Era: 1990 and beyond Cultural background: Aboriginal Collection: High Court of Australia Theme:Government Indigenous Relations Settlement
High Court of Australia, Canberra, Australia.
High Court Mabo Case Decision No. 2.
The first three pages from the judgment of Justice Brennan that in total comprise the majority judgments of six of the seven judges of the full High Court who decided the case. The judgement includes Justice Brennan’s signature. Dimensions: 297mm long x 210mm wide.
When John Batman, one of the pioneers in the founding of Victoria, first settled at Port Phillip, he made an attempt to buy the land from the Aboriginal people through a treaty. The New South Wales Governor Sir Richard Bourke effectively quashed the treaty with the 1835 Proclamation that passed into British Law the concept that no one owned or had a meaningful relationship with the land in Australia before the coming of the British and therefore all of Australia was terra nullius- thus able to be claimed by Britain as Crown Land. Anyone taking possession of land without the authority of the Colonial Government would be considered trespassers.
Although many people at the time also recognised that the Aboriginal peoples had rights in the lands as was confirmed in a House of Commons report on Aboriginal relations in 1837, the law followed and almost always applied the principles expressed in Bourke’s proclamation. This would not change until the Australian High Court’s decision in the Mabo Case in 1992.
At the northern end of the Great Barrier Reef in the Torres Strait are three small islands, Mer, Dauar and Waier islands. They are the homelands of a Melanesian people known as the Meriam.
Eddie Mabo was born in 1936 on Mer Island known as Murray Island. In 1952 when he was 16 years old, the Murray Island Council expelled him from Mer for twelve months for breaking the community law of consuming alcohol. In exile Eddie went to work on the pearling boats and in 1957 he went to Cairns looking for work labouring; cutting cane and laying railways.
Mabo was one of thousands of Torres Strait Islanders who migrated to the Australian mainland looking for work. The Queensland railway system was one the main employers of indigenous who worked out in the remote areas building and maintaining the lines and infrastructure. This work enabled the Islanders to establish themselves financially. During this time Eddie Mabo became a spokesperson for the railroads establishing communication skills that would serve in the future.
In 1967 Eddie Mabo was working at James Cook University in Townsville as a gardener and tutor in island culture. Being on campus allowed him to have access to the library and he was able to attend a lectures.
In 1974 Eddie had discussions with law academics at the University about his community’s ancestral ownership of the Murray Islands. Eddie was devastated when they told him the Murray people didn’t own any land as under Governor Bourke’s 1835 Proclamation it was Crown Land owned by the Queensland Government.
At the 1981 James Cook University Land Rights Conference Eddie Mabo made a passionate speech about land ownership and ancestral inheritance in the Murray Islands. Mabo said was that it is my fathers & grandfather’s, grandmother’s land, I am related to it, it is my identity. That’s why I need to fight for it, so I don’t loose my identity to the land.
A lawyer suggested that there should be a test case to claim Native Land Rights through the Courts. The Murray Islanders decided to mount a legal challenge to the principle of terra nullius in the Queensland Court led by Eddie Mabo. The Queensland Court ruled that Eddie Mabo had no inherent right to inherit Murray islands land. Eddie undeterred mounted an appeal to the High Court of Australia.
The stress of the legal action was taking a toll on Eddie’s health so he decided withdraw his personal involvement with the legal action and return to Mer to make art and do community work.
In January 1992 Eddie Mabo died of cancer at 55 years of age. Five months later lead judge Justice Brennan of the High Court announced a historic unanimous decision overturning the legality of the principle of terra nullius.
Justice Brennan found that native title over land pre-existed European settlement of Australia and it was the Indigenous people of Australia who determined who had ownership of this land. This case is now known as the Mabo Case. The decision challenged the traditional understanding of Australian history and the founding of our nation.
High Court Mabo Case Decision No. 2, 1992. Courtesy High Court of Australia
Prime Minister Paul Keating announced to the nation that Mabo was an important turning point… for a new relationship between indigenous and non-Aboriginal Australians. The Native Title Act 1993 that followed empowered a new generation of Aboriginal leaders to speak with absolute legitimacy in the larger debates of Australian politics.
Back in northern Queensland, Eddie Mabo’s people gathered in Townsville for a special memorial service for Eddie Mabo. His community reburied him on his Murray Island. On the night of his reburial the Murray Island people performed a traditional ceremony that had not been done for 80 years. Eddie Mabo was buried as a king.
In 1996 the Liberal National Federal Government introduced legislation to amend the Native Title Act 1993 to make it harder for Aboriginal people to claim native title and take away the Indigenous peoples’ right to negotiation over the land they could claim. In 1998 Prime Minister John Howard had come up with a ‘Ten Point Plan’ to implement these changes. The Ten Point Plan was eventually passed in 1998 when the federal government threatened a double dissolution of parliament if the Senate did not pass the Government’s amendments to the Act.
The High Court Mabo Case Decision No. 2 is historicall significant as evidence of the connection between land, identity and continuity of family and community felt by indigenous people in Australia and around the world. The High Court Mabo Case Decision No. 2 is immensely significant to this understanding for all Australians in the reconciliation process.
The judgments of the High Court in the Mabo case inserted the legal doctrine of native title into Australian law. In recognising the traditional rights of the Meriam people to their islands in the eastern Torres Strait, the Court found that native title existed for all Indigenous people in Australia for 60,000 years when the first Aboriginal people migrated across the Torres Strait land bridge on their migration from South East Asia.
Coupe, S & Andrews, M 1992, Was it only Yesterday? Australia in the Twentieth Century World, Longman Cheshire, Sydney.
Heritage Office & Dept of Urban Affairs & Planning 1996, Regional Histories of NSW, Sydney.
Heritage Collections Council 2001, Significance: A guide to assessing the significance of cultural heritage objects and collections, Canberra.