The Judicial Over-Reach of the Mabo Case

Remember that strange word usufruct? What have the conjurers done with it? Where has it gone?

I am sure you have all heard of the Mabo case. Well, actually, Mabo cases. The original case was filed on May 20, 1982, as Mabo and Others v The State of Queensland and The Commonwealth of Australia, with the Queensland registry of the High Court in its original jurisdiction. The complaint was against the Queensland government’s action of treating the land, reefs and submerged lands on the Murray Islands as Crown Land as a result of the British Colony of Queensland annexing various islands in the Torres Strait in 1879.

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The Queensland government resisted with all its legal capacity. Then in a coup de grace it legislated the Queensland Coast Islands Declaratory Act 1985 to give legislative support to the annexation.

This hoohah was about three islands at the north-east end of the Torres Strait closer to Papua New Guinea than to Cape York. The main island is called Mer, and the two smaller uninhabited islands are called Daua and Waier. Their total area is about six square kilometres, of which Mer is just over four square kilometres and has a resident population of about 400 people. The islands, which were the tops of a submerged volcano on the Continent of Sahul and subsequent coral growths, are reputed to have been inhabited for about 3000 years, by Melanesians known as the Meriam people. It was clear that the main island was settled by people leading a sedentary lifestyle, who were gardeners or small-scale agriculturalists long before annexation. This negated any questions of “uninhabited” and “uncultivated” as per the definitions as a requirement for “settlement” according to the experts of the day, Blackstone and Vattels, therefore the annexation was either an act of cession or conquest, neither of which automatically extinguished existing laws or land tenure. The smaller uninhabited islands were used by the Meriam people as usufruct: the taking of the “fruits of the land (and sea)”.

The principal complainant, Eddie Koiki Mabo, was a citizen of Mer who had been expelled for misconduct and was a resident of Townsville where he was working as a gardener at James Cook University. Spurred on by Henry Reynolds, a lecturer at the university who had written the book The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (1981), Mabo presented a speech to the university’s 1981 conference on land rights. The speech attracted the interest of activist lawyers who had been focused on mainland land rights and who shared Reynolds’s near-obsession with “terra nullius”. They helped Mabo assemble a case and lodge a claim.

You might wonder why the claim was not lodged with the specialist Land Court of Queensland or the Supreme Court of Queensland. They probably wanted wider publicity. To get the court to consider the Woodward Royal Commission report they probably needed a federal court, so they went to the top.

So when the Queensland act was contested, the Chief Justice of the High Court, Sir Harry Gibbs, needed a junior court to consider the facts so he quashed the complainant’s request to remit the case to the Federal Court. On February 27, 1986 (I assume he acted as sole judge in the original jurisdiction) he referred it to the Supreme Court of Queensland, where of the three available judges Michael Moynihan was appointed.

In the meantime, the full bench of the High Court considered whether the Queensland Coast Islands Declaratory Act 1985 was valid. In December 1988 the High Court handed down its verdict (four to three) that the state law was invalid because it was inconsistent with the Racial Discrimination Act 1975. That judgment became known as Mabo (No. 1) v Queensland. And the original case was resumed in the Queensland Supreme Court.

Justice Moynihan held hearings at the Murray Islands and finally handed down his judgment on November 16, 1990. The report has not been available to the public and it is 500 pages long. It accepted much of the history and land use of the islanders but dismissed the claims of Eddie Mabo. The remaining complainants now eliminated the claims to waters outside the Queensland three-mile limit and the Commonwealth and Eddie Mabo were dropped from the case.

The full (amended) case then went back to the High Court in May 1991. Why it was elevated to the full bench and not to a sole judge is beyond my knowledge. The full bench of the High Court heard argument lasting several days. I understand no outside or expert witnesses were called and the Commonwealth was not represented.

The well-publicised decision known as Mabo (No. 2) v Queensland was handed down on June 3, 1992 and is readily available. Eddie Mabo had passed away a few months earlier.

What is not well known is that the Hawke government, where Gareth Evans and later Lionel Bowen were Attorneys-General, declined to present a case, and I don’t know their respective contributions. Michael Duffy, then Duncan Kerr and Michael Lavarch all acted as Attorney-General (the latter when Paul Keating took over as Prime Minister) and were probably involved in the writing of the Native Title Act 1993.

So where does usufruct come in?

The High Court took evidence relating to the three tiny islands and applied it to the largest island in the world. It considered evidence relating to the lifestyle of the sedentary inhabitants of Mer in 1879 and 1990 and applied it to the mainland of Australia, to a different race of people (if you are not prepared to grant them all Sahulian origins) who led a nomadic hunter-gatherer existence in 1770 and 1788. That lifestyle is best described as usufructuary. The High Court gave many reasons but principally the Racial Discrimination Act 1975.

Now Gibbs CJ made two references to usufruct and usufructuary in his judgment of February 27, 1986. And the seven judges (mainly Justice Brennan) made fifty-three mentions of it in the Mabo (No. 2) judgments. And now this is where the conjuring comes in. Frank Brennan SJ (son of Justice Brennan) in his very interesting book about the Mabo case, One Land, One Nation, does not use the words once in his 236 pages. Eddie Koiki Mabo in his speech just before the case commenced did not use the term and Bryan Keon-Cohen QC, the main barrister in the case, used the term once in his detailed recollections of the case. Nor does the term appear in the Native Title Legislation of 1993 or in the myriad of books and papers I have read in recent years.

Most people are familiar with the current court structures. Many, however, would be unfamiliar with the specialist courts and tribunals which existed until the 1980s when there were still avenues of appeal from Australian courts to the Privy Council in England (terminated by the Australia Act 1986). They may also be unfamiliar with the High Court’s role as a court of original jurisdiction.

Most states had land courts or land and valuation or environment courts where not only the judges were experts but so were the barristers and the witnesses.

In most courts the solicitors prepare a brief for the barristers who present the case. Witnesses are called and the evidence is presented under oath and tested by cross-examination. The judges hear the evidence presented and decide the case on that evidence and the existing law. However, in a specialist court such as the Land and Valuation Court of New South Wales it was not unusual to have the judge also cross-examine an expert witness, thereby widening the coverage of the evidence. Ill-betide a lawyer or witness who underestimated the knowledge of a judge. When the government required a subject to be examined deeply outside a particular case it appointed a commission of inquiry or royal commission.

So we have the Woodward Royal Commission, which inquired from 1973 to 1974 into appropriate ways to recognise Aboriginal land rights in the Northern Territory. The scope was increased to South Australia and Western Australia but the Commissioner aimed his findings to the whole of Australia. And we had the Else-Mitchell Commission into Land Tenures which issued a final report in February 1976.

We also had Milirrpum v Nabalco Pty Ltd, also known as the Gove land rights case, decided on April 27, 1971, in which Justice Richard Blackburn rejected the case for Aboriginal land rights in Australia, leading to the desire of activist lawyers for a venue to challenge his decision. Groups of historians and lawyers, for various reasons, wanted the question of Aboriginal land rights to go before the High Court. Many of the lawyers who had acted as barristers in these matters were now judges. Many people also, for various reasons, wanted to challenge the legitimacy of the British settlement at Sydney Cove in 1788 and they challenged the concept of “terra nullius”—a term unknown to King George III, James Cook or Arthur Phillip.

Along comes the Mabo case about land rights on a fly speck of an island in the Torres Strait with a population of a few hundred people and it is blown up to become the landmark case for Aboriginal land rights. It became linked to the land rights of all mainland Australians by this judgment and its application of the anti-discrimination laws.

Blind Freddy could see that Mer was inhabited, and that the inhabitants were settled into a gardening community in a fertile tropical setting. Also, the fact that the Murray Islands were not part of the lands claimed by James Cook or Arthur Phillip made it clear that the concepts of “terra nullius” or land that was uninhabited, uncultivated or “desert of civilised people”, were not applicable. This case lacked a necessary parallel and therefore had nothing to do with the settlement of New South Wales.

The Meriam people also claimed they were not Australian “Aboriginal people”, they were their own race (although both were probably also descended from the people of Sahul). Even Eddie Mabo, an activist who did much for “black education”, did not claim to be an “Aboriginal Australian” and his wife Bonita Mabo, although born in Queensland, was an Australian of South Sea Islander descent whose grandfather, from the New Hebrides, was “blackbirded” to work in the Queensland sugar cane industry.

The Land Court of Queensland could have sorted out the land claims of the five islanders. The Supreme Court of Queensland could have sorted out whether the annexation of the Murray Islands extinguished the existing laws and land tenures or not. And their decisions could have been contested if the High Court gave them leave to appeal. Then there was the ability to go to the Federal Court instead of the Queensland Supreme Court where there were many skilled judges with interests in land tenure—Richard Blackburn, Trevor Morling and Murray Wilcox to name a few.

Specialists and experts could have compared land rights and their value in contemporary knowledge. They could have contested the importation of inappropriate foreign ideas and terms. They could have explained that usufruct was a right over land and not a right in the ownership of land. That usufruct knew nothing of minerals and mining and that rights to these did not attach. They could also have challenged some of the arguments relating to discovery, settlement, treaty and conquest.

When Sir Harry Gibbs CJ gave his verdict the High Court comprised Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ, but by the decision in Mabo (No. 2) the court comprised Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. It was the practice to keep High Court judges secluded from much of daily life, but they were not divorced from their experiences. Some of the judges had been barristers or judges in Northern Territory land rights matters, some were involved with law reform, one had felt cheated in relation to land dealings with government, another had been prominent in politics, and most were in some way or another involved with or had sympathy for Aboriginal advancement, as did the majority of Australians in the 1967 referendum.

The matters decided by the High Court in Mabo (No. 2) should have been contested by the Commonwealth as a matter of public importance to all Australians, but it declined to do so. Just as it did in a recent matter of the closure of state borders.

The matters decided by the High Court in Mabo (No. 2) should not have been decided without hearing expert evidence. I am reminded of the appeal matter of Minister v Stocks and Parkes Investments Pty Ltd decided by the High Court on August 28, 1973. The matter concerned the value of a proposed school site within a proposed land release for residential purposes. In the original trial, Justice Rae Else-Mitchell ruled that to value the land as residential was wrong and, as the parties had not provided or would not provide opinion as to value as a school site or proposed school site, he had no option other than to place a nominal value of one dollar. The judge was served with a writ of mandamus and the matter ended in the High Court. My reading of the judgment was that although the court made some changes to the original decision they upheld the judge in not deciding to over-reach and decide the matter on “facts” on which there was no evidence placed before him.

The matters decided by the High Court in Mabo (No. 2) should have been decided in the High Court but not in the Mabo case. They should have been decided on appeal from a case affecting land rights on the mainland which considered the comparative geography, the flora and fauna, the size of land occupied and the lifestyles of mainland Aboriginal people. Had they been decided in a matter which more closely covered the rights of the Aboriginal people of the mainland, who were isolated for some 8000 years and lived a usufructuary lifestyle with a stone-age technology and with no supreme leadership and no system of government, then the ensuing legislative actions would have been better suited to the advancement of the people and their ability to prosper in the twenty-first century.

Life for all citizens would be better had not the High Court over-reached in the Mabo case and had members past and present not magnified that over-reach in lectures and papers in subsequent years. Native land rights have been set on a course destructive to the future of all Australians and set in a form of community title for all eternity. As Justice Else-Mitchell put it in his Sidney Luker Lecture, “Unto John Doe his heirs and assigns forever”. But the current rights of an Aboriginal citizen in native title lands are now rights which cannot be disposed to their heirs or assigns, ever.

John Singer is a retired valuer-educator.