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Mabo vs Queensland

Summary In 1992, the High Court of Australia was asked to consider whether Queensland's annexation of the Torres Strait in 1879 had extinguished the land rights of the people already living there. The High Court said the annexation had not and that the same principles would apply to Britain's annexation of mainland Australia in 1772. When justifying his verdict, one of the High Court judges, William Deane, said that Aborigines had been treated as a "different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional lands." The conclusions of Mr Deane demonstrated the problems of hearing evidence for one event (the annexation of the Torres Strait in 1879 by Queensland) and using that evidence to pass judgement on a completly different event (the annexation of Australia in 1772 by the British.) Contrary to what Mr Deane tried to make people believe, the British never suffered some kind of moral crisis that forced them to ignore the locals when stealing the land. In Asia, the Americas, and Africa, the British simply planted the flag and claimed it for themselves. They then killed anyone who argued with the new masters and rewarded anyone who accepted them. Whether Australia was terra nullius or occupied made very little difference when it came to the British deciding whether to take land. As Mr Deane should have known, when colonising, the British were governed by two basic doctrines depending upon whether a land was being settled or being conquered. Basically, when the land was empty, British laws immediately came into force. When land was conquered, local laws existed until the British over-ruled them. This included the right of the British to over-rule land laws. Disregarding William Deane's proselytising, the High Court basically said that the British had treated Australia as unclaimed land when they should have treated it as a conquested land. Therefore, Aboriginal land laws could still have been in existence at the time of the Mabo versus Queensland judgement. Although past governments had extinguished some Aboriginal laws by granting title to colonists, and the present government of Australia could extinguish the rest if they wanted to, any laws extinguished after 1975 would need to consider the racial discrimination act introduced by the Whitlam Labor government. Although high in emotion, the High Court's judgement didn't consider history as thoroughly as it should have. Even if Arthur Phillip, Australia's first governor, didn't extinguish laws, in 1835, an event did in fact indicate that the native laws relating to land ownership had been extinguished by a subsequent governor. A colonist, John Batman, negotiated to buy 240,000 hectares of land from the Kulin people. 8 Aboriginal chiefs made a mark on a contract to indicate their acceptance. The contract was immediately declared invalid by a proclamation of Governor Bourke, who declared that the British Crown owned the entire land of Australia, and that only it could sell or distribute land.

If Deane found British colonial laws to be morally objectionable, then he should had said that he found them to be morally objectionable. Fabricating myths about colonists incorrectly applying British laws, or dehumanising Aborigines so that they wouldn't have to apply British laws, served neither the study of history nor the evolution of the Australian legal system. The myths did; however, serve Deane. A Labor Prime Minister subsequently appointed Deane to the position of Australian Governor General, raising questions about the blurring of politics and the law. In his position as Governor General, Deane spent his time giving speeches that promoted an ideology that divided the coalition between rural National Party voters at risk of a land claim, and urban Liberal Party voters not at risk of a land claim. Ironically, while denouncing racism in label, in substance Deane's judgement was extremely racist. He said to have title recognised, Aborigines would need to show evidence of 200 years of unbroken occupation of the land. Once title was recognised, then Aborigines would not be allowed to sell land, or divide it up individualy. In a nutshell, if they stopped living like that had been for the past 200 years, or tried to use their land to engage with the capitalist world, then title would be lost. Furthermore, the Walker Vs New South Wales 1995 judgement found that he Mabo judgment made no provision for the recognition of Aboriginal cultural laws. Background In the 1992 Mabo Vs Queensland case, the High Court was asked determine whether Queensland's annexation of the Torres Strait in 1879 had extinguished title on the islands. The High Court ruled that it hadn't. Although there was nothing particularly contentious about the decision, many people raised their eyebrows when the Justices then became very critical of Governor Arthur Phillip's actions in 1788. After all, they weren't been asked to pass judgment on Arthur Phillip. According to the Justices, Arthur Phillip had incorrectly applied the Doctrine of Terra Nullius, thereby failing to recognize Aboriginal legal systems. This failure to recognize the legal systems amounted to an act of racism that needed to be addressed. To address the racism, the Justices ruled that if Aborigines can produce 200 years of evidence showing their cultural association with the land, then they can formerly claim title. If Aborigines had lost an association at any time in the last 200 years, irrespective of the reason, then title could not be revived. The Justices then produced some racism of their own by stating that if title were recognized, then it couldnt be sold or divided up individually - as all non-Aborigines can do with their land. Ironically, the Justices also ruled that Aboriginal legal systems, with the exception of laws relating to land ownership, were not to be recognized as legal systems. The Mabo judgment proved to be very divisive in Australia . The Justice's emotive language was embraced by some sections of the population who subsequently went forth and accused their compatriots of racism. In their minds, Australians of the present day

had to take responsibility for Arthur Phillip's racism. Failure to do so was an act of racism to be denounced. Those being accused of racism responded with some emotive language of their own. This led to Australia becoming a divided nation. Despite the emotive language in support of Aborigines, the passage of time seems to have proved that the decision wasn't very favourable to Aborigines at all. The most significant problem Aborigines face is being trapped between their communal past and the individualistic focus of the modern world. The Mabo judgement ensured that they would remained trapped in this no-mans land. As the Mabo judgment denied Aborigines from individually owning land, or selling land, it prevented Aborigines from being able to use their land to engage with the modern capitalistic world. Yet despite saying that Aborigines should not modernise, the judgement denied them from being able to return to traditional ways of life. By failing to recognise Aboriginal legal systems as legal systems, Aborigines were unable to practice many of their traditional customs that were vital to the regeneration of their cultures. If they did, they could have ended up in an Australian jail. Terra nullius - the law In its colonising era, England had laws governing how its citizens should behave in new lands. The Doctrine of Terra Nullius applied to "uncultivated or desert lands". In such lands, the common law of England applied from the moment of colonisation. When land was acquired by conquest or ceded in a treaty, the land's existing laws would be recognised; subject to the right of the English Crown to override them. This included the right of the Crown to override land laws. The differences between lands that were settled and those that were conquered were spelt out by Sir William Blackstone in 1865 in his Commentaries on the Laws of England. According to Blackstone, "Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only by finding them desert and uncultivated and peopling them from the mother country; or where, when already cultivated, they have been gained by conquest, or ceded to us in treaties. And both these rights are founded upon the law of nature, or at least upon that of nations." In regards to countries gained by conquest, Blackstone wrote "But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change those laws but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God as is the case of an infidel country." In regards to terra nullius lands, Blackstone wrote:

"But there is a difference between these two species of colonies with respect to laws by which they are bound. For it hath been held, that if an uninhabited country be discovered, and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately in force." Arthur Phillip's application of terra nullius When Arthur Phillip arrived in Australia , there was no High Court, no elected parliament, no appeals process and no democracy. The Crown had vested in Arthur Phillip the authority to make decisions on its behalf in respect to the colony. Within the confines of the colony, Arthur Phillip was the law. He had the power to decide if Australia was terra nullius, and if it wasn't, he could override any local laws that existed. Because the various Aboriginal communities were nomadic and didn't display the signs of land ownership familiar to the European community, Arthur Phillip acted as if Australia was terra nullius. For example, there were no permanent dwellings, villages, towns, farms, herds, cultivation, enclosures, ditches, hedges, earthworks or clearings that Europeans recognised as signs of land ownership. There were no boundary markers, or defensive walls, signalling the end of one tribe's land, and the beginning of another. There was no central land register recording which tribe owned which piece of land. Usually when new territory was gained, it wasn't by pushing soldiers into a new region and defeating a resisting army, rather it was by granting ownership over land that appeared to be unused. Thus the perception in the minds of the Europeans was that Australia was being settled rather than conquered. When the returning Aborigines speared sheep and cows on farms, in the minds of the Europeans, the Aborigines were like bushrangers taking what didn't belong to them. Further clouding the issue were the mixed signals coming from the Aborigines themselves. Although some Aborigines led a guerrilla war of resistance, others were friendly. Watkin Tench, a military officer of the colonial era writing: Our greatest source of entertainment now lay in cultivating the acquaintance of our new friends, the natives. Judgement - Mabo Vs Queensland (1992) Mabo Vs Queensland (1992) was solely about native title on Murray Islands in the Torres Straight which had been annexed by Queensland in 1879. Australian legal precedent clearly laid down that customary native land title was extinguished upon the acquisition by the Crown of a colony. (Attorney-General v Brown 1847: 30; Milirrpum v Nabalco Pty Ltd 1971:141; Hasluck 1988:101-2.) But against precedent, the High Court found that Queensland's annexing of the Islands had not extinguished native title.

After giving their judgement in the Mabo case, the Justices said their verdict would also apply to the Aborigines on the mainland. This was a surprising statement as the High Court was never presented material in relation to Arthur Phillip's actions nor the laws of the 700 or so distinct mainland tribes. Furthermore, unlike the Torres Straight Islanders who were an agricultural people, the mainland Aborigines were nomadic. It is inconceivable that the highest court of Australia would make such a extrapolation without first familiarising itself with the actions of Arthur Phillip and the distinct laws of the 700 mainland Aboriginal tribes. It seems then, the Justices must have undertaken extensive study during their leisure time. What land can be claimed and how? The English common law of possession basically proposes that if people occupy land for a specific period of time, then they have a ownership claim over it. Instead of applying the common law to Aborigines, the Justices created a much more strict (and difficult to prove) set of guidelines. The Justices ruled that when there had been no crown interference, native title exists if an applicant can show an unbroken continuity since 1788. This association was not restricted to living on the land. It could have been a fishing, hunting or a religious affiliation. Irrespective of whether a tribe occupied a region for the past 100 years, ownership was lost if the tribe was removed from the land in a previous period. In effect, these guidelines prevented Aborigines from claiming prime real-estate or any land that was being commercially used. Irrespective of whether their ancestors owned the land, if the association had been temporary lost anytime since 1788, the Justices ruled the title could not be revived. Although this requirement made land claims more difficult for Aborigines, it did create a lot of work for white lawyers, anthropologists, historians and archaeologists wanting to "help" Aborigines. Not surprising, white anthropologists, historians, lawyers and archaeologists were full of praise for the judgement. It was very lucrative for them and they had no desire to help Aborigines survive without their "expert" services. Restrictions on land usage In the event that Aborigines had title recognised, the Justices ruled that they would be bound by a series of restrictions that would not apply to any other race in Australia. One restriction was that land could not be individually owned. Thus a community would not be allowed to divide up the land among their people. Furthermore, native title would not give the community the right to sell the land. These restrictions made it almost impossible for Aborigines to develop their land economically. They also called into question what kind of title Aborigines actually had, or whether title was even worth having.

As Warren Mundine, head of NSW Native Title Services, said: "We own a couple of billion dollars' worth of land and it means sweet bugger-all for the Aboriginal community." Terra Nullius - Other laws The Mabo judgement was based on the legal premise that Arthur Phillip had incorrectly applied the Doctrine of Terra Nullius and therefore didn't extinguish native land laws. If land laws had not been extinguished, then it also seemed logical that other laws would still exists. This was tested in Walker Vs New South Wales (95). The Chief Justice of the High Court found that: "Mabo is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia." It seemed then, the only Aboriginal laws that had not been extinguished were those relating to land ownership. However all native laws relating to the management of the land or those essential to the functioning of an Aboriginal community had been extinguished. The great irony of the Mabo judgement was that, while it denounced the application of the Doctrine of Terra Nullius, it showed a complete lack of appreciation for why the preservation of local laws was important. England wanted local laws to be recognised because they knew local laws were essential to keep societies functioning. However, because the Mabo judgement made no provision to recognise tribal law, it made it impossible for Aborigines to live a traditional lifestyle. As a consequence, Aborigines remained trapped between two worlds. Moralising Australia is a multicultural society with a diversity of values and beliefs. For this reason, a court's role is not to act as the moral guardian of one set of values to the exclusion of the other. Its role is to interpret the law when disputes arise. To ensure they are able to rationally interpret this law, a judge must distance their own sense of morality from the interpretation that they are being asked to make. But a peculiar feature of the Mabo judgement was the high level of moralising rhetoric, which the Justices themselves acknowledged that some people may find surprising. Alluding to Arthur Phillip's actions, Justice Deane and Justice Gaudron said it was one of the "darkest aspects" in the history of Australia . The Justices also implied that Arthur Phillip had treated Aborigines as a "different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional lands." As for the culpability of present generation of Australians, Justice Deane said the dispossession of Aborigines is "a national legacy of unutterable shame."

Deane's argument that the English ignored the very existence of Aborigines to take their land was a dubious one. The English certainly didn't ignore the existence of the Chinese when they took Hong Kong, nor did they ignore the existence of Indians when they took India. It would seem then, Deane's emotive language probably served an agenda other than communicating the perceptions of English people during the colonising era. Many of the problems that the judgement caused can be attributed to the Justice's inability to refrain from moralising. Legally, the judgement only affected a small minority of Australians. However all Australians were affected by the moralising of the Justices. Where there is morality, there is division. Psychological experiments have found that even simple moral dilemmas considered by relatively homogenous focus groups invariably fail to reach resolution and usually descend into insults. Pressuring all nonAborigines to accept moral responsibility for the actions of Arthur Phillip was always going to be a divisive act. If the Justices had passed clear and concise laws and refrained from getting on the moral high-horse then Australians would not have been plunged into moralistic feuds that never had any hope of reaching consensus. Although a few miners, farmers and most Aborigines would have been unhappy, the rest of Australia would not have been divided the way it was. There are numerous explanations for why the Justices decided to take the high-moral ground. Racist judgement Although the moralising of the Justices made them appear sympathetic to the Aborigine's cause, in substance their judgement stripped Aborigines of equal rights. By using emotive language they successfully poured honey on a turd and sold it to the Aborigines as if it was a delicious dessert. The judgement was racism in its purest institutionalised form. It:

Denied Aborigines from claiming land owned by their ancestors; Was the only court that required claimants to show 200 years of continuous evidence; Imposed a series of restrictions on land use that did not apply to any other race in Australia; Defined Arthur Phillip's application of terra nullius as racism, then acted in kind by failing to recognise traditional laws.

Aside from calming Aboriginal dissent, showing moral courage proved to be very lucrative for Justice William Deane. Even though Mr Deane was scathing of Australians, Paul Keating subsequently appointed him to the position of Governor General. In 2000 Mr Deane had the honour of opening the Sydney Olympic games. After the expiration of his term, Mr Deane continued to receive very generous Commonwealth superannuation as he travelled Australia giving speeches about the moral courage that his verdict showed.

(Not bad for someone who, by his own admission, was the recipient of stolen property and someone who decided to keep possession of that stolen property. ) The anthropological gold rush The great virtue of studying anthropology is that one learns the importance of customs, rules and laws to a society. For this reason, anthropologists should have heard alarm bells over the contradiction between Mabo Vs Queensland (1992), which forced communal management of land, and Walker Vs New South Wales (95) which affirmed that Aborigines could not use their traditional laws to manage land communally. Because the anthropology profession was possessed by gold fever it ignored this contradiction. Anthropologists didn't want to criticise the judgement because it made so much money for them. It seemed then, the actions of anthropologists once more showed that universal trait of humans to manipulate their morality in a way that is conducive to financial gain. Although the judgement was lucrative for anthropologists, history showed that the return of land didnt do a great deal to lessen Aboriginal disadvantage. Even after title had been recognised, low life expectancy, over representation in prison, sexual assault and domestic violence were still defining features of Aboriginal communities. In 1998, John Reeves Q.C, issued a report into land returned in the Northern Territory . Reeves' findings were that the return of land per se had done nothing to improve the Aborigines' socio, economic or health indices. As much as anthropologists wanted to make excuses by blaming these problems on a prime minister not saying "sorry", there remained the inherent contradiction in a High Court judgement that forced communal management of land, yet denied the use of traditional laws necessary to manage the land. This contradiction had an inevitable consequence of social dysfunctional. Along with anthropologists, archaeologists also saw the financial potential of the judgement. In order to dig up sacred ground, archaeologists used the carrot of a land claim to persuade Aborigines to compromise their beliefs. Barriers to economic empowerment After attaining native title, many Aborigines dreamt of attaining economic empowerment. Some wanted to raise a few cows on the land. Some wanted to harvest the land's trees or wild animals. Some wanted to create hotels, eco-tourist resorts or property developments. Unfortunately, significant hurdles made economic empowerment almost impossible. First and foremost was opposition from whites who wanted Aborigines to live like huntergatherers. These whites saw native title as a "gift" to Aborigines. They wanted Aborigines to protect the land as if it were a national park. They didn't want to see Aborigines as farmers, as property developers, as loggers or as hotel owners. For these whites, cheap arts and crafts were about the only commercialisation that is acceptable.

According to Noel Pearson, director of the Cape York Institute for Policy and Leadership: "The aspirations of indigenous people in remote Australia to re-establish a real economy underpinning the sustainability of their society are at odds with the vision of urban-based conservation organisations such as the Wilderness Society. The confrontation that has emerged between the advocates of land rights in Cape York and those who advocate for so-called wilderness may be the start of a sharpening clash of values." Another obstacle was communal decision making. Each individual had his or her own ideas about what should be done. Some wanted to preserve traditional ways while others wanted to engage in property development. In pre-colonial times, Aboriginal tribes had a series of customs and myths that ensured each individual thought alike. They also had customs that motivated individuals to subordinate their will to the will of the tribe. If the individual failed in their communal expectations, senior members of the tribe could exert sanctions to bring them back into line. Most of these customs were outlawed by Australias legal system that protects the rights of the individuals as well as ensures gender equality. As a consequence, Aborigines found it difficult to attain consensus. The final barrier was the reluctance of banks to loan money. Because the land couldnt be sold, Aborigines couldnt borrow against it. Furthermore, banks wouldnt lend money to organizations that do not run on capitalist principles. Future Although big business was hostile to the Mabo judgement when it was released, and leftwing environmentalists were heavily in favour of it, in the long run the judgement is likely to be in the interests of big business. Once land has been transferred from the control of governments into the hands of Aborigines, businesses are able to avoid the democratic process. This was seen in America when concerned citizens successfully lobbied government to have gambling outlawed. Gambling businesses subsequently set up casinos on Indian reservations where land owners didn't have to pay attention to the concerned citizens. As a result, America was transformed from a nation of puritans to a nation of gamblers. In Australia, numerous projects have been halted by concerned citizens lobbying Australian governments. For example, unsightly wind farms have been refused in case they kill a singular bird once a year. Mines have been refused because environmental impact statements have found some rare microscopic organisms would be threatened. Had these politically sensitive business been proposed for Aboriginal land, the business could have used the emotive angle of Aboriginal sovereignty to resist any attempts at government control, or community activism. Businesses find it easier to persuade Aborigines because it is easier to produce a enough money to to bribe small group than it is to bribe a national government.

Unlike America, gambling is unlikely to be the lucrative money spinner for Aborigines because Australians already have ample access to casinos. Instead of casinos, the likely money spinner will renting out the land as a dump for industrial waste. In what is a sign of the future, in 2007 the federal government announced that an agreement had been reached with the Aboriginal people from Muckaty Stationan to let their land be used as a radioactive waste dump. In return, the Ngapa traditional owners would receive a $12 million package, including an $11 million charitable trust and a $1 million education scholarship. Potentially, other Aboriginal tribes, living in cities but retaining title over useless tracts of desert, may well negotiate arrangements with foreign governments or multinational companies to let their land be used to store some variety of toxic materials. At present, the legal restrictions on ownership and sovereignty prevent Aborigines from being able to fully exploit their land. However, campaigns change with time to reflect the interests of people wanting to make money. At present, the moralistic support for current Mabo legislation comes from anthropologists, lawyers, historians and archaeologists who are making money out getting the title into Aboriginal hands. Once all available land is in Aboriginal hands; however, such groups will be obsolete and there will no longer be voices supporting the legislation. Instead, Aborigines, in partnership with industries, will begin challenging the legislation so that they can profit as well. When that occurs, morality will change.