MABO:
A SYMBOL OF SHARING
The High Court Judgment Examined

Commentary on Native Title Act 1993 (Cth)
and a Section for Students and Teachers

3rd edition

"Oh my home, my beautiful home".
Torres Strait Islanders’ Song
[sung while exiled to mainland Australia]
SEÁN FLOOD

GLOSSARY

ACKNOWLEDGMENTS

INTRODUCTION

FORWARD - BILL HAYDEN

A NEW TIME HAS COME

MABO - THE ISSUES

JUSTICE FOR ALL

THE SOURCE OF JURISDICTION

WHAT DOES MABO DECIDE?

TERRA NULLIUS

GENERAL APPLICATION OF
THE DECISION

MABO DOES NOT THREATEN YOUR HOME OR YOUR PATCH

DILUTING MABO

Mabo: A Symbol of Sharing was prepared by Sean
Flood for the 1993 Public Defenders'
Seminars.
Throughout his career, Sean Flood
has defended
black and white people in Papua New Guinea, Central
Australia (N.T.), the ACT and New South Wales. He
was the first barrister employed by the South Coast
Aboriginal Legal Service (NSW) in 1974. Since then he
has worked with Aboriginal people in a wide variety
of matters including the long struggle to obtain legislative recognition of the entitlements of the Wreck Bay Aboriginal community, viz. Aboriginal Land Grant (Jervis Bay Territory)
Act 1986, proclaimed January 16, 1987. Sean Flood, Public Defender, New South Wales, has two boys and two girls. His wife, Elizabeth, an architect, worked with the women of
Wreck Bay on home design. Other publications include McKinney on Confessions: If Walls Could Talk
(1991) 15 Criminal Law Journal 287 and If Walls Could Talk: The McKinney Direction on Disputed Confessions, co-author Mark Brabazon, (1992) 9 Australian Bar Review 146.

To download the full manuscript, please click here.

DETRACTORS

SUPPORTERS

MABO AND THE CRIMINAL LAW

JUSTICE CAMPBELL’S RULING

SUMMARY

AUSTRALIA’S PEOPLE & PLACE

INDIGENOUS PLACES

APPENDIX

BRIEF COMMENTARY ON
ORIGINAL NATIVE TITLE
ACT 1993

SUGGESTED LINES OF ENQUIRY FOR STUDENTS AND TEACHERS

HSC QUESTIONS, BOARD OF
STUDIES NSW

RECOMMENDED READING

"This is a book that should be in every public and school library..." - Natalie Bennet, The Northern Daily Leader

"A timely response to confusion..." - Aboriginal Law Bulletin

"a very useful...introduction to the unfolding ramifications of the High Court decision." - The Newcastle Herald

Winner, 1994 Xerox Fast Books Award for Best Self-Published Book

This edition includes a Section for Students and Teachers


ACKNOWLEDGMENTS: Mr. Eddie Mabo (decd.) Father Dave Passi and Mr James Rice who were the claimants who represented the Meriam people in the High Court of Australia, Judith Wright for permission to quote from her book The Cry For The Dead, Oodgeroo of the tribe Noonuccal (1920-1993), Custodian of the land Minjerribah, for three lines from her poem, Let Us Not Be Bitter, in My People, Jacaranda Wiley Ltd, also Max Keogh, Jenny Isaacs and Dr Bob Bellear for valuable assistance.

Cover photo by Jenny Isaacs - children playing, Tarntippi Beach Bathurst Island.

© Seán Flood 1993. This Book is copyright. Apart from any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Enquiries should be made to the publisher.

Flood, Sean.
Mabo, a symbol of sharing.

3rd ed.

ISBN 0 646 18028 2.

1. Australia High Court. Mabo and others v. State of Queensland. [2.] Aborigines, Australian - Land tenure. 3. Torres Strait Islanders - Land tenure. 4. Land tenure - Law and legislation - Australia. 5. Land use - Law and legislation - Australia. I. Title

346.940432

Publisher: E. Fink
in association with Fink Consultancy
13/ 175 Liverpool Street
Sydney NSW 2000
Fax (02) 9268 3168

To purchase the full manuscript, please click here.


INTRODUCTION

"Mabo is the way of tomorrow. It’s sharing, at a national level, a quality of understanding and a quality of acceptance, a quality of maintaining tolerance and a quality of identifying who we are as one nation. Mabo doesn’t divide people - it includes people. That is how I understand the law. It shouldn’t be a subject of division, it should be a subject of including. It doesn’t clarify hierarchies or initiate a class system. The contemporary law of Australia was set up to divide people and to exclude the original owners of this place. Mabo simply is beckoning for what is right for everyone as far as human beings are concerned".

MANDAWUY YUNUPINGU


Seán Flood has had a long involvement with the Aboriginal legal service. He became engaged in this work out of a deep sense of commitment to the rights of Aboriginal people. A barrister by profession, Seán Flood has had considerable experience as a legal advocate defending the rights of the Aboriginal people. In this publication, "Mabo: A Symbol of Sharing", Flood’s sense of duty and responsibility towards our indigenous people resonates unmistakably. Flood expounds radical points of view in his work and without in any way endorsing or rejecting them - for it would not be appropriate for me to do so in this office - his work will undoubtedly stimulate further discussion on a matter of great contemporary interest.

Bill Hayden
28th September 1993

Foreword to the 2nd edition


MABO: A SYMBOL OF SHARING

Seán Flood
Member, National Native Title Tribunal
Now Public Defender (NSW)

DEDICATED TO MY ABORIGINAL FRIENDS
IN THE YEAR OF THE INDIGENOUS PEOPLE 1993

Extinguishment of traditional title is extinguishment of traditional culture.

Noel Pearson, Sydney 21.4.92.

Where is the thicket? Gone.
Where is the eagle? Gone.
The end of the living and the beginning of survival.

Chief Seattle, 1854.

Away with bitterness, my own dark people
Come stand with me, look forward, not back,
For a new time has come for us.

Let Us Not Be Bitter
Oodgeroo of the tribe Noonuccal


A NEW TIME HAS COME

I have a special interest in this case: for the past 24 years I have campaigned for Aboriginal Land Rights and been critical of Government policy, the High Court of Australia, churches and institutionalized racism.

In the press, over those years, there have been many "letters to the editor". I wrote one that summed up my views and also expressed a hope for the future that has now been realized in part:

The infamous terra nullius principle taints all non-Aboriginal Australians with racial prejudice.

On 29 October 1981 [Herald, Letters], I referred to my "hope for the future" for land rights, with the appointment to the Australian High Court of justice Brennan.

Six years later, my hope is not dimmed and I am encouraged by his pronouncement that "Aboriginal ownership [of land] is primarily a spiritual affair" [re Toohey, ex-parte Meneling Station].

As 1988 approaches, it is now possible to expect a new enlightened majority of the High Court to abandon racist and convenient falsehoods and rule that this nation was neither terra nullius nor peacefully settled.

When Prime Minister Paul Keating opened the International Year of the World’s Indigenous People at Redfern Park in 1993, he said that Mabo should be seen as a practical building block of change and as an "historic turning point, the basis of a new relationship between Indigenous and Non-Aboriginal Australians".

The sweep of Mabo is breathtaking. In the process, the High Court of Australia has crated a new word and new symbolism. At the same time, Mr Eddie Mabo, who died before judgment, has been immortalised.

MABO - THE ISSUES

The plaintiffs in Mabo contended that they held traditional rights to the land known as the Murray Islands and that their traditional title was good against the whole world and continues to be good today. It was conceded that the islands had been annexed by the state of Queensland and ultimate title to the lands vested in the Crown.

The Murray Islanders, known as the Meriam people, did not dispute that the law the Crown brought with it was the common law and that at common law land is not the subject of absolute ownership other than by the Crown. Thus they accepted that upon annexation of the Murray Islands to Queensland the radical title to the lands vested in the Crown (ie, the Crown became the absolute owner) and such rights as the Meriam people had derived from the Crown had amounted to something less than absolute ownership. The plaintiffs agreed that the traditional land rights they claimed could be extinguished at any time by the Crown, but only by clear and unequivocal action in the nature of specific legislation. The plaintiffs said that the Queensland Government had not validly extinguished their title and, by reason of s.109 of the Constitution and the Racial Discrimination Act 1975 (Cth), they remained secure in their enjoyment of their traditional land rights.

The defendant, on the other hand, contended that upon annexation, the Crown became absolute owner of and was, in law, in possession of the islands, thus precluding any possessory title in the plaintiffs. The Crown’s argument was that the plaintiffs had been permitted to occupy a reserve which had been created for their benefit by the state. The defendant said that the plaintiff’s possession in those circumstances could not constitute good title against the state of Queensland.

JUSTICE FOR ALL

From a non-aboriginal viewpoint, we can be very thankful that the Torres Strait Islander plaintiffs were prepared to litigate in the Australian court system and make the concessions which were made by them to the Court. We should also understand that in abiding by the decision, the plaintiffs now have fewer rights than they enjoyed prior to 1788.

From the viewpoint of Torres Strait Islander peoples and Aboriginal people, seven non-aboriginal judges have defined the entitlement of original landowners to hold "mediately or immediately of the Crown" land they have "owned" for more than 50,000 years. The judges have decreed that the "title" is less than it was originally because some boat people with new technology arrived here 204 years ago. After the newcomers murdered and stole from the inhabitants and eventually outnumbered them, good order is now best achieved by acknowledging a form of "native" title that does not fracture the skeleton of Australian land laws.

THE SOURCE OF JURISDICTION

The Mabo decision is an example of the High Court of Australia exercising jurisdiction over both the state of Queensland and the Meriam people. The source of the Court’s jurisdiction has been well stated by Justices Deane and Gaudron:

...once the establishment of the Colony was complete on 7 February 1788, the English common law, adapted to meet the circumstances of the new Colony, automatically applied throughout the whole of the Colony as the domestic law except to the extent (if at all) that the act of State establishing the Colony overrode it. Thereafter, within the Colony, both the Crown and its subjects, old and new, were bound by that common law.

WHAT DOES MABO DECIDE?

It was held by the Court that Australian common law recognises a form of native title. Where it has not been extinguished, this title reflects the entitlements of indigenous inhabitants to their traditional lands in accordance with their laws or customs.

The native title recognised by the High Court allows, where it is applicable, for a form of title but not as good as freehold title. For example:

The majority in Mabo held that extinguishment of native title did not give rise to a right of compensation.

In the words of Frank Brennan, SJ, this leaves traditional owners without a remedy except in reliance on the Racial Discrimination Act 1975 (Cth):

If the Racial Discrimination Act were to be repealed, four members of the Court (Mason CJ, Brennan, Dawson & McHugh JJ) would tolerate extinguishment of Aboriginal title without compensation provided that there was a clear statutory intent in the enabling legislation.

TERRA NULLIUS

It is important to understand what Mabo has changed and, apart from its powerful symbolism, what has not changed. It was recognised by the Court that "the lands of this continent were not terra nullius or practically unoccupied in 1788". Justice Brennan places at the forefront of his judgment the expectation of the international community:

If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be "so low in the scale of social organisation" that it is "idle to impute to such people some shadow of the rights known to our law" (In re Southern Rhodesia [1919] AC, at 233-234) can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.

Later his Honour referred to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights:

It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.

Land laws have not been changed by this case. What has changed is the legal history of land acquisition with the court at long last facing up to the truth of history and ditching the insulting concept that there was nobody on the continent deserving of rights before the arrival of superior whites. The High Court did not create new law. It merely recognised the true legal position existing since the act of State establishing the colony on 7 February 1788, conveniently ignored by the early legislators and pastoralist in their grab for land. Few cared very much about this state of affairs until Aboriginal land rights were first acknowledged by the Whitlam Government. It is surprising that the High Court had not been asked seriously to consider and rule on the terra nullius principle prior to Mabo. In Coe v Commonwealth of Australia, the court indicated only tentative positions and made no final ruling.


To purchase the full manuscript, please click here.


GLOSSARY


After several printings, the book is currently (September 1998) out of print. However due to continuing interest from students and others we have decided to make a complete updated "transcript" of the text available for purchase.

Please send a cheque or money order for $14.95 (includes postage) payable to:

E. Fink
C/- Carl Shannon Chambers
13/175 Liverpool Street
Sydney NSW 2000
Australia

Or you can download the text (in word format) by clicking here. Any donations to cover the cost of this service or towards a future reprint may be sent to the above address.


Other works on Mabo and Native Title: (Republication on the Internet in progress, October 1999, more to follow):

'The Spirit of Mabo'
The land needs the laughter of children:
Native title and the achievements of aboriginal people

Sean Flood


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