...Evidence of Malo's Law...
The plaintiffs' evidence returned time and again to the connection between Malo's law and the Meriam customary system of land tenure, especially in relation to the central prohibition regarding trespass. As Mabo himself explained: 'Teter mauki mauki. Malo keeps his hands to himself, he does not touch other's property.'
The plaintiffs also attempted to establish that the precepts of Malo's law often lay at the heart of decisions of the Murray Island Native Court, established by Queensland to resolve land disputes on the island. Justice Moynihan was not persuaded:
'No doubt someone who is predisposed to do so can approach the Court records and leave them persuaded that they are a systematic manifestation of the application of rules developed prior to European contact. Taken in the light of the whole of the evidence the position is not so simple. Counsel for the plaintiffs on occasion urged on witnesses that the decisions reflected a conscious and consistent application of "Malo's laws". Some witnesses acquiesced in these urgings. Others did not. I will not repeat what I have already said about Malo's laws. I suspect that those witnesses who acquiesced in the proposition that they were manifest in the Court's decisions were exhibiting the sort of retrospective reconstruction, which I spoke of earlier...
None of this is to say that the Court in its decision did not seek to achieve a consistent application of certain basic principles. That was however rather because of the value of consistency and predictability than by reason of the application of "Malo's law" or of any "traditional" system of Murray Island "laws" (in whatever sense one likes to use that word).'
The plaintiffs also attempted to establish that the precepts of Malo's law often lay at the heart of decisions of the Murray Island Native Court, established by Queensland to resolve land disputes on the island. Justice Moynihan was not persuaded:
'No doubt someone who is predisposed to do so can approach the Court records and leave them persuaded that they are a systematic manifestation of the application of rules developed prior to European contact. Taken in the light of the whole of the evidence the position is not so simple. Counsel for the plaintiffs on occasion urged on witnesses that the decisions reflected a conscious and consistent application of "Malo's laws". Some witnesses acquiesced in these urgings. Others did not. I will not repeat what I have already said about Malo's laws. I suspect that those witnesses who acquiesced in the proposition that they were manifest in the Court's decisions were exhibiting the sort of retrospective reconstruction, which I spoke of earlier...
None of this is to say that the Court in its decision did not seek to achieve a consistent application of certain basic principles. That was however rather because of the value of consistency and predictability than by reason of the application of "Malo's law" or of any "traditional" system of Murray Island "laws" (in whatever sense one likes to use that word).'
Keywords: evidence, Malo's laws, Malo-Bomai, Meriam culture, Meriam history, Murray Island, Murray Island Native Court, oral evidence, plaintiffs, Queensland, religion, sacred, tag mauki mauki, 1990
Mabo v Queensland and the Commonwealth, Determination of Facts (unreported) at pp 191-192.
Author: Kenna, Jonathan
Author: Kenna, Jonathan