The road to reconciliation: we're in the fog but we're making progress

Hot on the heels of the referendum came the development of demands from Aboriginal people for something more than the same set of rights enjoyed by all other Australians.

This was manifest in the demands for recognition of rights to land based on continuing ownership of traditional lands by those who had occupied them for lengthy periods during the last 40,000 years.

Supported by missionaries, the Aborigines of the Gove Peninsula went to Court to seek recognition of their ownership of their lands, wanted by miners for strip-mining bauxite.

This was, on one view, the pursuit of an equal right to recognition of their property rights but on another it was an assertion of property rights not available to the rest of us who rest our rights to land on interests which are created by governments and primarily State governments.

Aboriginal demands for this recognition were and are courageous, persistent and consistent through to today. But as a minority they had to enlist the majority community. This they have consistently done.

The journey to obtain recognition of special rights, especially with respect to land, is a great relay race and the baton-changing from lawyers to politicians, back to lawyers, back to politicians and back to lawyers is an extraordinary tale. It has included moments of great inspiration: the dust trickling from the hands of Gough Whitlam into the hands of Vincent Lingiari at Wave Hill; the explanation by Ron Castan of how he translated his attachment to Jewish survival to the cause of the Aboriginal people; the setting aside of a series of decisions which the High Court said had been rooted in an age of racial discrimination; the moments of pure elation among Aboriginal people whose rights and status were recognised by grants of native title, many great moments interspersed by years and years of arduous talk, argument and negotiation.

The High Court’s Mabo decision of 1992 necessitated fundamental change. The Indigenous vision no longer had to rely on the sense of generosity of the majority, on whether it was prepared to grant some recognition to the other view. Instead Aborigines and Torres Strait Islanders could, in limited circumstances and without detriment to other government-granted titles, assert interests in land as a right, held under their own laws and customs and recognised by our law.

The Mabo case was itself a great journey led by a determined gardener from James Cook University, the late Eddie Mabo, and pursued for ten years by a team of Torres Strait Islanders, lawyers, anthropologists and historians. The great Jewish Australian lawyer, the late Ron Castan QC, of revered memory, gave ten years to the pursuit of justice in this case.

What did the Mabo decision decide? That the people of Murray Island were entitled against the whole world to possession, occupation, use and enjoyment of the Island of Mer, and that the fiction by which the rights and interests of Indigenous inhabitants in land were treated as non-existent was justified by a policy that has no place in the contemporary law of this country. The facts as we know them today do not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England.

For all the limitations, restrictions and difficulties that stand in the way of recognition of native title, despite it leaving Aborigines to fight over the left overs, what is left after all our government-granted titles are secured, native title provides the new dynamic that drives the evolving accommodation of Indigenous interests. It makes it not just a virtue but a necessity to deal with the other vision, the other view of land and landscape.

We don’t live in a gentler or more caring society today. If anything, the hegemony of market economics means even more that the race is won by the swift and even more by the powerful. But the legal recognition of the other subtle, intricate and shifting body of Aboriginal law has necessarily widened our vision and forced us into accommodation rather than complete domination of our system over the other.

There is no comparison between the pre and post-Mabo world in this sense. For some of us at least, mutual understanding and respect become a necessary reality in our operations on the land.