Mabo Decision Research Articles

‘A salvage exercise for Aboriginal rights’: human rights and social justice in Indigenous political responses to the Mabo (No.2) decision

ABSTRACT The Mabo (No.2) decision in 1992 has been described as a historical turning point for the nation. In popular memory, it is associated with Eddie Mabo, then Prime Minister Paul Keating, and Indigenous activist and public intellectual Noel Pearson, who played an important role in seeing Mabo (No.2) embodied in Native Title law. Inasmuch as it is understood within the long history of Indigenous demands for rights, it is generally seen as pivotal in the turn to Indigenous rights. Mabo (No.2) put Indigenous sovereignty on the table like never before and emphasised its connection to self-determination and land rights in the Indigenous political agenda for rights. In this paper, I aim to expand understanding of this moment by demonstrating the ways in which human rights were deployed by Indigenous political actors, particularly those associated with the Aboriginal and Torres Strait Islander Commission, both during their discussions with the government as to the implications of the decision for Indigenous people on the Australian mainland and more generally in relation to Australia’s international human rights obligations.

Planning laws and Aboriginal and Torres Strait Islander peoples’ rights and interests

ABSTRACT Contemporary Australian planning has for too long ignored its fundamental responsibilities in its relations with Aboriginal and Torres Strait Islander peoples in urban and regional Australia. Australian land-use planning and development processes do not have a good track record of taking account of the rights and interests of Aboriginal and Torres Strait Islander peoples, or of adequately involving them, especially in our capital cities and major regional centres where the larger proportion of Aboriginal and Torres Strait Islander peoples live and the where the extent of dispossession is perhaps at its greatest. It is a sad indictment of our planning system that more than 30 years after the High Court of Australia’s landmark decision in Mabo (No. 2), that most of the planning statutes around Australia still do not require prior consultation with or the direct involvement of registered native title holders or claimants during plan formulation or decision-making about land uses for an area of land or waters. This paper examines the current state of affairs with respect to how well or otherwise our planning statutes still fail to give adequate recognition to Aboriginal and Torres Strait Islander peoples’ rights and interests in contemporary statutory planning processes.

“The Interconnectedness and Spiritual Equality of All Things”: Recovering Indigenous Ecological Imagination in Postcolonial Australian Fiction

ABSTRACT Following the 1992 Mabo Decision which overturned the historical myth of terra nullius and its declaration that Australia was “nobody’s land,” Indigenous Australian literature has been concerned with recovering both the sidelined historical of colonial dispossession and traditional ecological knowledge. Inspired by their own storytelling traditions, First Nations writers Kim Scott and Alexis Wright reveal these Indigenous histories and cultures through their explorations of “Country”: an Aboriginal English word encompassing the belief that all things, human and non-human, are equally and spiritually connected across time in an ecological web of stories. By examining the interrelationship of postcolonialism and ecocriticism, I argue that Scott and Wright, through their respective novels That Deadman Dance and Carpentaria, promote diverse, Indigenous understandings of the environment, challenging the dominance of Anglo-American writing in ecocriticism. Alongside its capacity to interrogate the way we read and analyze nature and history, I also argue that Indigenous writing has the capacity to challenge the novel form itself by moving away from Western conceptions of linear temporality, casual development, and action or character driven plot, and instead incorporating traditional storytelling modes (oral stories, music, and dance) that are all framed by the rhythmed events of ecological time and place.

A Reconciled Nation? Mabo and the Reimagining of Australia's National History

ABSTRACT The High Court's 1992 decision in Mabo v Queensland (No 2) is widely regarded as a seminal moment in Australia's legal and political history. The decision established a legal right to native title and placed Indigenous history and politics at the forefront of public debate. As this historiographical survey will demonstrate, the decision, and the public debate that followed it, also spurred significant discussion in the discipline of Indigenous history about how to write and represent Indigenous history, and the place of Indigenous history in national historical narratives. For some, Mabo encouraged an emphasis on negotiation and reconciling Indigenous and settler experiences to create new narratives about Australia's history and nationhood. For others, Mabo and the politics of reconciliation constituted a further appropriation of Indigeneity by settler Australians, underscoring the historical continuity of invasion and the need to transform the discipline of history to recognise Indigenous epistemologies and history-making.

Mabo: Landmark and paradox

MaboLandmark and paradox Rhonda Evans Geoff Rodoreda and Eva Bischoff, eds. Mabo's Cultural Legacy. Melbourne: Anthem Press, 2021. 210 pp. A$125. ISBN: 9781785274294 "Mabo." The word conveys multiple meanings. It identifies a man, Eddie Koiki Mabo; it is shorthand for the High Court decision, Mabo and Others v Queensland (No 2) (1992) 175 CLR 1, that rejected the legal doctrine of terra nullius upon which Australia was colonized; and it marks a torturous turning point in relations between Australia's Indigenous peoples and its settler society. This edited volume by Geoff Rodoreda and Eva Bischoff collects papers presented at a 2017 workshop held in Stuttgart, Germany, that considered the complex cultural legacies of Mabo the man, Mabo the judicial decision, and Mabo the catalyst for change. It addresses profound questions about sovereignty as that concept applies to Indigenous land rights, Indigenous storytelling, and the authoritative definition of Indigenous identity. Because I come to the book as a lawyer and political scientist, my engagement with these subjects has been primarily from those disciplinary perspectives. I found the volume an insightful and accessible account of Mabo's cultural impact and implications. The introductory and closing chapters are especially strong. The volume's editors, Rodoreda and Bischoff, cogently yet concisely articulate the book's recurring themes. Mabo, they explain, embodies a cruel paradox. While the decision jettisons terra nullius from Australia's law books and recognizes Native Title, it simultaneously denies Indigenous sovereignty and sanctifies the dispossession of Indigenous land rights (2). Mabo's cultural significance, Rodoreda and Bischoff contend, derives from its "focus on territory, its specific intervention in historical narrative and its being spoken as law" (3). Because the authors refrain from rehearsing the content of the chapters that follow, Rodoreda and Bischoff's introduction works well as a stand-alone piece. The remainder of the volume is divided into five main sections, focusing on history, politics, film, literature, and memoir. A pair of historical chapters provide greater context for both Mabo the man and Mabo the judicial decision. Focusing on the Australian state of Victoria, Russell and Standfield recount decades-long efforts by Aboriginal activists for land and political rights, including freedom from the oppressive laws that from the mid-nineteenth century through the 1930s purported to "protect" them. Their contribution positions Mabo the man and Mabo the decision within the longer and broader struggles of Australia's Indigenous peoples. [End Page 291] Turnbull, by contrast, offers a more personal account of Eddie and Bonita Mabo's work in the Townsville community, especially with respect to providing educational opportunities for Indigenous peoples. His attention to Bonita's role corrects a general tendency to overlook her own considerable contributions. Turnbull's chapter also offers an interesting, firsthand perspective on the vibrant intellectual life of James Cook University in the 1980s, populated by the likes of Professor Henry Reynolds and Oodgeroo Noonuccal. This was the milieu in which Eddie Mabo formulated his own ideas about the world and his place in it. The legislative regime created to determine Native Title claims constitutes a key legacy of the Mabo decision. Two chapters examine the politics and practice of central elements of that regime. From anthropological and linguistic perspectives, respectively, Wergin and Ringel illustrate the important ways in which the regime's legal rules interact with Indigenous identities, shape those identities as well as the accompanying claims to land, and engender conflict among Indigenous peoples. Together, the chapters showcase the continuing centrality of the Australian state's sovereign role in defining and determining rights to land. They also illustrate the ways in which the regime empowers and privileges anthropologists and linguists in the Native Title process. A trio of chapters address issues concerning Mabo and film. Collectively, they highlight the importance of Indigenous peoples obtaining the requisite resources to tell their stories from their perspectives, or in other words, to exercise storytelling sovereignty. Chapters by Moreton and Davis and Kilroy do an excellent job of describing the development of both institutional capacity and film-production practices at Screen Australia and within the private sector that facilitate Aboriginal and Torres Strait Islander storytelling for both television and film. These developments, Moreton and...

When Worlds Collide in Legal Discourse. The Accommodation of Indigenous Australians’ Concepts of Land Rights Into Australian Law

Abstract The right of Australian Indigenous groups to own traditional lands has been a contentious issue in the recent history of Australia. Indeed, Aborigines and Torres Strait Islanders did not consider themselves as full citizens in the country they had inhabited for millennia until the late 1960s, and then only after a long campaign and a national referendum (1967) in favour of changes to the Australian Constitution to remove restrictions on the services available to Indigenous Australians. The concept of terra nullius, misapplied to Australia, was strong in the popular imagination among the descendants of settlers or recent migrants and was not definitively put to rest until the Mabo decision (1992), which also established a firm precedent for the recognition of native title. This path to equality was fraught and made lengthy by the fact that the worldviews of the Indigenous Australians (i.e. Aborigines and Torres Strait Islanders) and the European (mainly British and Irish) settlers were so different, at least at a superficial level, this being the level at which prejudice is typically manifested. One area where this fact is particularly evident is in the area of the conceptualisation of property and especially the notion of land “ownership” and “use”. In this paper, we will focus on these terms, examining the linguistic evidence of some of the Australian languages spoken traditionally by Indigenous Australians as one means (the only one in many cases) of gaining an insight into their worldview, comparing it with that underlying the English language. We will show that the conceptualisations manifested in the two languages are contrasting but not irreconcilable, and indeed the ability of both groups of speakers (or their descendants in the case of many endangered Australian languages) to reach agreement and come to develop an understanding of the other’s perspective is reason for celebration for all Australians.

Reversing History?: The Challenges of Using “MABO No. 2” as an Avatar for Resolving Indigenous Land Claims in Africa

The nexus between the indigenous African and the land on which they live cannot be gainsaid. So important is this relationship that land is a sine qua non for the survival of the indigenous African and indigenous African cultures. However, despite this undisputed link, the indigenous African as well as other colonized peoples, lost ownership of their lands due mainly to the adverse effects of subjugation. The direct upshot of this is that even where the former colonial masters and their successor states have become sympathetic to the indigenous populations and decide to retrocede some of their land, they often encounter obstacles both in law and in modern history that are not easy to avoid. This was also the case in some countries where indigenous peoples lost their lands to settlers who took over command and decided on their destiny, such as the indigenous peoples in Australia. It was in an attempt to put this issue to rest that the High Court of Australia in the locus classicus MABO No. 2 attempted to define the circumstances under which land can revert to the indigenous populations as a matter of human rights. This article examines some of the “hooks” that the apparently generous MABO No. 2 decision may present, where there is an attempt to transpose it mutatis mutandis as an avatar to resolve the problem of indigenous land rights in Africa. The paper attempts to answer the question as to what extent the decision of the High Court of Australia in MABO No. 2 can be used to resolve indigenous land claims in Africa. Through an analytical approach, the paper investigates the challenges inherent in attempting to use the decision as a South-South mutual inspiration due to the contextual, historical and evolutionary differences between the Australian and African situations. The paper finds out that the decision in MABO No. 2 carries in it the very germ of its inapplicability in the African context and makes suggestions on how to read the MABO decision in the context of the present-day dispensation of indigenous African land law.

“An audience with the Queen”: Indigenous Australians and the Crown, 1954- 2017

This article is the first substantial examination of the more recent historical relationship between Indigenous Australians and the Crown. While the earlier tradition of perceiving the Queen as benefactress has survived in Indigenous communities, it now co- exists with more critical and antagonistic views. After the High Court’s Mabo decision (1992), the passage of the Native Title Act (1993), and the federal government’s Apology to the Stolen Generations (2008), it is clear that the only avenues for seriously redressing Indigenous grievances lie within the courts and parliaments of Australia. The Australian monarch—either as a supportive voice, or as a vehicle for highlighting the failure of Australian governments— no longer holds any substantial political utility for Indigenous Australians. Monarchy has become largely irrelevant to the fate of future Indigenous claims for political and social justice.

A cautionary tale regarding Aboriginal and Torres Strait Islander rights: lessons from US Supreme Court limits on American Indian tribal power

ABSTRACTSince the Australian High Court's decision in Mabo v Queensland (No 2), and the Native Title Act that followed, national discussion of the rights of Aboriginal and Torres Strait Islander peoples has primarily focused on land rights. The recent recognition-versus-treaty debate, however, has opened the door for awareness, advocacy and dialogue beyond land rights and including, among others, rights to Indigenous governance and jurisdiction. In the United States, by contrast, American Indians have long held greater rights to governance and jurisdiction than Aboriginal and Torres Strait Islander peoples. Nonetheless, the US Supreme Court has over the past 40 years dramatically restricted this category of rights for Indian peoples. The present article shows how this trend sheds light on potential pitfalls regarding the expansion of Indigenous rights in Australia. An investigation of key US Supreme Court judgments, together with an examination of the historical and contemporary forces that have driven those judgments: (a) reveals possible shortcomings of the Mabo case and the Native Title Act in regard to land rights; and (b) provides insight into the risks of future paths, whether by recognition or especially treaty, to be taken by Aboriginal and Torres Strait Islander peoples in seeking further right.

Editorial

We are very pleased to bring you Volume 46 of The Australian Journal of Indigenous Education. This year is a particularly significant time for Aboriginal and Torres Strait Islander issues and education. It marks the 25th anniversary of the landmark Mabo decision that refuted the legal doctrine of terra nullius and recognised that the Miriam people were continuously present and exclusively possessed Mer in the Torres Strait. It is also the 50th anniversary of the 1967 referendum, a significant milestone resulting in constitutional change to recognise Aboriginal and Torres Strait Islander peoples in the national census. This year also marks the release of the Universities Australia Indigenous Strategy 2017–2020, which is designed to provide a sector-wide initiative that binds all universities together with common goals. The strategy includes important initiatives to increase the numbers of Aboriginal and Torres Strait Islander people participating in higher education, increase the engagement of non-Indigenous people with Indigenous knowledge and educational approaches, and improve the university environment for Aboriginal and Torres Strait Islander people.

Since Time Immemoriall: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry

In the 10 th anniversary year of the decision in Mabo, this article offers one possible account of the relationship between native title and the common law The article provides a description of this relationship, based on an account of common law jurisdiction and the ways in which the common law historically used the concept of jurisdiction in order to supplant other sites of adjudication and authority. The article traces the jurisdictional story of the common law,from its origins as one of many decentralised legal spaces, through the important first colonial context of Ireland,to the new settlement of New South Wales, and the first encounters with 'the natives'. It then examines the decisions in Mabo, Wik and others, and concludes that in 'recognising 'and constructing the interest of native title, the common law relied on the same techniques which characterised its earlier encounters with the 'other' in the English domestic and Irish colonial contexts. It is only by understanding the way in which native title has come to be at common law that we can explore its possibilities and limitations as a vehicle for justice.

Native Title Litigation In Australia: Does The Judiciary Deliver On The Principal Objectives Defined By Mabo?

This article considers the origin and development of native title law in Australia since the Mabo decision. It examines native title litigation in the decisions of the Federal and High Court in an attempt to determine whether such litigation has delivered on the principal objectives defined by Mabo, or has moved forward. The aim of the article is to establish whether Mabo is simply a correction of history intended to bring Australia into line with the developments adopted by other jurisdictions, or whether it is a true ‘judicial revolution’. Finally, the article makes a critical and comparative examination of native title in the United States, Canada and New Zealand, which reveals that the Australian approach to native title is far removed from the flexible approaches of those other jurisdictions.

Australian Sovereignty, Indigenous Standpoint Theory and Feminist Standpoint Theory

Much has been written by non-Indigenous Australians in the wake of the 1992 Mabo case following its rejection of terra nullius in Australia. What is surprising about this literature is the lack of discussion about sovereignty, which is a logical consequence of the Mabo decision’s conclusion that the basis for Crown sovereignty was incorrect. What little has been said about sovereignty since Mabo can be placed into two broad groups. The first calls for various forms of First Peoples’ sovereignties, and is made up almost exclusively of First Peoples scholars. The other group is dominated by non-Indigenous people who speak instead of citizenship, shared responsibility, native title, reconciliation, rights, self-management, multiculturalism, colonisation and postcolonial theory. This article is directed to non-Indigenous scholars who write on these topics. It is a critique of their scholarship, notwithstanding its merit to the extent that literature questions injustice, dispossession, genocide, discrimination and colonial policy. The basis for this critique is that this scholarship fails to bring First Peoples’ sovereignties to the fore, and for this reason persists as colonial knowledge. To make this argument, the article identifies with feminist standpoint theory and Indigenous standpoint theory to contend that First Peoples’ sovereignties must be embraced by non-Indigenous scholars.

Introduction to Fire-Stick Farming

Rhys Jones was not a fire ecologist, and he was the first to admit that. What Rhys Jones did understand was time—deep time. By his death in 2001, Jones had become the pre-eminent Australian archaeologist, with a research portfolio that spanned from Tasmania to New Guinea. Among his many achievements, Jones helped establish the time of human occupation of Australia at 40 000 years. When Rhys Jones published Fire-Stick Farming in 1969, the Australian state operated under the doctrine of terra nullius, which established that the continent was uninhabited at the time of European discovery and there for the taking. Aboriginal people had only just gained full recognition as citizens within the constitution in 1967 and were still over twenty years away from having their native title claims recognized and terra nullius negated in the High Court’s Mabo decision in 1992.

Indigenous water rights in Australia

Indigenous rights in Australia have undergone enormous transition since the groundbreaking decision in Mabo vs. Queensland in the Australian High Court. This paper explores these changes with a particular emphasis on Aboriginal water rights—an important, and more complicated, corollary to land rights. Mabo opened many possibilities that Aboriginals could claim water rights for everything from irrigation to fishing and spiritual uses. Since 2000 claims of this nature have been made in the federal court system and have challenged the total scope of water law on this the driest inhabited continent on earth. Water law in Australia is primarily a function of state government and these policies have had differential impact on Aboriginal rights which will be explored in this paper.

20 Years after

As Australia celebrates 20 years since the Mabo decision, much of the commentary has focussed on what the doctrine of native title has achieved. Perhaps, though, a more pertinent preliminary focus should be on what native title was meant to achieve. Has it merely been a false hope for Australia's Indigenous peoples?

Testing Citizenship, Regulating History: The Fatal Impact

Testing Citizenship, Regulating History: The Fatal Impact

Human agency, historical inevitability and moral culpability: Rewriting black-white history in the wake of Native Title

A study showing that black-white relations in Van Diemen's Land, especially in Pallittorre country, were complex and problematic is presented. A historical debate accompanying the High Court's Mabo decision and the subsequent Native Title Act 1993 is one way of controlling the memories that nourish national consciousness and thus shapes the future.

Of a ‘contested ground’ and an ‘indelible stain’: a difficult reconciliation between Australia and its Aboriginal history during the 1990s and 2000s

This article proposes an interpretative narrative of the evolution of Aboriginal history as a scholarly enterprise during the 1990s and in more recent years.1 The 1990s were characterised by attempts to synthesise the interpretative traditions resulting from previous decades of scholarly activity. In more recent years, the debate has shifted dramatically, dealing specifically with the genocidal nature of white Australia’s policy towards Aboriginal peoples. The most important passages in this process are associated with the 1992 Mabo decision by the Australian High Court and the publication of the Bringing them home report of 1997.2

“I Dreamed of Snow Today”: Impediments to Settler Belonging in Northern Queensland as Depicted in a Selection of Recent Fiction

In 2001, Geoffrey Blainey argued that “a high proportion” of non-Indigenous Australians have developed a sense of place, “of feeling at home” in their country, that “has in part been created or manufactured”. Though historians have contributed to this, he says, “Painters and writers have done most to create it” as “They tried to provide a sense of belonging, and a sense of continuity and history” (Boyer Lecture n. pag.). Several recent Australian novels - each with some historical basis - are set in Queensland’s north and offer contemporary perceptions of the area’s history from settlement to the end of the twentieth century. Published the year after the Mabo Decision, and Prime Minister Paul Keating’s “Redfern Speech”, David Malouf’s 1993 novel, Remembering Babylon, is a fitting point to commence exploring depictions of settler society’s relations to northern Queensland. Three other novels included in this study are Alex Miller’s Journey to the Stone Country (2003), and Landscape of Farewell (2007), along with Gordon Smith’s Dalrymple (2006). In these stories northern settlers struggle to cope - physically, psychologically and emotionally. The difficulties for settlers in developing an attachment to north Queensland, and their sometimes extreme responses, illustrate the powerful interaction between place, belonging and identity.