Jodie Sizer, Chair AIATSIS
Introductory remarks by the Hon Robert French AC
The Mabo Lecture 2022 was delivered at the AIATSIS Summit on Kabi Kabi Country.
Introductory remarks by the Hon Robert French AC
I acknowledge that we are meeting on the country of the Kabi Kabi people and pay my respects to their elders past and present.
In beginning my remarks with that acknowledgment I do something which is being done at countless events, large and small, in every part of Australia. Some acknowledgments are elaborate, some seem formulaic, but they mark a sea change:
- from the recognition by the law thirty years ago of traditional law and custom, the responsibility for land and waters and the traditional title that goes with it;
- to recognition by people of the lived reality of the connection of the First Peoples of Australia to their land and waters and their authority over them according to their law and custom.
I made an acknowledgment reflecting that recognition when I was sworn in as Chief Justice of Australia in 2008, and said:
The history of Australia’s indigenous people dwarfs, in its temporal sweep, the history that gave rise to the Constitution under which this Court was created. Our awareness and recognition of that history is becoming, if it has not already become, part of our national identity.
Thirty years ago today, another Justice of the High Court, later to become Chief Justice, Sir Gerard Brennan, wrote the leading judgment in Mabo v Queensland (No 2) in which he said words of importance and legal effect:
The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.
The Judge, having written those words, wrote the declaration with which his colleagues in the majority agreed:
that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer…
Yesterday Sir Gerard Brennan died, nearly 30 years to the day since that history changing judgment was published. His words set in motion a process that, despite many difficulties, and the worst efforts of some, could not be reversed.
That process was one of legal development and refinement involving a deeper understanding of the concepts of recognition and extinguishment enunciated in the Mabo judgment. It was one of a deeper understanding of the true relationship between the traditional laws and customs of the First Peoples of Australia and the legal system imported by its colonisers which evolved into our national constitutional representative democracy.
It was my privilege to participate in the early part of that process as the President of The National Native Tribunal, with many dedicated partners including the late Hal Wootten, the late Rick Farley and Fred Chaney.
The immediate effect of the decision in Mabo (No 2) was described by Justice Gummow in his judgment in the Wik case as follows:
To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation, away from what had been understood at federation.
Justice Brennan’s words and his declaration gave effect to that shift, although they did not do away with the history of colonisation, dispossession, removal from country and disregard of Aboriginal culture, the cross-generational effects of which are still tragically with us. But also behind those words was a new history of Australia’s Indigenous people taking up the tools of non-indigenous law to assert their traditional ownership and authority:
- The Yolngu people who brought the Milirrpum case in the Supreme Court of the Northern Territory in 1971 — who suffered an initial defeat because of the legal precedent binding on the Court which made an historical fiction, that there was no cognisable Aboriginal law and custom in Australia, into a rule of law — a defeat which created the moral imperative necessary to the achievement of statutory recognition of Aboriginal land rights in the Northern Territory.
- The traditional Aboriginal owners who asserted their rights under the Aboriginal Land Rights (Northern Territory) Act 1976 and who fought the Northern Territory Government and others in the High Court no less than 14 times in the years leading up to the date of the Court’s Mabo decision, repeatedly exposing the Court to concepts of traditional ownership embedded in the statute and to what Justice Brennan called the spiritual nature of their connection to country.
- John Koowarta, who brought the Bjelke-Peterson government of Queensland to account for its blatant contravention of the Racial Discrimination Act 1975 (Cth) and in doing so, established, against Queensland’s challenge, the constitutional validity of the Act. That Act, being a Commonwealth law, was to underpin the constitutional protection of native title rights and interests recognised at common law against discriminatory action, including extinguishment by State and Territory Governments.
- Eddie Mabo and his people who fought their case over ten years from 1982 to 1992 to secure the historic majority judgment led by Justice Brennan.
- The leaders, elders and communities that engaged in the framing of the Native Title Act in 1993 and with its application across the country in the teeth of resistance and challenges by State and Territory Governments and vested interests ignorant and fearful of its consequences.
The Mabo decision was, in legal terms, a constitutional shift. It has given birth, a painful birth, to a cultural shift. That cultural shift has made possible the acceptance of constitutional recognition through the creation of a Voice to the Parliament as proposed in the Uluru Statement from the Heart.
There are those who say that constitutional recognition, a constitutional voice to the Parliament and a national agreement involve irreconcilable claims to sovereignty — the sovereignty asserted by the British Crown in the colonisation of Australia and now underpinning the constitutional institutions of Commonwealth and State governments, and the sovereignty or authority over land and waters asserted by First Nations People under their traditional law and custom.
There is, however, no clash of sovereignty involved in these proposals. Native title teaches us this. Recognition of native title by the non-indigenous legal system gives effect to common law rights and interests reflecting the connection to, and authority over, land and waters created by the traditional laws and customs of Aboriginal and Torres Strait Islander peoples. That recognition does not add to or detract from the authority of traditional owners under their own laws and customs. It cannot. So called extinguishment of native title at common law or by statute defines the limits of what the non-indigenous law — common law or statute, will recognise. It does not extinguish traditional laws and customs nor the authority over land and waters which they define.
In the same way, recognition of First Peoples in the Constitution does not impact on their authority nor on non-indigenous sovereignty.
In the end, however, what matters more than constitutional change is the cultural change which underpins it — the acknowledgment of Australia’s First Peoples as the bearers of the great sweep of our continental history and the authors of the oldest stories of its land and waters and with that their status as the bearers of an authority over land and waters which is recognised morally and can be recognised legally.
There is much yet to be done, but Mabo, the man, and his people, and the decision were landmarks which have pointed us in the right direction.
I would like to continue the acknowledgement of the Kabi Kabi people and thank them for hosting us this week. It’s been wonderful to learn about your culture, your Country and your aspirations for the future. I want to thank you for your enthusiastic engagement with the development of the Summit program, amongst your other responsibilities as applicants at this critical point in the negotiation of your native title determination. I wish you all the best and hope you get the result you deserve.
It is an absolute pleasure to come together on this beautiful Country and re-connect as people to gather our momentum. In my Country, Gunditjmara Country, we call this connectedness Kayap neerang. It is so critically important. And I for one didn't realise how much I missed it until I was in this company.
To bring together our many mobs, our many nations, creating spaces to collaborate, share our brilliant and diverse knowledge systems and practices – it has been an absolute privilege and brought endless inspiration. Certainly for me, and I know for us all.
From the beginning of the week where I heard Tony McAvoy re-stating the importance of spiritual sovereignty, to Jamie Lowe sharing the courageous action to recognise the importance of our traditional owner leadership and our authority.
To listen to Rachel Perkins renewing my impatience for the action, unified action, in the formation of an alliance to tackle cultural and heritage reform at the highest level.
And to the local leadership, which has been incredible. Listening to the Kabi Kabi people and their land management practices at Bribie Island, to the Gulf of Carpentaria and their impressive economic models, and even to the Yoorrook commission down in my home Country, down there in Victoria.
We believe that this is the largest gathering of its type, with over 300 speakers sharing their stories and their knowledge through this week. Absolutely incredible. Over 1,000 delegates, coming together, to reconnect and build that momentum. Together, while we bring our diverse knowledge and our objectives and our practices, we share the common goal – the common goal to move forward, the common goal to reassert our rightful place in our Country. To reassert the exercising of our inherent rights.
The right to practice and protect our culture.
The right to own and manage our Country.
And the right to say 'NO!'
And if we decide, the right to say 'YES!' and create the terms on which this negotiation happens.
On this significant anniversary – 30 years since the High Court’s decision of Mabo v. Queensland, I want to acknowledge of course, the Mabo plaintiffs: Eddie Koiki Mabo, James Rice, Dave Passi, Sam Rice and Celuia Mapo Sale; and the Meriam people, and Mer Ged Kem Le, the PBC of the Meriam people. I acknowledge you.
Here on the screen, we have a photo that we’ve received permission from Gail and the family that we’re able to share today to honour and respect Eddie Koiki Mabo.
I thank Gail for her continued support of the lecture and wish the family all the best in their celebrations today and those occurring across the whole of the Torres Strait Islands this week.
I also thank you, Robert French, for sharing the stage with me in those opening remarks. Your significant contribution to this sector is also not unrecognised.
The Mabo Lecture – its significance
It is a daunting experience to deliver the Mabo lecture and especially when you’ve got only a couple of days’ notice.
We’re all familiar with the many deliverers of the Mabo lecture and I won’t seek to match the significant efforts of past speakers – Marcia Langton, the late Melissa George, June Oscar, Noel Pearson, or Les Malezer to name a few.
But this morning I would to like to achieve two things:
- I want to again pay my respects to the significance of Eddie Mabo’s leadership, the leadership in the continued fight.
- And after listening across the course of this week to those many speakers and knowledge sharers I want to bring some perspectives for consideration for the next 30-year chapter.
Eddie Mabo didn’t go to the High Court seeking a form of land tenure, he was seeking sovereignty for his people and autonomy for the Torres Strait. In his address to the James Cook University Land rights conference in 1981, Koiki made an argument for the Torres Strait region to be made an autonomous self-governing commonwealth Territory, a vision which was in part realised with the establishment of the TSRA in 1994.
Shortly after the conference, Eddie and the other plaintiffs lodged the claim in the High Court. It took 10 years of intense, hard work, with Eddie and a small number of dedicated lawyers – like Greg McIntyre, who is here with us this week – working with little or no resources and the weight of the Bjelke-Peterson government against them.
But on the 3rd of June 1992, six months after Koiki’s death, the High Court of Australia recognised the undeniable truth – our rights to our lands and waters, derived from our laws and our societies – have continued in the face of colonisation. Not only that, the colonisers have a responsibility to recognise and protect those rights.
The fight for recognition, our resistance to colonisation, didn’t start with Mabo and it certainly hasn’t ended there.
I want to recognise all of us here who have been part of the fight in your own Country, or on the national stage. So many of us have given so much to the native title process and we have also lost many before us who have not seen the results of their commitment.
We have also seen the fracture and the harm that has come. I want to make a call out for the necessary investment to heal many of these fractures, which is still long overdue.
My Gunditjmara heritage
I’m going to share a little about me. And certainly for my people the fight is something we're very familiar with. In fact, my people, the Gunditjmara people, are often referred to as the fighting Gunditjmara.
I’ve got a bit of a slide show that’s going to be an introduction to who I am – my Country, my people.
Gunditjmara Country is located in the far south-west of Victoria. Characterised by its dramatic coastline, abundant sea country, limestone caves, forests and rivers, dormant and extinct craters that support permanent freshwater courses, heated groundwater, geothermal energy.
The creation of this landscape through volcanic explosions, earthquakes and tsunamis are a part of our Gunditjmara oral history.
In those early years of colonial incursion, my ancestors fought, often to the death, for this Country and against the theft of our women, our land, and our resources.
My identity, my authority, my sovereignty derives from this Country and the people and the laws that belong to it.
The fighting Gunditjmara comes from many experiences – from the frontier wars, to the boxing tents, to the fighting for Country, the fighting for heritage, to the many great long-standing political struggles.
Onus v Alcoa
One of the great fights, where we won, was referred to by Rachel Perkins in her keynote on Wednesday – referred to the case of Onus v Alcoa – as part of the history of heritage protection in this Country. Little is known of the history of the case brought by Sandra Onus and Christina Frankland in 1980, seeking an injunction in the Victorian Supreme Court to prevent Alcoa of Australia from damaging our Gunditjmara cultural sites.
Onus and Frankland had to prove that they had a ‘special interest’ in protecting their cultural heritage under the Archaeological and Aboriginal Relics Preservation Act of 1972 (Vic).
The Supreme Court judge dismissed the case, saying they had no standing to appear in Court because they had no significant interest in the land. They were considered to have no greater interest than a bushwalker.
Onus and Frankland took the matter to the High Court, and they won – Onus v Alcoa in 1981. Chief Justice Gibbs concluded that:
… the appellants have an interest in the subject matter of the present action which is greater than that of other members of the public and indeed greater than that of other persons of aboriginal descent who are not members of the Gournditch-jmara people. The appellants, and other members of the Gournditch-jmara people, would be more particularly affected than other members of the Australian community by the destruction of the relics.
The importance in Australian law in relation to our standing or right to intervene to protect our heritage – including recognition of the specific connection of Gunditjmara to our Country – as a distinct polity or society.
Perhaps even less is known of the settlement and the legislation that resulted from this case. The Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 gave title to the land, established a governing body and provided resources for the ongoing self-administration in the form of a trust fund and formed an annual administration fund in perpetuity. Although in today's terms the amount may seem trivial, the principles of negotiated settlement did set precedent. And the preamble in that Act states that part of the Lake Condah land 'was traditionally owned', and it did recognise our Aboriginal laws, customs, traditions and practices.
It goes further to state:
- that these rights have never been extinguished;
- that part of Lake Condah land ‘has been taken by force from the Kerrup-Jmara Clan without consideration as to compensation under common law or without regard to Kerrup-Jmara Law’;
- that the people residing on that part of Lake Condah land and other Aboriginal people ‘are considered to be the inheritors in title’ of that land;
- that part of Lake Condah land is ‘spiritual, social, historical, cultural and of economic importance’ to our community;
- and ‘to acknowledge, recognise and assert the traditional rights’ of Aboriginal people to that part of Condah land and 'the continuous association' they have with it.
This has been a longstanding fight.
A great victory from a great fight.
However, despite this legislative recognition the native title process required us to again prove who we were, who we are, our law and our Country. It took another 11 years from this determination, from the time our application was lodged in 1996, to the handing down of our determination on our Country in 2007.
Even the judge at the time, Tony North (who spoke yesterday), questioned why the state was unable to settle, given they had already passed legislation recognising our law and our rights to our land.
At the execution level, we’ve evolved and the Gunditjmara nation itself is now represented by two distinct traditional owner organisations, in Gunditj Mirring and Eastern Maar.
Eastern Maar gained recent recognition again through another fight – through the state Cultural Heritage Act – to be recognised as a Registered Aboriginal Party, which gives some delegated authority to cultural heritage management. But we continue the fight!
We fight and negotiate for our boundaries with our neighbouring nations and parties of interest.
We fight for further settlement within the state Traditional Owner Settlement Act.
We fight for our greater native title determination in our Eastern Maar boundaries.
We fight with our developers, we fight with our departments, who are extinguishing our future native title – one toilet block at a time.
We fought hard to ensure traditional owner leadership and authority is essential in our First Peoples Assembly that’s leading our treaty work.
We fight, we fight, and we fight … as do you!
The injustice of having to prove who we are, over and over again, has been a constant refrain this week, I want to recognise that. It has, however, had one positive outcome. The native title process has led to the world’s most comprehensive program of research and documentation of Aboriginal and Torres Strait Islander peoples and families, laws, customs, rights in our territories. This documentation is a powerful resource for our future generations in developing our self-governing institutions, and our intergenerational transmission of our laws, cultural practices and protecting our heritage – both tangible and intangible.
This is important as long as it is in our hands.
As the AIATSIS Chair I want to re-state our commitment to this work, our support for your leadership, our support for your fight.
At AIATSIS we have been conducting a project over more than a decade to ensure that these materials returned back to the native title groups once determinations have been resolved.
The AIATSIS Native Title Research Unit
This work of strengthening our nations through – or more often in spite of – the native title process has been an important part of the work of AIATSIS since the establishment of the NTRU over 30 years ago. Shortly after the Mabo decision was handed down AIATSIS was involved in discussions at the national level, with both ATSIC and land councils, about the implications of the decision and how to manage the progressive realisation of rights recognised by the court across the rest of the continent.
I was interested to read the minutes of the AIATSIS Council meeting in the second half of 1992, which recorded some of what was happening at a national level immediately following the decision – wrestling with the enormity of the decision and the implications across the country.
In collaboration between AIATSIS and ATSIC the Native Title Research Unit was established in December 1992 to conduct research with the specific intention to stay in front of the development of the law and support native title claims. I pay my respects here today to the women chairs of those organisations at the time – Marcia Langton and Lowitja O’Donoghue respectively – and pay my deepest respect for their forethought and their wisdom.
Over the last 30 years, the NTRU has consistently advocated through tier research for greater recognition of our inherent rights – whether it’s technical law reforms, treaty pathways, Country management, there is likely not a matter that touches on our rights that the team over the past years has not addressed.
At the heart of all of the research and advocacy has been an enduring commitment to the continuing authority of traditional owners as first peoples, as nations, as sovereign in our own lands. It will continue through all the work of AIATSIS and continue this commitment to ensure the authority of traditional owners in all work we do – from ensuring better access to our collections, to the design of our new building the Ngurra Institute.
Next 30 years
So what does this mean for the next 30 years?
We cannot recognise our continued system of law and custom with respect to land and ignore the continuation and importance of our law in the rest of our lives. You cannot deny our political, social and cultural institutions that give life to those laws and customs.
Our land, law and culture are as one. They are our sovereignty
We all recognise that native title was never the end point – it is just a tool, and a determination is just a marker in the journey of self-determination. At this 30-year marker, I reflect on what is it we must take forward for us together to write the next chapters.
I ask: what do we know now in 2022 that we have learnt from our last 30 years of fight since Mabo, the decades since Barunga, our 50+ years fight since we saw the Aboriginal land rights act establishing the community in which my family were raised at Framlingham?
I ask the question: do we know more, now, about what we want, these many decades on?
In fact, I suggest probably not. I think largely, at the highest level, we have always known what we want.
I ask the question: do we have the capability to be self-determining ? Can we do this?
Well, hell yes! Absolutely. Look at this room!
I ask the question: do we know how to achieve it?
After listening and yarning across this whole week, I believe we are laying the ‘planks’ forward on a road that is getting us closer than we have ever been before.
We are necessarily impatient, and we can only move at the speed of trust, but we must move together. Our people are charged to navigate the complexity with full awareness of the balance of power not yet on our side. However, we are well equipped with the smarts to craft the necessary pollical strategies.
One essential piece of piece of the strategy, I believe, must be an agreement by us on not just the WHAT we do, but the HOW we do it. To achieve this, we should be the capturing a set of First Principles as has been discussed in many rooms this week.
I believe through the many conversations we have stated in various forms what these first principles may be. I think it draws upon some of our aunties – our Elders Aunty Lilla Watson and Aunty Mary Graham, whose wisdom is detailed in their 'Aboriginal Terms of Reference' – recognising the importance in doing business our way, recognising the Aboriginal and Torres Strait Islander ways of knowing, being and doing.
With this in mind, I propose a first cut at seven first principles to support our next collective steps forward. I detail them for your consideration.
- Traditional owner leadership – we must invest in it, we must recognise it. It won’t be the only voice in the room, but we must ensure it has the authority. This is our business.
- Unity – we must respect our diversity, we must respect our different views, but when we face the white systems and structures we must be united as one.
- The importance of Transparency – we should share knowledge. We share our challenges, but we must engage inclusively and openly. We cannot restrict participation, it must be Free, Prior and Informed action.
- Truth – certainly a subject that’s getting a lot more activity than it has in the past and rightly so. The Ebony Institute in fact have been leading some significant research and I encourage those who haven’t seen this publication ‘Hear My Heart’ to get a copy of it. We at AIATSIS have been supporting the research of the Ebony Institute in this important work and bringing together national yarning circles. And one statement that they have captured, which I think is critical to note, is that truth is essential but it’s not always sufficient. We do need to know the truth of the past, we do need to know the truth of the present. And as my uncle Jim Berg always says: ‘you don’t know where you are going unless you know where you have been'.
- Respect – we all commonly state this underpins everything. That we need to ensure respect for our history, respect for our knowledge, respect for our autonomy, respect for ourselves, respect for each other, and respect for our partners that walk alongside us.
- Intergenerational Equity (or sustainability) – where will this work leave our future generations to come? This should be our key accountability measure.
- Relationships – for us to be kind, to be human. This next chapter will be tough (or should I say it will continue to be tough). We know this work is hard at the local level, at the national level. But we must unlearn some of the bad practice of the past – not everywhere, but in some places – and not allow ourselves to get stuck in personalities (or as one of my aunties would say: poison-alities). We must ensure we create safe spaces to debate, safe spaces to listen, and to listen and to listen. We must prioritise the expanding need for healing our people, to allow full participation, for us to continue the fight for another 30 years and the generations to come. Otherwise, I fear there are some of us that just won’t make it.
I state again, with those seven potential first principles it’s not just what we do, it’s how we do it.
There was a quote shared with me by Dr Cubillo from his travels in British Columbia from an elder there, I don’t know her name. But it really stuck with me. She said to him: ‘don’t let our studies get in the way of our education. We know who we are. We know the way to go about doing this business.’
And whilst I personally leave this week full of inspiration and charged for the next chapter of the fight, I urge us all to allow the time to do the right thing, do it the right way.