The long anticipated telemovie “Mabo” aired last night on ABC1. Like many, I sat, transfixed, at this story of a proud Murray Island man, Eddie Koiki Mabo, his refusal to bow to endemic racism, his groundbreaking legal fight for Indigenous land rights, his untimely tragic death from cancer only a few months before his final legal victory, and his relationship with his wife Bonita, whose support was crucial in Mabo’s making of history. The telemovie also had personal resonance for me: I am humbled to know or have known some of the other players in this drama, such as the barristers Ron Castan and Bryan Keon Cohen, as well as the director Rachel Perkins.
Mabo reminds us that law can be great. Ultimately, after an 11 year battle that outlived him, Mabo prevailed and terra nullius, a racist and objectively absurd doctrine, was swept away by a 6:1 majority in the High Court. Along the way, a 4:3 majority had struck down the Bjelke Petersen government’s attempt to kill the litigation by retrospectively abolishing native title.
Law can also be terrible. The telemovie reminded us how, not so long ago, that Queensland law dictated segregation in pubs and elsewhere, and that an indigenous person could be refused “permission” to travel home to Murray Island to see his dying adopted father. Indeed, extraordinarily arbitrary powers over Indigenous people were exercised by Patrick Killoran, portrayed in Mabo by Rob Carlton. And it was the old “law” of terra nullius that necessitated the legal battle in the first place.
Law can be intimidating and culturally inflexible. Witness the humiliation of Mabo as a witness before a Queensland court which, ironically, dismissed his personal land title claims in applying white man’s standards to that issue.
The Mabo case was hardly the end of the fight for Indigenous rights in this country. While native title was enshrined in legislation in 1993, it was wound back drastically by the Howard government after the Wik decision in 1998. And native title remains difficult to prove in a court: continuous assertion of customary land rights were difficult to maintain on the mainland (in comparison to Murray Island) in the midst of “the tide of history” of white colonization, and Western requirements of documentary evidence pay little respect to Indigenous oral traditions. And Indigenous socio-economic disadvantage remains a national tragedy, and the Northern Territory Intervention a reminder of how Australian governments can so easily rely on coercion as a solution to Indigenous problems.
Eddie Mabo’s story is a crucial signpost en route to true reconciliation in Australia. It demonstrated just what can be achieved when determined people join together to make the effort to combat injustice. The Mabo case and its legacy were driven by Mabo the activist, his family and fellow plaintiffs, and a key support cast of lawyers, academics and now film-makers. Food for thought as we lead up to a referendum on the constitutional recognition of Indigenous Australians.
Castan Centre for Human Rights Law 
2 responses to “Reflections on Mabo”
Thank you for that contribution Sarah. It was evocative for me as well. I knew Brian and Ron and have also known many other relevant people and have visited Mer on a number of occasions where I met one of the other Mabo plaintiffs, James Rice, who sat with me as an assessor hearing applications for parenting orders by parents who had traditionally adopted children. Traditional adoption is still not recognised by the law and I am currently participating as a consultant to a Queensland Government working party considering the issue. It was this non recognition that would have defeated Koiki Mabo’s claim had the other plaintiffs pulled out. It is to be hoped that the issue will be addressed at last and perhpaps the publicity generated by the 20th anniversary of the case will have a useful effect
At least in Native Title consent determinations questions of traditional adoption seem to have become somewhat less contentious as far as the Federal Court is concerned in some States than they were at the time of the Mabo case, though I’ve seen some lawyers and, sadly, even on occasion some anthropologists, argue for what might be termed one form of “biological determinism” or another.
In “long settled” areas some members of Indigenous communities have also adopted similar positions, often in the course of internal political argument with other community members, arguing “it’s in the blood” (or, sometimes “blud”) and even suggesting disinterring corpses and DNA testing as a means of identifying “true” Native Title rights (I suspect some would find themselves sadly disillusioned if they actually proceeded down this path – the evidence strongly suggests traditional Indigenous communities were far more interested in incorporative approaches than in emulating late 19th century European biological exclusivism and this would probably be reflected in any such analysis ).
But there are also those who play things the other way. Traditional communities certainly recognised traditional adoptive processes but this does not mean that those whose relationship depends on such things can throw their weight around without inviting serious censure from other community members and precipitating the sort of “biological fundamentalism” mentioned in the previous paragraph. People in such situations need to tread carefully. They may well be able, through political ability and connections, be able to take the primary role in ILUA negotiations over a new nickel mine, for example, enter into irrevocable agreements, and even become the primary beneficiaries of such an ILUA (given the provisions of the Native Title Act) , but by doing so they push other members of the original community towards a position which disavows “adoption” and seeks interpretations founded in western notions of biological inheritance.
As a researcher in the area of Indigenous interests in land for nearly 40 years I’ve seen both of these scenarios play out all too often, usually to the detriment of the Indigenous community as a whole, and with the consequent internal division & conflict undermining the ability of the community to present a coherent case. Third parties, of course, are all too happy to play upon the disagreements, actively supporting whichever Indigenous party they see as best furthering their own interests. Divide and rule didn’t end as a strategy with the demise of the British Empire!
What I’m saying to you is that the question that is of fundamental importance within Indigenous communities with which I have worked is not simply the acceptance or otherwise of traditional adoption processes. It is the manner in which this plays out in contemporary internal Indigenous political processes, and the manner in which this may be used, or abused, by interested third parties given the current structures of Australian law which translate such things into decision making “rights” and determine the legitimacy of formal agreements.
I wish you well in your consultancy. The immediate answer in terms of “traditional” process is , I think, quite obvious, but the implications in terms of contemporary Indigenous decision making processes after two centuries of occupation need very careful, nuanced, consideration.