30 Years Ago Today MABO - And The Future - Arrived!

Can you believe it?

For some, like your editor, 30 years ago is no time at all, and the memory of the High Court of Australia delivering judgment in Mabo v Queensland is still fresh.

Here’s a nice snap of Eddie Mabo with his barristers (from left, Greg McIntyre, Ron Castan and Bryan Keon-Cohen).

For those of us younger than 30, the judgment is historical in every sense.

Mabo banished for all time the legal fiction that Australia was terra nullius, an empty land, and reversed the legal orthodoxy that the common law the first British settlers brought with them to Australia was incapable of recognising and enforcing the traditional laws and customs of the Indigenous Peoples of Australia.

A historic legal wrong was thereby righted.

Here’s the formal Mabo judgment detail.

And here’s the formal Mabo case outcome as set out in paragraph 2 of the judgment of Chief Justice Mason and Justice McHugh.

2. In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown.

After Mabo came the Native Title Act 1993 and the many Determinations of Native Title made under the Act by the Federal Court of Australia that record where Native Title now exists in Australia. They include Determinations in and around the Torres Strait, Eddie Mabo’s homeland.

And today we are talking Treaty and A Voice to Parliament.

It took an awfully long time to get from 1788 to Mabo. But we got there. And we have come a long way in the 30 years since Mabo. And now a broader, conciliated future between Indigenous and non-Indigenous Australia looks possible.

The day will however be tinged with some sadness with the news that just two days ago, on 1 June, Sir Gerard Brennan, who wrote the leading Mabo judgment, passed away at the age of 94. Justice Brennan’s judgment will stand forever as one of the greatest judgments ever delivered by an Australian judge. Its effect was immediate at the time and continues to reverberate 30 years later.

By Michael Barker, Editor, Fremantle Shipping News