Scales from the eyes of justice
An early flash point with one clan of Aborigines illustrates the first stages of the conflagration of oppression and conflict which was ...to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame.{1}
Judges Deane and Gaudron.
News of victory cut through the air at the Murray Islands on an early June day when the southeast trade winds blow up from the south. Calling out to each other and whistling loudly, women and men joined one another on the street that links the villages winding along the sandbeaches.
There was joy in the air, the joy of knowing that the High Court of Australia, a kole court in Meriam language, had recognized Meriam rights to the Murray Islands: '...the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'. There was sadness in the air too, the sadness of knowing that Eddie Koiki Mabo had not lived to celebrate the victory. Over some ten years until his death on 21 January this year, his inspiration, his steadfastness and his courage had taken him through many arduous and sometimes painful experiences. With his wife Neta he had faced them patiently, cheerfully and hopefully.
A certain unreality had built up through the years of waiting and hoping; prayers had been said in the five churches at the Murray Islands and in churches on the mainland. Court tediums, an endless belittling of the Murray Island legal system, even the use of personally insulting and embarrassing questions on private matters by the first defendant, were punctuated over ten years by long silences. In the early hearings, traditional evidence on ownership rights and patterns passed down by word of mouth, was objected to as hearsay by Queensland barristers. In their argument, too, Meriam culture had been destroyed; the Meriam were assimilated persons.
The three plaintiffs - Eddie Koiki Mabo, Rev Dave Passi and James Rice - were actively supported by other Murray Islanders in court hearings. The whole community at home and in southern towns rose to the occasion; in low unquavering voices they refuted Queensland's arguments, courteously and firmly. Several Meriam appeared for the defendant; they had not questioned the Meriam system, they were merely seeking the support of the court in boundary disputes with their neighbours.
Early in the case meetings at Mer and in Townsville issued invitations to the court to visit the Murray Islands and inspect the plots of land, the ancient boundaries made of mounds of earth and the land-marks, and to become acquainted with Meriam rules against trespass, their obligation to plant and to conserve the land.
The Meriam people have reason to be jubilant; they have reasons also to be proud. Not only have they secured recognition of their customary law, their victory is a victory for all other indigenous peoples and for Australia. In recognizing Meriam rights, the High Court reversed the legal position on which Terra Australis as a political entity is founded. The voting was six to one. The Court's recognition of 'common law native title' sweeps away forever the force of past judgments which upheld the legal invention that Australia was unoccupied land at the time of white settlement.
Terra nullius took for granted that the Meriam were primitive and uncivilized, without recognizable land laws or social organization and hence lower in the scale of humanity than the newcomers. This judgment shatters the whole structure upon which their subordinate status has rested. The Murray Islanders, Judges Deane and Gaudron conclude, undoubtedly possess 'a local native system under which established familial or individual rights of occupation and use were of a kind which far exceed the minimum requirements necessary to find a presumptive common law native title'. Moreover, after annexation of the islands in 1879 Meriam title was 'recognized and protected by the law of Queensland' (p 107).
A radically new assumption underlies that judgment: equality before the law now means the obligation of Australian law to respect the Meriam law even though it is a form of title radically different ('unknown') to British law. This is known to the Meriam as Malora Gelar, Malo's Iaw. In elevating Meriam law to the same level as the British common law the judiciary is providing the condition for reciprocaI relations of mutual respect and exchange possible only among equals.
In the past twenty-five years changes in the law which foreshadow the present judgment are embodied in Federal legislation of 1967 which gave indigenous peoples formal equality as citizens, and in the Racial Discrimination Act (Cwth) 1975, which inscribed equality before the law into legal statute. These changes would appear to frame the thinking of the Court. Thus Judge Brennan concludes: '.. . 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' (p 29).
The Meriam had contributed uniquely to that process of change. They entered the case strong in the knowledge that Malo's Law gives them a right to the lands handed down to them. From their perspective, this judgment is merely stating what to them has always been obvious. Every inch of their island bears the imprint of their ancestors through whom their certainty and self-confidence arise. 'The right is God-given', as Rev Dave Passi says. The names of James Rice's various plots of land 'are not just white men's names'; they are the names given by his great grandmother and great grandfather, and his right has a sacred meaning. In the context of the hearings of the Supreme Court of Queensland at Mer in 1989, the Chairman of the Murray Island Council took the opportunity to let the world know that whatever the ultimate decision of the High Court the land remains theirs (Ron Day, 'Land Bilong Islanders', 1990).
From another cultural perspective, the judgment challenges self-evident assumptions, assumptions which have taken on the status of indissoluble truths, yet which have, in recent years especially, created a sullen worry, manifest as guilt at one extreme, and as defensiveness and aggressiveness at the other. Judges Deane and Gaudron record their awareness of the difficulties of questioning these assumptions: '...long acceptance of legal propositions', particularly those 'relating to real property', may well 'impart legitimacy and preclude challenge' (p 111).
One has only to recall the legal propositions accepted by Judge Blackburn in the case of Milirrpum v, Nabalco, 1971 (the Yirrkala, Gove case) to see how the arguments behind terra nullius remained set in concrete even twenty years ago. In rejecting the Aboriginal plaintiffs' claim, Judge Blackburn argued that communal native title is not recognized in the common law, that there were no clear boundaries to the lands claimed, and that the plaintiffs were unable to prove that their forebears' links with the lands claimed were the same as those claimed by the plaintiffs (Milirmum, p, 168). He relied upon Blackstone's Commentaries on the Laws of England of 1765, which distinguished settled colonies which were 'desert and uncultivated' lands, peopled by primitive inhabitants without civilized laws or anything a kin to property rights, from conquered colonies which are presumed to have laws of their own (Milirrnum, p 201). He went on to explain the underlying rationalization of colonization: the right of the more industrious peoples capable of developing the earth's resources to supplant the less industrious.
Judges Deane and Gaudron explicitly disagree with Judge Blackburn's conclusions of general principle on the inapplicability of common law native title to a settled colony, and the inability of the Yirrkala plaintiffs to establish the existence of property rights (p 92). The High Court's final judgment is in some respects foreshadowed in its decision to uphold the plaintiffs' demurrer which challenged the Oueensland Coast Islands Declaratorv Act 1985, which had sought to extinguish any property rights which may have survived at the Murray Islands since 1879. This Act had been incorporated into Queensland's defence. On 8 December 1988 the majority of the High Court Bench held that, assuming for the purposes of the challenge that rights to land existed at the Murray Islands, the Act discriminated against Murray Islanders vis-a-vis other groups. Since presumed Murray Island law was of a different kind to British law, this judgment was recognizing, at least implicitly, the equal right to cultural difference; that is, a system of law expressed in a form different to English law, a position for which precedents had been created (see Adeyinka Ovekan v. Musendiku Adele (1957) and Calder's case (1973) in Canada.
A reversal of such proportions as that signified by the 1992 judgment may occasion deep emotions. Within the 218-page document containing the judgments of different members of the Bench one finds words which denote indignation, at times anguish, statements which contradict the pretence that the law is outside the realm of the passionate. Judges Deane and Gaudron make explicit reference to their use of language 'unusually emotive for a judgment in this Court'. Their use of 'unrestrained language' in commenting upon dispossession of Aborigines is not intended as an intrusion into the area of 'attribution of moral guilt': an understanding of the facts of dispossession are of critical importance in assessing the legitimacy of the twin legal propositions that the lands of Australia were unoccupied and that ownership of these vested in the Crown (p 111). Judge Brennan likewise takes issue with the proposition that British sovereignty led to absolute and exclusive ownership. In a forthright and eloquent manner he condemns the way the common law 'made the indigenous inhabitants intruders in their own homes and mendicants for a place to live' (pp 15-16).
The Meriam and their counsel have reason to be proud of their role in assisting members of the judiciary in new ways of seeing. They have also the rich reward of inflicting defeat upon the Queensland defendant on matters of deep significance to themselves. They are a forgiving people. Yet not far from the surface of their collective psyche are the unhealed scars of past wrongs which they associate with authority figures behind whom stand the power of the state. Older Meriam still recall with pain the 'dark days' of the 1930s and even the post-war years. Unlike Aboriginal people and the Kaurareg of the Prince of Wales groups of islands, the Meriam were not dispossessed, degraded and devastated; they were locked into their islands by a curfew and a permit system; their traditional dances were forbidden as were their religious rites for their gods, Malo-Bomai. Through these actions and others they were shamed and belittled - the worst thing that can happen to a Murray Islander.
In claiming that Meriam culture had been destroyed and that oral tradition was outside the scope of the law, the State of Queensland was persisting in the belittling and humiliating relationship that they had forced on the Meriam (and others) for some 90 years. In this sense, the court 'ordeal' was like a microcosm of their history. Each of these propositions was challenged by Meriam witnesses; they argued for the existence of an 'Oral Register of Title'; they claimed what Queensland termed 'Hearsay' was in their terms 'traditional evidence', and that while many of their old customs had disappeared, there was an essential continuity with the past in modern Murray Island culture. {2}
Their forthrightness as witnesses is consistent with reputation, developed over the years, for outspokeness, tenacity and independent dignity. Half a century ago, they went on strike against Protection, demanding complete control of Island affairs and equality with other Australians ('citizen rights'), an aim consistent with the position won in the high court; the equality of two legal systems, and by inference of two different cultures.
Over the last decade the Meriam have bween completeing a process of rediscovery and reaffirmation of thier identity as a people. They have 'offered' their difference to the court and in an unprecedented way their giving has been reciprocated: 'The strength of Malo's Law brought a light into the eyes of justice,' Father Dave Passi reflected upon the judgement.
This is only a beginning. If the judgement is received simply as an ending of an old era without the effort of to understand the past on the part of kole, then the ideas of Terra Nullius - 'the rights and interests of indigenous inhabitants being treated as non-existent' (Judge Brennan, pp 29-30) - remain alive. Expropriation of the 'primitives' asd the long practice of their shaming are neither repudiated nor assuaged.
No one can undo the experiences of the past; but we may start to cast off the scales and begin to See, a process which engages the feelings as well as the mind. Like Dostoevsky's Rashkolnikov we may even see ourselves anew and recognise that our own clothes are covered with blood. We might listen to Flo Kennedy, a Torres Strait Islander who played a key part in the beginnings and the process of the Mabo case, in tryting to understand 'what the judgement means for those who had the boots upon them'.
Certainly their are active moves to render the judgement harmless and hollow. Even as the seven judges laid down thier quills after eleven months research and consideration, steps were being takjen to close up the 'loopholes' through wich customary landowners might claim land under existing legislation, or to legislate to close the possibilities embedded in the historic judgement. The mining lobby moved quickly into the public arena; a backlash was soon evident in cetain media; and a queue of legal advisers formed at the high court registry to obtain copies of the document.
Aboriginal and Islander people in Queensland for example, can be forgiven for being very wary . THe fact that the state goverment retains a right to extinguish customary title provided it does not conflict with Commonwealth Law (see Order, (3), HCA, 3 June 1992) is ground for careful watchfulness.
Islanders call recall the forshadowing of legislation by a previous Queensland government which was to ffer them only 5t0-year leases. The second national conference of Islanders in April this year expressed dissatisfaction with the Torres Strait Islander Act 1991 and waited the High COurt Decision on the case.
The Meriam greeted the judgment in their own way. As they whistled loudly in exaltation, this was a response which reached back into the strength which Malo's Law could bring: 'We have won! This is something big we have done.'
22 June 1992
1. Mabo and others Vs. Qld, High Court of Australia (HCA), 3 June, 1992,
p 95.
2. For detailed consideration of the hearing of Meriam traditional evidence and their councel's pleadings, see Nonie Sharp, 'Contrasting Cultural Perspectives in the Murray Island Land Case', Arena 94, 1991, pp 78-83.
Judges Deane and Gaudron.
News of victory cut through the air at the Murray Islands on an early June day when the southeast trade winds blow up from the south. Calling out to each other and whistling loudly, women and men joined one another on the street that links the villages winding along the sandbeaches.
There was joy in the air, the joy of knowing that the High Court of Australia, a kole court in Meriam language, had recognized Meriam rights to the Murray Islands: '...the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'. There was sadness in the air too, the sadness of knowing that Eddie Koiki Mabo had not lived to celebrate the victory. Over some ten years until his death on 21 January this year, his inspiration, his steadfastness and his courage had taken him through many arduous and sometimes painful experiences. With his wife Neta he had faced them patiently, cheerfully and hopefully.
A certain unreality had built up through the years of waiting and hoping; prayers had been said in the five churches at the Murray Islands and in churches on the mainland. Court tediums, an endless belittling of the Murray Island legal system, even the use of personally insulting and embarrassing questions on private matters by the first defendant, were punctuated over ten years by long silences. In the early hearings, traditional evidence on ownership rights and patterns passed down by word of mouth, was objected to as hearsay by Queensland barristers. In their argument, too, Meriam culture had been destroyed; the Meriam were assimilated persons.
The three plaintiffs - Eddie Koiki Mabo, Rev Dave Passi and James Rice - were actively supported by other Murray Islanders in court hearings. The whole community at home and in southern towns rose to the occasion; in low unquavering voices they refuted Queensland's arguments, courteously and firmly. Several Meriam appeared for the defendant; they had not questioned the Meriam system, they were merely seeking the support of the court in boundary disputes with their neighbours.
Early in the case meetings at Mer and in Townsville issued invitations to the court to visit the Murray Islands and inspect the plots of land, the ancient boundaries made of mounds of earth and the land-marks, and to become acquainted with Meriam rules against trespass, their obligation to plant and to conserve the land.
The Meriam people have reason to be jubilant; they have reasons also to be proud. Not only have they secured recognition of their customary law, their victory is a victory for all other indigenous peoples and for Australia. In recognizing Meriam rights, the High Court reversed the legal position on which Terra Australis as a political entity is founded. The voting was six to one. The Court's recognition of 'common law native title' sweeps away forever the force of past judgments which upheld the legal invention that Australia was unoccupied land at the time of white settlement.
Terra nullius took for granted that the Meriam were primitive and uncivilized, without recognizable land laws or social organization and hence lower in the scale of humanity than the newcomers. This judgment shatters the whole structure upon which their subordinate status has rested. The Murray Islanders, Judges Deane and Gaudron conclude, undoubtedly possess 'a local native system under which established familial or individual rights of occupation and use were of a kind which far exceed the minimum requirements necessary to find a presumptive common law native title'. Moreover, after annexation of the islands in 1879 Meriam title was 'recognized and protected by the law of Queensland' (p 107).
A radically new assumption underlies that judgment: equality before the law now means the obligation of Australian law to respect the Meriam law even though it is a form of title radically different ('unknown') to British law. This is known to the Meriam as Malora Gelar, Malo's Iaw. In elevating Meriam law to the same level as the British common law the judiciary is providing the condition for reciprocaI relations of mutual respect and exchange possible only among equals.
In the past twenty-five years changes in the law which foreshadow the present judgment are embodied in Federal legislation of 1967 which gave indigenous peoples formal equality as citizens, and in the Racial Discrimination Act (Cwth) 1975, which inscribed equality before the law into legal statute. These changes would appear to frame the thinking of the Court. Thus Judge Brennan concludes: '.. . 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' (p 29).
The Meriam had contributed uniquely to that process of change. They entered the case strong in the knowledge that Malo's Law gives them a right to the lands handed down to them. From their perspective, this judgment is merely stating what to them has always been obvious. Every inch of their island bears the imprint of their ancestors through whom their certainty and self-confidence arise. 'The right is God-given', as Rev Dave Passi says. The names of James Rice's various plots of land 'are not just white men's names'; they are the names given by his great grandmother and great grandfather, and his right has a sacred meaning. In the context of the hearings of the Supreme Court of Queensland at Mer in 1989, the Chairman of the Murray Island Council took the opportunity to let the world know that whatever the ultimate decision of the High Court the land remains theirs (Ron Day, 'Land Bilong Islanders', 1990).
From another cultural perspective, the judgment challenges self-evident assumptions, assumptions which have taken on the status of indissoluble truths, yet which have, in recent years especially, created a sullen worry, manifest as guilt at one extreme, and as defensiveness and aggressiveness at the other. Judges Deane and Gaudron record their awareness of the difficulties of questioning these assumptions: '...long acceptance of legal propositions', particularly those 'relating to real property', may well 'impart legitimacy and preclude challenge' (p 111).
One has only to recall the legal propositions accepted by Judge Blackburn in the case of Milirrpum v, Nabalco, 1971 (the Yirrkala, Gove case) to see how the arguments behind terra nullius remained set in concrete even twenty years ago. In rejecting the Aboriginal plaintiffs' claim, Judge Blackburn argued that communal native title is not recognized in the common law, that there were no clear boundaries to the lands claimed, and that the plaintiffs were unable to prove that their forebears' links with the lands claimed were the same as those claimed by the plaintiffs (Milirmum, p, 168). He relied upon Blackstone's Commentaries on the Laws of England of 1765, which distinguished settled colonies which were 'desert and uncultivated' lands, peopled by primitive inhabitants without civilized laws or anything a kin to property rights, from conquered colonies which are presumed to have laws of their own (Milirrnum, p 201). He went on to explain the underlying rationalization of colonization: the right of the more industrious peoples capable of developing the earth's resources to supplant the less industrious.
Judges Deane and Gaudron explicitly disagree with Judge Blackburn's conclusions of general principle on the inapplicability of common law native title to a settled colony, and the inability of the Yirrkala plaintiffs to establish the existence of property rights (p 92). The High Court's final judgment is in some respects foreshadowed in its decision to uphold the plaintiffs' demurrer which challenged the Oueensland Coast Islands Declaratorv Act 1985, which had sought to extinguish any property rights which may have survived at the Murray Islands since 1879. This Act had been incorporated into Queensland's defence. On 8 December 1988 the majority of the High Court Bench held that, assuming for the purposes of the challenge that rights to land existed at the Murray Islands, the Act discriminated against Murray Islanders vis-a-vis other groups. Since presumed Murray Island law was of a different kind to British law, this judgment was recognizing, at least implicitly, the equal right to cultural difference; that is, a system of law expressed in a form different to English law, a position for which precedents had been created (see Adeyinka Ovekan v. Musendiku Adele (1957) and Calder's case (1973) in Canada.
A reversal of such proportions as that signified by the 1992 judgment may occasion deep emotions. Within the 218-page document containing the judgments of different members of the Bench one finds words which denote indignation, at times anguish, statements which contradict the pretence that the law is outside the realm of the passionate. Judges Deane and Gaudron make explicit reference to their use of language 'unusually emotive for a judgment in this Court'. Their use of 'unrestrained language' in commenting upon dispossession of Aborigines is not intended as an intrusion into the area of 'attribution of moral guilt': an understanding of the facts of dispossession are of critical importance in assessing the legitimacy of the twin legal propositions that the lands of Australia were unoccupied and that ownership of these vested in the Crown (p 111). Judge Brennan likewise takes issue with the proposition that British sovereignty led to absolute and exclusive ownership. In a forthright and eloquent manner he condemns the way the common law 'made the indigenous inhabitants intruders in their own homes and mendicants for a place to live' (pp 15-16).
The Meriam and their counsel have reason to be proud of their role in assisting members of the judiciary in new ways of seeing. They have also the rich reward of inflicting defeat upon the Queensland defendant on matters of deep significance to themselves. They are a forgiving people. Yet not far from the surface of their collective psyche are the unhealed scars of past wrongs which they associate with authority figures behind whom stand the power of the state. Older Meriam still recall with pain the 'dark days' of the 1930s and even the post-war years. Unlike Aboriginal people and the Kaurareg of the Prince of Wales groups of islands, the Meriam were not dispossessed, degraded and devastated; they were locked into their islands by a curfew and a permit system; their traditional dances were forbidden as were their religious rites for their gods, Malo-Bomai. Through these actions and others they were shamed and belittled - the worst thing that can happen to a Murray Islander.
In claiming that Meriam culture had been destroyed and that oral tradition was outside the scope of the law, the State of Queensland was persisting in the belittling and humiliating relationship that they had forced on the Meriam (and others) for some 90 years. In this sense, the court 'ordeal' was like a microcosm of their history. Each of these propositions was challenged by Meriam witnesses; they argued for the existence of an 'Oral Register of Title'; they claimed what Queensland termed 'Hearsay' was in their terms 'traditional evidence', and that while many of their old customs had disappeared, there was an essential continuity with the past in modern Murray Island culture. {2}
Their forthrightness as witnesses is consistent with reputation, developed over the years, for outspokeness, tenacity and independent dignity. Half a century ago, they went on strike against Protection, demanding complete control of Island affairs and equality with other Australians ('citizen rights'), an aim consistent with the position won in the high court; the equality of two legal systems, and by inference of two different cultures.
Over the last decade the Meriam have bween completeing a process of rediscovery and reaffirmation of thier identity as a people. They have 'offered' their difference to the court and in an unprecedented way their giving has been reciprocated: 'The strength of Malo's Law brought a light into the eyes of justice,' Father Dave Passi reflected upon the judgement.
This is only a beginning. If the judgement is received simply as an ending of an old era without the effort of to understand the past on the part of kole, then the ideas of Terra Nullius - 'the rights and interests of indigenous inhabitants being treated as non-existent' (Judge Brennan, pp 29-30) - remain alive. Expropriation of the 'primitives' asd the long practice of their shaming are neither repudiated nor assuaged.
No one can undo the experiences of the past; but we may start to cast off the scales and begin to See, a process which engages the feelings as well as the mind. Like Dostoevsky's Rashkolnikov we may even see ourselves anew and recognise that our own clothes are covered with blood. We might listen to Flo Kennedy, a Torres Strait Islander who played a key part in the beginnings and the process of the Mabo case, in tryting to understand 'what the judgement means for those who had the boots upon them'.
Certainly their are active moves to render the judgement harmless and hollow. Even as the seven judges laid down thier quills after eleven months research and consideration, steps were being takjen to close up the 'loopholes' through wich customary landowners might claim land under existing legislation, or to legislate to close the possibilities embedded in the historic judgement. The mining lobby moved quickly into the public arena; a backlash was soon evident in cetain media; and a queue of legal advisers formed at the high court registry to obtain copies of the document.
Aboriginal and Islander people in Queensland for example, can be forgiven for being very wary . THe fact that the state goverment retains a right to extinguish customary title provided it does not conflict with Commonwealth Law (see Order, (3), HCA, 3 June 1992) is ground for careful watchfulness.
Islanders call recall the forshadowing of legislation by a previous Queensland government which was to ffer them only 5t0-year leases. The second national conference of Islanders in April this year expressed dissatisfaction with the Torres Strait Islander Act 1991 and waited the High COurt Decision on the case.
The Meriam greeted the judgment in their own way. As they whistled loudly in exaltation, this was a response which reached back into the strength which Malo's Law could bring: 'We have won! This is something big we have done.'
22 June 1992
1. Mabo and others Vs. Qld, High Court of Australia (HCA), 3 June, 1992,
p 95.
2. For detailed consideration of the hearing of Meriam traditional evidence and their councel's pleadings, see Nonie Sharp, 'Contrasting Cultural Perspectives in the Murray Island Land Case', Arena 94, 1991, pp 78-83.
Keywords: High Court judgement, land rights, Mabo Case, Mer, Murray Island, 1992
Author: Sharp, Nonie