The ongoing legacy of the Mabo decision | Law

The ongoing legacy of the Mabo decision

OPINION: Professor George Williams AO, The Sydney Morning Herald, 5 June 2017.

Saturday was the 25th anniversary of the High Court's Mabo decision. The impact of this landmark case still reverberates today in debates on Indigenous recognition and disadvantage. It is rarely far from the surface as we struggle to come to grips with our colonial past.

After the British settlers arrived in Australia in 1788, the so-called "barbarian" theory of law was applied. It treated Aboriginal and Torres Strait Islander peoples as being so "low in the scale of social organisation" that they were not entitled to have their laws or customs recognised. As one judge said, it is "idle to impute to such people some shadow of the rights known to our law".

The system treated Indigenous peoples as if they did not exist. Australia was regarded as terra nullius, meaning an empty continent in which the land belonged to no one. It was a convenient approach because it permitted the British settlers to strip Aboriginal people of their lands without compensation.

Mabo changed this. After a protracted 10-year struggle, Eddie Mabo succeeded against the odds in convincing the High Court that Australian law was based on racial discrimination and false understandings. The court instead set down a radically different perspective of Australia's first peoples.

As Justices William Deane and Mary Gaudron stated, it may be "accepted as beyond real doubt or intelligent dispute" that the Australian continent in 1788 was occupied by up to a million or more Aboriginal people. They lived under local laws and customs that were "elaborate and obligatory". It was also accepted that the boundaries of their tribal lands were "long-standing and defined".

In short, despite centuries of denial, Aboriginal peoples had rights and interests that could and should be accorded protection under the common law. The court did so by recognising the continuing rights of the Indigenous people to their ancestral lands and waters.

The Mabo decision was handed down on June 3, 1992 in the High Court's grand courtroom in Canberra. I was there as a young associate working for a judge, and saw the jubilation and relief of Aboriginal peoples whose rights had been recognised after more than two centuries. This though was tinged with sadness as Eddie Mabo had died just months before.

Prime minister Paul Keating responded to the court's decision by seizing the opportunity to legislate for a national native title act. It engendered a long-running, and often bitter, political debate that culminated in 1998 in prime minister John Howard's 10-point plan. In the words of then deputy prime minister Tim Fischer, this sought to pour "bucket-loads of extinguishment" on the native title rights of Indigenous Australians.

The Mabo case gave rise to great expectations and fears. Some people produced maps showing how swathes of the Australian continent would be transferred into Aboriginal hands. Others foresaw that the courts would recognise further Aboriginal rights. None of these has occurred.

One reason for this is that the High Court has refused to extend the Mabo decision. Soon after, Chief Justice Sir Anthony Mason rejected any notion that Aboriginal peoples were sovereign nations. Native title existed only because these rights were recognised by the law of the colonisers. He also rejected an attempt to recognise the customary criminal law of Aboriginal peoples.

Native title has also produced mixed results. Some Aboriginal people have made large gains, while for others the process has been lengthy, unwieldy and unproductive. A key problem is that native title is hard to prove. The High Court has said that a claimant must show a continuous observance of traditional law and customs since the British arrived. However, the dispossession and dispersal of Aboriginal peoples can make this impossible, meaning that native title rights have been lost.

A quarter of a century on, Mabo was a necessary and important step in our development as a nation. It forced us to confront the convenient fiction upon which Australia was built and lands taken for development. The decision has brought about important processes of agreement making, and enabled a new generation of Indigenous leaders to come to the fore.

However, the case has not proved to be the panacea that many had hoped. It has not borne out the inflated expectations of the time, with native title often proving elusive and no further rights beyond land being recognised.

One legacy of the Mabo case has been to shift the debate back to the political realm. For the time being, there is little appetite in the courts to further develop Aboriginal rights. Given this, it is no surprise that Aboriginal people are instead seeking justice and political empowerment through constitutional change and negotiated agreements such as treaties.

View the article here.