Mabo and Social Justice

University of Sydney's Centre for Peace and Conflict Studies

1994 March, 23

Mabo and Social Justice

I wanted to talk today about the two implications I see coming from the Mabo decision.

Firstly, there is the bare legal right which arises out of the Court's decision. The Mabo decision gives belated recognition of original Aboriginal title to the country. It is a very pragmatic decision and quite conservative in terms of its application to establishing Aboriginal title. Coming as late in Australia's history as it does, the decision will give rights to only a very small percentage of the indigenous population of this country. The Mabo decision is a pragmatic compromise struck by the High Court between the rights of so-called settlers and the rights of original inhabitants. Therefore, I was dismayed that the debate over the decision has been so vicious and vehement. We have had a fairly full-blooded fight over such narrow possibilities of legal right.

The response of the federal government to the bare legal right is­ sue-the remnant title issue-has been generally fair. There's limited protection for remnant Aboriginal titles across the country under the native title legislation. There are even some instances of Aboriginal title being restored where, under common law, it would not have been up­ held. I see the Native Title Act 1993 as being a fair result. Its fairness is not entirely due to a willingness on the part of government to deliver. There were many factors at play in the Senate. The difficulties the government had with the Greens and the Democrats meant that the government's rather ordinary initial response was turned into a positive outcome.

The second question arising from the Mabo decision is: how is the country going to acknowledge the rights and the titles that have been lost to date-the 90 to 95 per cent of rights that have been extinguished across the continent? I'm half hopeful that the country will move towards addressing this second and bigger issue. It is a question of what Mabo means-that is the historical, moral lesson which is to be learned from the High Court's decision-questions of restitution and reparation to Aboriginal people who have no chance of establishing rights under the decision.

One of the critical things that has happened in the Mabo case is the common law's rejection of the racism which underlay the original denial of Aboriginal title to land. As Henry Reynolds has shown, there's very strong evidence of recognition of Aboriginal title during the early nineteenth century. Since then there's been a deliberate obfuscation of English law in this country-a denial of the very law that the settlers were supposed to have brought with them on January 26, 1788-that is, the English common law's respect for Aboriginal title. The denial of that law and the failure to get colonial society to take cognisance of the instructions being given from the Colonial Office to the settlers out here were betrayals of Aboriginal people. English people betrayed Aboriginal people and abandoned respect for their own law in favour of frontier violence and the forcible acquisition of land from traditional owners.

Justices Deane and Gaudron have pointed out the implications of this betrayal for the traditions of real property law in this country. It has left the nation with 'a legacy of unutterable shame'. Australian legal understandings have postulated that Aboriginal people were as animals roving over the landscape; they had no proprietary interest in the land. There is a famous Privy Council decision re Southern Rhodesia which said that the common law does recognise Aboriginal title in certain cases, but that there might be some cases where it would be idle to impute any kind of propriety interest in land to the people found living on it. The conventional wisdom in Australia was that Aboriginal people fell within that category. It is one of the most enduring pieces of social and psychological baggage in this country: a lingering view that Aboriginal people dwell in the lowest reaches of the alleged 'great chain of being'.

In Mabo, Justice Brennan stated that the common law no longer undertakes an inquiry into people's social organisation in order to determine whether they can be respected in their property rights. That rejection of racial discrimination in determining whether people have some kind of interest in land when they're in occupation of it-that is the nub of the decision in Mabo.

In the l 960s and 1970s, Australians began to realise that if the com­ mon law refused to recognise Aboriginal ownership, then, as a matter of morality, the country needed to move towards creating rights in land and presuming to grant land back to Aboriginal people. That saw the rise of land rights legislation in parts of the country. But there was no understanding that this title and these land rights that were made by legislation arose as a matter of right. That's why Mabo is different. Mabo recognises an inherent right-an original right that does not need to be granted by the Crown because it arises out of Aboriginal law and custom.

This has implications for the way we indigenous Australians address you non-indigenous Australians. We say to the general community that this title, arising out of Aboriginal law and custom, is a title that is respected by your laws. It is not a question of whether you are laying down and submitting to us, it is a question of whether non-Aboriginal people are willing to abide by their own law's respect for Aboriginal title.

Mabo's outstanding issues

In all our representations to the Commonwealth government we made it very clear that while we were fighting tooth and nail to protect native title there was the bigger agenda of settlement with Aboriginal people, particularly in the longer settled areas of Australia. The land fund that is proposed under the native title legislation is one aspect of the federal government's response to what has been broadly termed the social justice aspect of the Mabo decision. The social justice phase should not be rushed. The country and Aboriginal people should be quite deliberate in constructing their agenda and their proposals for social justice settlement. There is a very real question to be asked: Can you reach a settlement in cases like this?

Former New Zealand Prime Minister David Lange recently made the point that each generation has a different definition of social justice. There may be issues that people felt were settled in the 1970s which are outstanding issues for the current generation. So we should ask the question: Do we strive for a final major settlement on outstanding Aboriginal claims? That approach has ended in grief in some parts of the planet. At the same time, there are political considerations. Politicians like to think that if they put in a bit of effort now they are going to get an outcome that allows them to say: 'Phew, we can put that behind us now'. It's extremely difficult to get people involved in a cause when the political outcome is by no means something that they can stand up and pat themselves on the back about.

There are a number of substantive issues which I think should be on the agenda for a social justice response. For example, economic development for Aboriginal people. Indigenous Australians are not eco­ nomically empowered in any real sense. The prescription from Mabo comes from Justice Brennan who said that the 'dispossession of the Aboriginal inhabitants underwrote the development of this nation'.

Another issue is recognition of Aboriginal customary law. The Australian Law Reform Commission back in 1986 recommended a whole range of proposals for the recognition of customary laws; there's been no action on that report since. One of the implications of the decisions in Mabo is that Aboriginal law and custom is now a source of law in this country. If native title arises out of Aboriginal law and custom, then that law and custom also dictates the way people will be allowed to conduct themselves on the land. Beneath the umbrella of the Crown's sovereignty, there remains our inherent right to jurisdiction because our laws constitute our title and also constitute the society-whose title it is. Litigation will prompt further inquiry into the question of juris­ diction; but, at the same time, at a political level, the movement for rights of self-government of Aboriginal communities is definitely going to be part of the post Mabo agenda. How widely beyond Mabo are governments prepared to move in order to give recognition and credence to the operation of traditional law?

One set of issues that was dodged in the Mabo debate concerns sacred site protection and heritage legislation. This is an extremely difficult question; heritage issues arise in relation to land where native title is extinguished by private tenure, on land not owned by Aboriginal people. Aboriginal people will have a sacred sites and heritage interest across all tenures, which raises complicated political and legal issues that the government chose not to delve into during the Mabo debate. My fear is that, not having dealt with the issue of a national standard for sacred sites protection, the government will not raise it without our prompting.

Constitutional change is another issue on our agenda. There is doubt in the minds of some constitutional lawyers whether the Common­ wealth has the power to protect Aboriginal land from compulsory acquisition by states. The Western Australian challenge to the Native Title Act may canvass this issue, arguing that the Commonwealth's legislation interferes with essential state functions. My view is that there needs to be constitutional protection of existing Aboriginal rights. In 1982 Canada amended its Constitution. Section 35 of that Constitution provides that where a native title right is established, it has constitutional protection. So you have absolute veto where you can make your title out. Ultimately this country must pursue the same course.

What does reconciliation mean?

Reconciliation is an important process for the country to think about. I have had a lot of discussion with Aboriginal groups, particularly with our own mob in Cape York, about how reconciliation figures in our political approach. There is some cynicism amongst our people. Some say that we don't need to be reconciled to anything. Some adopt a utilitarian view of reconciliation, seeing it as a tool.

The Aboriginal people of Cape York who founded their Land Council in 1990, have always faced vehement opposition to Aboriginal land rights. If there is not a kernel of good will in the leadership of the state it is extremely difficult to prevail. There has to be some desire to do the right thing at the leadership level.

So, in North Queensland, we've developed our political strategy in a very difficult situation where the government has refused to do anything. People start to get a bit hard headed; they really put the wood on you about delivering some results. It's one thing rousing the faithful at our gatherings about our plight and stuff but people at the end of the day want to know if you can help out with that mining development. We've attempted to adopt a political style which is consistent with the rhetoric of reconciliation. We sell our message like aspirin.

But I'm troubled about the notion of reconciliation. It's an idea that's being sold in East Timor too-that the people in East Timor ought to be reconciled to their particular condition. It's a bit sinister that Australia and Indonesia are pursuing such similar agendas. I am troubled that we're dealing with a government-trying to extract moral good will out of a government-which is unperturbed about the fact that people in East Timor are being treated in 1994 in the same way.

The Aboriginal political movement has got to broaden its social jus­ tice agenda. Aboriginal and Islander people don't have a monopoly on the need for social justice. The Aboriginal land rights cause will be strengthened by acknowledging that there are other social justice causes with which we should be concerned. The East Timor issue and issues of our immediate region are not the subject of Aboriginal organisations' interest. Given the difficulties of the Aboriginal condition, I'm not surprised that that's the case. But I do hope that Aboriginal people will broaden their social justice agenda in the future.

Questions of strategy

I want to conclude by discussing the question of political strategies. Professor Reynolds has argued that the land rights cause has been weakened by conflating sovereignty with land ownership. In the nineteenth century, the opponents of common law recognition of Aboriginal rights argued that a consequence of recognising Aboriginal ownership would be having to pack up and go back to England. They said 'If you're going to recognise Aboriginal ownership that means that we have no place here'. This has been a very powerful argument ever since; it was echoed during the 1970s and the 1980s. It is still said today that a consequence of recognising Aboriginal land ownership is the creation of black states and apartheid and ceding sovereignty back to Aboriginal people.

Aboriginal people, as far as I have heard them, have never conceded sovereignty; it's still very much part of the Aboriginal political agenda at a philosophical level. What I was concerned about, after Mabo, was that our opponents would conflate sovereignty with land ownership and so force us to bat not only against the opposition to us having land title but also against the spectre of black nations.

Mabo effectively dismisses Aboriginal sovereignty. I thought that to extract the best result from the decision-in terms of putting land under people's feet-we needed to think about confining our agenda, at this stage, to land ownership. I copped some flak for advocating that we get land as part of our citizenship of Australia. We're not setting up a black bank of land in order to establish a separate nation. The more difficult questions of self-government and jurisdictional rights-sovereignty issues-need to be ventilated after we've nailed the land under our feet. We don't have the capacity to fight all of the wars at once. Each Aboriginal group and each Aboriginal organisation in each region will make their own decisions about these things.

The Green Senators wanted the country to do more in response to Mabo. However, no matter how much better Christobel Chamarette and Dee Margetts might have done for us, most other Australians were not prepared to give us so much. I have a hard enough time convincing my mob to be realistic let alone having to staunch the flow of the bleeding heart.

We had a lot at stake. We had Western Australian legislation extinguishing all of the native title in that state and it was by no means clear to us that the Racial Discrimination Act would have invalidated the Western Australian law. You urgently needed Commonwealth protection. The political difficulty for us was that in most areas of the country people have got nothing to lose: they've lost the bloody lot. It has been difficult for the Aboriginal political movement to combine the strategies of people who have nothing to lose and are getting almost nothing out of the legislative response with the strategies of those who have something and are in grave danger of losing it. A problem that pervades our politics is that people have a conviction that things could be better but cannot think in a hard-headed way about the steps that should be taken in order to get that result. We've internalised black American notions of political behaviour (and they're internalised by white people too). Everyone is cast either as Uncle Tom on the right or as Malcolm X on the left. Of course, Aboriginal youth definitely don't want to be on the Uncle Tom side. They want to be on the 'no compromise' side of politics. We've internalised those notions of radicalism and sell-out and this limits our capacity to negotiate our way through a very difficult situation in which our armoury is not great.

Our tools are extremely limited and our ability to change governments when they are dead against us is limited. Sometimes the sweet reason approach gets us nowhere, and we go back, strip our fat, cut back our proposals and end up with virtually nothing. I then begin to have serious self-doubt as to whether this approach works at all so if somebody can prescribe some other approach to me I'd be grateful.