BLACK-WHITE WATERSHED
This week's High Court decision to effectively quash the notion of
terra nullius and to recognise that Torres Strait islanders were
entitled 'as against the whole world, to possession, occupation,
use and enjoyment of the lands of the Murray Islands' is a
watershed in black-white relations in Australia. HENRY REYNOLDS
reports
My friend had not heard the Mabo decision when she rang me on
Wednesday from her remote Aboriginal community. When I told her
what had happened she cried with joy. After all these years, our
mutual friend Eddie Mabo had been vindicated.
She observed that a humble black man had shaken the legal
foundations of the nation. In contrast, the cautious reaction of
government and industry spokesmen failed to reflect the magnitude
of the change.
The intellectual revolution which has reshaped our response to
Aboriginal Australia, having rolled through the humanities, social
sciences and the arts, has finally broken through into the
hitherto parochial world of jurisprudence.
The 1980s saw a growing internationalisation of our legal
thinking. The court's decision clears the causeway between
Australian interpretation and the tradition of native title which
developed during the 19th century in North America and New
Zealand. That rich tradition is now directly relevant to
Australian case law concerned with indigenous rights which are
greatly strengthened in the process.
The land rights cause is doubly enhanced. The decision has
implications for Australia as a whole, and not just for the Torres
Strait, as mining industry spokesmen have suggested. Native title
derives from prior occupation, not from legislative or executive
action of government.
It continues unless it is explicitly extinguished by actions which
illustrate a clear and plain intention to do so. Nothing the
Queensland government did between 1879 and the present was
sufficient to extinguish the common law title of the Murray
Islanders.
Native title is far more robust than many people imagined. It
must be presumed that Aboriginal groups still living on
traditional land possess common law title when there has been no
recognition by government. Justice Brennan observed:
"And there may be other areas of Australia where native title
has not been extinguished and where an Aboriginal people,
maintaining their identity and their customs, are entitled to
enjoy their native title."
In one blow, the case against land rights has been crippled. In
recent years, opponents of the cause have jettisoned all hint of
racism in their public advocacy. They now take their stand on the
principle of equality.
Aborigines and Islanders, they say, are just one other group in
our multicultural society. Equality demands that they have the
same rights as everyone else, neither more nor less. They
certainly should not have special rights to lands.
The High Court has now determined that from the first moment of
settlement the indigenous Australians had native title in the
common law of the empire, even though those rights were ignored at
the time and subsequently extinguished in many parts of the
country.
Terra Nullius is dead, and with it conventional interpretations of
history which served white interests as well. Many will come to
lament its passing. It made the dispossession so easy to explain,
so easy to accommodate with the conscience. Either the Aborigines
never owned the land, or, if they did, it was taken from them in
one apocalyptic moment when Governor Phillip read his proclamation
at Sydney Cove. Whichever case it was, it all happened a long
time ago and it was the fault of the British Government or even of
the Aborigines themselves.
The judgement of Justice Brennan relates a much more challenging
story which he hopes will "dispel the misconception that it is the
common law rather than the action of governments which made many
of the indigenous people of this country trespassers on their own
land".
He explained further that "Aboriginal rights and interests were
not stripped away by the operation of the common law on the first
settlements by British colonists but by the exercise of a
sovereign authority over the land exercised recurrently by
governments.
"To treat the dispossession of the Australian Aborigines as the
working out of the Crown's acquisition of ownership of all land on
first settlement is contrary to history. Aborigines were
dispossessed of their land parcel by parcel, to make way for
expanding colonial settlement."
A clear implication running through the judgements of justices
Deane, Gaudron and Toohey is that much of the past extinguishment
of native title may have been of dubious legality.
That presents us with a very difficult situation. Should
compensation by paid retrospectively? It's a proposal many people
will reject outright, but given that our jurisprudence has now
joined the mainstream, we should perhaps consider the actions of
government in the United States, Canada and New Zealand.
After World War II, the American government set up an Indian
Claims Commission to examine previous treaties and agreements
relating to land going right back to the early years of the
Republic. Over the past 20 years, Canada has been working through
a process of comprehensive claims while in New Zealand the
Waitangi Tribunal is investigating land deals going back to 1840.
If we now follow the courts of those countries, we may eventually
be forced to travel in the wake of their parliaments as well.
By establishing foundation legal principles which underlie the
relations between white and black in all parts of Australia - from
the beginning of settlement to the present - the High Court has
tipped Australia decisively towards the negotiation of some form
of comprehensive treaty or settlement.
Over the past 20 years, the Aboriginal cause has advanced
unevenly, sometimes progressing in the courts, sometimes in the
political area. With the Mabo decision, the High Court has
provided a challenge to both major political parties.
It has pushed the law well ahead of the Federal Opposition's
Aboriginal policy with its emphasis on service delivery and a
refusal to countenance any special status or rights for indigenous
communities.
The Government will also have to respond to the new situation.
The case for national land rights legislation, abandoned in the
mid-1980s, is now compelling.
The Council for Reconciliation will have to reconsider the
leisurely pace of its proceedings to date and look seriously at
the means by which a treaty can be negotiated. Paul Keating has
said that we need to be stripped down psychologically to relate
effectively to our Asian environment.
In a similar way, the High Court has provided the occasion for him
to turn his reforming zeal to the relations between white and
black and make it the most enduring issue in Australian politics.
HENRY REYNOLDS is Associate Professor of History and Politics at
James Cook University.