People, Identity & Place

The Eddie Koiki Mabo Lecture 2004 People, identity & place A fair go in an age of terror: Countering the terrorist threat to human rights and the Australian identity Fr Frank Brennan SJ AO We are gathered on the eve of National Sorry Day. On Thursday we will mark the anniversary of the 1967 referendum; and next week we will celebrate the twelfth anniversary of the Mabo decision. On Friday, at Reconciliation Place in Canberra Minister Amanda Vanstone will unveil a monument to the stolen generation, though the government will not acknowledge that term and they were not prepared to unveil the monument on Sorry Day itself. The inscription will read: For 150 years until the 1970s, many thousands of Aboriginal and Torres Strait Islander children were removed from their families, with the authorisation of Australian governments, to be raised in institutions, or fostered or adopted by non-indigenous families. Some were given up by parents seeking a better life for their children. Many were forcibly removed and see themselves as ‘the stolen generations’. Many of these children experienced overwhelming grief, and the loss of childhood and innocence, family and family relationships, identity, language and culture, country and spirituality. Their elders, parents and communities have experienced fear and trauma, emptiness, disempowerment, endless grieving, shame and failure. Most who looked after the removed children believed they were offering them a better future, and did all they could to provide loving care. Some abused and exploited the children. This place honours the people who have suffered under these policies and practices. It also honours those Indigenous and non-Indigenous people whose genuine care softened the tragic impact of what are now recognised as cruel and misguided policies. I am tremendously honoured to deliver this inaugural Eddie Koiki Mabo lecture in the presence of Bonita Mabo, and here in Townsville. It was in this city in 1982 that I first met Eddie and he explained to me the basis of his case. And he was proved right. Eddie had read Justice Blackburn's decision in Milirrpum v Nabalco. He thought Blackburn got it wrong. But then he argued that even if the High Court agreed with Blackburn, the case of the Torres Strait Islanders was distinguishable for two reasons. First, Torres Strait Islanders were not traditionally hunters and gatherers. They cultivated vegetable gardens and lived in huts in settled villages, thereby having individual interests in discrete blocks of land rather than communal interests in vast tracts of country. Second, the Queensland crown as sovereign had continued to recognise Torres Strait interests in land. The Queensland government had even set up courts to determine land disputes between islanders even though no land titles had been granted by the crown. I remember Eddie nursing the grievance that public servants in Brisbane or Thursday Island had asserted the power to deny him access to his island home even on the occasion of the death of a close relative. He had a passion for putting right an ancient wrong and the imagination and bold vision to see it through to the highest court in the land. It is one of the tragic ironies of the law that Eddie did not establish his own native title claim in the end but he did provide the vehicle for a declaration of native title by the nation's highest court. Tonight I salute Bonita and the Mabo children as they keep alive the memory of one of the great Australian reformers. Tonight, just a week off the twelfth anniversary, we are justified in celebrating the Mabo decision that recognised native title for the first time in Australia. This groundbreaking decision was the cause of much public debate a decade ago. Now it is simply accepted as part of the nation's legal landscape though it did change the fundamental law of the land, discarding the two hundred year old terra nullius mindset. The decision has withstood the test of time because it is in accordance with contemporary Australian values. Universal respect for property and the principle of non-discrimination might even be thought to be “the vibe of the constitution” to quote the defining movie of contemporary cultural norms The Castle. At first, the mining industry led by Hugh Morgan was very concerned that the combined effect of the judgment and the Racial Discrimination Act could be a massive slowdown in mining and exploration. Western Australian Premier Richard Court joined the mining chorus because over half the State was unalienated land which could be subject to native title claim and much of it was thought to be rich in minerals. Ian McLachlan, the federal coalition's most trenchant critic of the Mabo decision, after travelling to the Torres Strait said, "It is perfectly obvious to me that those people have owned that land forever as history has been recorded. But it is different to say that all over Australia we should have a feast for lawyers." By Christmas 1993, Prime Minister Paul Keating had cut a deal with the key Aboriginal leaders and the Senate, having failed to cut any deal with the opposition coalition parties nor with the State governments. Keating appreciated four significant effects of Mabo: The decision was basically a judicious realignment of the common law developed by judges to match the historical reality with the historic land grievance which for the first time had come before the highest court in the land. The decision posed no threat to sovereignty nor to the Treasury coffers The decision was an honest acknowledgement that most Aborigines had been long dispossessed of their lands and any restitution or compensation was a matter for parliaments rather than the courts The decision provided an historic opportunity to put right those wrongs of the past which could be put right and to acknowledge those wrongs which forever stained the nation's identity. This could be done without any threat to any other person's land rights or legitimate economic interests The decision, combined with the make-up of the senate, provided a unique opportunity for a negotiated settlement of the nation's longstanding land rights question with Aborigines at the negotiating table in the cabinet room and holding some of their own trump cards Noel Pearson, one of the key Aboriginal negotiators, summed up the effect of the decision in light of the negotiations that followed: "There could be no more peaceful a proposition for peace than the one put forward by the High Court." The Parliament set up a land fund for the purchase of lands on the open market for the benefit of those Aborigines who had lost their traditional lands. By the end of this year, that fund will be self-perpetuating, allowing purchases of $45 million each year. There is now a National Native Title Tribunal with almost 600 applications in the pipeline, half of which are going through mediation. And the government funds Aboriginal representative bodies which have their own advisers. Marcia Langton, another of the original Aboriginal negotiators says, "What’s become clear is that whereas litigation is costly and time consuming, agreement-making costs less and is more timely." Both the Howard and Keating governments have tried their hands at legislative responses to the High Court's native title decisions. Early in his term as Prime Minister, John Howard told Parliament that Mabo "now with the passage of time, seems completely unexceptionable to me. It appears to have been based on a good deal of logic and fairness and proper principle.” The dust has settled. The decision is not seen as a revolution but as a belated common sense piece of legal reasoning. Hugh Morgan's 1994 declaration now seems a little melodramatic: “In Mabo, and all that followed from it, we are engaged in a struggle for the political and territorial future of Australia.” On the tenth anniversary, Tim Shanahan, CEO, Chamber of Minerals and Energy (WA) said, "Mining companies in the early days weren’t as sanguine or accepting of native title. These days it’s seen as part of the normal business of mining." Native title is here to stay, helping to put right what Justices Deane and Gaudron described as our "national legacy of unutterable shame". The High Court still has its work cut out interpreting the fine print of the excessively amended Native Title Act and filling in the detail of common law native title, no doubt providing some feasting for lawyers. Justice Brennan, who wrote the lead judgment in Mabo, told an international judges' conference in 1995, "The post-colonial relationship of the indigenous population with their traditional land is not only, or even chiefly, a problem for the courts. But the courts, sensitive to the demands of justice for minorities and the disadvantaged in society, are likely to remain a forum in which indigenous peoples will seek to right what are now perceived to be historic wrongs." Indigenous communities still have their problems and we still have a national problem in reconciling ourselves. The denial of land rights and the failure to accord equal protection and respect under the law are no longer part of the Australian solution. That is a better starting point than the terra nullius mindset which preceded Mabo. In August 2002, ten years after Mabo, the High Court of Australia gave judgment in WA v Ward, the case dealing with the claim by the Miriuwung and Gajerrong people to lands in the Kimberly including part of the Ord River scheme. Justice McHugh who is the only judge who decided the Mabo case still sitting on the High Court had cause to look back over the history of native title litigation as it has unfolded since Wik in 1996.

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