by Carolyn Tan | Convenor of the Diocesan Aboriginal Ministry Policy Group
Mabo Day (3 June) marks the anniversary of the landmark High Court decision in 1992 which recognised the existence of native title. The legal action had been brought by Eddie Mabo and others (including Anglican priest, Father Dave Passi) to establish the rights of the Meriam People in their traditional country in the Torres Strait.
The High Court found that rights that existed under traditional laws and customs from prior to British settlement in this country could continue to the present day, where those rights have never been taken by the governments. Native title is not something that is granted or given by the government or courts. It is simply recognised as always having been in there.
Native title is not easy to prove. It requires establishing that a system of laws and customs prior to British sovereignty (1829 in Western Australia) in relation to land and waters has been continuously observed to the present day. It does not exist where land has been taken for freehold or some other grants, so is particularly hard to establish in urban areas. At least with native title, traditional owners can now be recognised. They now have a seat at the negotiating table to try to protect sacred and other important places, and receive some compensation for use and damage to land, but there is still a long way to go towards healing the dispossession.
The Court in Mabo denied the notion of 'terra nullius' under which the land was seen as belonging to nobody. This was a fiction relied upon by the British crown to take the land without a treaty or payment. The High Court, however, did stop short of questioning the full consequences of denying terra nullius. It assumed that the British crown did acquire sovereignty, and could legitimately take land and waters, and extinguish native title rights. Many First Nations Peoples will assert that they never ceded their sovereignty and it was never validly taken. This is why we see a strong push for a proper treaty process to take place today, as a step towards correcting some of the continuing injustices of the past.
Another term associated with the concept of a treaty is Makaratta, which is a Yolgnu word and ritual for coming together after a struggle. The wonderful 2017 Uluru Statement announced that Makaratta 'captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination'. This process requires truth-telling and serious listening to the voices of First Nations Peoples, as partners on a journey to a relationship of mutual trust and equity. On Mabo Day we can celebrate the small steps made and commit ourselves to take bigger strides together to a better future.
Image: Shutterstock editorial use only, Mabo Day Festival, Townsville 2017