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Thoughts on Mabo anniversary

[by Paul Richards]


Image: supplied

As a result of my involvement on a personal basis with some of the Noonuccal of Minjerriba, in 1968 I was then introduced to Brisbane Tribal Council. I was then shown a decision of Justice Blackburn in the 1965 case of the Gove peninsula and Nabalco. The judge said that because there was no evidence of cultivation of crops, domestication of animals and other examples of European style use of the land, it seemed to him that “the people belonged to the land rather than the land belonged to the people”. He therefore rejected any notion of Aboriginal people having any property rights  over their traditional lands.

After being admitted as a solicitor in April 1973, I then travelled to north QLD meeting various Aboriginal and Islander people to whom I was referred by Pastor Don Brady, so that I could have a better grasp of the work I would be doing when I started employment with the Aboriginal Legal Service on 1st July 1973. I had been engaged on a voluntary basis on the various steps to commence that service. In Townsville I met Eddie Mabo (known as Koiki) amongst others.

After 3years in Cairns with the ALS, in 1978 I was engaged by FAIRA on a research project relating to the proposed changes to state legislation. Part of it involved working with Mr Steve Mam in the Torres Straits. He and George Mye organised a big meeting in Thursday Island. At one point in the meeting Steve turned to me and said, “who owns the islands?”. When I explained the state's position that it was crown land, the meeting erupted with furious complaints about being lied to by the state government.

I had discovered previously that throughout QLD the government frequently lied to Aboriginal and Islander people. For example, the Cherbourg people were told by the government that Queen Victoria gave Cherbourg to the Cherbourg people. I checked and found that it had been part of a huge pastoral lease, part of which was surrendered in exchange for freehold title. The surrendered part, Cherbourg, was in fact crown land and the people could be expelled at the managers whim. Anyway, they were expected to die out and disappear.

In 1981 there was a land rights conference in Townsville. Barbara Hocking gave a presentation which effectively explained the legal position with respect to native title. Koiki had wanted to travel to his home island of Mer (Murray) at the time of his father's serious ill health but was refused permission by the state government. He was at the conference. He was angry that he did not get to see his father before his death. Greg McIntyre, solicitor, was at the conference and obtained instructions from Koiki with respect to what became the native title claim launched in 1982.

As the case progressed the State argued that he was not a traditional owner because he relied upon an adoption which could not be proved to be valid. Therefore, at that point he got separate representation. The other plaintiffs, James Rice and Sam and Dave Passi, continued the action and ultimately were successful in 1992.

The State had a practise of dividing Islanders against each other by making accusations of improper motives or conduct. I like to think that the 1978 meeting in Thursday island, conducted by Steve and George prevented that from happening.

When he was in the Royal Brisbane Hospital on his deathbed, I received a call that he wanted to make a will. As I was very busy at that moment, I sent my employed solicitor, Kevin Smith (also a Torres Strait Islander) who drafted the will and, after I checked it, he also attended to it’s signing in the hospital. This was shortly before Koiki passed and before the decision was made in the High Court. There was never any dispute about the will or his intentions.

I very much enjoyed the hysterical reactions of the conservatives. They thought the sky was going to fall in. People were going to lose their backyards. It was the end of civilization as we know it. Then came John Howard's 10 point plan which in many ways interfered with the full enjoyment of the 1993 Native Title Act, passed by the good work of Paul Keating.

Mer was an ideal test case because they had a system of land law, administered by the council. Each person could identify their parcel of land. People were growing crops. There was a rule that one could not cross the land of another without their permission. Accordingly, the Gove/Nabalco case was seen as different. The principal of “terra nullius” did not apply, not only because there were people, there but also because they had a system of land usage which could be understood by the English common law.

The High Court decision also applied throughout the nation. However, in many places there were great difficulties. For example, in the Yorta Yorta case (in Victoria) the court said that the law and custom had been “washed away by the tide of history”. And therefore the requirement for a continuity of law and custom from pre-invasion days could not be proved.

In many places much of the potential native title lands had been extinguished by government actions which occured before the 1975 Racial Discrimination Act and therefore we're not regarded as  claimable. I explained this to my native title clients in this way; the white man made a meal of your land and you are getting the leftovers. But those leftovers are capable of being used to build on for future generations.

One of the fundamentals necessary for a successful native title claim is to show unity within the group and compromise agreement with the neighbours. If there is disunity and disputes with neighbours the State will put the claim to proof and there is a high risk of losing.

One of the advantages of a native title determination is that there is a judicial identification of the legal entity enabling it to enter into a treaty.

It is interesting to think that, if it was not for the cruel act of the Country Party state government in refusing Koiki permission to see his father this High Court decision may never have occurred. They must have been so ashamed, that they changed the name to the National Party after the Fitzgerald inquiry


These are just some thoughts I had only 30th anniversary. I hope someone might find them useful.


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