Native Land Title in Australia: Reflections on Mabo

Ron Castan

In 1993 The Australian Jewish Democratic Society hosted Ron Castan QC as its speaker at its annual dinner held around December 1993. the version below was transcribed by Harold Zwier and verified by Ron before it was published in the Australian Jewish Democrat magazine in the middle of 1994. Please note this transcription included terminology and descriptions which may cause distress. These words have been included as an accurate representation of discourse at the time, in reaction to the Mabo decision. The Castan Centre is grateful to Mr Zwier for permission to reprint this in 2022, at the 30th anniversary of the Mabo decision.

When the Mabo land rights legislation was passed in 1993, it faced inflammatory attacks from various conservative individuals and groups, including a book by journalist Tim Hewat titled "Who Made the Mabo Mess?", which not only attacked the legislation per se, but also launched a personal attack on Ron Castan QC who represented Eddie Mabo in the High Court. This is the speech Ron Castan made at the Australian Jewish Democratic Society annual dinner in late 1993 setting out the background to Mabo and its ramifications for Australia.

It is a privilege for me to join you at the Australian Jewish Democratic Society (AJDS) dinner. I have attended these dinners myself as a participant in the past and I'm honoured that you have asked me to speak and, perhaps more importantly, that the AJDS considers that this is an issue worth tackling, worth talking about, worth hearing about, and worth confronting.

It does seem to me that as members of the Jewish community and as members of the wider Australian community, we have an obligation to concern ourselves with larger issues as well as those issues within our own community. The AJDS has taken a leading role in extending the interests of the Jewish community beyond Jewish concerns and I therefore appreciate very much the opportunity to talk tonight about something with which I have had the privilege to be involved.

I want to give a little background of how the Mabo case came into existence, and discuss some of its most important ramifications and some of the most important responses to it.

I had the pleasure of going to Lae in Papua and New Guinea with my wife, Nellie, and children in 1971. By pure chance I was asked to act as a barrister on behalf of the native New Guinea people who were making a claim for compensation for land incorporating the town. One of the things that struck me during the course of that case was that it was regarded as self-evident, uncontested, and a basic part of the law (and this of course was an Australian territory, under Australian law — an Australian mandate), that the people of Papua and New Guinea owned the land on which they were located, unless they sold it or it was acquired from them compulsorily with compensation.

In the Australian territory of Papua and New Guinea it was not an issue that the indigenous people owned their local land and it had to then be purchased from them as appropriate for government purposes, or for mining, or for farming, or for any other interests as required.

It struck me at the time as particularly strange that in this part of what was then Australia, this was accepted as a matter of course. It was an area that was settled by the British or acquired by the British back in the 1880s (and in one section acquired by the German New Guinea Company in the 1890s), and then it came under Australian law. Here was an area in which people were treated as land owners in Australian law and in cases which went to the High Court of Australia from Papua and New Guinea, and yet back on the mainland for some reason indigenous people were treated totally differently.

I become interested in why there should be this apparent legal difference. And it struck me that probably there was no legal difference; that nobody had yet appreciated or had come to really look at the history and the legal background, to really understand what the true position was in British law (because it is ultimately British law we're talking about; the British law of occupation of colonies that governs these things).

It did strike me as more than a little strange, that the same British explorers who settled and planted the flag in the 1880s in Papua, where Port Moresby now is, should have brought with them, so it has been said, a totally different system of law than that which was brought by Captain Cook or Captain Phillip when they planted the flag in Sydney some thousands of miles further south. And then I looked at New Zealand and found again that there was never any question but that the indigenous people were treated as land owners. Again, if land was acquired, it had to be acquired by some treaty or acquisition. But the question of ownership of land was not an issue. Further inquiry revealed that this was so wherever European colonial powers had gone in their vast extension of territories and colonies in the 18th and 19th centuries.

Interestingly around the same time, a case was brought in Australia in relation to bauxite mining by the Nabalco Co. in Arnhem Land on mainland Australia. A very distinguished Australian, Sir Edward Woodward, who is now the Chancellor of Melbourne University and who recently chaired the Board of Inquiry into the Tricontinental disaster, had been the barrister for the Aboriginal people who lived in the mining area. He brought a case in which they wanted to say what seems to me to be obvious; that the Aboriginal people owned their land and that the law should be recognising that ownership and then dealing with them to acquire the land by purchase, treaty or otherwise. Now in that case in 1971, a judge in the Northern Territory held that that was not so. He held that Australia was somehow different from New Zealand, Papua and New Guinea, Canada and all other British territories. In effect, he rejected the arguments put by Sir Edward Woodward as Counsel on behalf of those Aboriginal people in that area. That case was not appealed but the arguments that were presented and the arguments that were being accepted in Canada, New Zealand and all around the rest of the colonised nations were there to be seen. It should therefore be no great surprise to those who were prepared to look, that the legal argument that indigenous people own the land on which they are located, would be accepted in law.

I mention this background because some of what we have read in recent times particularly seems to suggest that the decision handed down by the High Court on June 3, 1992 came as some bolt from the blue, or was some invention by the High Court that nobody had ever heard of before, suddenly plucked out of the air. Of course that was not the position. These doctrines were not suddenly invented by the High Court. The background I have given you suggests some of the arguments put in other countries and in other territories and even in Australia itself in the Nabalco case, although rejected by a single judge in the Supreme Court of the Northern Territory.

So what the High Court had to deal with in the Mabo case when it was ultimately argued in 1991 was not some revolutionary doctrine plucked out of the sky. It accorded with all that had been accepted in other British colonies.

I'll just mention in passing that if those who had a concern in this area, and particularly if those who might have represented the interests that would be affected by a decision in favour of Aboriginal or indigenous people, had had their eyes open they would also have been looking at the Calder case in British Columbia, Canada 1974, where the Supreme Court of Canada looked at the same question and recognised and reasserted the existence of what's called Common Law Native Title and criticised the judgement of the single judge of the Supreme Court of Northern Territories who had rejected that concept in the Northern Territory in the Nabalco case. The pattern of authority was simply waiting to be seized upon by an appropriate court.

The other matter I should mention is that this was not some revolutionary change by the High Court of Australia. The High Court of Australia had never been given the opportunity to consider such a case before. The Mabo case was in fact the first case of this kind which the High Court had ever

considered. So when some criticise the High Court, its decision, or its impact as a radical change, they cannot complain of a change of direction by the High Court, because the High Court had never pronounced on it previously.

That gives you some of the background. In terms of the case itself; it originated from a conference which took place in Townsville in 1981 at which a number of people came together including Eddie Mabo from Murray Island, a Torres Strait Island which is a considerable distance out in the Coral Sea, north east of the tip of Cape York. Those islands had been colonised by the British taking sovereignty in 1879, ninety-one years after 1788, the date of the first planting of the flag in the colony of NSW.

The Torres Strait Islanders were concerned to assert their own identity, to assert what seemed obvious to them; that they were the owners of their own land — because this was being denied.

Interestingly, the only reason why the Meriam people of Murray Island and Eddie Mabo who led them in the case, really decided they should do something about this was because in the course of negotiations between Australia and PNG for a treaty dealing with the common seas between the two countries, questions were asked of the various Islanders in the Torres Straits about what they would prefer. Would they prefer to be joined to PNG (they are Melanesian people in terms of racial origin) or would they prefer to stay part of Australia – part of Queensland?

There were various advantages and disadvantages that were discussed among those people. But one disadvantage was that as part of Australia, as part of Queensland, they did not own their own island. Of course, people who were told that by the officials during those treaty negotiations laughed and said "But of course we own the land. We have never not owned the land. There is no one else here; it's our land". They could not even conceive of the notion that they did not own their land under Australian law. That was the stimulus for those Islanders wanting to establish in Australian law, that which was obvious to them; that they did own their own land. And that also lies behind the Mabo decision.

Now, when the writ was issued in the High Court, it was regarded with some disdain. At the time, of course, it was not only regarded as not newsworthy, but hardly worthy of legal consideration, and great difficulties were placed in the way of the legal representatives of the Murray Islanders in terms of getting the procedural steps underway.

In 1985 the Premier of Queensland, Mr Bjelke-Petersen, who was well known for his views on these matters, decided that it was a terrible waste of time and money. This case created uncertainty, it was troublesome and so he decided to get rid of the case once and for all. A law was very quickly passed through the Queensland Parliament without any controversy, retrospectively extinguishing all of the rights of the various Torres Strait islanders back to the original acquisition of sovereignty by the British Crown in 1879. If such rights existed, which Mr Bjelke-Petersen did not concede, he extinguished them by law which operated retrospectively. On the face of it that was the end of the Mabo case, because the disputed rights were extinguished at that time without compensation.

The question posed for the lawyers, and of course for the clients themselves, was what to do next. Some inventiveness was applied and what happened then was what we call a side challenge. A separate challenge was taken to the High Court challenging the constitutional validity of that Queensland law, by argument a law which extinguished rights in that way was itself invalid and was not a good law. Eventually that law was declared invalid by the High Court. It took until 1988 to deal with it, but the High Court did say that the Queensland law extinguishing those rights retrospectively was a bad law. This leads us to some of the controversy today, because the reasons the High Court

said that it was a bad law was because it offended against the provisions of the Racial Discrimination Act.

The Racial Discrimination Act is very interesting. It was passed in 1975 as the last act passed by the Whitlam Government and it brought into Australian law an international treaty, a very important convention called the International Convention Against all Forms of Racial Discrimination.

That treaty operates throughout the world and many countries have signed it. Australia was one of the very first signatories, and after having signed it, the treaty was enacted into law in 1975. That law (and it's very important to many communities in Australia; it does not specifically deal with Aboriginal people at all, it deals with all people in Australia) outlaws all forms of racial discrimination whether by individual people or by governments or parliaments. It is expressed so as to bind the Commonwealth itself as well as the States and all individuals.

I mention the Racial Discrimination Act because by using it to invalidate that Bjelke Peterson law, it enabled the Mabo case to go ahead. Significantly in terms of the great controversy we have been hearing about in the last six months, it is the operation of that law which has caused such concern among politicians, the pastoral industry, the mining industry and others, in appropriate or inappropriate ways. The Racial Discrimination Act lies at the heart of the current Mabo debate because the court found that native title did exist, and because it brought Australia into line with PNG, New Zealand, Canada and the United States — all countries settled by the British. The High Court in the 1992 Mabo Decision acknowledged that ownership, but also gave real force and effect to the Racial Discrimination Act.

Now, it is well worth taking a second or two just to understand what the High Court decided, because there has been much confusion throughout the media and among people generally.

What the Court said was that, as a matter of law, ownership by indigenous people who in fact in their own terms were owners of land and had their own relationship with lands such that their land was theirs prior to the coming of the British Crown, had to be acknowledged as having a legal content in Australian law.

Secondly, the fact that somebody planted the flag at Sydney Cove in 1788 did not by some magical exercise transform or extinguish all of that ownership. It continued until lawfully extinguished. The third thing that the court said was that grants of land interests by government (that is expressed in our legal system as a grant by the Crown because the Crown is the notional giver of title to land, but effectively it is a grant by government of interest in land) takes priority over native title. In other words the native title, if it still exists, yields and gives way to the interest which is granted by government. Finally the High Court said that for native title to be demonstrated in Australian law today it must be possible for people to show their continuing relationship with land in accordance with their tradition.

That double requirement, that the interest granted by the government takes priority over native title, and that the people concerned must be able to demonstrate their continuing relationship with the land, means that in terms of immediate effect there are very few people left who can in fact claim the benefit of the Mabo decision in a direct way.

The meaning of those few words that I just summarised is that throughout the vast areas of settled Australia, native title has been extinguished. This is because people have simply been removed from their lands and no longer have in fact got that connection, as with for instance the suburb of St Kilda, where we are now enjoying our evening together. The people who were here and used to own this

land are long gone and dispersed, so there is nobody who can show this connection, because land such as this was the subject of a grant by the Crown. There was an original Crown grant, probably back say in the 1880s, where a freehold interest was granted to somebody and of course it's been sold on, until now it is owned by the wonderful people who run the Diplomat Hotel. The origin of the title people now have, is derived from the grant by the Crown to the original owner of this particular piece of land. That extinguished any native title that existed; though in an area like this it was extinguished anyhow because the people had long gone.

Of course out in remote areas the position is very different. There are many areas where there are Aboriginal people still living a traditional lifestyle and still very closely attached to their own traditional lands, although overall there are not a large number of people. The Wik people having gone on through many thousands of generations still survive today and desire to maintain their relationship with the land. The question is whether, if they can show that they still have those links, they can also show that their title has not been extinguished by some grant by the Crown.

And that raises the wonderful controversy about mining interests, petroleum interests, and all the other kinds of interests, and of the kind of people who say "well we want to do something on that land", being the same land with which an Aboriginal group says they still maintain their connection. And it is the balancing of those interests that has caused much of the controversy.

Of course, as I mentioned, the High Court said that the interest granted by the Crown prevails, so if there is a mining interest or pastoral interest there is no question that it prevails, so long as it was granted lawfully by the Crown. The High Court was careful to say "Grants lawfully issued by the Crown, by Government, prevail over native title". The big question mark is which ones are lawful and which ones unlawful. I come back to the Racial Discrimination Act passed in 1975. If the grants by the Crown were discriminatory and were granted in ways which did not provide the same kinds of consultation or compensation that white land owners are entitled to under the Land Acquisition Act or Mining Acts; in other words, if Aboriginal interests in land were simply trodden on and pushed aside, then there is a real question mark as to whether those interests were lawfully granted. It is for that reason we see the great controversy, and the pressure on governments you have read about for the so called 'retrospective validation'. That's what they are talking about; overcoming the problem of unlawful grants. Grants which haven't treated people equally.

This brings me to another aspect of this whole issue; the way in which people have responded to what I have summarised. Until early this year, nine months after the decision, it was regarded as relatively straightforward and with relatively little controversy. The controversy has arisen, to put it quite bluntly, because we have in this country an endemic or inherent built-in racism factor in the very structure of Australian society. I say that advisedly, because I know that it's been said that accusing people of racism is now becoming inappropriate because you are forcing people to be politically correct. All of these things have been said by various commentators and various public spokesmen.

I think we have to look at the reality of where this country has come from. In particular the denial of native land ownership, until the High Court brought Australia into line with the rest of the Commonwealth and world. That denial is no accident. The reality of the formation of Australia, the movement towards federation, and the adoption of the Australian Constitution in 1901 contained within it a fundamentally racist premise that in essence said that Aborigines are of such little worth we don't even acknowledge that they exist.

Not only is this premise based on racism in a sense in which we are perhaps familiar; racism founded on hatred or contempt or personal dislike of characteristics, but also the ultimate form of racism that says people are not worthy of even being spoken to; they are of no significance at all; they don't exist; they are not really people. Now, as Jews we have in various contexts suffered that kind of racism, though it's been rare even in all of our history, that we have been treated in a manner where it was said we don't even exist!

We have been denied rights, but Aborigines have had to grapple with their very existence.

Australia brought itself to a point where it adopted a Constitution in 1901 which specifically provided that Aboriginal natives are not to be counted as people.

It is a rather remarkable proposition when we look back on it. It was repealed by a referendum in 1967 as an aside to the constitutional amendment which transferred power to the Commonwealth to enable it to deal with the question of the Aboriginal people of Australia. The referendum repealed the provision which said Aboriginal natives shall not be counted in the census.

That has significance, a very political significance. The provision in our Constitution that requires the taking of the Census is not there just because it's a good idea to have a census. It is there because the House of Representatives as an elected House of the People, represents electorates in accordance with population. The Constitution provides that it is necessary to count the people, then divide up the numbers of seats, which are twice the number in the Senate, and split them among the States according to population.

Counting the people for the purpose of working out the seats in the House of Representatives lies at the heart of Australian democracy. And fundamental to that, was the exclusion of the Aboriginal people of Australia from the Australian politic, from the Australian nation. They were not worthy of being counted as people.

Now that is our starting point as a nation. That's 1901. That's our Constitution, and from that base- point we came with a long history of racism described by some of the judges in the High Court as "a national legacy of unutterable shame" — but I won't go into all of that. I'm simply noting propositions which found their way into our most fundamental documents. We had a situation in which the very existence, the very humanity of Aboriginal people was denied. And we have been grappling with that ever since, in one way or another, and we are grappling with great difficulty even now. It is coming to terms with that kind of denial that lies at the heart of much of the heated debate.

I mention these matters because it seems to me they explain some of this fervour and passion. The reality is that in Australia, it is very difficult for many people to come to terms with the notion that Aboriginal people have rights. It is one thing to say "we will be good neighbours. We will be generous". One thing to say "we will look after people or make provision" where, as it was said in the early part of the century, ‘to smooth the dying pillow’ because it was believed that the Aboriginal race was dying out completely. Good intentions; paternalistic approaches; generosity for well-being; a benevolent view; have been a characteristic part of Australian policy.

However there is a difference between benevolence and rights, and again I stress the view taken by the Jewish communities in most countries today and certainly in this country, is that we don't need benevolence from governments, we don't need favours. We assert our rights and our identity as part of the Australian community. We are entitled to stand up and say "that's not acceptable" if something is done that contradicts views we think are worthy of being adopted. We expect to be

heard, we have the right to be heard, and we have the right to make certain sorts of claims. The notion that the Aboriginal people have rights in this country is a difficult one for many in our community to grapple with. That Aboriginal people have the right to be consulted, to be up at the table when it comes to negotiating matters such as land, is very difficult for those companies, or groups or governments, which have been accustomed to deciding that we need to use this land for a particular purpose, whether it be mining or pastoral or building new towns.

"There are some Aboriginal people there. We will just move them. We need this place so we will give them that place over there", without any regard to their links with the land, without any regard to what that place might mean to them as distinct from this place. The notion that they have the right to say, "No! This is ours, and if you want to come here you have to negotiate a deal with us" is something with which we are grappling.

The teaching in schools of Australian history and in particular of Aboriginal history both before contact and since contact, has been abysmally non-existent. I speak with authority because I went to school and each of you went to school. You all know what you've learnt - nothing. Or alternatively a smattering of racist nonsense about people who came and speared the sheep.

No regard whatsoever was paid to who the Aboriginal people were, where they came from, what their culture was, what their links with the land were, and how that manifests itself in Australian society today or at the time when the teacher was talking. There were policies adopted to actually extinguish that culture and to extinguish that group of people. We adopted policies of assimilation which were designed to extinguish languages, to extinguish culture, to take children from their families and to remove them. All of this was done with the most benevolent intent in this country. Now, this endemic racism, this attitude, is something that is still with us. It's not that there are people out there with great hatred or great contempt, though many have that as well. It is that there is a structural built-in element in Australian society that we are still struggling to overcome, which says these people don't really matter. And rethinking the attitude of the entire institutions of society is not something that happens overnight. I must pay tribute to Prime Minister Paul Keating who has acknowledged these things and said "this does not happen overnight".

I just want to say a couple of words about some of the responses that have been forthcoming. Much has been said by some commentators, accusing people who protested about some of the attitudes in Australian society of being participants in the so called 'guilt industry'. And people say, "Hey, I don't want to be part of the 'guilt industry'. I don't bear any guilt for this. I did not do this. I didn't poison the flour. I didn't steal the children".

I want to suggest to you tonight that that is a pretty irrelevant sort of response. The feeling that emerges from this sort of national history is not one of guilt, because when we use concepts like guilt it enables people to say 'well I am not guilty because I didn't do it'. What they are doing is using words which we associate with individuals in criminal trials, individual personal liability for a particular wrong done. The issue is not whether we as an individual or as a nation have guilt. The issue is whether we have shame and responsibility — the opposite of pride in our country.

If we have pride in the ANZACs, if we have pride in the Eureka Stockade, if we have pride in the founding fathers who created in many respects a highly democratic constitution (for those who were allowed to participate in it), if we have pride in the way in which Australia has so successfully absorbed so many migrants from different cultures and traditions over the last 40 years. If we can take pride in all those things, and there is a lot to be proud about in Australian history, then it does not answer the question to say 'well I am not personally guilty'.

The question is 'are we balancing, are we looking at ourselves truly and balancing our justifiable and proper pride in these issues with the appropriate response to those things that we have to acknowledge are not so good'. And the appropriate response is not to say 'I'm guilty or not guilty'. It is to say 'I bear some shame, we bear some national shame about this treatment'.

It is for that reason, I suggest, that the judges have used the phrase "legacy of a history of unutterable shame". It is the correct and appropriate response and says that we also bear some responsibility, not because we personally denigrated or personally maltreated an individual or a group of Aborigines, but because we as a nation have built our wealth and built our strength and built the resources with which we all can grow and live and exercise our individual talents, upon the very land, the very soil, the very place that belongs to someone else.

They were not asked whether they wanted to sell the land. They were not even offered in modern times the ordinary procedures of a notice of acquisition under the Compulsory Acquisition Act, and then negotiations or the right to go to court to negotiate compensation. None of those things were acknowledged. Let's face it, the land was stolen. What the High Court said is, 'the land was stolen and now we have to stop stealing it. Now we have to buy it or acquire it if it is needed, or otherwise leave it and acknowledge the ownership of those who are its owners.'

In confronting those sorts of issues, in dealing with what I call 'shame', there are many in this country, and many institutional structural aspects of our society that have difficulty.

One of the leading spokesmen within the Aboriginal community who has been engaged in various negotiations with government on a legislative response to the decision of the High Court, in talking about the racism that has been manifest by many community leaders and some politicians, has used the phrase "lancing the boil of racism on the Australian body politic, and letting it all come out".

If we are to advance as a nation, it is a necessary process for us to acknowledge what's there and let it out. In that sense it says 'yes there is all this terrible racism coming out of the woodwork, but it is necessary, it just has to happen, and we have to grapple with it, and then we will have to rebut and answer it and deal with it and build up new attitudes'.

I would like to conclude by suggesting that everyone of us, every Australian, myself included, suffers from this problem of racism, and has to grapple with it and play some role and some part in overcoming what is in effect part of the structure of our country. And I give you as my example a song by Rolf Harris called Tie me Kangaroo Down Sport, which was very popular in the late 1960s or early 70s. You probably do not know all the words but you know that the first verse is: "Tie me Kangaroo down sport, tie me kangaroo down" and so on. Another verse says "watch me wallaby stew blue, watch me wallaby stew".

The fourth verse goes this way. "Let the Abos go loose, Bruce, Let the Abos go loose, they are of no further use, Bruce, let the Abos go loose".

That is a slave ditty. I just want to ask each person to think about, who thought to protest or to say that's awful, that is monstrous. "Let the abos go loose they are of no further use". What is being said by that sort of a rhyming ditty? What kind of a country are we where that was a part of a popular Australian song, reflecting Australian culture — yes it reflected Australian culture.

That is precisely the point — it reflected an attitude that Aboriginal people are to be imprisoned, are to be treated as slaves and then if they have no further use of course they can be let go. It is the most abhorrent message, if one actually listens to those words. And nobody protested. More significant than the verse is the fact that none of us thought to say "that is terrible". Nobody was up in arms.

The analogy, I suggest, is that if we put “Jew boy” for “Abo” and transpose it, we could well say that might have been a song sung in a beer hall in Munich 1938. Perhaps introduced by Goebel's people to generate some hatred. This is not some ancient history, this is a song which was current perhaps 20 or 25 years ago or less, and I think it is about to have a revival. I hope a highly censored version. This is us and it really goes some way to explain why there has been this reaction to Mabo.

And my message tonight is to say that there are of course, significant numbers of people saying that the Mabo case was a great opportunity to rebuild relationships. 'Reconciliation' is a word much battered around over the last nine months and I am not sure I can still use it without conveying all sorts of political meanings, but I'll put it in a different way.

The Australian psyche, the Australian mentality has to rebuild itself, has to rethink itself. As a matter of fact every single member of the Australian people has to rethink. There is an advantage in the fact that this issue which has hit the headlines is more than just technical rules about land ownership, because it is forcing people to rethink their attitudes. Yes, it is bringing out a lot of racism, but I remain fairly optimistic that the end result of the rather painful process we are seeing, will bring a significant opportunity to rebuild a much healthier nation, and I hope that this is the direction in which Australia is going.

Barrister Ron Castan QC was leading counsel in the Mabo High Court case.