Koori History Newspaper Archive

Much work to do, but let's give thanks for decision that's part of the landscape

Sydney Morning Herald - 3rd June 2002
Author: Frank Brennan.

Mabo provided a vastly better starting point for progress than the mindset that preceded it, writes Frank Brennan.

TODAY the nation has just cause to celebrate the 10th anniversary of the Mabo decision which recognised native title for the first time in Australia. This ground-breaking decision, which changed the fundamental law of the land by discarding the 200-year-old terra nullius mindset, was the cause of much public debate a decade ago. Now it is simply accepted as part of the nation's legal landscape.

The decision has withstood the test of time because it is in accordance with contemporary Australian values. Universal respect for property and the principle of non-discrimination might even be thought to be the "vibe" of the Constitution, to quote the defining movie of contemporary cultural norms, The Castle.

At first, the mining industry, led by Hugh Morgan, was very concerned that the combined effect of the judgement and the Racial Discrimination Act could be a huge slowdown in mining and exploration. Others, such as the federal Coalition's Ian McLachlan, argued that it would result in a "feast for lawyers".

By Christmas 1993, the prime minister, Paul Keating, cut a deal with the key Aboriginal leaders and the Senate, having failed to do so with the Coalition or state governments. Keating appreciated four significant effects of the Mabo decision:It posed no threat to sovereignty nor to Treasury coffers. It was a judicious realignment of the common law developed by judges to match the historical reality with the historic land grievance which, for the first time, had come before the highest court in the land.It was an honest acknowledgement that most Aborigines had been long dispossessed of their lands and any restitution or compensation was a matter for parliaments rather than the courts.It provided a historic opportunity to put right those wrongs of the past which could be put right and to ackn owledge those wrongs which forever stained the nation's identity. This could be done without any threat to any other person's land rights or legitimate economic interests.It provided a unique opportunity, given the make-up of the Senate, for a settlement of the nation's long-standing land rights question with Aborigines at the negotiating table in the cabinet room and holding some of their trump cards.

The Parliament set up a land fund to buy lands on the open market for the benefit of those Aborigines who had lost their traditional lands. By 2004, that fund will be self-perpetuating, allowing purchases of $45 million each year. There is now a National Native Title Tribunal with almost 600 applications in the pipeline, half of which are going through mediation.

And the Government funds Aboriginal representative bodies which have their own advisers. Marcia Langton , another of the original Aboriginal negotiators, says: "What's become clear is that whereas litigation is costly and time-consuming, agreement-making costs less and is more timely."

The dust has settled. The decision is not seen as a revolution but as a commonsense piece of legal reasoning. Early in his term as Prime Minister, John Howard told Parliament that Mabo "now with the passage of time, seems completely unexceptionable to me. It appears to have been based on a good deal of logic and fairness and proper principle".

Hugh Morgan's 1994 declaration "In Mabo, and all that followed from it, we are engaged in a struggle for the political and territorial future of Australia" now seems a little melodramatic.

Tim Shanahan, the CEO of the Chamber of Minerals and Energy (WA), now says, "Mining companies in the early days weren't as sanguine or accepting of native title. These days it's seen as part of the normal business of mining." Native title is here to stay, helping to put right what Justices Deane and Gaudron described as our "national legacy of unutterable shame".

The High Court still has its work cut out interpreting the fine print of the excessively amended Native Title Act and filling in the detail of common law native title, no doubt providing some feasting for lawyers. Indigenous communities still have their problems and we still have a national problem with reconciling ourselves. But the denial of land rights and the failure to accord equal protection and respect under the law are no longer part of the solution.

That is a better starting point than the terra nullius mindset which preceded Mabo.