibition of superior force.” That force, he said, could only be applied by people “they recognise as capable of competing with them in their own tactics, tracking, bush cunning, lore or living”. Of course, white discipline was always required. “I reiterate that a strong well-officed Native Police detachments constantly patrolling among them are absolutely necessary,” he concluded.

It was the end of resistance a few years later that made those patrols unnecessary. The black trackers were rolled into the regular Queensland police while the native force was quietly forgotten. The Native Police was an inconvenient reminder of Queensland’s previous poverty.  But it had done the work of its masters and the Aboriginal people had been defeated. Many were killed, while survivors would be mopped up into reserves at Barambah (Cherbourg), Mappoon, Yarrabah, Woorabindah, Palm Island and other places. Queensland now mostly did belong to the whitefellas.

Noel Loos estimates 10,000 Aboriginal people died in the frontier conflict in Queensland, about half the total number of Aboriginal dead in frontier Australia. The monuments to them are few and far between.

At the going down of the sun and in the morning, we should remember them.




Why it is the right time to close the Uluru climb

Uluru from the air. Photo: Wikipedia

The news this week that the traditional owners of Uluru are closing the climb up the ancient monolith has unsurprisingly been greeted with a lot of criticism and disappointment, but is the right decision.

David Ross, the director of the Central Land Council, described the decision as “righting a historic wrong”.

“This decision has been a very long time coming and our thoughts are with the elders who have longed for this day but are no longer with us to celebrate it,” Mr Ross said.

The decision to close was a long time coming. Senior traditional owner and leader Sammy Wilson said the sacred rock was “not a theme park like Disneyland” and his Anangu people felt as if they had a “gun to their heads” to keep the rock open.

The arguments were that tourism would suffer if they did, and in the past that might have been true.

I visited Uluru once, back in 2002, and I have to admit I climbed the rock.

I saw the signs around put up by traditional owners asking people to respect their culture and not to climb, but for better or worse I ignored it.

The view was certainly astonishing from the top but on the way down I realised there was another reason they wanted the climb closed – it was bloody dangerous.

You are working against gravity and the ropes disappear while you are still an unsafe distance above the ground, leaving you carefully picking your steps and hoping a sudden gust of wind doesn’t upset your balance. I was never so glad to be on the ground. Thirty people have died in recent decades, a fact which deeply distresses the site’s traditional owners.

The number of climbers has halved in recent years from 40 to 20% as more people (myself included) understand the deep spiritual significance of the rock.

It is equivalent to abseiling inside a cathedral without permission and it is right it will be closed.

It certainly won’t stop people enjoying this truly awe-inspiring godly place.

The decision to close the climb is good news from Uluru, unlike the rejection of the Uluru Statement by the Malcolm Turnbull government without any consultation or discussion. They should hang their heads in shame.

My North West Star editorial, Saturday November 4, 2017.

Roslyn Choikee’s Stolen Generation story

md22459445391For almost ten years, right-wing columnist Andrew Bolt has claimed the Stolen Generation is a myth. “Show me three of them?” was his common taunt, but it was a taunt that showed more about his ignorance and his lazy journalism than the truth. The data shows thousands of people caught up in the system over many decades, mostly so-called “half-castes” which the ill-guided theories of the time believed were best kept away from the influence of their parents. They left hundreds of testaments scattered in the record.

One of those was from Aboriginal woman Roslyn Choikee. I learned her story today in Mount Isa city library. I had been there a few times before but never noticed they had a tray of books about Indigenous issues. I picked Jonathan Richards’ The Secret War, an important book about the Queensland Native Police I’d read before and one I hadn’t read before Stuart Rintoul’s 1993 book “The Wailing – A National Black Oral History”.

It is as the title suggests, a collection of Indigenous testimony of people that lived through the 20th century. Nearly all faced hardship of some kind but some stories were less clear cut than others, such as Roslyn Choikee.  I was interested in her story because she was born in Cloncurry,  near Mount Isa, and I typed out her testimony for an article for the paper.

Yarrabah on Mission Bay in 2017. Photo: Derek Barry

Her story was simple but not straight forward. It was both terrifying – she was stolen from her parents aged six – and satisfying – because she had a happy childhood and a good life by the shores of Mission Bay, regardless. She became a happily married Christian on the coast, and never missed her home. It helped she landed in Yarrabah on Mission Bay near Cairns. Yarrabah was established as a Christian mission for Aboriginal people in 1892. Many people like Roslyn were forced to go there. But it remains a beautiful spot nestled between the sea and the mountains. Seven decades later Roslyn was still there, aged 77, when in the sunshine of a July afternoon she told her story to Rintoul on a stone veranda at the Yarrabah home for the aged. Her happiness didn’t justify an appalling system but it showed the resilience of people to adapt to whatever life throws at them.



Choikee: “I come from Cloncurry. I was taken away from my parents in 1920. I was six years old. I didn’t know what was happening when I came to Yarrabah. It was good schooling here. We used to go down to the beach and get shells. That’s how we learned to count, with shells or with seeds at that time. We had a good teacher. She was a dark girl, a big girl, a senior girl. We had senior room, intermediate room and junior room. When you came to Yarrabah, if you came big they would put you in the intermediate room and if you came small, like my age, you would go into the junior room.”

Rintoul: Do you remember what happened the day you were taken away?

“The policeman took us to the police station, me and some other girls. But the two girls who were with me there went to Cherbourg, and they’ve passed away now, those girls. They sent me here to Yarrabah. I liked Yarrabah: Yarrabah is a pretty place. I never got homesick here, because I found a lot of nice little girls the same age as my age.”

You didn’t miss your parents?

“Oh yes. Now and again I missed them, but here at Yarrabah we had too many mates. Go to school, come back, play.

“We were living on a reserve at Cloncurry – a little dark people’s reserve. That’s all right too. We used to go to Boulia to see the rodeo when I was a little girl. That’s where I saw buck-jumping. A bullock-wagon used to take us from Cloncurry to Boulia. That was a bridle track then. They say it’s a big bitumen road now.

“I won’t go back because there is nobody there now. My cousin’s son went back there two years ago to look around and there’s not one of our friends there, not one Aboriginal in the area that was there. They don’t know where they shifted them. We never heard nothing and they never heard about us.

“All the half-caste children were taken away at the time and sent to different missions. Some of them went to Barrambah (Cherbourg), Palm island, here. I was sent here to Yarrabah. My father was a white man and my mother was a dark woman, you see. They weren’t married. I didn’t know about marriage till I came to Yarrabah. They were good though. They helped them and they helped us children too. They took us to Boulia now and again. The white men used to just come around. I was too young to know what was happening when they would come around to visit us. We didn’t go to the town part at Cloncurry. We would just stay down where the Aboriginal reserve was. We had tents and humpies, no houses.

“I never heard nothing about my mother from the day I was taken away, no more. But when I came to Yarrabah I was happy here and I never thought of it anymore. I did think of my mother, but I wouldn’t go back to see if she was there or anything like that. When I came to Yarrabah we started going to school and at school we made mates, here and there, our own age. It was really good. We didn’t know how to talk much till we came here to Yarrabah. Till I came here, I didn’t know much. I didn’t know anything about the Lord. I’m a Christian now. I didn’t know nothing about it till I came to Yarrabah. That’s where we learned Christianity, at Yarrabah.

“My name was Daisy Sheridan. It was changed when I came here and was baptised. My godmother, Ciccy Thompson, gave me the name Roslyn Bell. Everyone who came here was baptised at St Alban’s Church. I knew that my name was Daisy, but that was all right. I had to change my name when I got married, to Choikee. Choikee is a traditional name of Aboriginal people around the Yarrabah area.

“The dormitory was really good. We had two matrons, Miss Ardley and Miss Newbury, when I first came. During the day we played. We never used to work much. Only we used to rake up, with our hands. We used to clean the yard, and when you grew up, coming on to full age, you did harder work. We went to school only up to grade five at that time. When we got to grade five we left school.

“Mr Dobar came up to Yarrabah one time. He was a white man who looked after the missions. He came to school and we had to stand up and spell ornithorhynchus (she spells it out) because he had left that with us to learn, and some didn’t know and some knew, and he say to them, ‘That’s a good girl’. Ornithorhynchus is a platypus. My granddaughter who goes to school in Brisbane reckons they learned that ‘ornithorhynchus’ in grade eight, but we learned that ‘ornithorhychus’ in grade five. That was the last year that we were in school.

“After grade five we worked and did fancy work. We used to sew fancy work, crochet around. Miss Hogan used to send us a big box of clothes for us to sew and do fancy work on. They got us ready to be wives. We had to learn to cook, we had to learn to wash, we had to learn to iron. Miss Hahn, the matron,  would send us back anything that had grease on it. Boys went to school in the morning, the boys would go out one road down to church and we would go another road down to church. We didn’t go together all: we didn’t see each other. If we fell in love they’d come and talk to us in the yard, with matron. We’d get engaged then. That’s how I got engaged.”

How could you fall in love if you couldn’t talk to each other?

(She laughs.) “I don’t know. We’d look at each other in church and sometimes matron would see us. Oh she’d growl, ‘You mustn’t look over there where the boys are,’ she’d say. I didn’t care for boys while we were young, until we were going into the intermediate room, going onto thirteen and fourteen.

“My husband was Robert Choikee. He was one of the boys who came up and talked to us. They used to come up from the dormitory and sit on a big seat around the mango tree. There were about nine of us all sitting around, just yarning and having a joke of our own. That was all right. We’d sit there and matron would be on the veranda sitting down and when it was time for them to go she’d blow a whistle and they’d go then. They weren’t there long. But we never met alone at any time until we got married. We weren’t allowed. We were told not to do it.

“There was a song that we would sing in the dormitory at night, ‘Oh where is my wandering boy tonight?’ That’s a Christian song. That was the Virgin Mary singing that time when Jesus was in the temple and she couldn’t find him. They wanted to go to Jerusalem but she couldn’t find him, so she sang that song and we learned it. But Miss Hahn, our matron, though we were encouraging the boys around all the time. She would sing out, ‘Are you encouraging the boys again? Do you want the boys to sneak around?’ We’d stop that and start some other song, but if we went back to something to bring the boys back again, she’d start again. ‘Stop it now, stop it now, no encouraging the boys,’ she’d say. That was a good song.”

Uluru Statement from the Heart

Indigenous people march for justice and equality in Mount Isa, Saturday May 27.

I have long been supportive of the need for a Treaty between indigenous and non-indigenous Australia and those that know me know I am writing in what little spare time I have, a book about why I think so. The book is aimed at convincing non-Indigenous people as I know most Indigenous people want one.

Yet I’m pleased that the need for a Treaty is at the centre of the recommendations of the 2017 National Constitution Convention outlined in the “Uluru Statement from the Heart”.

The statement acknowledges Aboriginal and Torres Strait Islander tribes were the first sovereign nations of Australia who have lived here in legal terms from “time immemorial”. This was sovereignty in a sacred sense and speaks to an ancestral tie with the land which was never ceded and which co-exists “with the sovereignty of the Crown”.

How could it be otherwise, the statement asks, for people who lived here for 60 millennia which could not disappear from world history “in merely the last two hundred years”?

Changing mere words in the constitution won’t fix that, but substantive change and structural reform might.

Despite not being innately criminal, Indigenous people are the most incarcerated in Australia, showing the “torment of our powerlessness”, they said.

In order for Indigenous people to “take their rightful place” in this country, the Convention has asked for a “First Nations Voice” in the Constitution.

That would take the form of a Treaty, or “makarrata”,  a Yolgnu (NT) word meaning “the end of a dispute and the resumption of normal relations” or in the convention’s words “the coming together after a struggle”.

The convention has called for a Makarrata Commission to supervise a process of agreement making and “truth telling about our history”.

Harking back to the Referendum, in 1967 Indigenous people were counted, “in 2017 we seek to be heard”.

“We invite you to walk with us in a movement of the Australian people for a better future,” the final sentence reads.

Agreement and truth sound like a better future to me. I’m walking.

Cross posted from my North West Star editorial, Tuesday May 30, 2017.

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.

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 that would have 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 lawyers for the plaintiffs 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 Gove case came close – a legal failure but a pioneering case for land rights never appealed to the High Court. What did exist was the 1836 New South Wales Supreme Court proposition that no law existed in the colony before 1788. That decision was upheld by the Privy Council in London in 1889 (a decision Justice Lionel Murphy called a “convenient falsehood” in 1979) and was never 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 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.

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). The 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 the 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. In particular, 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 much later than the mainland the Islanders had fewer destructive influences though the Queensland system soon 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 still celebrated every July 1, which Queensland used in court to argue Meriam customs had vanished with traditional rights to land.

The 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 but it was 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 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 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 the community by-laws which led to fights with Meriam leaders. Mabo left, 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.

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 at Mer.

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 which 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. The Mer delegates agreed to take a Gove-type case to the High Court. This was purely 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 the 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 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, 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 just 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”, in other words 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 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 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” (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 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 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) was helped by a successful Indian rights case Guerin, in the Canadian Supreme Court in 1984. However having done little for seven years the Commonwealth 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, 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.  For the plaintiffs’ case his description of the 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 island 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 the nearby island of Dawar 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 some 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 did establish it was a recognisable system of law.

Among the Brisbane witnesses was Meriam elder Henry Kabere, a close friend and supporter 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 and 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 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 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 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 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 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 had 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. At a stroke 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 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.”

It was this judgement that 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 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 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 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 success of the legislation has been agreement-making with 470 Indigenous Land Use Agreements signed off by 2010, using native title for purposes like 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” 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.