The Sunday Age on June 5th carried an article by Justin McManus who had been on Murray, or Mer Island, to witness the celebrations marking the 30th anniversary of the High Court’s Mabo judgement. Discussions conducted during ‘yarning circles’ concentrated on finding a way forward from the 1992 decision. McManus reported that both Malcolm Mabo, Eddie’s son, and Kaleb Mabo, his grandson, believed that issues arising from the High Court decision remain unresolved. Kaleb explained that possession of the land ‘came with strings attached…..It’s still attached to the Commonwealth government’ and what he had found in his grandfather’s writings was that ‘his end goal was to see the Torres Strait be independent from the rest of Australia and I think that is where the fight is moving forwards.’
On reading the article I was immediately reminded of many discussions I had with Eddie 50 years ago. At the time I was quite struck with his explanation that one of his reasons for moving to mainland Australia was to learn why white people had so much power. It is necessary to realise that the Queensland government exercised extraordinary authority over all aspects of the every- day life of both Torres Strait Islanders and Aborigines. Islanders were not allowed to visit mainland Australia without permission: they could be removed from their home islands and, as happened to Eddie himself, prevented from returning for many years.
Although he will always be remembered for the case which overturned Australian property law, his more enduring interest was in the question of sovereignty. He had grown up experiencing the arbitrary power of the state government. He had never questioned his legitimate ownership of family land until the late 1970’s ten years after had he arrived in North Queensland. In an ideal world he would have challenges both aspects of terra-nullius which was premised on the twin assumptions that Australia’s First Nations were not the proprietors of their land nor did they exercise any form of dominion over it.
As it turned out the Islands of the eastern Torres Strait, Murray and Darnley, proved to be the ideal locations to assert the perpetuation of indigenous property rights. They are now in a similar situation in relation to sovereignty. The reasons why may not be immediately apparent. It is not generally understood that the eastern Torres Strait was not included in the original annexation of Eastern Australia in 1788. It was claimed by the Queensland colonial government in 1878. And timing does matter. When in 1786 the British were planning to establish a settlement on or near Botany Bay they knew very little about the continent or its inhabitant and assumed it was indeed a terra nullius. The legal justification was spelt out by the Privy Council in a case relating to Australia in 1889.
Australia had been peacefully annexed to the British dominions because it had consisted ‘of a tract of territory practically unoccupied, without settled inhabitants or settled law.’ It was possible to hold that view in London in 1786. It could not be sustained in Brisbane ninety years later. Murray and Darnley Island were well known. Christian missionaries had arrived there as early as 1871. The islands well densely populated. The Islanders lived in settled villages and grew crops. They were not nomadic. The conditions outlined by the Privy Council did not exist and any well informed Queenslander knew that was the case.
And perhaps more to the point international law had developed and become more systematic in the four generations separating the annexation of Queensland itself and the colonial grab for the Torres Strait. The International Court of Justice provided us with a definitive outline of the relevant law in an Advisory Opinion about the Western Sahara in 1975. Spain had claimed sovereignty over the region in 1884 assuming the territory was a terra nullius in much the same way that Queensland had done in the Torres Strait six years earlier.
The two cases have much in common. The relevance of the Western Sahara case to Australia is obvious. In a unanimous judgement the Court determined that it was ‘by reference to the law in force at that period that the legal concept of terra nullius must be interpreted.’ It was a ‘cardinal condition’ of a valid “occupation” that the territory in question was in fact a terra nullius. The law at the time was quite clear, the Court observing:
According to State practice of that period, territories inhabited by tribes or peoples having a social and political organisation were not regarded as terra nullius: in their case sovereignty was not generally considered as effective through occupation, but through agreements concluded with local rulers.
The message here is clear and coming from the International Court of Justice has to be taken seriously. There is no doubt that the Torres Strait Islanders had a social and political organisation in 1878. Queensland’s claim over Murray and Darnley Islands was, therefore, illegitimate. The Islander’s sovereignty was, in the international law of the time, not’ effected’ by the posturing of the Queensland parliament.
But where do we go from here?
The easiest way to proceed would be to initiate a case to present to the courts. It is what Eddie Mabo himself would have favoured. But it may suffer the fate of every previous challenge to the original, serial annexations in 1788, 1824 and 1829. The courts may return to their repeated assertions that Australian, or as they say municipal courts, cannot overturn the results of previous exercises of prerogative powers. Such a response would not resolve anything.
If such a consequential decision cannot be dealt with here the solution would be for Australia to ask the International Court of Justice for an advisory opinion. And if our government is unwilling to pursue that resolution it might be necessary for the Torres Strait Islanders to take their case off-shore, to seek support at the United Nations General Assembly which can refer cases to the International Court without needing the approval of nation states in question.
Henry Reynolds is an eminent Australian historian.
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