How the Legacy of a Civil Rights Hero Was Dismantled in Australia

It took Australia two centuries to recognize that its first colonists didn’t arrive in a depopulated landscape. The aftershocks of that realization are still being felt.

This week marks 29 years since one of the most important cases in Australia’s legal history. Mabo v. Queensland (No. 2), brought by a group of Indigenous activists led by Eddie Mabo to secure their rights to Mer Island in the Torres Strait between Australia and New Guinea, rewrote the legal basis of land ownership in the country.

It’s remembered as a “momentous decision” not just for Australia, but for the world. The country is the largest exporter of iron ore, coal, gold, bauxite, liquefied natural gas and wool. As such, the ripple effects of its land laws can be sensed on every construction site and power plant on the planet, where the price of raw materials is shaped by the expenses incurred in digging them from the ground.

The June 3, 1992 judgment is commemorated locally as Mabo Day, to mark the occasion when terra nullius — a legal doctrine which held that Indigenous people had no ownership rights to the continent’s land when British colonists arrived in 1788 — was finally overturned.

Still, it’s hard to square the heroic story of native title, as the post-Mabo system is known, with the contested and uncertain set of land rights that most Aboriginal and Torres Strait Islanders live with three decades later.

Last May, Rio Tinto Group blasted a 46,000-year-old cave site to make way for its Brockman mine, prompting a backlash that ultimately led to the removal of the company’s chairman and chief executive officer and the head of its iron ore division. For all the shock and shame that incident provoked, no laws were broken. Until the resolution of a long-running appeal last year, the so-called “non-exclusive” native title that the Yindjibarndi People had over a nearby stretch of country didn’t give them a right to say who could come onto their land. Similar rules apply across swathes of the country. To this day, the government can “extinguish” native title anywhere it builds infrastructure, and in many cases need only compensate title holders half the value of their property.

How did such a landmark legal precedent fail to achieve more? To admit the weaknesses of native title isn’t to denigrate the achievement of Eddie Mabo, who died five months before the case he’d brought was decided and didn’t live to see the edifice of laws and legal precedent that’s since been built atop it. Looking at that legal infrastructure, however, shows the weaknesses of assuming one court victory can reverse two centuries of invasion and dispossession.

The rosy hue that now surrounds the Mabo ruling obscures how controversial it was at the time. Public debate on the judgment sparked an outpouring of racist commentary from senior political and business figures, as well as hysterical claims about its impact. Jeff Kennett, the premier of Victoria state, claimed that no suburban backyard was safe from land claims. Amendments in 1998 to the original Native Title Act that proceeded from the Mabo decision reversed many of the provisions of the original law. They were promoted by the then-deputy prime minister as providing “bucket loads of extinguishment” to keep property out of Indigenous hands.

Legal cases have gone some way to strengthen certain rights, but at times it can still be hard to distinguish the current setup from the hated terra nullius regime that preceded it. Though the doctrine has been consigned to history, its most pernicious effect was the way it set in stone an unequal land rights regime. With limited rights now only granted if years of costly litigation against the government succeed, that hasn’t changed nearly as much as Australians like to think it has. Native title, after all, is not ordinary freehold title, but a special and weaker category of ownership for “natives,” which patches up the threadbare land rights of Indigenous people with scraps of English common law.

In the Northern Territory and Anangu Pitjantjatjara Yankunytjatjara lands in South Australia state, Indigenous people won the rights of full landowners before the existing native title regime took shape. Everywhere else, the system blesses a historical act of land theft, rather than attempting to reverse it. 

Facing up to Australia’s history of invasion and dispossession, and the way its results are still inscribed in the country’s land registries, is likely to be as controversial now as it was three decades ago. Even so, it’s unavoidable. The Uluru Statement from the Heart, a 2017 call by Indigenous leaders for constitutional change to resolve the unfinished business left over from Mabo, describes the process of truth and reconciliation with the Yolngu term “Makarrata.” It’s a word that literally describes someone being speared in the leg as restitution for a crime. 

The process of resolving the legacy of Mabo should be scarcely less painful. The issues of who owns this land and what rights that ownership conveys are as alive now as they were in 1788, or 1992. If Australia wants to honor the legacy of one of its great civil rights heroes, it needs to face up to that.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

David Fickling is a Bloomberg Opinion columnist covering commodities, as well as industrial and consumer companies. He has been a reporter for Bloomberg News, Dow Jones, the Wall Street Journal, the Financial Times and the Guardian.

©2021 Bloomberg L.P.

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