Three decades later, members of Mabo case’s legal team reflect on the moment that turned their approach to the historic land rights case.
Already a subscriber?On the third day of Eddie Mabo’s historic land rights claim in the High Court, chief justice Anthony Mason decided the plaintiffs needed some help from the bench.
A “community” claim meant they could argue the Meriam people as a group had rights against outsiders that could overcome the legal fiction of terra nullius, or nobody’s land.During the lunch break, the lawyers began thinking about how to reframe their case, and got more help as the day went on.It seemed at least four judges – Gerard Brennan, William Deane, John Toohey and Mary Gaudron – were onside.
Gaudron chimed in: “Does it follow from what you have said, that at any time from the time of annexation the native population could have lawfully been driven into the sea?”Davies: And it means also now that they are there at the pleasure of the Crown ...Deane: They did not have to be driven ... they were outlaws wherever they went on their island.
It clearly did not apply to Aboriginals and Torres Strait Islanders, the oldest civilisation on earth. And it had been rejected in legal claims brought by indigenous people in the Western Sahara and Canada. Unfinished business: the late Eddie Mabo, whose successful challenge to terra nullius did not remove all major impediments to Indigenous advancement.The land rights movement was determined to find the right case to take all the way to the High Court. McIntyre himself had investigated a claim by the desert people of Warburton after working there in 1979.
“I had this Ansett credit card that I used to bring down witnesses . I couldn’t pay and they cancelled it.After the case was filed in May 1982, the Queensland Supreme Court was asked to compile a report on the claims. The legal issues would be left to the High Court.
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