Media Statement by Michael Anderson
6th June 2012
While the 1992 Mabo judgement was a major milestone in Aboriginal history, we must remember that the judges in this case presented the same cowardice as Justice Blackburn in the Millirrpum Gove case in the 1970s.
In the Gove case, the court gave much weight to the evidence presented by anthropologist Ronald Berndt who coined the phrase, "the Aborigines don't own the land, the land owns them" or words to that effect, thus resigning our people to forever being part of the natural flora and fauna of this country. It must also be stated that the Gove matter was not presented with the 1872 Pacific islanders Protection Act as amended in 1875.
In the Gove matter Justice Blackburn was presented with enough evidence to permit him to make the same conclusions as did the High Court in Mabo but failed to do so. I think this was because of the extent of uncertainty the decision would have presented the Australian state, territory and federal governments in respect to land rights for the white population.
The judges in Mabo did, however, avail themselves to the Pacific Islanders Protection Acts as part of the matters in evidence. However, it must be said these acts of the British parliament must have caused them much pain and heartache because we now know that Justices Mason, Brennan, Deane and Dawson were Knights of the Order of British Empire, while on Australia Day 1988, Justice Deane was given the Order of Australia. We also know that he was a Knight Commander con Placca of the Papal Order of St. Gregory and Knight of the Order of St. John. Each of these judges was very well aware of the legal status of an Order in Council being issued under the Royal Prerogative. What was ordered in the 1875 amendment to the 1872 Pacific islanders Protection Act was absolute law that could only be overturned by another such Order in Council by the reigning monarch and each of the justices in Mabo knew this had never been done.
In the meantime, a member justice of the High Court in the Mabo decision, Justice Michael Kirby, in his most recent appearance when he gave the Lois O'Donoghue lecture said of High Court appointments that, "of course, some Labor appointees, after appointment, turn out to be legal conservatives and formalists. Some Coalition appointments emerge as strong liberals and legal realists. But, the point I make is that there is no escaping the importance of the constitutional power of judicial appointment.
"It is this fact that demonstrates how risky test cases can be sometimes for advancing the interests of Aboriginal Australians, including in the High Court. Not only is much dependent on the judges. Much also depends on the other actors in the drama. John Koowarta and Eddie Mabo were fortunate to have had the services of Ron Castan, and his team of lawyers. The Wik Peoples were fortunate in the advocacy of Walter Sofronoff, Sir Maurice Byers, J.W. Greenwood and their team."
It suffices to say that when we consider who the justices of the High Court are we see the failings of the judicial system. If it were a just system then each of the justices would or should have at least had the decency to identify their vested interests by identifying their loyalties and obligations to the Crown. Being a Knight of the realm would certainly preclude Knights finding against those who appointed him.
It goes without saying that their failures to look at the question of fiduciary duties and obligations give rise to this criticism.
Having reviewed the Mabo judgement, it is easy to understand why many lay lawyers refuse to deal with the hard questions of law in respect to Aboriginal rights. Like the High Court of Australia, they seek to enforce the processes established in legislation after Mabo of maintaining the status quo in regards to the dominant society's illegal regime; otherwise their positions are questionable, as they personally get their authority and little power from the establishment whom we fight.
Prior to his death, H.C. 'Nugget' Coombs argued in his book 'Autonomy' that the Mabo decision had its limitations when he said that the "decision was designed to clarify and give greater precision to the laws concerning Aboriginal people and their rights to land. It did not deal with Aboriginal rights or claims to other forms of property or to social, political, human and other rights. Nor, indeed, did it deal with more general legal questions raised by European occupation and dispossession of Aboriginal land that are potentially important to the resolution of disputes between Aboriginal people and white society, in particular the questions of:
"These are issues about which Aboriginal people have expressed strong opinions and which, subsequent to the Mabo decision, remain vexed and emotionally charged. They will be important in continuing negotiations between government and indigenous leaders and their communities and groups."
Coombs went onto to argue that "the high Court's failure to clarify adequately the claims that a fiduciary obligation to protect the rights of indigenous people exists in the Crown was a great disappointment." He adds, "of the seven judges in the Mabo case, only Justice Toohey made specific reference to the existence of a fiduciary duty to Australian indigenous people. He argued, in effect, that the power to extinguish their rights carried with it an obligation to protect and compensate those who suffered from extinguishment."
It should be noted that what Justice Toohey says indicates that the 1836 Murrell case comes back into focus, because in this case it was argued that if Murrell was to be considered a British subject then he and his people had to be compensated for the land that had been taken from them.
This fiduciary duty and obligation arises from the fact that the original instruction to Governor Phillip, and others who came later, was to take the land with the 'consent of the natives'. The colonial administrators failed to adhere to these instructions and land was taken from the people by force in defiance of these instructions. The judges in the High Court in Mabo failed to give legal weight to these fiduciary obligations and thereby perverted the course of justice instead of upholding it.
Despite the challenges and risks we as a people face, Kirby redeems himself a little when he says, "Above all, it is necessary for Aboriginals to speak out; and to be listened to respectfully, attentively. To the heroes of indigenous Australians of the past, like John Koowarta and Eddie Mabo and other brothers and sisters: honour and praise. To the heroes who struggled but did not succeed, respects and thanks for standing your ground. To the heroes still amongst us, encourage and recommitment."