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Mabo 20 years on

Frank Brennan |  28 October 2012

Chief Justice Paul De Jersey, Justice Duncan McMeekin, ladies and gentlemen: Thank you for your very gracious Central Queensland welcome. It is a delight to see my old student Duncan McMeekin now lightly wearing the judicial mantle. Having recently toured your splendid new Metropolitan Court House in Brisbane, Chief Justice, I hope you will now have the time to advise conference resort centres on this beautiful coastline how best to utilise natural light and windows open to the world. Meanwhile we will labour here in this conference facility oblivious of the coastal panacea which awaits us at the end of the session. It is an honour to deliver this keynote address for your conference following upon Australia's longest serving Chief Justice as the self-confessed curtain raiser.

At the swearing in of Justice Gaegeler in the High Court on 9 October 2012, the Attorney General Nicola Roxon made the first speech from the Bar Table, commencing: 'First, might I acknowledge the traditional owners of the land that we are meeting on — and pay my respects to the elders, both past and present.' She continued, 'Your Honours and distinguished guests, particularly former Chief Justices and Justices of the High Court, we are of course thrilled that your Honour on this occasion is joined not just by all of your new colleagues, but indeed an entire additional Full Bench of the High Court'. She then listed the seven retired judges in attendance, four of whom had sat on the 1992 Mabo case, or more correctly Mabo (No 2). It was as if the circle was now complete. Twenty years ago, the judges acknowledged that most if not all land had been the traditional country of Aborigines and Torres Strait Islanders prior to the assertion of British sovereignty. Now the Commonwealth Attorney was acknowledging that traditional owners still exist even in relation to lands where native title has undoubtedly since been extinguished. And so we acknowledge the traditional owners of the land that we are meeting on — and pay our respects to the elders, both past and present.

Twenty years on from the High Court's Mabo decision, I want to focus on three anniversaries which help to put the case into perspective for me here in Central Queensland:

  • 1972 — the 40th anniversary of the Aboriginal Tent Embassy following upon the failed land rights litigation in Milirrpum v Nabalco
  • 1982 — the 30th anniversary of my first visit here to Central Queensland when agitating for Aboriginal rights
  • 1992 — the 20th anniversary of the Mabo decision leading to the Native Title Act 1993, Wik and subsequent amendments in 1998

1972: Aboriginal Tent Embassy and looking back at Milirrpum v Nabalco

In 1967, we voted overwhelmingly as a nation to amend the Constitution paving the way for the Commonwealth to assume primary responsibility for laws and policies designed to assist Aborigines and Torres Strait Islanders. Promptly after the vote and probably in response to the overwhelming size of the vote, Prime Minister Harold Holt who previously had shown little interest in Aboriginal Affairs set up the Council for Aboriginal Affairs. The Council was three extraordinary white men — Dr HC Coombs, the governor of the Reserve Bank and architect of post-war reconstruction, Barrie Dexter, a career diplomat who had experience in other post-colonial societies, and Professor WEH Stanner, the nation's pre-eminent anthropologist who within the year would deliver the epoch defining Boyer Lectures entitled After the Dreaming. Aborigines in Arnhem Land disturbed by the notion that a foreign mining consortium might come and disturb their lands without consent or adequate consultation commenced proceedings in the Supreme Court of the Northern Territory. Ultimately their case Milirrpum v Nabalco failed on the facts and on the law. Justice Blackburn did observe, 'If ever a system could be called 'a government of laws, and not of men', it is that shown in the evidence before me.' But he went on to rule: 'I am not persuaded that the plaintiffs' contention is more probably correct than incorrect. In other words, I am not satisfied, on the balance of probabilities, that the plaintiffs' predecessors had in 1788 the same links to the same areas of land as those which the plaintiffs now claim.'

On 16 November 1971, Bob Ellicott QC who as Commonwealth Solicitor General had appeared in the case succeeding for the Commonwealth in contesting the Aboriginal claims sent Prime Minister William McMahon a 28 page memo entitled 'Recognition of Aboriginal land claims on reserves in the Northern Territory'.

Let me give you some of the flavour:

This paper is based on the view, that if a practicable way could be found, claims made by aboriginal people to land situated within reserves within the Northern Territory should be recognised. The problem we ought to be facing is not should we recognise but — what is the method of recognition most likely to be in the interests of the Australian community. When, as counsel for the Commonwealth in the Gove Case, I first became familiar with this problem, I was sceptical as to whether recognition was in the interests of the Australian community as a whole, including aboriginals. However, in studying it a strong view formed in favour of recognition.

McMahon took no notice. On Australia Day 1972, Prime Minister McMahon made a disastrous, obfuscatory announcement about land rights. He did not realise that the genie was out of the bottle. Aboriginal leaders and their supporters were furious. The Opposition Labor Party sensed that change was in the air. The Aboriginal tent embassy was set up on the lawns in front of what is now Old Parliament House.

The complexity of the policy issues thrown up at the time is nicely highlighted by the internal correspondence of the Council for Aboriginal Affairs in relation to the McMahon Government's folly in wanting to close the Aboriginal Tent Embassy in July 1972. Barrie Dexter wrote to Nugget Coombs who was on economic business for the government in London stating: 'Another matter we will be considering at tomorrow's Council meeting will be what if anything we can do to prevent the government's mad approach to the question of the Aboriginal embassy outside Parliament House. Without ever seeking our advice the government seems to have decided to make an Ordinance making camping illegal and has stated its intention of removing the Embassy as soon as this Ordinance is through in the next week or two, this despite an assurance which Neville Bonner states he was given by the government that nothing would be done while Parliament was in recess. Incredible though it may seem it also appears as if the Minister (Liberal Peter Howson) was not privy to the government's decision! In any case just before he went off to Stockholm he sought the council's views, which we were reluctant to give, and wrote quite a terse letter to Mr Hunt (the Country Party Minister for Interior) saying that he had not been consulted and that the Council was opposed to moves to remove the embassy because this would create martyrs and was unnecessary. Mr Hunt is trying to have the best of both worlds and has been trying to cajole (Aboriginal) representatives he has seen in Canberra over the last two days, to seek the leasing of land on which to construct a national centre for aboriginal organisations: this he sees as a sop to Aboriginal organisations to closure of the 'Embassy', though he keeps maintaining that the two issues — of closure and the centre — are not related. I have advised (the Aboriginal representatives) to say that it appreciates the indication of Interior's readiness to make a site (and other assistance?) available for a national centre but is not prepared to apply for such a site while the embassy is under threat. A point we have made strongly to the Minister is that the embassy stands for Aboriginal land rights and that therefore no compromise seeking to buy the Aborigines off with some other proposal is proper or would be acceptable to the bulk of the Aborigines.'

In his characteristic mode Dr Coombs provided a comment on the closing of the embassy on 20 July 1972. He said he would not comment and proceeded to comment! Here is the text of the comment which was issued to the ABC and to The Age. 'I have no comment to make on the closing of the embassy. This is a government decision and it's a matter for them. I have heard the reports of protests and that there has been some violence. I regret the violence very much. The only comment I would make is that the closing of the embassy has cut off one channel of protest open to Aborigines and others interested in their cause. But Aborigines and others have a right to protest about these matters and there remain other avenues for protest which I hope they will continue to use.'

Two months later Mr Joh Bjelke Peterson (as he then was) was complaining to Peter Howson, then Minister for the Environment Aborigines and the Arts, about the Federal government's funding of militant groups particularly in Queensland. On 13 September 1972, Coombs wrote to Howson saying, 'The Council has always stood ready to confer with any bone fide group of Aborigines whatever their political attitudes, and indeed believes that to refuse to do so because of reported militancy would be improper as well as unwise. We believe that militancy in Aborigines can best be dealt with by: (a) showing obvious willingness to hear and consider grievances, (b) a policy obviously directed to greater social justice for Aborigines, (c) the promotion of communication between Aboriginal groups of all kinds and between them, the rest of the community, and the Government, and (d) providing outlets for 'militant' zeal by involving Aborigines in the conduct of their own affairs and in organisations promoting the welfare of their own people.'

He went on to say, 'It is our firm conviction that a policy which listens only to conservative opinion is likely to alienate those of more radical views from their fellow and produce distrust and involve serious danger of promoting rather than discouraging extremism.'

Meanwhile legal advisers had advised Aborigines against appealing the Milirrpum decision to the High Court. They would not succeed on the facts; and there was little prospect of winning on the law even if the evidentiary findings had been more favourable. The decision was to stand affirming that in the eyes of the common law Australia had been terra nullius prior to British annexation. The plaintiffs' lawyers judged, with good reason, that the Barwick High Court would be unsympathetic. Hal Wootten recalls: 'At the 1996 Land Rights Anniversary Conference Justice Woodward, who as Ted Woodward QC had been counsel for the plaintiffs, said: 'It had been decided not to appeal the Blackburn decision, because of the near certainty that the High Court, as then constituted under Chief Justice Barwick would have entrenched the negative aspects of the Blackburn decision, and perhaps even poured cold water on the positive aspects.''

I like going back 240 years in legal history to the great judgment of Lord Mansfield in Somerset's Case — the case heard in London about the slave who was held there. Lord Mansfield declared in 1774, 'The air of England is too pure for any slave to breathe; let the black go free.' It took generations of campaigning by people like Lord Wilberforce and little people of whom we have never heard — public servants like one Granville Sharp — to agitate for these changes. Ultimately the House of Commons passed the Slavery Abolition Act in 1833.

Hal Wootten who was the foundation dean of the University of New South Wales Law School, a distinguished Supreme Court judge and a commissioner on the Royal Commission Into Aboriginal Deaths in Custody, has spoken of what he calls 'the little nudger' view of history. Each of us can be a little nudger. We can nudge things in the right direction — within our profession and within our national discourse on vexed social issues. Every now and again, there will be a Lord Mansfield moment. And every now and again there will be a Lord Mansfield.

In relation to Milirrpum, Wootten says, 'Had an unsuccessful appeal been made, the possibility of overturning terra nullius may well have been buried, perhaps beyond resurrection. So the issue had to wait another 20 years, until the work of many little nudgers found six receptive judges on the Mason Court.'

Wootten recently said, 'While all six joined in the Mansfield role, one had to write what would become the leading judgment, find the words and the arguments that could command a majority — the reasons that would survive the scrutiny of future generations of judges and ultimately win the support of the community.' Wootten says: 'That role fell to Justice Brennan'. As you know, he happens to be my father and a son of Rockhampton. Those of you bemused by his departure from the conference room at the beginning of my address will understand why I always regarded it as an excess of judicial scrupulosity that my father made a declaration from the bench at the commencement of the Mabo proceedings about my political and pastoral activities, giving any party an opportunity to express an objection. Of course none was offered. In later years miners like Hugh Morgan saw fit to make disparaging remarks about the family connection. Even in retirement, my father has retained that same judicial scrupulosity, even off the bench. That brings me to the second anniversary — 1982.

1982 — The search for justice

As a young Jesuit and recently qualified lawyer, I had been appointed Adviser to the Queensland Catholic Bishops on Aboriginal Affairs in 1982. We all knew it was going to be a testing year on Aboriginal issues here in Queensland. The international spotlight was on us with the Commonwealth Games and Expo. Queensland's treatment of Aborigines and Torres Strait Islanders on the reserves was a burning issue. I arrived here in Central Queensland for my first visit to Woorabinda. In Rockhampton, the legendary Fr Mick Hayes introduced me to Aboriginal leader, Terry Munns. Munns said, 'Brennan. Are you any relation to that old judge who was here?' Without a second thought and knowing that my grandfather had been the longest serving Supreme Court judge in this part of the world (a record later broken by Justice Alan Demack whose presence I acknowledge here today), I proudly replied, 'Yes, he was my grandfather. In fact, I am named after him — Frank Tenison Brennan.' Munns looked unimpressed: 'Yeah, we used to call him 30 days!' I was not quick enough to retort that 30 days in the slammer was fairly mild for anyone, black or white, running the gauntlet of the Supreme Court jurisdiction back in those days. But I appreciated that perceptions of justice change from generation to generation, from place to place, and from differing cultural matrices.

Recently I had the pleasure of writing the foreword for Tim Rowse's book Rethinking Social Justice. As I reflected on Rowse's writings, I was ably assisted by my own philosophical and theological tradition concluding that in recent years there has been insufficient attention by the proponents and the thinkers about the different meanings of justice when it comes to Aboriginal claims within a postcolonial society. We need to distinguish commutative justice, distributive justice, and social justice.

Commutative justice is the relevant consideration when looking for example at the terms of a contract or when correcting a relationship between two persons or parties, one of whom may be the state, or in putting right historic wrongs such as land rights. We have all had to admit that land rights if properly applied may result in some Aboriginal groups becoming the land rich and others remaining land poor. Land rights is not primarily a matter of social justice nor even of distributive justice. It is a matter of acknowledging the due property rights of groups and individuals who have not been dispossessed of those lands by means of title being granted to other persons. Just as there will be some non-indigenous persons such as Gina Rinehart and Clive Palmer who become land rich, there will be some indigenous Australians who are land rich while others are land poor. Let's not forget that the first land rights legislation in Australia for the Pitjantjatjara in South Australia resulted in a vast area of the State being set aside for a very small percentage of the population. And that was just.

Distributive justice on the other hand is concerned to ensure that there be a proper distribution of assets and income so that persons within the society might achieve their full human flourishing. In the past we have had schemes like the Aboriginal secondary grant scheme which was aimed at wholesale redistribution of wealth and opportunity so that those who had been greatly disadvantaged in the past might at an accelerated rate have the possibility of an education appropriate for all Australian citizens. Race was simply the convenient indicator of a major disadvantaged group in need of a leg up.

One mistake in recent times has been to confuse distributive justice with social justice, as if social justice is simply about a redistribution of wealth from the rich to the poor. I recall many years ago conducting a one-day workshop for Aboriginal teacher aides in western New South Wales. We met in Bourke. As a thought experiment I suggested to the group that the day might come when they were no longer poor, disadvantaged and dispossessed. There might come a time when some indigenous Australians were not poor, were not disadvantaged, and are not dispossessed. The question then would be whether or not there would still be some special entitlements for indigenous Australians precisely because they are indigenous? Would there be some special requirements that should be made for the protection of rights of indigenous citizens? If so, we would put this under the heading of social justice.

As part of the thought experiment I said to the group: imagine that one day you saw an Aboriginal person driving down the main street of Bourke in a Rolls-Royce, what would you think? With characteristic Aboriginal humour, one teacher aide responded immediately, ' It's stolen.'

So let's now consider that third anniversary.

1992 — Mabo

Eddie Mabo, a Torres Strait Islander living in Townsville had read the Milirrpum. Decision. Justice Blackburn had decided that the common law did not recognise communal native title rights. Eddie said that was fine. The Torres Strait Islanders had individual rights to land, claiming individual housing and vegetable plots. Blackburn had also decided that the sovereign had extinguished any native title rights. But Eddie was able to point to various actions of the Queensland Parliament and Executive including the institution of village courts to resolve land disputes. The legal advisers for the State of Queensland obviously thought Eddie had a point.

So in 1985, the Queensland Parliament enacted the Queensland Coastal Islands Declaratory Act — 14 lines long, extinguishing any native title rights as of 1879 when the islands were acquired as part of the colony of Queensland and with no compensation payable. The Deputy Premier, Mr William Gunn, who had Torres Strait Islander grandchildren, had the task of introducing the legislation to Parliament. He said the legislation would avoid the need for limitless research work and endless argument in the Courts about mere matters of history. Another reading of it was that five Australian citizens who happened to be black had commenced legitimate proceedings in the highest court in the land claiming property rights against a Government which had the numbers in the single chamber Queensland parliament. That defendant government then attempted to pass a retrospective law extinguishing those rights and interests without compensation.

In 1975, just prior to the dismissal of the Whitlam Government, the Commonwealth Parliament had passed the Racial Discrimination Act. That Act faithfully implemented the International Convention on the Elimination of All Forms of Racial Discrimination. It requires that State governments and State parliaments not discriminate against citizens on the basis of their race. Eddie's lawyers argued that the Queensland Act did discriminate on the basis of race. By four to three, the High Court struck down the Queensland legislation in Mabo (No 1) decided in 1988. The Court found that the Queensland law singled out the traditional rights of Torres Strait Islanders (if any such rights existed) and extinguished those rights without compensation. The Queensland law then left unaffected all other rights, including all property rights granted by the Crown to any other persons regardless of their race. Even though Torres Strait Islanders would be the only persons in that area who could enjoy traditional property rights, the Court ruled that the wiping out of those rights while leaving unaffected all other property rights was an act of racial discrimination. The result was that the Queensland law could not be used as a defence to Eddie Mabo's claim. So the path was clear for Eddie to litigate his claim, assured Commonwealth funding for the trial now that he had won the demurrer. The great moral and legal quandary of land rights was now squarely before the High Court.

I have always been haunted by the words of Chief Justice Marshall in the 1823 decision of the US Supreme Court Johnson v McIntosh:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.

Without land rights and self-determination, indigenous peoples in previously colonised societies are treated as the members of one polity without a voice and as people without distinctive rights. With land rights and self-determination they are members of two polities with their own conflicting voices, living under two laws which require reconciliation when the indigenous law and the coloniser's law collide or when the indigenous person asserts individual rights against the collective rights of the clan or community. Land rights and self-determination provide the space and the time for these indigenous peoples to live in their two worlds.

Indigenous people without land rights and without a modicum of self-determination are individuals and societies denied the place and opportunity to maintain themselves with their distinctive cultural identity in a post-colonial, globalised world. Indigenous people with land rights and a modicum of self-determination are individuals and societies with an enhanced choice about how to participate in the life of the nation state and of the global economy while being guaranteed the place and opportunity to maintain their cultural and religious identity with some protection from State interference and from involuntary assimilation into the predominant post-colonial society.

Without new law being developed in Mabo, we would have retained adherence to the Privy Council's 1919 decision In re Southern Rhodesia in which Mr. Rhodes' British South Africa Company was a party. This decision related to land transactions between Cecil Rhodes and the natives of Zimbabwe. The other parties to the proceedings were the Legislative Council of Southern Rhodesia, the Crown and the natives. Lord Sumner in his report of the Privy Council wrote:

By the disinterested liberality of persons in this country their Lordships had the advantage of hearing the case for the natives who were themselves incapable of urging, and perhaps unconscious of possessing, any case at all. Undoubtedly this inquiry has thereby been rendered more complete.

Leslie Scott KC and Stuart Bevan are described as appearing 'for the natives', perhaps the shortest and most generic description of a party ever to appear in the authorised law reports. On the next page of his Report, Lord Sumner writes:

The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.

Lord Sumner observed that there was 'a wide tract of much ethnological interest' between these tribes and other indigenous peoples 'whose legal conceptions, though differently developed, are hardly less precise than our own'. He thought the natives in question 'approximate rather to the lower than to the higher limit'. According to the Privy Council, the maintenance of native title rights 'was fatally inconsistent with white settlement of the country' which 'was the object of the whole forward movement, pioneered by the Company and controlled by the Crown with the result that the aboriginal system gave place to another prescribed by the Order in Council'. The Privy Council concluded its consideration of the native title claim, 'Whoever now owns the unalienated lands, the natives do not.' The natives were the people of one new polity without a voice, under one new law without rights.

At the height of colonial expansion by European empires, those indigenous groups who bore some resemblance to their colonial masters were to enjoy some recognition and protection. Those differing from their new masters who could barely comprehend their social reality were to be denied any semblance of land rights and self-determination. Such Eurocentric notions put blinkers on the law's horizons of justice.

74 years after the Privy Council's decision about the fortunes of the British South Africa Company, the High Court of Australia had, for the first time in the Mabo case, to consider the rights of the Australian 'natives' to the 'unalienated lands'. In 1992, our court decided to discard the distinction between inhabited colonies that were deemed to be terra nullius and those which were not:

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. The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.

With the removal of the blinkers used by Lord Sumner and most Europeans of his time, indigenous people are not guaranteed a better life, but they can be assured the legal and political preconditions for better participation in the life of the nation state, while maintaining and adapting their traditional places and lifestyle. The Australian court went on to say:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.

Does this reference to contemporary values imply that the judges thought the majority of Australians, if asked in an opinion poll in 1992, 'Do you support aboriginal land rights?', would have answered unequivocally 'Yes'. I do not think it can mean that. I am prepared to accept that the majority of Australians if asked that question in 1992 would still have answered 'No', though I suspect today they would answer 'Yes'. The values that underpin the Mabo decision are respect for property, the desire for certainty in the conduct of relations relating to land, predictability in the application of the law by courts for the resolution of conflict, and non-discrimination in the sense that governments should not treat persons differently unless there is a coherent rationale for such different treatment. In particular, governments should not treat more adversely people's property rights simply because they are members of a particular race. These are the enduring values of contemporary Australians.

After the Mabo decision, I met with the senior partners of one of Australia's largest legal firms. They were agnostic about the decision's effect, doubting that it had really changed anything. I pointed out that my line of work had not changed but that prior to Mabo it was called politics; post Mabo it was called law. It was unimaginable prior to Mabo that a Jesuit priest working for Aboriginal rights would have been invited to the annual retreat of a leading law firm. Something had changed.

At the end of the session, one of the lawyers, a Mr Murphy pointing out that his ancestors were Irish, asked: 'If there are special rights for the Aborigines, why don't you have special rights for the Irish?' Being a Brennan and my mother an O'Hara, I have some sympathy for the rights of the Irish in Ireland. I take some consolation and pride in the fact that there is somewhere on earth that the Irish can be as Irish as they like, with minimal interference by other persons. The more relevant comparison is not with the rights of the Irish in Australia but with the rights of the Irish in the Republic of Ireland. There is only one place on earth where Australian Aborigines have any prospect of living out the fullness of community lives as Aborigines. That is on the Australian continent, though as part of a nation state where as an indigenous minority, they will be far more circumscribed in their distinctive cultural choices. But there are possibilities for them, and those possibilities are enhanced by recognition of their land rights and their ongoing entitlement to self-determination within the life of the nation.

After the High Court's decision, Prime Minister Paul Keating committed his government to a threefold response:

  • A full blooded recognition of existing native title
  • A workable and fair regime for determination of native title claims and for access by miners and others wanting to utilise land the subject of potential native title claim
  • A land fund to allow dispossessed Aboriginal Australians to access their traditional lands, and to address issues of ongoing Aboriginal disadvantage

When Keating's Native Title Act passed the Senate just before Christmas 1993, Senator Brian Harradine made the astute observation that it would have been better for Parliament to have legislated national land rights a generation before, rather than leaving the matter to the courts, with Parliament then having to pick up the pieces. He told the Senate:

This parliament comes second place because it was the High Court that showed us the way. It was the Mabo decision that showed us the way. That really is to the shame of the parliament ...The parliament had to be almost dragged screaming to face reality because of the High Court decision. To me, that is shameful. To have acted sooner would have been the appropriate thing to do.

Those of us involved in the 1993 exercise knew that there were still matters unresolved and that native title questions would be back in the courts. The Parliament made a principled decision that it would not legislate to stipulate the extinguishment of native title on pastoral leases. The received legal wisdom of the time was that the High Court as then constituted would have decided 4 to 3 that native title was extinguished on all pastoral leases. But Chief Justice Mason who was one of the four was replaced by Justice Gummow; and Justice Deane who was one of the three was replaced by Kirby. It was assumed that Kirby would follow the minority Deane line, and that Gummow would follow the majority Mason line. Kirby was predictable; Gummow was not. So in Wik, the decision when the other way by 4 to 3 with a finding that native title could co-exist on pastoral leases. The newly elected Howard government was already committed to putting its stamp on the Keating native title law. Now it had to deal with the Wik imbroglio as well. At 3am one morning during the next interminable parliamentary debate, a few of us were gathered in the room of Senator Gareth Evans. The ever enthusiastic Labor lawyer Daryl Melham said that the Wik decision reconfirmed his belief in God. The atheist Evans retorted immediately, 'But you didn't know his name was Gummow, did you?' The Parliament set to amending the Native Title Act comprehensively, in part because the politicians did not want to trust the courts again by leaving open questions such as the co-existence of native title on pastoral leases. The complexities of the Native Title Act are now fairly set in stone having been legislated by governments of both political persuasions. Though Labor fulminated against many of the Howard changes, it has shown no appetite again in government to legislate more favourably for native title holders.

As of 30 June 2011, there were 119 registered determinations that native title exists and 73 Prescribed Body Corporates registered on the National Native Title Register. There were 443 native title claims still pending. 24 per cent of the claimant applications are in Queensland.

The Howard amendments of 1998 introduced the welcome device known as an indigenous land use agreement (ILUA) which could be entered into without the need for a formal determination of native title. As at 30 June 2011, there were 497 registered ILUAs.

The registered determinations of native title now cover some 1,228,373 sq km (or approximately 16 per cent) of the land mass of Australia, and registered ILUAs cover about 1,234,129 sq km (or approximately 16 per cent) of the land mass. A registered determination of native title reached by consent takes on average almost 6 years to conclude; the average time for a litigated determination is 7 years.

Under the 1993 Keating Native Title Act, Parliament legislated for a ten year program of payments from Consolidated Revenue into a land fund administered by the Indigenous Land Corporation (ILC). Between 1995 and 2004, the Australian Government made an annual appropriation of $121m (indexed to 1994 values) to the Land Account. That fund is now self-sustaining.

ILC acquisitions in 2010—11 expanded the Indigenous estate by a total of 336,913 ha, bringing the total land acquired since 1995 to 6,156,707 ha. The ILC has purchased 236 properties all up, including the Ayers Rock Resort. 161 of those properties have been granted to other Aboriginal corporations. In Queensland the ILC has acquired 53 properties, granting 33 of them to other Aboriginal corporations. There are now 15 ILC-managed commercial cattle and sheep properties.

Since the Land Account's establishment, 63 per cent of the annual appropriation has been retained in the Land Account. The remaining 37 per cent ($45m indexed annually) has been directed to the ILC for the performance of its statutory functions.

At last year's AIATSIS Native Title Conference, Chief Justice Patrick Keane whose court oversees most native title curial matters said, 'We have become familiar with the use of Indigenous Land Use Agreements (ILUAs) as a means to unlock the economic value of land for indigenous peoples.'

He laid down the gauntlet to those committed to maintaining the inalienability of Aboriginal lands. He said, 'Usually, if the economic, and ultimately political, value of land is to be unlocked, it must be able to be made available for commerce or trade, whether by lease or as security for loans or ultimately as an item of commerce itself. This means that it must be alienable.'

We are now at a crossroads when it comes to determining the mix between security and utility of lands subject to native title claim. In Mabo, Justice Brennan rightly said:

It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people. Such a right or interest can be acquired outside those laws and customs only by the Crown ... The native title may be surrendered on purchase or surrendered voluntarily, whereupon the Crown's radical title is expanded to absolute ownership... for there is then no other owner.

But the scheme of the Native Title Act (NTA) envisages the setting up of corporate entities acting as trustee for the common law native title holders, holding the bundle of native title rights. Chief Justice Keane has observed, 'After a determination of native title, the prescribed bodies corporate (PBC) provisions of the NTA seem to afford a means whereby native title holders can deal with their land to their best advantage.'

The Chief Justice has suggested: 'On this basis it is arguable that a native title determination and the trustee PBC provisions gave to the native title rights, defined and determined under the NTA the quality of alienability not available in respect of native title rights which have not yet been determined under the NTA. Even if land is not alienable in the terms of being sold or mortgaged or leased, these PBC provisions may empower the NT holders to deal with the native title in ways that can unlock economic potential.'

Chief Justice Keane has noted: 'it is essential for PBCs to have adequate funding and resources so that they may utilise the determined native title. The sorts of decisions that need to be made require commercial skill as well as prudence.'

In the past when speaking with commercial lawyers or bankers, I have asked why banks would be so unwilling to provide a mortgage over native title or other Aboriginal statutory titles. The usual response has been that lenders would be unwilling to engage in the invidious exercise of dispossessing defaulting Aboriginal titleholders. Might not the time have come, in the name of self-determination and land rights, for the Indigenous Land Corporation or some equivalent corporation to act as guarantor for registered native title holders wanting to mortgage their land for the purposes of economic development? The challenge is to find the right mix of security and utility. My fear is that an ongoing policy of land purchases and native title determinations without the prospect of economic development will leave native titleholders marginalized from the economy while becoming the envy of other Australians beholding an increasing land stock unavailable for development even when such development is sought by the traditional owners. If the ILC were not to act as guarantor, might not the time be ripe for an Indigenous Land Bank which underwrites development of indigenous lands avoiding the need for permanent alienation of land from Aboriginal hands while making the land available for development? Lands subject to a defaulting mortgage could be held by the Indigenous Land Bank which would be statutorily charged with retaining such lands for future indigenous use. Alienation into non-indigenous hands would be permitted only with the consent of a super-majority of defaulting adult traditional owners, and after a considerable time lapse.

Twenty years on, we can say that native title is here to stay, and the Aboriginal land fund is too. It is time to heed Aboriginal requests for unlocking the economic potential of lands which have been won back, without risking the indigenous patrimony all over again. This is a task for good commercial legal minds. I note that Baker & McKenzie received $1.35 million in legal fees from the ILC for the 2010-11 financial year. The resources are there to come up with some creative legal answers.

The late Professor Greg Dening, an ethnographer and historian, recalled the celebration at the National Library in Canberra when two items of Australian heritage were placed on the Memory of the World Register. Those items, joining documents from other countries such as the Magna Carta and the US Declaration of Independence, were not the Australian Constitution or even the batting records of Donald Bradman, but rather Captain James Cook's journal from the Endeavour voyage of 1768-1771 culminating in his hoisting the flag on Possession Island in the Torres Strait, and the papers relating to Eddie Mabo's case in the High Court. In an essay entitled 'Living with and in deep time', Dening describes the reverence with which he donned the cotton gloves to peruse these documents in the Manuscript Reading Room of the library. He takes up Eddie Mabo's drawings of his land and his people. This file 'needs a slow, slow read'. Dening says this file is Mabo's 'expression of how deep time has left its mark on the present.' Here is Dening's evocative description of his reading of these papers:

He (Eddie Mabo) taps a truth the way we all tap truths from living, but in ways which need to be tolerated by those whose notion of law and evidence is blinkered by legal tradition and constitution and who need to find some entry into Eddie Mabo's otherness. The other papers in the Mabo Papers — of judges, lawyers, anthropologists, historians, witnesses of first people telling their stories — belong to the Memory of the World because the whole world faces the issue of how it lives with the Deep Time of all its first peoples, overrun and dispossessed as they are. It belongs to World Memory because the papers are we, the Australian people, struggling to do justice and to live with the Deep Time all around us. And we are in this instance the world.

Though land rights and self-determination provide no utopia for the contemporary indigenous Australian community, they have belatedly put right an ancient wrong. The cost and inconvenience are unavoidable. Terra nullius is no longer an option. Novelist Tim Winton reminds us, 'The past is in us, and not behind us. Things are never over.' The words of US Chief Justice Marshall in Johnson v McIntosh still ring out today:

[H]umanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers.

We Australians belatedly have come to the right starting point on an endless search for justice between Indigenous and non-indigenous citizens. On Tuesday, Alison Anderson, the new Minister for Indigenous Advancement in the Northern Territory, herself an indigenous Australian, told the Northern Territory Parliament: 'The laws to return land to us and encourage independent development were fine achievements that grew out of the best intentions. Yet they produced the twin corruptions of welfarism and the belief that Aboriginal people ought to live forever in a cultural stone age'. Twenty years on from Mabo, land rights and self-determination can provide the right settings of commutative and social justice so that indigenous Australians might enjoy both the rights and the responsibilities entailed in their ongoing economic and cultural growth. 


Frank Brennan headshotThe above text is from Fr Frank Brennan's keynote speech at the Central Queensland Law Association Conference, Mercure Capricorn Resort, Yeppoon, 27 October 2012. 


 


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