Kado Muir April 2012
This month we celebrate twenty years since the Mabo decision overturned the legal fiction of terra nullius. This was a watershed decision for Australia an outpost of the British empire founded on an argument that the land was not inhabited, in legal terms a desert. Few Australians realise the real significance of the Mabo decision and fewer still understand its true nature. The Mabo decision was not granting land rights and it was not what we know today as native title. Why? Let me try to explain, but first to set the scene:
The British falsely claimed that the land in Australia was uninhabited, to understand terra nullius try this anology ...
you find a house with the front rooms empty, you move in only to find that the inhabitants were in the back yard. You stay. You find the original owners walking across to use the bathroom, you beat them up and tell them it belongs to you and you force them back to the backyard, if you want to go to the bathroom then use the garden. This goes on for quite some time, you gradually move out into the back yard, you realise there are a lot of people there and you can't sustain your argument that the house is empty.
Others along the street are watching, so you change the rules, you say yeah there were some people in the backyard, but look at them, look how filthy they live, they can't even keep themselves clean, they are sick and dying, in truth your pets live better than them, they can not possibly own this house - in truth they are too low in the scale of social evolution. You kick them and beat them up again and anyone who resists you call the police to remove, they are after all trespassers living on land you own.
This goes on for quite some time, you let one or two in to clean your house and look after your pets. After awhile you give them some rights (Land Rights) to live in the garden shed, but the others you keep firmly locked in the garden. This goes on for a few years and some of these guys learn that this has happened all along the street, yet in some houses the parties have made agreements to share sections of the property and chattels and on others it just got too uncomfortable so your colleagues moved out and went back to your home town. Ah the "garden people", those who don't really exist, find out that your mob actually have laws governing the way you can move into a house.
These laws say you can move in if it is empty, if you declared a war and won it through a fight or you made an agreement to live together. The "garden people" think hang on that never happened here, we are just ignored and told we don't exist and any time we ask questions we are beaten up, what can we do?
And that is what Mabo did, challenged this illegal occupation using the laws of the occupiers.
Now on to the real importance of the Mabo decision, what it does and what is never appreciated today in real terms is that it says there are a system of laws, traditions and customs that do not come from the British Crown or the British Common Law, a sui generis system, in my understanding AKA Soveriegnty. And that these laws, traditions and customs give the Aboriginal and Torres Strait Islander peoples an interest in the land.
That interest does not come from the Crown and wait for it ... the Common Law has a mechanism that can recognise this interest, but only in land, it can also stop recognising that interest any time it chooses, unless there is something like a Racial Discrimination Act stopping it from denying that recognition. That mechanism in Australia is today called Native Title.
Native title then is the Common Law recognising that Aboriginal and Torres Strait Islander Peoples have a system of laws giving them rights to land. it is not the Government, the Crown or anyone else GIVING anything to Aboriginal and Torres Strait Islander Peoples, it is acknowledging what we already have!
Unfortunately this is where we all fall down, everyone is too caught up with Government, the Nation State and the Legal system GIVING us recognition. The entire Native Title Act is designed and built on the presumtion that we the Aboriginal peoples must come cap in hand begging for recognition and acknowledgement. The recent mooted changes to the Native Title Act reinforce this slanted view.
We as Aboriginal and Torres Strait Islander peoples are forgetting two important things, one; Mr Mabo did not accept the rules, he used the laws to bend the rules beyond recognition, and two; Mabo decided everything for us. We do not need to prove anything, we already hold our Aboriginal and/or Torres Strait Islander TITLE to our LAND based on our LAWS, TRADITIONS and CUSTOMS. Everything else is just a distraction.
The real change needed in Australia today is for Aboriginal and Torres Strait Peoples to walk away from the Native Title Act, walk away from the Federal Court and start practising and enforcing our Aboriginal and/or Torres Strait Islander TITLE to our LAND based on our LAWS, TRADITIONS and CUSTOMS. That is the real reform we need in native title.