Flo Kennedy Attends
Amongst those attending the 'Land Rights and the Future of Race Relations' conference was Flo Kennedy, a Murray Islander closely involved in crucial early meetings both on Thursday Island and at the Townsville conference which developed the plan to start a case in the High Court seeking recognition of the Meriam people's continuing native title rights.
Accompanying Flo Kennedy on the trip to Townsville to attend the Townsville conference were Reverend David Passi and the anthropologist Nonie Sharp. Nonie Sharp recalls the preparations for the journey to the conference and these crucial early meetings:
Behind the scenes, organisation had been quietly taking place. It was mid-August 1981. We sat at Flo Kennedy's flat on Thursday Island pondering how to find a third fare. We knew we'd make the journey together to attend a conference in Townsville on rights to land, even though we did not know how this would happen. Dave said, 'I have to go. It's very important.' We remained without speaking. The next day, Dave returned to Flo's place: 'I'm coming. Got the ticket.' We could feel something very important was going to happen, and each of us was looking for signs.
Each of us remembers the trip down: early morning in Cairns, an air of suppressed excitement. A glorious ride along the coast and through the black mountain range that gives Tully its outstanding rainfall. Time to ponder coming events.
The conference titled Land Rights and the Future of Race Relations was arranged nicely, the place was convenient for Aboriginal and Islander people from Queensland communities. The program was relaxed but tightly scheduled. We had little time to reflect upon the name, James Cook University, or to consider certain events of the coming days which might challenge the law of Captain James Cook. A tightly sprung coil of meaning behind a name was under threat.
We found time for an impromptu meeting of Islanders with two representatives of the Aboriginal Treaty Committee, whose Townsville committee had organised the conference with the James Cook University Students Union. Flo Kennedy reflects on how the case began:
Details of Meeting held at Tamwoy Town, 14 August 1981. Chaired by George [Mye]. Doug Bon was present. Flo Kennedy on 'outside' [aisle] seat, Nonie, then Father Passi. George said during the meeting: 'I see we have Nonie Sharp here with us, perhaps she would like to talk to us, tell us something about the Court Case in the Northern Territory.' When Nonie got to Blackburn's verdict Flo's hand shot up and at the same time she stood up and said: 'They can't give us a verdict like that as no "more virile and industrious nation ever came in and worked our land" and we have never left our islands'.
'We can take the Governments to court. Let's take them to courts.'
A couple or few days later we were at Townsville to a Land Rights meeting at the James Cook University. The Treaty [Committee] was being wound up then. We met Dr Coombs. Nonie invited ... Before we started I went outside and invited Phillip to observe the meeting we were going to have: Dr Coombs, Garth [Nettheim], Koiki, Dave, Nonie, Phillip Mills (observer) and Flo.(Footnote 4 :Notes relating to Tamwoy Town, Thursday Island, around 18/8/91, as recalled and recorded by Flo Kennedy, Injinoo, Oct 92)
The meeting was a brief one, but its significance turned out to be far reaching. Those present were agreed that the time was ripe for a new test case on land rights, and that, for reasons given by the Murray Islanders at the conference, the latter would have a very strong case to put to a court.
The three Torres Strait Islanders foreshadowed the core of the Murray Islanders' case. Flo Kennedy restated what she had said at the meeting on Thursday Island several days before: Islanders 'have never left their islands', and it would be difficult to find 'a more industrious people than us'. The Islanders are claiming 'our lands and with them we want all our natural resources' including the fish in the Torres Strait.(Footnote 5:Olbrei 1982,163.)
Eddie Mabo explained how he had come to inherit land at Mer, how his knowledge of his people and their culture 'did not come from books written
by academics'. 'My textbooks', he explained, 'were my parents'. He explained how 'individual or family holdings' existed within clan areas, how the first white men who visited the Murray Islands found a 'people as village dwellers who lived in permanent houses and in well-kept villages', who' were expert gardeners and hunters'. He gave details of the clan system, the system of land inheritance, and the way in which the laws relating to land were maintained through the sacred order of Malo-Bomai.(Footnote 6:Olbrei, 1982, 143,144.)
Reverend Dave Passi explained in a hushed voice the meaning and significance of the law of Malo-Bomai, through which people came to respect the land:
'I remember when I was a little boy going with my father who had a garden in one of his relations' place. We had to tiptoe where he tiptoed. That means he didn't disturb weeds and other things, and I followed him tiptoeing till we got to the garden. Until today where there are ... garden roads, if there is a big branch Iying across ... a Murray Islander would not cut it. It is a taboo to us because we were brought up that way, and that was the law that governed our society, and we have great respect for the land as well.'
He went on to provide the context for a land claim by Murray Islanders, explaining how Meriam and other Torres Strait Islanders took the ownership of their land for granted, and how their sense of security was suddenly shattered by the news in 1981 that the Queensland government planned to repeal the Torres Strait Islanders Act 1971-79, to degazette the reserves on the islands which had been created by the legislature in 1912, and to concede only 50-year leases to Islanders.
Long before the 1981 conference at James Cook University, a process of questioning was in train. For several years, Eddie Mabo had advanced a proposal for the transfer of the Torres Strait Islands to the Commonwealth. In response to the Queensland government's proposal for 50-year leases, Reverend Passi had asked cogently, 'How can we lease what is already ours?'. Many Islander leaders, such as the chairman of Kubin Council, Wees Nawia, whom we had farewelled forever a few days before; Crossfield Ahmat, chairman of Badu Council; Tabipa Mau, chairman of Dauan Council, and many others, had been working for the rights of the traditional landowners. As early as August 1937, the first inter-island councillors' conference had reaffirmed fundamental traditional rights to land according to Island custom.
In 1981, a question began to stir in a number of people's minds: given the facts of the projected claim, would the Australian judiciary develop the understanding and the courage to overturn the terra nullius doctrine that had been upheld, in effect, by Justice Blackburn in the Milirrpum case? Would Murray Islanders be able to establish that their rules relating to land tenure and inheritance can be accommodated within the common law as a local legal system and set of customs, so clearing the way for the recognition of legal pluralism in Australia?
The non-Islanders present at the impromptu meeting at which the idea of a case crystallised, brought with them not only articulate ideas on the urgency of a new land case, but also a strength born of a developed moral sense as public intellectuals. Its most organised expression was in the Aboriginal Treaty Committee, and when we explained to Nugget Coombs why we thought a meeting with the Murray Islanders would be useful, his first words were, 'Yes, we have been looking for a test case'.
The committee's representatives at the conference were speaking in very plain language: the 'deprived and unrecognised state' of Aborigines and Torres Strait Islanders were among Judith Wright's strong words. Outlining the situation in the Kimberleys where local people were 'being driven from their homelands ... by the Ashton diamond venture', she addressed Aboriginal people: 'until you have a watertight and satisfactory treaty at Commonwealth level' your 'deprived and unrecognised state will continue'. 'Accept nothing ... from the Commonwealth government', she warned. Don't be pushed around by a weak Commonwealth government, she continued, 'however traitorous it may be to your people, you have your rights under British law'. A strong commitment had developed to seek 'by judicial process to invalidate the principles on which the Blackburn judgment in the Gove case was based', as Nugget Coombs wrote later.
The six participants in the impromptu meeting readily agreed that the arguments given by Mr Justice Blackburn in rejecting the Yolngu plaintiffs' case in Milirrpum might be very difficult to sustain in relation to any claims brought by Meriam landowners.'
One year later, David Passi would join with Eddie Mabo and three others as plaintiffs in the action filed in the High Court.
Keywords: conference, Kennedy, Flo, land rights, Land Rights Conference, 1981, No Ordinary Judgement, Passi, Reverend Dave, plaintiffs, Sharp, Dr. Nonie, The Townsville Conference, Townsville, 1981
Sharp, Nonie 1996,'No Ordinary Judgement', Aboriginal Studies Press.