The status of indigenous land ownership in Australia is by now well known. British settlement of the continent in 1788 eclipsed Aboriginal title in colonial eyes, and this remained the case when Australia became a federation in 1901. The federal and state governments allocated land for Aboriginal people, but these reserves could be returned to the government at any time, and often were.
Throughout much of settled Australia, Aboriginal people understood themselves to be dispossessed. However, some of the more recently and less intensively contacted peoples in Arnhem Land in Australia/s Northern Territory believed that they still owned the land on which they lived - an illusion rudely shattered when the federal government made parts available for mining. The Aboriginal owners took legal action, resulting in the well-known Blackburn decision of 1971, which confirmed the terranullius doctrine and concluded that if Aboriginal people were to be able to claim their traditional land, they could do so only through new legislation.
In 1976 the federal government introduced legislation that made it possible for Aboriginal people in the Northern Territory to claim some of their ancestral land; large tracts were returned to them, albeit of mostly marginal commercial value. Northern Territory was under direct Commonwealth jurisdiction, however, and the government declined to impinge on state rights. The federal Labor government elected in 1983 proclaimed its intention to introduce nationwide land rights legislation; but after three years it abandoned the project, parts out of fear of a European backlash, partly because of the difficulty in producing a formula that could encompass the whole range of circumstances. Some of the states introduced legislation of their own. Only South Australia's resulted in substantial transfers, however, and Queensland's Deed of Grant in Trust (known as DOGIT) brought only a degree of security (though not title) to the existing reserves.
Most Queensland communities accepted this legislation, but Murray Island, in Torres Strait to the far north, held out despite considerable pressure. Some of its people had already taken legal action against the state and federal governments to claim back their land. As it happened, this case, known as the Eddie Mabo case, included certain issues that raised the possibility of reopening the land rights issue for all Australia.
Torres Strait lies between Cape York and the southern coast of New Guinea. In these waters are some 15 island communities whose indigenous inhabitants are of Melanesian stock and whose lifestyle is more reminiscent of the South Pacific than Aboriginal Australia. They have long regarded themselves as distinct from the mainland Aboriginal people; being in most instances in undisturbed occupation of their home islands, they did not at first consider the Aboriginal land rights movement of any relevance for them. Not until the early 1980s did they begin to realize that they had no legal title to their land and that the government could usurp it at any time.
What made the Mabo case different was that, unlike the Aborigines, the Murray Islanders were traditionally horticulturalists and held bounded parcels of land individually or as extended families. This kind of "ownership" came closer to the concepts of British-Australian law than the Aboriginal collective relationship to land. Moreover, the system had persisted more or less intact into the colonial period and up to the present and at times had been enforced by government-sponsored island courts. This made it harder to argue that indigenous rights had been eclipsed by annexation.
The possibility that the Mabo case might reopen the question native title in Australia and perhaps the world attracted the interest and participation of lawyers with prior experience in the field as well as some intermittent financial support from the government. This wider issue had to be determined in the Federal High Court; that court, however, referred the determination of the facts of the case to the Queensland Supreme Court. These proceedings were delayed by Queensland legislation purporting to extinguish native title retrospectively, which was successfully challenged in the High Court. Thus the examination of the facts did not begin until 1989, and involved mountains of documentary evidence as well as many hours of evidence from Islanders, an anthropologist, a genealogist, an archivist, former officials, and other interested parties. The decision was not handed down until late last year.
Justice Moynihan set out his findings at considerable length, and they make for interesting reading. Which he does admit a continuous relationship between the Murray Islanders and their land, from before colonization to the present, he is reluctant to admit that there was a system in the legal sense prior to annexation or to accept that the rules of inheritance are exactly as they would have been. The plaintiffs had supported their case by example of the pre-Christian religion and the sayings attributed to its central figure, Malu. In a Northern Territory land case this would have been essential, but in the Queensland setting it received dubious consideration in view of the extensive changes - including Christianization - that had occurred over the last 120 years and the long-term emigration of more than half the population. The judge's skepticism was further aroused by the likelihood that some of the indigenous witnesses had had access to anthropological writings from the turn of the century.
The plaintiffs also claimed ownership of certain reefs and the large stone fish traps that fringe parts of the island. The judge found that, while such ownership might have existed in the past, it had long ago been replaced by collective use of these resources, possibly as a result of official intervention. The winder legal implications of this remain obscure.
The lawyers have won enough to be able to return to the High Court; but the possibility of a successful outcome presents the Murray Islanders with some difficult tasks. Judge Moynihan declined to pronounce on the claims of the plaintiffs to particular places, noting that in some instances there were competing claimants. (Some Islanders would not distinguish between the principle that the case was asserting and the particular claims of the plaintiffs, and withheld their support.) Such challenges are indications not of decline but of vitality; they seem always to have been a part of Murray Island life. The challenges nevertheless generate a great deal of heat, and can be difficult go resolve. The problem is now exacerbated because the decline in gardening and the absence of a part of the population has allowed much of the land to become overgrown. Finding boundaries will be difficult, even if the owners know where to look, and some of the owners who left early in life might not know.
Murray Islanders on the mainland, nevertheless, retain intense interest in their land, even after half a lifetime away, and some seem to have photographic memories of the places they claim. But the people who stayed at home have sometimes said that the long-term emigrants had forfeited their rights. In fact, those returning have not been prevented from regaining their land; but what of those who want to be owners while living elsewhere? And what if they want to sell their land to non-Islanders?
Meanwhile Queensland has replaced its longstanding Conservative government with one more sympathetic to the aspirations of Aborigines and Islanders. Aboriginal land rights legislation is being drafted, and further legislation for Islanders is under consideration. It is possible that the structures set up to administer the Deed of Grant in Trust legislation will be adapted, leaving general oversight to representatives of all the Torres Strait communities and local responsibility to the local councils. This might prove satisfactory to a number of communities; but one wonders whether the Murray Islanders, who have stood out against the crowd before now, will agree to abandon their individual rights to a higher authority.
Article copyright Cultural Survival, Inc.
