An exciting discovery
27 OF SILENCES AND SECRETS
During a Visit to the Murray Islands in February 1982, l went through the records of cases heard by the Murray Island Native Court set up by Queensland in the 1890s, known as the Court Book, with the permission of the Murray Island Council. The pages of the Court Book were rather worn by salt air and tropical heat, and although some sections remained stitched together. Others were completely loose. They were records of many land disputes, disputes over boundaries, disputes between families, clans and neighbours. I was looking for government recognition of Meriam ownership of plots of land. Suddenly this one appeared: September 1913, Case no 55: sale of land at the village of Zeub in the Komet clan territorial division for a courthouse and gaol. l had been told quite definitely by George Passi, then council chairman, that l might view these documents only in the council offices. Some pages were cracking at the corners, like pieces of parchment. These were rare and 'ancient' documents. I made pencil notes and sketched the plots of land, their dimensions, the names of their owners: three sales, two at -1-10-0 each, one at -3.0.0. with the well-known signature of Jack Bruce, government schoolteacher at Mer for more than 30 years. From 1911, the schoolteacher had been empowered under the Aboriginal Protection Act 1904 as government superintendent on each island.
28 OF SILENCES AND SECRETS
I was urged to find a way of bringing the actual documents back to Melbourne; notes were not sufficient. Here was a dilemma. This was still the preparation time for the Murray Islanders' claim, and from August 1981 we all remained sworn too secrecy. I spoke with a senior Meriam landowner, Henry Kabere, who become a major witness for the plaintiffs; it was his grandmother who had owned that land at Zeub. The decision rested with the chairman, George Passi, brother of Sam and Dave Passi, who were already plaintiffs-to-be.
ILLUSTRATION: Record of purchase of land at Zeub village, Mer, 1913 (Murray Island Court Book). The signature of Jack Bruce is partially visible (top right)
See attached image.
29 OF SILENCES AND SECRETS
George had worked for the Department of Aboriginal and Islander Advancement, a state government department, and was regarded on the island as a man with both a strong attachment to Meriam culture and at the same time 'pro-Queensland'. Dave Passi was the Anglican parish priest on neighbouring Darnley Island; Eddie Mabo lived in Townsville. It was Saturday there was a wedding celebration and that evening the chairman was sitting on . verandah at the village of Gigred. 'The documents belong to the council; that can't be taken away. 'I elaborated on how it would help Meriam people and the conservation of their culture... and finally, yes'. The next day I returned to the pages, gently placed them in an envelope, and hid them. There could be a phone call.
On Thursday Island the four documents were hidden safely after Flo Kennedy and I had talked over the story. Flo understood the necessity of bringing a case in a Kole or white man's court: 'It is a terrible thing for us to have to go to this kind of court to prove what we have always known: that these islands are our homes, not something to be bought or sold. But we have no choice.'
Soon after my return to Melbourne, counsel requested the whole Court Book as a matter of urgency. They were delighted with the records of sale, of lands at the village of Zeub by the traditional owners to the government during the post-annexation period. They saw the entire court records us '[a] very exciting discovery': a body of Meriam jurisprudence consisting of decisions of court 'set up under Queensland government legislation... based on the traditional land tenure system and highly relevant to the case. There was no time to lose. Through the good offices of Reverend Dave Passi and Flo Kennedy, the Court Book was soon on its way to the Cairns office of Greg McIntyre; the contents were quickly deposited in a deed box in a bank by McIntyre's assistant Denise McAllister.
Flo became a go-between liaising with the lawyers and the Meriam people. Greg McIntyre saw the importance of this. She combined political experience with the cultural and spiritual vision that was needed to get the important things done: to find and keep suitable plaintiffs, to ensure the;, Meriam plaintiffs and witnesses and their counsel were talking to each other not past one another, and to use her good offices to help things to flow smoothly under conditions where those who were to argue the case were some 3000 kilometres away from the Murray Islands. Those good offices were called upon soon after the writ was issued. In June 1982, Flo accompanied the four legal counsel - instructing solicitor Greg McIntyre, Ron Castan QC, and barrister
30 OF SILENCES AND SECRETS
Barbara Hocking and Bryan Keon-Cohen-to the Murray Islands to meet with the plaintiffs, including Eddie Mabo, who flew there from Townsville, and to inspect plots of land, boundaries, reef flat areas and fish traps.
Flo Kennedy's own knowledge of Meriam tradition is considerable; this came to her partly from her father; not himself a Murray Islander, though he had a special place there. He was a man highly respected for his spiritual powers, which were acclaimed throughout the Torres Strait, for his choreographic and song-making skills, and for his inspiration as a composer of hymns. Both the Meriam and the lawyers had their own legal protocols, their own priorities, and Flo anticipated and overcame various potential difficulties and misunderstandings: 'You see that tall man with the dark hair and that lady. Well, they're the assistant barristers. Now that smaller man in the stripey singlet, well, in Meriam language, he's the Au le, the senior man; the man to whom you show the greatest respect. He's called the QC, that's Queen's Counsel. 'As was to become evident in the courtroom, Ron Castan was a gifted advocate with an outstanding knowledge of the common law-. He took on the key role in shaping the legal argument. He also displayed qualities esteemed in Meriam society: practical imagination, empathy, wisdom, clarity of thought.
Each member of the legal team played an essential role in a division of functions that had scarcely emerged at this stage. Barbara Hocking carried out research in the preparation of the pleadings as the case proceeded. Questioning of the witnesses, which began over a period of ten days in October 1986 and recommenced at the island of Mer in May 1989, was conducted by barrister Bryan Keon-Cohen and barrister and solicitor, Greg McIntyre.
During a Visit to the Murray Islands in February 1982, l went through the records of cases heard by the Murray Island Native Court set up by Queensland in the 1890s, known as the Court Book, with the permission of the Murray Island Council. The pages of the Court Book were rather worn by salt air and tropical heat, and although some sections remained stitched together. Others were completely loose. They were records of many land disputes, disputes over boundaries, disputes between families, clans and neighbours. I was looking for government recognition of Meriam ownership of plots of land. Suddenly this one appeared: September 1913, Case no 55: sale of land at the village of Zeub in the Komet clan territorial division for a courthouse and gaol. l had been told quite definitely by George Passi, then council chairman, that l might view these documents only in the council offices. Some pages were cracking at the corners, like pieces of parchment. These were rare and 'ancient' documents. I made pencil notes and sketched the plots of land, their dimensions, the names of their owners: three sales, two at -1-10-0 each, one at -3.0.0. with the well-known signature of Jack Bruce, government schoolteacher at Mer for more than 30 years. From 1911, the schoolteacher had been empowered under the Aboriginal Protection Act 1904 as government superintendent on each island.
28 OF SILENCES AND SECRETS
I was urged to find a way of bringing the actual documents back to Melbourne; notes were not sufficient. Here was a dilemma. This was still the preparation time for the Murray Islanders' claim, and from August 1981 we all remained sworn too secrecy. I spoke with a senior Meriam landowner, Henry Kabere, who become a major witness for the plaintiffs; it was his grandmother who had owned that land at Zeub. The decision rested with the chairman, George Passi, brother of Sam and Dave Passi, who were already plaintiffs-to-be.
ILLUSTRATION: Record of purchase of land at Zeub village, Mer, 1913 (Murray Island Court Book). The signature of Jack Bruce is partially visible (top right)
See attached image.
29 OF SILENCES AND SECRETS
George had worked for the Department of Aboriginal and Islander Advancement, a state government department, and was regarded on the island as a man with both a strong attachment to Meriam culture and at the same time 'pro-Queensland'. Dave Passi was the Anglican parish priest on neighbouring Darnley Island; Eddie Mabo lived in Townsville. It was Saturday there was a wedding celebration and that evening the chairman was sitting on . verandah at the village of Gigred. 'The documents belong to the council; that can't be taken away. 'I elaborated on how it would help Meriam people and the conservation of their culture... and finally, yes'. The next day I returned to the pages, gently placed them in an envelope, and hid them. There could be a phone call.
On Thursday Island the four documents were hidden safely after Flo Kennedy and I had talked over the story. Flo understood the necessity of bringing a case in a Kole or white man's court: 'It is a terrible thing for us to have to go to this kind of court to prove what we have always known: that these islands are our homes, not something to be bought or sold. But we have no choice.'
Soon after my return to Melbourne, counsel requested the whole Court Book as a matter of urgency. They were delighted with the records of sale, of lands at the village of Zeub by the traditional owners to the government during the post-annexation period. They saw the entire court records us '[a] very exciting discovery': a body of Meriam jurisprudence consisting of decisions of court 'set up under Queensland government legislation... based on the traditional land tenure system and highly relevant to the case. There was no time to lose. Through the good offices of Reverend Dave Passi and Flo Kennedy, the Court Book was soon on its way to the Cairns office of Greg McIntyre; the contents were quickly deposited in a deed box in a bank by McIntyre's assistant Denise McAllister.
Flo became a go-between liaising with the lawyers and the Meriam people. Greg McIntyre saw the importance of this. She combined political experience with the cultural and spiritual vision that was needed to get the important things done: to find and keep suitable plaintiffs, to ensure the;, Meriam plaintiffs and witnesses and their counsel were talking to each other not past one another, and to use her good offices to help things to flow smoothly under conditions where those who were to argue the case were some 3000 kilometres away from the Murray Islands. Those good offices were called upon soon after the writ was issued. In June 1982, Flo accompanied the four legal counsel - instructing solicitor Greg McIntyre, Ron Castan QC, and barrister
30 OF SILENCES AND SECRETS
Barbara Hocking and Bryan Keon-Cohen-to the Murray Islands to meet with the plaintiffs, including Eddie Mabo, who flew there from Townsville, and to inspect plots of land, boundaries, reef flat areas and fish traps.
Flo Kennedy's own knowledge of Meriam tradition is considerable; this came to her partly from her father; not himself a Murray Islander, though he had a special place there. He was a man highly respected for his spiritual powers, which were acclaimed throughout the Torres Strait, for his choreographic and song-making skills, and for his inspiration as a composer of hymns. Both the Meriam and the lawyers had their own legal protocols, their own priorities, and Flo anticipated and overcame various potential difficulties and misunderstandings: 'You see that tall man with the dark hair and that lady. Well, they're the assistant barristers. Now that smaller man in the stripey singlet, well, in Meriam language, he's the Au le, the senior man; the man to whom you show the greatest respect. He's called the QC, that's Queen's Counsel. 'As was to become evident in the courtroom, Ron Castan was a gifted advocate with an outstanding knowledge of the common law-. He took on the key role in shaping the legal argument. He also displayed qualities esteemed in Meriam society: practical imagination, empathy, wisdom, clarity of thought.
Each member of the legal team played an essential role in a division of functions that had scarcely emerged at this stage. Barbara Hocking carried out research in the preparation of the pleadings as the case proceeded. Questioning of the witnesses, which began over a period of ten days in October 1986 and recommenced at the island of Mer in May 1989, was conducted by barrister Bryan Keon-Cohen and barrister and solicitor, Greg McIntyre.
Keywords: McIntyre, Greg, Mer, Murray Island Native Court, No Ordinary Judgement, Sharp, Dr. Nonie, 1982
Sharp, Nonie 1996, 'No Ordinary Judgment', Aboriginal Studies Press, p 27.