The Joumal o.fIndigenous Policv - Issue 8 THE MABO LECTURE. LARISSABEHRENDT- The Long Path to Land Justice In the yearssince the Mabo casedelivered the promiseof land justice, many factors have worked to prevent the expectationsit gave to Indigenous peopleacross Australia from being delivered. This lecture will explore the barriers to achieving the vision of Aboriginal rights to land that were articulatedin theMabo case.These include the re-conceptualisingof native title as a regime to give certainty to non- Aboriginal interests,the romanticismof Aboriginal culturethat permeatedthe judgement and the fact that, under the judicial system. it is judges who determinewhat 'Aboriginal culfure' is. Intricately related to this issue is the way that native title, like other Aboriginal rights and interests,tends to polariseAustralians. This lecturewill posethe questionof why this is so and what this meansif real socialjustice is to be achievedfor Aboriginal people. So fundamentalwas the result in the Mabo case,many of us still remember where we were when we first heard that the High Court had overturnedthe doctrineof terra nullius and had found that Aboriginal rights existedin land. I was in the corridor of the law schoolthat I was studyingat, the samelaw schoolwhere my property classand briefly looked at the Gove Land Rightscase and was told that it had affirmedthe fact that Australianlaw did not recogniserights to land of Aboriginal people.We thenmoved on for the rest of the term to study the heavily protectedrights to land of non-Aboriginal people. Therewere threethings that made the Mabo casean importantmoment: It overtumed the notion that we as Aboriginal people did not exist; It recognisedIndigenous rights to land; and it providedan exampleof how laws that for so long had beenused as a tool of colonisationcould actuallybe a tool ofjustice. I want to exploreeach of thesethree themes in my lecturetonight and I am particularlygoing to focus on why it is that the first two propositions the 'I This paperwas presentedon 7'r'June.2006 at JamesCook University LarissaBehrendt is Professorof Law and Director of Researchat the Jumbunnalndigenous House of Leaming, University of Technology, Sydney. She has a law degree from the University of New South Wales and a Mastersof Laws and SeniorDoctorate of Jurisprudence from the Harvard Law School. Her current rcscarchis focusedon Indigenousgovernance and Indigenouspolicy issues.She is the author of Achie'"ing SocialJusticc and the award-winning novel. Home. She is a Director of thc Bangarra Dance Thcatre and the Sydney Writers Festival.Larissa also sits on the Board of the Muscum of ContemporaryArt. She is a Judicial Member of the Administrative DccisionsTribunal and tl.reSerious Off'cndcrs Review Council. Sheis alsoa columnisttbr the NationalIndiscnous Times. lu-l Tne .llaho Lecture overturning of the doctrine of terrq nullius and the recognition of a native title - remain so contentioussince the decision and I also want to look at the extent to which the law has been usedto limit the potential of the Mabo decision and look at what possiblerole it canplay in achievingland justice and socialjustice for Aboriginal and Torres Strait Islanderpeople today. I. The War on Terru Nullius The reason why many of us remember where we were when we first heard about the Mabo case was becauseof the importance of the symbolic overturning of the doctrine of terrq nullius.I grew up in a country where the legal system did not recognisethe rights of my people to our land and was silent about our sovereignty. It was still the law of the land when I studied at universify and to those laws we remainedinvisible. In the decisionin Mabo, Australian law finally recognisedthat Indigenouspeople were actually here and that we had a system of laws and governance.It was also an important legal victory because the recognition of Indigenous presence and Indigenous governancesystems meant that the court had to find that Aboriginal people held certainrights, including rights to land and that in certaincircumstances, thoserights survivetoday. In the yearssince the Mabo case,many of our communityhave become disillusionedwith the way in which subsequentcourts have wound back the promiseof the Mabo decision.But the symbolicimportance remains. And it is true that the law no longertreats us as thoughwe are invisible. So why has the notion of terra nullius become the centre of heated debate?The basic argumentput forward in a new book is that terra rullius is a new conceptand so, when CaptainCook claimedAustralia, he did not do so as a resultof the doctrine.Instead, the doctrinecame to prominencein the work of historian Henry Reynolds- whose work has been the most attackedby the white-blindfoldview of Australianhistory - and it was this flawed work (so the argumentgoes) that misled the court. As such, the argumentgoes, the High Court must have been wrong when it overturned the doctrine and, by implication,the Mabo casewas wrongly decided.And much like the decision itself which led to a barrageof idiotic and unsubstantiatedfear-mongering claiming that people's homeswere in dangerfrom nativetitle claims,this tale of terrq nullius has also sparkedexcitement from the anti-Aboriginaland anti- rights brigade. Even legal commentatorshave joined the chorus. Professor David Flint was quoted in TheAustralian as saying that the farmersand miners 'who havepaid for Mabo, and are still paying', may havegrounds to sue.It has all the hallmarksof the hysteriawhipped up by white supremaciststhat Mabo would takeeveryone's back yard. However,as with the original decision,the hyped-uphysteria over lerra ntrlliuscan be dismissedwith a simplereading of the Mabo case.Terra nullius describesa legal fiction that treats Aboriginal people as though they were invisible and had no sovereignand, as a result, no recognisedrights to land, wateror otherresources or to self-governanceor sovereignty. t04 Larissa Behrendt And while the court may have said that the doctrine was overturned, what they really did in the judgement was overturn a case called Cooper v Stuart. It was this 1889 case that held that in coloniesthat were practically unoccupied,without inhabitantsand without settledlaw, Indigenouspeople's rights were not recognised.(It basically reinforced the terra nullius doctrine but didn't call it that).In usingthe term terra nullius in 1992,the court was usinga new term to describea long establishedattitude in dealing with Indigenous people.It is like sayingthat any slaughterof peoplebefore the 1930scould not be called 'genocide'because the word did not come into the languagein its currentuse before that time. Like 'genocide',terra nttlliusis a new term for an old concept. The real beef in this debate about terra nullius seemsto be with Henry Reynolds,but - and no offence to Henry - while the court did referencehis work in two places,this can hardly be characterisedas reliance.Sir Anthony Mason,who was the headof the High Court at the time of the Mabo decision, evenconfessed to not havingread any ofHenry Reynolds'books. To assert Reynolds' influenced on the court also fundamentally misunderstandsthe legal process,namely, that judges look to what the law is and refy on casesand precedents,like Cooper v Stuart.They are not deciding who was right or wrong in history. They are balancinglegal rights basedon what othercases tell them they canand cannotdo. Sir Anthony Mason also denouncedthose commentators who speculate abolt terra nullius and has assertedthat the key issue in the Mabo case was whether,when the British claimedAustralia, they did so absolutelyor whether they had to recognisecertain other rights that might exist.The court found that the British did have to take the land with the rights of Aboriginal people attachedto it. In the sameinterview, Sir Anthony Mason also noted that the contentionthat the doctrineof terrq nullius damagedthe nationwas 'absolutely absurd'.He said: We were brought up on the footing that the Aborigines were people roaming the continentwho never remainedin one particulararea without any relationshipwith thc land. Well. of course.we now know that's all wrong. When askedwhy the High Court seemsto get so much criticism for the Mabo and Zifr decision,the former Chief Justicenoted that the antagonism seemsto come from people 'who are against a just society, who want to repudiate that the state has a responsibility to assist' those who are disadvantaged. If sucha grossmisreadin-e of the importanceof terra nullius inthe Mabo casecan causesuch hysteria. it really doesraise the questionas to why this is so?The answer,I can guarantee.rvill say more aboutthe way non-Aboriginals see their history than it will say about Aboriginal people.At its heart, this quibbling overteva nullius is anotherattempt to Llsea semanticdebate to hide an historicaltravesty. We havewitnessed the denialsof frontierviolence against Aboriginal people.with historiansdebating * hetherthe accountsin police reportswere 1rt: The Mabo Lecture more valid than the accounts in squatter's diaries and the oral histories of Aboriginal people. We had to listen to the semanticdebates about whether the children taken from their families - and living with the legacy of the removal 'removed' policy - were 'stolen' or for their own good. And while Aboriginal peoplehad to come to terms with the psychological,emotional and sometimes physical trauma of those experiencesof being taken from their families or having children taken from them, they had to endure a public debate about 'cultural