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Melbourne University Law Review |
[The Mabo cases have generated a great deal of writing and commentary, but not much of this has described, or described accurately, the course of the litigation from its inception in 1981 to the delivery of the High Court’s judgment in 1992. Lengthy, hard-fought ‘test case’ litigation of this significance carries with it, from time to time, in addition to technical, court-focussed procedural problems and options, a wider penumbra of policy and strategic issues. Personal attitudes and life-decisions of both clients and their representatives can also play a part in the progress of such lengthy litigation. These various threads, the peculiar difficulties of the remitter trial proceedings in the Supreme Court of Queensland, the supervising role of and doctrinal developments in the High Court through this decade, and some significant setbacks experienced by the plaintiffs, all hitherto not widely appreciated, are described in a seven-stage chronological treatment. In some respects a somewhat subjective account is given, but all that follows is carefully based on an extensive collection of court and other materials generated by the proceedings, and the recollections of the author.]
Long-running cases develop a life of their own. In the Yorta Yorta[1] native title claim I began my final address on behalf of the claimants: ‘When I was young, my mother told me that ...’. In that case, as in the Mabo trial, the choice of words was not entirely irrelevant, since much of the evidence led from the claimants about their traditions and customs was in precisely that form.[2] The ruse caught on, such that counsel for each of the dozen or so respondents[3] addressed in like fashion. So too with this article.
When I was young, my father once told me: ‘Son, never talk about yourself; leave that to others.’ This was and remains wise advice which I have attempted to follow. However, times they are a-changing: Justice Michael Kirby has recently recited, in some detail, at a distinguished oration, his (equally distinguished) life’s history.[4] I merely follow high precedent. That said, lawyers’ ‘war stories’ about their favourite cases are generally of little interest to anyone, save the author. But the account which follows contains, I hope, some inherent justification and intrinsic interest.
The case was hard-fought, broke new ground, and always possessed significant implications, a scenario which can attract both unwanted attention and additional procedural problems over and above ‘ordinary’ litigation — if such a beast exists. Such a lengthy ‘test’ case can also become, in turn, a real test of the participants, of the system, of human strengths and weaknesses, of political and legal forces — all focusing on one arena, the court proceedings, in the time-honoured (and some argue, entirely inappropriate) fashion of the common law.[5] The case has triggered significant legal, political and social responses, not to mention an already voluminous literature, none of which I will attempt to summarise here.[6]
Since the High Court handed down its decision on 3 June 1992,[7] the procedural story has never been comprehensively told — nor should it be, bearing in mind client legal privilege, confidentiality, and personal sensitivities. However, the account which follows, derived from the public record, should I think be told, since the genesis, prosecution and results of this case are now a significant part of the nation’s recent history. I am grateful that the Editors of this special centenary edition agree.
In a case of this size and complexity, and given the involvement of so many, what follows is incomplete. Moreover, this can only be a personal account — albeit one based on two primary sources. First, my involvement as junior counsel and, second, an extensive collection of court and related materials covering the period 1982–92 which I have collected, researched, indexed and lodged with the National Library, Canberra.[8]
Another reason for the telling is that in my view, too much of ‘Mabo’ has entered not only recent history, but also the unfortunate realms of misleading mythology. Some accounts of procedural aspects are simply wrong, and it is probably desirable now to set the record straight. I leave aside much ideologically driven journalism[9] and political pontificating, some of which can only be described as irresponsible and deliberate scare-mongering.[10]
Finally and sadly, this account lacks the input and the wise counsel of two leading figures who have now passed away: Eddie Mabo[11] and Ron Castan AM QC.[12] Both gave a significant part of their life’s work to this litigation. Indeed, according to Eddie Mabo’s friend and biographer, Noel Loos, ‘The last words [Eddie Mabo] said to his wife, Netta, were “land claim”’.[13] I do not know the last words spoken by Ron Castan; but I know that this case, and the cause it represented, was both close to his heart and, as with all of the plaintiffs’ legal representatives, a professional priority second to none over a decade. Many others who could shed light on this ten-year odyssey have now also died.[14]
Hard-fought litigation stretching over a decade — like any theatre of war — can digress into many areas and can reveal much at the personal level. After a decade the dust has settled — to some extent — and some things can now be said. But equally, and not only for reasons of client legal privilege, some things still cannot be said, and perhaps never should be — at least not by me. People are entitled to respect and privacy; personal careers continue to evolve; and the brutal bottom line is that the Mabo so-called ‘judicial revolution’[15] remains fragile, and strenuously opposed by powerful interests in this country. In this (still) polarised atmosphere, care and caution are required: one would not wish to provide ammunition for use by irresponsible terrorists — or even by astute legal opponents.
Describing procedural aspects of the Mabo litigation is a little like Rich J’s elegant observation concerning the role of the High Court: that is, ‘to explain the elliptical and expound the unexpressed.’[16] The procedural aspects of this case may be examined in a number of ways — doctrinally, thematically, chronologically, personally — but I will take (for sanity’s sake) a chronological approach. To that end, and to shorten much tedious detail, a Select Procedural Chronology is set out at Appendix I and underpins much that follows. With apologies to the ubiquitous bard,[17] the proceedings may be conveniently examined under seven heads:
In 1981 Australian law concerning indigenous land rights was neither simple, sensible, nor just. It starkly diverged from that which applied in equivalent former British colonies, especially the United States of America, New Zealand and Canada. Modern doctrines in this arena were laid down in three classic and much quoted judgments of Chief Justice John Marshall in the US Supreme Court in 1823,[19] 1831[20] and in 1832.[21] Those cases recognised pre-existing traditional rights to land, and that those rights survived the act of colonisation by the British Crown as enforceable property rights. These principles stated by the Chief Justice were followed in New Zealand in 1847;[22] in Canada in 1888[23] and (by a minority) in 1973;[24] in the Privy Council on appeal from African states, including in recent years;[25] and in the International Court of Justice.[26] In Western Sahara Vice-President Ammoun concluded that ‘the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned.’[27]
Australian law in 1981 was beginning to emerge from the shackles of the Privy Council, especially leading to the passage of the Australia Acts in 1986[28] and a new-found willingness by the High Court as this country’s ultimate court of appeal to state the common law of and for Australia. But in relation to native title, the law of Australia was still locked in the past. The issue had never been directly presented to the High Court; and the Court had indicated, on more than one occasion, that it considered the issue to be significant and worthy of attention. Indeed, the doctrine applying in Australia, as spelt out by the Privy Council in 1889,[29] had been described in 1979 by Murphy J as a ‘convenient falsehood’.[30]
The High Court had in fact considered the issue — albeit arising in Papua New Guinea — in two cases, Geita Sebea[31] and Daera Guba,[32] and had issued dicta recognising pre-existing traditional rights to land in that country. In Daera Guba Barwick CJ said:
I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. ... [T]he traditional result of occupation or settlement [was] that though the indigenous people were secure in their usufructuary title to land ... the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown.[33]
These words are reflected in the relevant passages of Brennan J’s leading judgment in Mabo [No 2][34] 20 years later — where the Court did decide the matter.
Australian courts in colonial and modern times had, in the main, rejected arguments seeking to establish traditional land rights at common law. In 1836 the New South Wales Supreme Court held that the criminal law applied equally to all persons, including Aborigines, who were deemed to have no recognisable laws of their own.[35] The proposition that no land law existed in New South Wales prior to 1788 was upheld by the Privy Council in 1889[36] and was never debated, let alone challenged, during the constitutional debates of the 1890s. As has been discussed elsewhere,[37] the Constitution not only ignored the indigenous population, it positively discriminated against them[38] — the founding fathers no doubt comfortable with the notion that they were acting in accordance with the common law. This ‘convenient falsehood’ and various common law principles underlying it were further upheld in Australian property cases ‘of great authority’[39] decided between 1847 and 1959.[40] These were again upheld in the Northern Territory Supreme Court in 1971 in the Gove Case,[41] discussed below; in the New South Wales Supreme Court in 1976;[42] before the High Court in 1979;[43] and in other judgments in this century in India,[44] New Zealand,[45] the USA[46] and the UK on appeal from Africa.[47] Thus in 1981 the common law stood against the plaintiffs, but with some room for argument.
The leading Australian case — the Gove Case,[48] argued in 1970 — was in 1981 the most substantial and scholarly confirmation of this position. In Gove the Yolgnu people of Arnhem Land argued in essence that which was argued in Mabo [No 2][49] 20 years later: that is, that Anglo-Australian common law incorporates a doctrine of ‘communal native title’ which recognises pre-existing traditional rights to land founded on the community’s prior occupation, customs and traditions, and that these rights survive the relevant act of British colonisation, and continue as enforceable legal rights known to Australian law. Blackburn J decided that no such doctrine was known to Australian law ‘for want of authority to support it’.[50] However, Blackburn J left the door ajar — just a fraction. He ruled that the plaintiffs before him manifested a system of customary laws which delivered to the community ‘a government of laws, not of men’ and which was a recognisable system of law. His Honour said, however, that this system did not contain rights in land recognisable by the Australian common law. He stated:
The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me. ... Great as they are, the differences between that system and our system are, for the purposes in hand, differences of degree. I hold that I must recognise the system revealed by the evidence as a system of law.[51]
His Honour, from this position, proceeded to examine whether that traditional system of law delivered property rights recognisable by Australian law. His Honour concluded, after examining ‘the substance of property interests [being] the right to use and enjoy, the right to exclude others, and the right to alienate’,[52] that ‘these [traditional] claims are not in the nature of proprietary interests’.[53]
The Gove Case was not appealed,[54] and in the following years was the subject of much scholarly criticism.[55] However, this significant legal loss led to an equally significant political response. Upon attaining government Prime Minister Gough Whitlam, early in 1973, commissioned senior counsel for the Gove plaintiffs, Ted Woodward QC, to inquire into and report upon, not whether, but how traditional rights to land in the Northern Territory might be recognised.[56] The Woodward Reports[57] of 1973 and 1974 led directly to the introduction of a Bill[58] by the Labor Party in 1975 (which fell with the Government in November 1975), and its eventual revival and enactment, in modified form, by a new Fraser Coalition Government in 1976. This became the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Therein lies another large story which is not pursued here save to make two observations. First, by 1981, no such legislative reforms were proposed, or seemed possible, at the Commonwealth or Queensland levels, to the above mentioned common law denial of native title in the Torres Straits or any other part of Queensland — or in any other State for that matter.[59] Indeed, as discussed below,[60] in 1981 the long-standing Queensland Bjelke-Petersen Government was proposing the opposite — to reduce such minimal protections previously enjoyed by Aborigines and Islanders to reside on lands gazetted as reserves under the Land Act 1910 (Qld) unmolested by development, being a scheme which had been in place in Queensland since 1912.[61] Second, and ironically, the Gove failure of 1971 triggered a stronger and more supportive legislative regime in the Northern Territory in relation to protecting indigenous ‘land rights’ there, than the Mabo [No 2] victory triggered around the country 20 years later, especially when the 1998 amendments to the Native Title Act 1993 (Cth) are factored in.[62] The legislative history has indeed moved strangely — and backwards — in this arena, at least from the indigenous perspective.
Like the instigation of the Aboriginal Legal Service in Melbourne,[63] ‘[t]oday a number of people nurse the belief that he or she “began” the case.’[64] The case began, on one view, with Blackburn J’s adverse decision in 1971, the decision not to appeal the Gove Case to the High Court, and subsequent criticism of both events. Court cases, including ‘test cases’, all start somewhere — usually with a grievance — and can ‘start’ at all sorts of moments and in all sorts of ways, depending upon your perspective. However, all do require at least one plaintiff.
Eddie Mabo, his fellow plaintiffs, and the Meriam people, only a small proportion of whom lived at Murray Island at any one time, were, collectively, that plaintiff. However, in my view, without Eddie Mabo there was no case. Whilst acknowledging significant contributions from the other plaintiffs and many Murray Islanders and others, the fact remains that Eddie Mabo was the main driving force, the indispensable bridge between the Anglo-Australian legal system and the traditional system of land-holding on the Murray Islands. It was he who came to understand each system; and he who was able to explain each to the other with the necessary authority, detail, and eye to relevance that is so necessary for court purposes. It was he who pushed on, despite formidable personal difficulties and political opposition, to his (ultimately unfulfilled) personal end; but to a community victory.
Eddie Mabo was born on Mer (Murray Island) on 29 June 1936, and passed away after suffering from cancer on 21 January 1992. As I said at his funeral in Townsville in February 1992:
[F]or me and the lawyers we particularly remember his friendliness and hospitality, his initiative and originality, his courage and quiet determination, his intelligence and astonishing knowledge and memory of his people, his island, its history, customs and traditions. Above all I remember his deep commitment to correcting historical wrongs, some very personal, and to achieving recognition of traditional land rights of his family, and his people. He was in the best sense a fighter for equal rights, a rebel, a free-thinker, a restless spirit, a reformer who saw far into the future and far into the past.[65]
I adhere to all the above. But perhaps here it should be said that other, less complimentary, views have been expressed about Eddie Mabo by both his own people[66] and the broader Australian community. One such critical view which mattered and which he never accepted, was that of Moynihan J when assessing him as a major witness in the Mabo trial.[67]
Mabo gave substantial evidence spread over 15 days[68] before Moynihan J in the (to Mabo) strange environment of the Queensland Supreme Court, sitting in full panoply in Brisbane. A critical issue was whether Eddie Mabo was adopted by Benny Mabo, his paternal uncle, and his wife, Maiga, and thus inherited the lands he claimed. Moynihan J, in his Determination of Facts,[69] recorded that Mabo lacked credibility and that he would not accept his evidence on any matter going to self-interest, save if corroborated by other credible evidence.[70] Thus no claims made by Eddie Mabo to his family lands and seas on and around Mer were accepted at trial.
One might ask: ‘why did Eddie Mabo pursue this case, relentlessly over ten hard years?’ My own view, for what it’s worth, is that he was much impressed and guided by his father’s leadership in the Torres Strait Maritime Industry strikes in 1936.[71] Eddie Mabo was also offended, rightly so, by severe restraints imposed upon him and other Islanders under the Queensland Aboriginal and Torres Strait Islanders statutory regime,[72] known colloquially as ‘Killoran’s law’.[73] He was also deeply affected by the then Murray Island Council’s decision which banned him from the island as a teenager for a petty misdemeanour; and a further decision by the Council, delivered, Mabo believed, with the active support of the Queensland administration in 1975, which granted him permission to return home to be with his dying father provided he avoided ‘political affairs’.[74] These wounds were still real and evident during the 1980s. He spoke of these injustices during his evidence, describing how, in defiance of the ban, he sailed a boat to the Island — but arrived too late. He broke down in court, weeping, when Queensland played a tape[75] of his adopted father’s voice, as part of their case.[76]
A further motivation, felt by many Torres Strait Islanders, was that though Islanders had assumed for generations that they continued to enjoy their traditional rights to their islands and surrounding seas, Mabo had recently discovered, to his astonishment, that Australian law said otherwise. The public record suggests that this realisation arose from two sources. First, the issue came to light during agitation concerning the Whitlam Government’s proposed redrawing of the borders between Australia and Papua New Guinea leading to the signing of the Torres Strait Treaty 1978.[77] The suggestion was that if Islanders became citizens of Papua New Guinea, their traditional rights would be recognised in that country. Islanders strenuously resisted any such alteration of the international border and their citizenship. Second, whilst Mabo was working as a gardener and part-time teacher at James Cook University during the 1970s, he was advised of this legal reality by one Professor Henry Reynolds. This to him and other islanders was legal nonsense, and a situation which had to be rectified.
Mabo was also a loving husband and father,[78] and an Islander activist and politician. He sought to advance the interests of, and secure a brighter future for himself, his family, the Meriam people, Islanders and the broader Australian indigenous community. The national prominence the case offered in the running, let alone if it succeeded, was obvious from the early days, and such attention was not lost on him.
Since 1912 Murray Island, along with other islands in the Torres Strait, had been ‘permanently reserved and set apart for use of the Aboriginal Inhabitants of the State’.[80] Allied to the Islanders’ general opposition to Queensland’s repressive laws was the unwelcome announcement by the then Bjelke-Petersen Government, early in 1981, that it proposed to repeal the Torres Strait Islanders Act 1971 (Qld) and de-gazette the various Torres Strait Islands as reserves.[81] The Government initially proposed, as an alternative, to grant 50 year leases to Island communities.[82] This scheme was opposed by the Torres Strait Islanders Advisory Council[83] which secured the Premier’s agreement that no action would be taken until they had tested the feelings of Islanders in the Strait.[84] Early in 1982 Mr Bjelke-Petersen announced a new proposal: that the Government would revoke the reserves and issue Deeds of Grant in Trust (‘DOGITs’) to replace them.[85] Under this proposal nominated Trustees (including government appointees) were given power to lease the areas until then reserved for the plaintiffs’ benefit and to prevent the Meriam people and the plaintiffs from residing on the lands for more than one month without the permission of the Minister for Lands pursuant to the Land Act 1962–1975 (Qld) s 350.[86] This scheme also caused alarm, and was opposed: its details were pleaded in the statement of claim,[87] and injunctive relief sought to prevent its introduction.
Given the attitude of the Queensland Government to indigenous rights, be they land-related or otherwise, these proposals were alarming news for Murray Islanders. Thus they might well have thought that they had nothing to lose by supporting the proposed case — save a quiet life. This was not, however, quite how things turned out. By April 1991 DOGITs had been granted in respect of all islands in the Torres Strait other than Murray Island.[88] The Murray Island reserve was not de-gazetted, and the DOGIT scheme was never introduced to it, as threatened. But as discussed below, further legislation was enacted by the Queensland Government expressly to defeat the case once and for all.
This brings us to what is widely considered to be the immediate trigger that ‘started’ legal proceedings: a land rights conference held in Townsville on
28–30 August 1981.[89] At that time the Townsville Chapter of the Aboriginal Treaty Committee[90] (co-chaired by Mabo and Loos) and the James Cook University Students’ Union organised a conference entitled ‘Land Rights and the Future of Australian Race Relations’. Henry Reynolds, by way of introduction, indicated that an impetus for the conference was an endeavour to understand public antagonism in north Queensland to land rights, and spoke of a ‘vast historical injustice’.[91] Several speeches of substance were delivered.[92]
One Eddie Koiki Mabo delivered an address[93] where he, inter alia, spoke of his traditional education received from many people, especially ‘my late mother and father Maiga and Benny Mabo of Las village’ — a statement supportive of his evidence going to his land inheritance before Moynihan J but not tendered.[94] Mabo also explained the traditional land ownership and inheritance system on Mer, and suggested that the Torres Straits should be ‘transferred to the Commonwealth’ since ‘[w]hat we actually want is real help, not patronizing colonial rule anymore’.[95]
Subsequent speakers[96] reaffirmed that the Meriam people owned, traditionally, their island; that they feared the stated intention of the Queensland Government to repeal the Torres Strait Islanders Act 1971 (Qld); and that recent consultations by the Island Advisory Council recorded that the Islanders had ‘agreed ... that they should have inalienable freehold title to the land and that also they should be given control over their own affairs’.[97] On this basis, the immediate trigger for the Mabo litigation was fear of these proposed reforms by the Bjelke-Petersen Government.
The technical contributions (so far as Olbrei reveals) at this conference concerning the prospects of litigation emerged in the last session, entitled ‘A High Court Challenge’, through substantial legal papers presented by Barbara Hocking,[98] of the Melbourne Bar, and Greg McIntyre,[99] solicitor. Hocking’s paper reviewed a range of common law, international law, and constitutional issues (especially the reasoning of Blackburn J in the Gove Case),[100] and commenced with the somewhat prescient observation that:
[W]hether or not [such a claim] was successful, [it] might very well act as a catalyst for action at the political level. ... A test case brought by a group of Queensland Aboriginals who still live on their tribal lands could influence the attitudes of white Australians and the terms of the Makarrata [treaty]. It might for example lead to the establishment of a Court of Claims and an Aboriginal Claims Commission similar to the ones set up in the U.S.A. to determine the Indian claims to compensation for the loss of tribal lands.[101]
Although she did not expressly say so, it is fair to infer from her paper that Hocking was ‘proposing that an Aboriginal group should consider a High Court challenge’.[102] On this basis Eddie Mabo, ever the political opportunist,[103] seized upon an initiative also intended for an aboriginal mainland group.[104]
Greg McIntyre, then a solicitor with the Aboriginal and Torres Strait Islanders Legal Service in Cairns, and the then instructing solicitor in another significant Queensland contribution to race relations — Koowarta[105] — followed Hocking with a similarly substantial and legalistic paper, stating that his aim was ‘to put forward the theory that Aboriginal land rights do have some existence outside statute law in Australia’.[106] He discussed various common law issues, covering similar ground to Hocking, concluding with some foresight: ‘It is my view that the Aboriginal inhabitants of a community defined by their association together for the purpose of their believed right to use a certain piece of land would have a good claim to its continued exclusive use.’[107]
McIntyre subsequently was the instructing solicitor, and occasional counsel, in the Mabo cases throughout 1982–92.
It seems that following these papers, the Murray Islanders held an in camera meeting. Present were[108] Dr Nonie Sharp, Professor Garth Nettheim, Dr Nugget Coombs, Eddie Mabo, Father Dave Passi, Phillip Mills (observer) and Flo Kennedy.[109] The meeting emerged with the announcement that the Murray Islanders wished to pursue such a ‘Gove-type’ case. Eddie Mabo became the leading plaintiff in the litigation which, thereafter, emerged. Before the end of the day, Greg McIntyre was instructed as solicitor, and Barbara Hocking was retained to consult with senior counsel in Melbourne and to provide an initial advice.
This period ran, broadly, from September 1981 to February 1986 — though amendments to the statement of claim continued to the very last day of argument before the full High Court in May 1991![110] During this third ‘age’ the legal team was retained; research was initiated into the legal and factual issues (including two visits to Mer); the statement of claim was laboriously drafted and filed in the High Court Registry in Brisbane; and the authorities in Canberra were pursued (with partial success) regarding a grant of legal aid. On 27 February 1986 Gibbs CJ made orders, after argument, remitting the trial of the action to the Supreme Court of Queensland, albeit in federal jurisdiction — a matter of some importance.[111] In summary, the period (at least from my chair in Melbourne) saw delays in relation to pleading and squabbles over requests for, and a reluctance to provide, particulars and further particulars of the statement of claim broke out. Finally, argument arose over which court should conduct the trial of facts — or whether such a trial could be avoided in favour of an alternative procedure, for example, referring a case stated to the full High Court on a set of agreed facts,[112] being the facts alleged in the statement of claim.
Initially, work proceeded on developing two cases: one for Mer, another for the Yarrabah community, located on an aboriginal reserve in Far North Queensland. Meetings and preliminary advices in mid-September 1981 raised these prospects[113] and by March 1982, two draft statements of claim had been prepared.[114] However, for reasons uncertain to me, but apparently associated with a death in the community in June 1982,[115] and difficulties in obtaining instructions, the Yarrabah aboriginal action faded away. Alternatively, perhaps the complexity — and the expense — of running two such cases quickly became apparent, and all too much to contemplate. Some hard decisions were doubtless taken, somewhere, by somebody. Yet another explanation sometimes heard is that instructions from Yarrabah were coming mainly from one Mr Neal — who was ‘entitled to be an agitator’[116] — but who, during this period, was notoriously jailed by a local Magistrate for spitting through a wire-screen door at a police officer.
Some peculiar features surrounding the pursuit of an Islander, rather than an Aboriginal, native title test case should be noted. The Torres Straits[117] were annexed to the Colony of Queensland by the British Crown in 1879[118] — 101 years after Governor Phillip proclaimed the Colony of New South Wales as a British colony at Botany Bay. That annexation was held valid by the High Court in Wacando[119] in 1981. The three modes of acquisition of a new colony — cession, settlement or conquest — were pleaded in the alternative in Mabo’s case, and were put in issue, but in the end, ‘settlement’ as the accepted mode of colonisation of the Torres Straits was not seriously questioned by the plaintiffs. Nor was the validity of the extension of British sovereignty questioned: indeed, the statement of claim at paras 7–9 pleaded that by the extension of British sovereignty, the island became part of the Colony of Queensland in 1879[120] — but ‘subject to the laws in force therein’.[121] These laws of Empire had developed a little since the same body of law was applied to the colonisation of Australia in 1788 — especially with the enactment of the Pacific Islanders Protection Act 1872 (Imp) 35 & 36 Vict, c 19 and the Pacific Islanders Protection Act 1875 (Imp) 38 & 39 Vict, c 51 by the Imperial Parliament. This law was applicable to various Pacific Islands, including Murray Island, prior to annexation in 1879 and thereafter. Under its provisions Murray Island was subjected to English law in a limited way. Courts were constituted to govern British subjects who were present on such islands. In addition, s 7 proclaimed the sovereignty of the Chiefs of the various islands and, by implication at least, accepted that these communities and their Chiefs were sovereign and independent powers.[122] This legal history raised interesting and unique (as compared with Aboriginal Australia) prospects for the recognition of customary law and traditional connections to land — though in the end, nothing came of this line of argument.
Second, as to the details of land holdings, Murray Islanders, in stark contrast to most mainland aboriginal communities, engaged in small-scale gardening and horticultural activities which suggested a possible means of distinguishing, or distancing this case, on the facts, from the Gove precedent. In the end, this aspect was irrelevant in the Court’s reasoning in Mabo [No 2]: the underlying common law principles applied Australia-wide, irrespective of factual variation in traditional life.
Another intriguing wild-card touching the Murray Island situation was the application of the doctrine of ‘terra nullius’ to the seas — especially those seas beyond the territorial limits of Queensland — ie, the plaintiffs’ claims to the Great Barrier Reef lying 20 km to the east of Murray Island.[123] Why would those doctrines extinguish, upon colonisation, traditional rights to those outer seas when those areas were never ‘colonised’ — at least not until the commencement of the Australian Constitution by an Imperial Act in 1901.[124] Perhaps, if all else failed, a ruling concerning the seas located immediately offshore, or the outer seas located solely within Commonwealth jurisdiction, might be achieved. The Seas and Submerged Lands Case[125] had examined such issues in detail in 1975, raising arguments concerning sovereignty, the Commonwealth’s external affairs power (s 51(xxix)), and the legislative powers of the Imperial, Commonwealth and State Parliaments[126] over coastal waters.[127] That case held that the colonies’ boundaries extended only to the low water mark and no further.[128] But none of the Mabo issues had been considered, and thus the seas assumed some unique importance. Further, as to the daily realities of Island life, a success in relation to these seas alone would still be of great significance to the plaintiffs. As it is, the failure at trial to prove traditional interests in these sea areas — even to the beach-side fish traps and surrounding reefs — was and remains a source of total bewilderment to the plaintiffs. To them, the land and seas hold no boundaries: they form part of one holistic domain, all governed by custom and tradition. Complex questions of whether native title, at common law or under the Native Title Act 1993 (Cth), extends to the seas and, if so, how far offshore, are now being agitated before the High Court in the Croker Island Case.[129]
Last, and importantly, the circumstances of such a remote and recently ‘settled’ island raised the obvious possible advantage of less destruction of cultural life due to the impact of colonisation. Following occasional visits by explorers[130] and surveying parties[131] to the Straits, the bêche-de-mer and pearl-shell fishing industries began in the Straits in the 1840s and 1860s respectively. In 1877 two members of the London Missionary Society arrived at Murray Island[132] and purchased or rented land on the Island from the traditional owners. By 1879 a church had been built and government administrators were visiting. In 1894 J S Bruce was appointed the first government school teacher on the Island and the Island Court began to sit, informally at first but later pursuant to statute.[133] This relatively low level of European contact presented a real contrast compared to the experience of Aboriginal communities since 1788 along the east coast of the mainland. However, a risk arose with the Murray Islands’ relative isolation: that the Court would respond in a localised way, a situation complicated by the fact that Torres Strait Islanders, although Australian citizens and subject to the same laws, were, and strongly considered themselves to be, a different and distinct race (being Melanesian in origin) from the Aboriginal race. Again, being the last inhabited territory to be colonised of all the Australian colonies,[134] and given different laws of Empire, any precedent (successful or otherwise) might be confined to the Torres Straits. However, as mentioned, this limited legal result did not come to pass. But these issues were earnestly discussed late in 1981 when it appeared that two communities — Aboriginal and Islander — had provided instructions.
This, like every other such statement of claim, was an important document and was, so we authors thought, a pure piece of poetry — although it was repeatedly amended by the same authors as the decade wore on! The task was lengthy, all of it done, redone and redone again, on a then state-of-the-art IBM golf-ball typewriter, steadfastly operated with increasing frustration by Ron Castan’s then secretary (later his clerk) Glenda McNaught. It was at about this time that we began to realise the difficulties ahead; and that various professional and personal lives began to change. Both experiences continued for the next decade (and in some instances, beyond). There were no precedents, though pleadings arising from the Gove Case[135] were examined. Likewise, Blackburn J’s decision, with many other North American, New Zealand and Privy Council decisions, some referred to above, were all examined for helpful pleading clues — not to mention one or two issues of substance. Finally, a writ with an endorsed statement of claim was filed in the Brisbane registry of the High Court. It bears the date 30 May 1982 and led to a tangled plethora of pleadings and particulars.[136] Five Murray Islanders were named as plaintiffs: Eddie Koiki Mabo; Celuia Mapo Salee;[137] Sam Passi; his brother, Father Dave Passi; and James Rice. Of these, Celuia Mapo Salee and Eddie Mabo died,[138] and Sam Passi discontinued his action,[139] suffered a stroke in 1988 and died in 1990.
As Moynihan J noted more than once in his Determination the claim was, from the beginning, a representative action — an issue which became of added significance before the full High Court.[140] The pleading records that the plaintiffs ‘bring this action [on] their own behalf, and on behalf of the members of their respective family groups’.[141] Declaratory and injunctive relief was sought, variously, on behalf of the plaintiffs, their predecessors in title, and the Meriam People.[142] In his Determination Moynihan J made findings both about individual claims made on behalf of groups and, less directly, about Murray Islanders’ relationship to the Islands and seas as a whole. The Judge stated:
[I]t may be accepted on the evidence that Murray Islanders have a strong sense of relationship to their Islands and the land and seas of the islands which persists from the time prior to European contact. They have no doubt that the Murray Islands are theirs. ... There is no doubt that those Murray Islanders who gave evidence succeed in conveying a strong sense of the observation of propriety in respect of land. ... I have little difficulty in accepting that the people of the Murray Islands perceive themselves as having an enduring relationship with land on the Islands and the seas and reefs surrounding them.[143]
From the beginning, the claim was intended for the original jurisdiction of the High Court[144] — even though, after the lengthy trial heard by Murphy J in the DOGS Case,[145] we as counsel assumed that the Court would not in future favour utilising the time of High Court Justices to conduct trials. The plaintiffs’ procedural strategy was to issue in the High Court, and have the matter remitted — hopefully to the Federal Court — to determine questions of fact only, thus retaining the High Court in a supervisory role in relation to fact-finding, and as the sole arbiter of the critical legal issues. This was considered a desirable course, in order (in the main) to avoid, or at least distance, the impact of adverse precedent;[146] to avoid lengthy and expensive appeals from an inferior court; and to avoid further layers of potentially adverse decisions.
The defendants were Queensland and the Commonwealth. Queensland was an obvious choice — and at this stage, considerable fears were still entertained in Melbourne, Cairns and on Mer concerning the Queensland Government’s intentions to de-gazette the island reserves. Thus injunctions and declarations were sought against it.[147] Indeed, mutterings about injunctions and the need for secrecy leading up to the issue of the writ can be found in the correspondence of that time.[148] The Commonwealth as a defendant, however, was more problematic, especially since no relief other than declarations[149] was sought against it. However, the claim included issues involving interpretation of the Constitution, in that s 109 was triggered by reason of alleged conflict between various Queensland laws applying to Murray Island, on the one hand, and the Racial Discrimination Act 1975 (Cth) ss 9 and 10 and other Commonwealth laws, on the other. These laws were pleaded,[150] as was an international treaty,[151] in various versions of the statement of claim. All of this founded original jurisdiction in the High Court under the Constitution s 75(iii).
However, this question of original jurisdiction was agitated, from time to time, by Queensland when time permitted — especially when, by agreement, the Commonwealth withdrew as a party.[152] With no Commonwealth as a defendant, hanging onto the original jurisdiction of the High Court under s 75(iii) became problematic — although s 109 questions and the Torres Strait Treaty 1978 were still in issue.
The decision as to whether to issue in the original jurisdiction of the High Court also involved an assessment of how long this saga might run, and how the High Court as then composed might deal with these issues, including the question of a remitter. We hopelessly underestimated the question of duration, but did better on outcomes! Ten years in the life of any court — including the High Court — can be a long time. The changes in membership, and jurisprudential developments over the period 1982–92, were both considerable — as has been the case in the decade since. One wonders how the case might be received today. In May 1982 the Court comprised Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ. During 1982–92 two Justices died (Aickin and Murphy JJ),[153] two resigned (Stephen and Wilson JJ),[154] and one retired (Gibbs CJ).[155] A new Chief Justice was appointed — Mason CJ,[156] as were a total of five new puisne Justices — Deane,[157] Dawson,[158] Toohey,[159] Gaudron[160] and finally McHugh JJ in 1989.[161] Thus a differently constituted Full Court heard argument, in March 1988, in the crucial Mabo [No 1][162] from that which heard argument, in May 1991, in Mabo [No 2].[163] And of course, Eddie Mabo himself died on 21 January 1992 whilst awaiting judgment. Such are the fortunes of history for courts, and litigants. However, given the development through the eighties of the ‘activist’ character of the Mason Court, these delays — early pleading procrastination and denial (mainly by Queensland); two years spent arguing the demurrer leading to Mabo [No 1]; a lengthy trial; plus one year for the trial Judge to deliver his Determination of Facts — all worked, arguably, to the plaintiffs’ advantage in that Mabo [No 2] can be seen as the high point of this activist period. Yet another unknown during this period was the trials and tribulations of Murphy J,[164] which began around 1982, ending with his death in October 1986.
In 1982 we considered the Court to be interested in both resolving the central issue, and maintaining some oversight over the litigious process. As mentioned above, some dicta then recorded in various judgments prior to 1982 supported this approach.
In June 1982 the plaintiffs’ legal team[165] made its first visit to Mer. This involved commercial flights to Thursday Island, over-nighting there,[166] then a further small-aircraft ‘milk-run’, island-hopping out to Mer on the eastern fringe of the Torres Strait. We picked up one Eddie Mabo along the way in Cairns, and Ms Flo Kennedy[167] on Thursday Island.
Whilst on the island for three days, we viewed it all (5 km long, 3 km wide) and travelled by dinghy to the two adjacent islands also under claim, Dawar and Waier. We interviewed potential witnesses, and held a community meeting explaining the proceedings — all normal activity in such a ‘land claim’. We marvelled at the tidy house plots and garden areas — mostly overgrown — but nevertheless in many instances clearly bounded by wooden fences, or by rocks placed at corners and along the boundaries. The legal team, transformed in an instant into expert, highly qualified and immensely experienced surveyors, set about producing, by hand and on the spot, accurate maps of the areas under claim — all of which were subsequently tendered. We saw ladies examining the bare earth in front of their homes every morning for footprints, to ascertain whether anybody had ‘trespassed’ during the night, against the laws of Malo. We were told about, and shown written accounts of, these ancient Malo laws, one of which, broadly rendered, states:
Malo tag mauki mauki,
Teter mauki mauki.
Malo tag aorir aorir,
Teter aorir aorir.
Malo tag tupamait tupamait,
Teter tupamait tupamait.[168]
Roughly translated from the Meriam, this means:
Malo keeps his hands to himself; he does not touch what is not his.
He does not permit his feet to carry him towards another man’s property.
His hands are not grasping, he holds them back.
He does not wander from his path. He walks on tiptoe, silent, careful,
Leaving no sign to tell that this is the way he took.[169]
All of this spoke to us of evidence of ‘custom and tradition’ and ‘traditional connection to land’. We marvelled at the fish traps — long lines of blocks of basalt, piled to 100–150 cm high, running offshore for perhaps 300 metres, then curving round in a great arc to return to shore 2–300 metres further down the beach. These had been built in the distant past by unknown persons using materials not locally available — none of which was ever explained.[170] We visited the village of Las at the northern tip of the island, a place which Eddie Mabo called home and where he is now buried. This was where he grew up with his adopted parents (as he saw it) and where he now claimed traditional lands and fish traps, being areas he inherited from Benny Mabo under ‘Aislan Kustom’. This too was the home of the Bomai-Malo cult, the ancient religion of Mer Island. We also saw massive shoals of sardines swimming just offshore, with Islanders in hot pursuit, throwing nets and spilling them, wriggling and glistening, across the sand. And with the catch came the camp followers — squads of cats — fat, lazy and very well-fed. This was instant fresh Snappy Tom, in huge abundance! It was also living evidence of daily use of the resources of the seas, and one explanation of the powerful physiques of the Murray Islanders — especially as depicted in photos taken around the 1880s and 1890s.
We also saw another side: the impact of colonisation since 1789. This took obvious forms: an airstrip perched precariously on top of a plateau (reminiscent of strips one negotiates in Papua New Guinea); well-established administrative buildings; a medical aid post; a primary and secondary school; a council chamber; a community hall (subsequently brilliantly decorated and used as a court room for hearings before Moynihan J); an ugly overflowing tip; a canteen (alcohol sold during late afternoon only); dozens of small wooden family houses on stilts; and one (repeat one) public phone booth, located outside the general store. Due to an inadequate water supply and limited employment opportunities, the Mer community during the 1980s numbered about 200 only at any one time,[171] with some thousands located on other islands and on the mainland, especially in Townsville, where Eddie Mabo and his family lived. A modern Anglican church — the latest in a line — has also been built in the main village, presided over by plaintiff Father Dave Passi, an ordained Anglican Minister.[172] His Sunday services were attended by many devout local Christians, of all ages. In addition, various Pentecostal faiths enjoyed a strong following, with much vigorous gospel worship, singing and dancing bursting forth all over the Island on Sunday mornings. A prominent and well-tended cemetery flanked the village beach, with many names of importance in tracing genealogical connections. This cemetery is not Eddie Mabo’s final resting place, however. Following the desecration of his grave in Townsville in June 1995[173] he was put to rest two kilometres to the north, just up the hill above Las, in a clearing amongst the dense tropical rainforest, his spiritual home. A map of the Island is found at Appendix II.
On 18 August 1982 Queensland issued a summons to strike out the whole of the Statement of Claim as revealing no reasonable cause of action, or as frivolous or vexatious; alternatively to refer questions of law to the Full Court.[174] This application was supported by a lengthy affidavit sworn by one Patrick James Killoran, the long-serving and very senior Director of the then Queensland Department of Aboriginal and Islanders Advancement.[175] The summons, returnable in Canberra on 15 September 1982, led to a fulsome letter from the plaintiffs’ solicitor, complaining about lack of courtesies and the like, and pointing out the realities, namely, that the plaintiffs’ application for legal aid was still under consideration in Canberra.[176] The strike out posed a maze of procedural possibilities, some of them attractive (at least from the financial point of view), for example, referring questions to the Full Court, thus avoiding a trial.
The hearing came on before the recently appointed junior puisne Justice Deane on 28 October 1982.[177] In the event, the issue was never agitated before him, save that the parties advised, at 10:15 am, that they wished time to confer — a wish that was, of course, readily granted. The lawyers thereupon crowded into chambers on the sixth floor of the High Court building to negotiate the fate of the application: counsel and solicitors for the plaintiffs,[178] for Queensland[179] and for the Commonwealth.[180] Eddie Mabo, the ubiquitous stream of tourists, members of the public, and the odd journalist waited in the cafeteria below.
After some considerable discussion, none of which, to my memory, seriously pursued the strike out application, it was agreed in essence that Queensland’s application would be withdrawn; and that the plaintiffs would go away and prepare a statement of facts intended to be agreed by the defendants with a view to, thereafter, enabling agreed facts and questions of law to be drafted and posed to the Full Court[181] to dispose of the whole action. At this stage no trial was contemplated: thus easing considerably the plaintiffs’ resources problems. Deane J agreed to make appropriate orders, by consent, and everybody went home.
In the event, a lengthy statement of facts was prepared by the plaintiffs’ lawyers over the next 15 months but, as is obvious, it was never agreed to by Queensland. Thus, after much haggling between the lawyers at a directions hearing on 27 November 1984,[182] Gibbs CJ ordered[183] that the plaintiffs should deliver an amended statement of claim by 19 December 1984; Queensland and the Commonwealth should deliver their defences by 5 February 1985; and that the matter be adjourned generally. Thereafter, the plaintiffs’ Statement of Facts and Contentions, already developed when attempting to agree to facts and state questions of law, could now become particulars and further particulars to the various factual allegations in the proposed amended statement of claim. This result was welcomed by the plaintiffs, since this procedure avoided another year’s work responding to Queensland complaints that it ‘didn’t understand’ the claims, and voluminous requests for further and better — and betterer and even betterest — particulars. Thus this statement of facts, comprising four white spirex bound volumes,[184] was incorporated by reference into the amended statement of claim as particulars. In volume 2 of his Determination Moynihan J duly ruled on each of those factual matters, embracing many aspects of the history and administration of the island since 1789.[185]
During 3–7 March 1983 the lawyers made a second visit, and continued the proofing process. This time, a significant discovery of a different ‘colonial’ character was made. In addition to imposing development and a damaging cultural impact, the short colonial period and the State of Queensland’s administration since 1901, ironically, also provided valuable and unexpected evidence. Since the 1890s, ultimately pursuant to a series of statutes,[186] regulations and by-laws, ‘Island Courts’ had been established on the various island reserves in the Torres Straits and on Aboriginal reserves on the mainland to administer local justice, with the involvement of the local people. Under the relevant Regulations[187] a Clerk of Courts was appointed, and he (always in those days a ‘he’) was required to keep a record of court proceedings. Such a court met on Mer from time to time to hear and determine various ‘civil’ and ‘criminal’ disputes. A record was duly kept, as required, usually by a visiting Queensland Government official, or the resident school teacher sitting-in as the Clerk. Some of the matters brought before the court were trivial — even offensive — for example, being out at night beyond a stated hour; fraternising with girls; and the like. Other matters were more serious.
We knew, from various sources,[188] that such a court had operated on Mer since the 1890s. However, on this visit we located quite by chance, in a disused council hut under some dry banana leaves, a bundle of dirty old papers. On closer inspection, these were identified as hand-written reports of cases heard over a period of 80 years in the Murray Island Community Court — including cases concerning disputes over the inheritance and use of land on the island. These were considered of real evidential value: here was a written account of, inter alia, Mer Island disputes about land, and the resolution of those disputes with reference, in part, to traditional laws and customs.
We lawyers dusted off the dirt and spiders, spoke to our clients, and (much to Queensland’s subsequent annoyance)[189] brought the papers back to Melbourne for detailed examination and transcription. During the following year or so, relevant case reports were identified, typed up, indexed, and filed and served as, ultimately, further particulars to the amended Statement of Claim;[190] some were tendered in evidence during the trial;[191] and all were the subject of analysis in the plaintiffs’ final submissions.[192] The trial Judge was not, however, greatly impressed by this item of evidence,[193] taking the view that
the operation of the [Murray Island] Court reflected as much as anything the imperative of achieving social harmony by seeking to reconcile conflicting parties or having them accept a decision perhaps in terms of accepted expectation. ... None of this is to say that the Court in its decision did not seek to achieve a consistent application of certain basic principles. That was however rather because of the value of consistency and predictability than by reason of the application of ‘Malo’s law’ or of any ‘traditional’ system of Murray Island - ‘laws’ (in whatever sense one likes to use that word[)].[194]
I beg to differ. It is suggested that these cases, recording ‘the Common Law of Murray Island’ are a valuable body of material, both as an item of proof in the case, and to the Meriam people at large. Today they may assist them in the resolution of sometimes fierce and long-running land disputes on Mer — disputes which continue.[195]
This ‘federal’ strategy, in the end, proved profitable — though, like many other decisions made, not without risk. The whole question turned on how the Court might respond to the small matter of dealing with a trial — hopefully by referring that fact-finding procedure to a Federal Court Justice — or whether a trial might be avoided entirely. The rules provided for various options, all of them bringing their own uncertainties. Under the Judiciary Act 1903 (Cth) s 18 a single Justice may reserve a question of law to the Full Court: but referring such a bare question, without the colour and context, and detail that Murray Island had to offer, might sell our clients very short. Alternatively, under the Judiciary Act 1903 (Cth) s 44(1) the Court or a Justice may remit a matter, or a part of a matter, for trial ‘subject to any directions’. The purpose of a remitter is to ‘facilitate the course of litigation’.[196] The options and factors were many; some of them quite peculiar. For example, intense debate arose in Ron Castan’s chambers on the question, assuming the matter was remitted for trial to the Queensland Supreme Court and lost federal jurisdiction, whether we as Victorian counsel could appear in the trial. As Victorian counsel we were not admitted to practice in Queensland, because the Rules Relating to the Admission of Barristers of the Supreme Court of Queensland prevented this at the time.[197] And if we couldn’t appear, who should?
In the event agreement was reached with Queensland that the matter should be remitted for trial solely as to questions of fact. The only issue to be resolved was, to which court: the Federal Court as contended by the plaintiffs, or the Queensland Supreme Court as contended by Queensland? On 27 February 1986, following argument, Gibbs CJ remitted the matter for determination of ‘the facts raised by the pleadings and the particulars and the further particulars’[198] to the Queensland Supreme Court — sitting in federal jurisdiction. Counsel retained for the plaintiffs were somewhat relieved![199] Gibbs CJ also recorded another issue of importance:
The parties agreed that any question whether the determination of the particular issues raises a question of fact or a question of law should be reserved for the determination of this court. I hope that the proper course of proceedings in the Supreme Court will not be interrupted by applications to this court.[200]
Such applications were made, however, as addressed below.[201]
Justice Moynihan of the Queensland Supreme Court conducted the trial. As his Honour records,[202] 44 witnesses gave evidence before him, 29 for the plaintiffs and 15 for Queensland. There were 312 exhibits tendered (some very voluminous), and the court sat for 67 hearing days. Together with submissions, all this occupies some 3489 pages of transcript.[203] Sixteen Islander residents of Mer gave evidence in the plaintiffs’ case, and six in support of Queensland’s case.[204] Four Mer Island witnesses who lived in Townsville gave evidence in the plaintiffs’ case in Brisbane or on Murray or Thursday Islands.[205] Five Islander witnesses, one in the defendant’s case and four in the plaintiffs’ case, gave evidence on Thursday Island.[206]
Following directions hearings held in Brisbane on 25 July and 13 October 1986[207] Ron Castan QC opened the case for the plaintiffs over three days, on
15–17 October 1986.[208] The first witness, Eddie Mabo, was called on 17 October — and was still there (in chief) two years and six months later, when the trial resumed after the demurrer proceedings were finalised.[209] At an earlier directions hearing in May 1986 counsel for the parties quoted a four week trial — as things turned out, a gross underestimate! This first phase adjourned, part-heard on 17 November 1986,[210] with one witness only completed.[211]
After the opening in October 1986 Castan QC returned to Melbourne and McIntyre, Hocking and I carried on. Queensland and the Commonwealth[212] were both represented, in strength — especially Queensland. It had initially retained John Byrne QC[213] with junior counsel, Margaret White[214] and Greg Koppenol,[215] backed up by a team of solicitors, led by Paul Smith[216] of the Queensland Government Solicitor’s office, plus departmental advisers and assistants of various sorts. Suffice to say that the bar table was a little unevenly stacked from the beginning of hostilities — and it got worse.[217]
Assisting the plaintiffs during the two stages of the trial, at various times and in various places, was an interesting and varied team of partly-paid[218] and variously located lawyers,[219] law student volunteers from Sydney and Brisbane,[220] counsels’ spouses[221] and children,[222] interested Brisbane colleagues, friends, the occasional mother, an invaluable secretarial service,[223] and sundry others.
Melissa Castan and her partner, Robert Lehrer, attended in Brisbane, rented a flat and procured a photocopier,[224] and assumed the vital task of looking after and organising the Murray Island witnesses. This involved a lengthy and difficult task: organising bookings from Mer — a long way from Brisbane;[225] assisting witnesses to negotiate their way through the airport (many for the first time); accommodating them in a city hotel; presenting witnesses to the lawyers that night to run through (often for the first time) their evidence; and to draft and redraft (usually in counsel’s handwriting — secretarial assistance was limited) their witness statements at my rented house — all the night before taking the stand. In addition, witnesses would (on a good day) attend at ‘McDonald’s Chambers’ the next morning for a final conference prior to court; and then attend court. There (again, on a good day) the witnesses were called, gave their evidence, were cross-examined, were normally excused from further attendance, and departed the field — for the hotel, the airport, and ultimately, Murray Island — two days (involving several hours’ flying-time) away. These complicated logistics were managed successfully by the Castan and Lehrer team over the duration of the trial — most particularly during Phase 2 in 1989. Without them there would simply have been no witnesses, and no trial. And of course, as every trial lawyer knows, ‘good days’ are rare beasts, their frequency diminishing in direct proportion to the length of the trial and the building exhaustion of all concerned.[226]
The witness arrangements lead me to mention another vital piece of the plaintiffs’ extensive litigious infrastructure: ‘McDonald’s Chambers’. The Brisbane Bar heard that strangers were in town. Some members kindly offered accommodation — but most chambers on offer were not available at the right moment, and all were too expensive. However, a ‘street-wise’ solution soon emerged. Close to the Supreme Court in George St there was then (and there still is) a McDonald’s Family Restaurant. Due to long years of carefully nurtured caffeine addiction, I fell into the habit of stopping by (bit like Pommeroy’s, you might say, in that other place) on my way to Court. These visits soon turned into not just early morning caffeine hits, but full-blown pre-court conferences with witnesses and others. McDonald’s Chambers were indeed very serviceable, close to court, spacious, quick food, clean amenities, limited privacy, but with very pleasant, if sometimes bemused, company. The staff got to know ‘the Murray Island mob’ rather well, over several weeks in mid-1989. But importantly, these were informal, non-threatening, and nutritious (!) surroundings for the witnesses, many of whom had never been to Brisbane before, and none of whom had ever been involved in Supreme Court proceedings before — let alone having taken the witness box in a sometimes brutal war of attrition.
During these initial weeks of evidence in 1986, three memories stand out. First, my sore feet. Second, Eddie Mabo’s evidence in chief and his extraordinary memory for details[227] along the lines: ‘My father told me, “son, this land will belong to you when I die”’. Third, on the plaintiffs’ tally, 289 separate objections being made by Queensland counsel — sometimes four or five per page of transcript — to the giving of such evidence as inadmissible on various grounds, and argument and rulings about those objections.
The major objections were that such evidence was hearsay, which did not attract any of the exceptions[228] available in proceedings conducted in the Queensland Supreme Court;[229] was irrelevant; deposed to ultimate issues when speaking of ‘ownership’ or ‘boundaries’; was mere assertion; or that the witness was not sufficiently competent to make the proposed statement so as to render the statement admissible from that witness.[230] Argument raged back and forth during the early weeks. The plaintiffs contended that all such evidence was admissible and relevant. In particular, the evidence objected to as hearsay was not in truth hearsay, but statements evidencing the existence of the plaintiffs’ traditional system of land holding, and was properly admissible as ‘traditional evidence’ of such a system, and of the particular plaintiffs’ rights under that system. Alternatively, the plaintiffs contended that such evidence was properly admissible as an exception to the hearsay rule, being evidence of statements by deceased declarants as to public or general rights, or as to pedigree, or as evidence of custom, or as statements of a deceased declarant in the course of duty. Alternatively, the plaintiffs contended that the evidence was admissible as part of the res gestae of particular acts of ownership occurring while on or near the particular lots claimed.[231]
These issues were obviously vital: without such evidence, the plaintiffs’ action was surely lost. Numerous rulings were given both in the running, and reserved.[232] As mentioned, the issue was also agitated after the first phase of the trial adjourned, before Deane J at a directions hearing in Sydney on 13 February 1987, but his Honour, under the terms of the remitter, refused to rule on such issues.[233] Further argument occurred before Moynihan J in Brisbane on 23 February 1987, where the prospect of him ruling in the alternative was canvassed — ie, making findings of fact first on the basis of all evidence, or secondly only upon such evidence as remained after ruling on questions of admissibility. However, the Judge considered that, given the ‘hundreds of pages of pleadings, particulars and further particulars giving rise to ... a myriad of issues’, such a solution was virtually impossible.[234] On 23 February 1987, during argument on these questions, his Honour also expressed concern about the interrelationship between the substantive issues of law which were raised in the proceedings, and which were reserved to the High Court, and the handling of the determination of issues of fact when intertwined with objections to evidence which involved assumptions about those ultimate issues of law. In the course of discussing the weight to be given to statements deposed to by a witness giving ‘traditional evidence’ his Honour observed:
That is the nicety of my dilemma. We are talking about two parallel systems of law and their effect on each other. Ultimate questions revolve around how far I enter from one into the other in order to determine matters of evidence. [But] [t]hat’s the question I cannot decide.[235]
On 23 February 1987 his Honour ruled that he would not exclude such evidence in the running, but would reserve all rights to the parties, and resolve the matter of admissibility after all the evidence was in, during final submissions. Thereafter, through exhaustion as much as anything else, the combatants settled into a formulaic process designed to preserve all rights to argue admissibility issues, and to get on with hearing the evidence. Upon the asking of what was perceived to be yet another preposterous question likely to elicit a hopelessly inadmissible answer, the formula kicked in. The question was asked; an objection was heard in the form of ‘the usual objections, your Honour’ (delivered with a studied air of utter boredom and futility); and the witness’s answer was given — all duly recorded, and all to be argued about in due course.[236]
After some thousands of pages of such disputed evidence (not to mention 312 exhibits, many of which raised similar issues), in his Determination Moynihan J finally let all of this disputed evidence in, treating the issue as one, not so much of admissibility, but of weight.[237] Nobody appealed those aspects of the Judge’s Determination — nor any other aspects. The plaintiffs were not happy with the Judge’s rulings but couldn’t afford to appeal and, after some consideration, decided, in any event, not to. And perhaps the remaining defendant, Queensland, couldn’t face the prospect of doing it all again. More to the point, perhaps Queensland formed the view that the case was bound to lose where it really mattered — on questions of law in the High Court — in any event.
The Meriam witnesses were an interesting group. They included a very old, frail and partially blind man sitting on a bed under some palm trees at his home on Mer with the court — Judge, counsel, court staff, transcription service — clustered around, trying to hear.[238] By contrast, an experienced community services officer — a Murray Islander — was called by Queensland at Thursday Island.[239] Of particular interest was the middle-aged ordained Anglican Minister, plaintiff Father Dave Passi. He was called in Brisbane, and spoke about his family lands that he claimed on the island, and about how he rationalised in his ministry both the word of his Christian God and the spiritual stories and traditions of his own people.[240] Not for him the existentialist ennui of Sartre[241] or Camus.[242] These two disciplines — the ‘coming of the light’ being the arrival of the Christian Missionaries on nearby Darnley Island in 1871[243] and the Bomai-Malo cult and the laws of Malo — fitted together, in Father Passi’s account, into one holistic philosophy of creation and being. Also called for the plaintiffs was a senior anthropologist, Dr Jeremy Beckett,[244] and the plaintiffs’ solicitor, Greg McIntyre, to prove photos of various garden areas — and certain beautifully drawn maps and charts of the claimed areas. Further evidence tendered by the plaintiffs included the typed-up Murray Island Court Reports;[245] historical and anthropological works; and much more.[246]
One point should be recorded here. As in all such native title trials, the collection of evidence in support of custom and tradition can be difficult, chancy, and dependent upon many unpredictable factors — including the trials and tribulations of human beings. One thing though is certain: in the Mabo case, as in other native title trials, the same evidence could not be called again. Many of the ‘best’ Meriam witnesses, being elderly men with knowledge of custom and tradition, have now passed away — Eddie Mabo amongst them. Communities, in this sense, may have one chance only to present their ‘best’ case. There is, I often think, a moment — indefinable but nevertheless always there — in the life of a claimant community and, in turn, of the nation, when these claims might be made, and these national issues resolved. Thereafter it may be too late — or at least, so much more difficult as to render the prospects of a fair hearing hopeless. This assumes, however, a perhaps unacceptable reliance upon ‘traditional’ evidence of the acknowledged kind — a highly contentious issue lying at the heart of native title appeals now underway.[247]
Queensland called 15 witnesses, including the above mentioned Mr Patrick Killoran; several Meriam residents who mainly contested the inheritance of, and the metes and bounds of, some of Eddie Mabo’s claims;[248] an historian, Dr Ruth Kerr; a genealogist, Mr Colin Sheehan; and a compiler of myths and legends, Ms Margaret Lawrie.[249] The State also tendered extensive materials in support of their case. This included 42 volumes of photocopied departmental files recording the entire administrative history of Mer and much of the Torres Straits besides,[250] a large genealogy recording generations of the Meriam people,[251] extracts from the reports of the Cambridge anthropological expedition to the island in the 1890s,[252] death certificates of Robert Sambo[253] and Benny[254] and Maiga Mabo[255] tendered as part of Queensland’s cross-examination to show that Eddie Mabo was not ‘adopted’, extracts from the well-known novel Drums of Mer by Ion Idriess,[256] historical works,[257] photographs of the island[258] and more.
On the evening of Thursday 1 April 1985 I was at home, feeling pretty jaded, when the phone rang. It was a Labor politician in the Queensland Parliament, and he sounded rather annoyed and agitated. He explained that the Queensland (National Party) Government had had enough of this Mabo nonsense and that the next day, the Government was to introduce a Bill into the Parliament entitled the Queensland Coast Islands Declaratory Bill 1985 (Qld), which was designed to ‘kill off’ the case. Could I tell him a little about the case? What were the social, political, international, cultural (and legal) issues? What was the likely impact of the case on Queensland, Australia and civilisation as we knew it? Could I draft some quick speaker’s notes since he had to go into the Parliament and speak in opposition to the Bill? Such is the life of a politician in the Queensland (and other) Parliaments.
The Queensland Coast Islands Declaratory Act 1985 (Qld) (‘Declaratory Act’), like life generally (but especially on Queensland Aboriginal and Islander reserves), was truly ‘nasty, brutish, and short’.[259] Its passage through the Parliament and, as it turned out, its operation as a valid law of Queensland was in each case also remarkably short.[260] The Declaratory Act purported to extinguish, retrospectively and without compensation, any and all traditional rights to land that might exist throughout the Torres Straits. The Bill was introduced and had its second reading speech on 2 April 1985. It contained just five sections, the two of critical importance stating:
3 Effect of annexation of islands to Queensland. For the purpose of removing any doubt ... it is hereby declared that upon the islands being annexed to and becoming part of Queensland and subject to the laws in force in Queensland —
(a) the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown
...
5 Claims to Compensation. No compensation was or is payable to any person —
(a) by reason of the annexation of the islands to Queensland;
(b) in respect of any right, interest or claim alleged to have existed prior to the annexation of the islands to Queensland ... or
(c) by reason of any provision of this Act.
There was no doubt that this law was aimed directly at the Mabo case. In his second reading speech the Honourable Bill Gunn, Deputy Premier, cited the Imperial Letters Patent of 10 October 1878, the Queensland Coast Islands Act 1879 (Qld) and the Governor’s proclamation of 24 June 1879, thus ‘annexing the Islands to Queensland as from 1 August 1879’ and continued:
This position was accepted until a small group of Murray Islanders commenced an action in the High Court Australia [sic] on 20 May 1982 against the State of Queensland and the Commonwealth of Australia to challenge the annexation[261] to Queensland in 1879 of three of the Torres Strait Islands. ... Questions raised by the islanders in their 25 page statement of claim concerned the intention behind the annexation. The purpose of [the Bill] is to make it clear and to declare that the intention of the 1879 legislation was —
(1) that the lands in question be vested in the Crown in right of Queensland; and
(2) that the land was freed and discharged from any right, interest or claim that the occupants of the land may have claimed to have existed prior to annexation.
The passage of this Bill will, it is hoped, remove the necessity for limitless research work being undertaken in relation to the position of the relevant Torres Strait islands prior to annexation and will prevent interminable argument in the courts on matters of history.
I commend the Bill to the House.
Debate, on motion of Mr Prest, adjourned.[262]
The Deputy Premier’s concern for the parties’ toiling researchers is truly touching. He did not utter a word about compensation. On 9 April the Bill was debated, with the Liberal Party supporting the measure, and the Labor opposition opposing. Mr Burns[263] described the Bill as ‘a cowardly act by a Government that is not prepared to face the independence and integrity of the High Court ... [T]he Government is dealing with this matter in a shonky way’.[264] Mr Scott of the Labor party reminded the House that the matter was sub judice, that ‘[t]he Government changes the rules as it goes along’, that he was ‘astounded by [Mr Gunn’s] meagre justification given for introducing the legislation’,[265] and that the ‘Government is simply denying litigants the right to have their case heard in court’.[266] Only one of five speakers mentioned the compensation issue. Mr Vievers[267] pointed to clause 5 and noted that ‘in the last 18 months, similar pieces of legislation have been introduced involving the annexation of land, but compensation has not been paid.’[268] In reply, Mr Gunn rejected the suggestion that the Bill had some relationship with the Torres Strait Treaty 1978, and asserted that the Bill ‘will not frustrate [the Islanders’ case]: they can do what they like. The Bill only declares what has always been the position.’[269] Further, in a speech occupying fully half a page, the Deputy Premier saw fit to include the following earth-shattering information:
The islanders were being led by two Melbourne University do-gooders, a Queen’s Counsel named Kastan [sic] and a person named Keon [sic]. The islanders were being led by those persons from Melbourne University. They are a long way from Murray Island. They were leading the Islanders up the garden path. Litigation has not stopped: it is still proceeding. I do not intend to enlarge on that matter. I am sure that no one in this Chamber would want to do so.[270]
If Mr A R Castan AM QC, and my Jewish hyphenated-grandparents were all alive, I’m sure they would all wish to ‘enlarge on that matter’ by joining me in the observation: some of us (unlike Deputy Premiers) just can’t help ourselves; we have greatness thrust upon us! I can only surmise that the Deputy Premier, first, had not read the statement of claim, where counsels’ names are clearly and correctly recorded; second, if he did, he didn’t check his Hansard proofs for that session; third, he didn’t much care, either way. Still, I suppose the Deputy Premier is a busy fellow. More seriously, both Castan and I did study law at Melbourne University;[271] and like Mr Neal and his agitation,[272] we are entitled to be do-gooders — and proud of it! With such momentous matters concluded, a vote on party lines was taken, and the Bill passed into law with the support of the Liberal Party, 48 votes to 31.
So began the saga leading to a very close run thing indeed: the initiation by the plaintiffs of a demurrer proceeding designed to have the Queensland law declared unconstitutional and invalid, thus enabling the case to proceed. The resulting judgment, which has come to be known as Mabo v Queensland [No 1],[273] ultimately shot the Queensland Government, and every other Australian Government, sharply in the foot. It demonstrated, by the narrowest of margins, that if native title was ever established, whilst s 109 of the Constitution and the Racial Discrimination Act 1975 (Cth) remained in place, along with constitutional entitlement to compensation on just terms for the acquisition by the Commonwealth of private property,[274] both the Commonwealth and the States were limited in the manner in which they might deal with, or extinguish, such native title. Without success in Mabo [No 1], no trial, no case, no Mabo [No 2], and no protection of native title against extinguishment by legislative or executive acts.
The power of the Parliament in our system of government is usually understood, à la Dicey, to be sovereign and paramount.[275] It is not that easy to induce a court to determine that a State law, enacted within the powers of that legislature, is invalid for any reason, including for reasons of inconsistency with Commonwealth laws. However, with this shock enactment, the plaintiffs’ legal team sat down to consider the options: how was the case, unquestionably (to us at least) a just cause, to survive this frontal assault by the Queensland Parliament? The result was a mixture of options and considerations which traversed seeking to defer the trial; procedural initiatives under the High Court Rules; the peculiar difficulties that the High Court itself was then experiencing, with the prosecution of Justice Lionel Murphy; the chronic realities of limited resources; the need not to get hung up for too long on legal issues prior to hearing the evidence; and other such matters.
On 24 May 1985, just to add insult to injury, Queensland filed and served an amended defence[276] (pursuant to prior arrangements) which now pleaded the Declaratory Act. Whatever their other sins, Queensland lawyers are not stupid, and were looking forward to ‘life after Mabo’.
The High Court Rules 1952 (Cth) provide that a party may demur to, in effect, bring on a question of law which might resolve the litigation without the need to determine facts.[277] Where a party pleads and demurs, ‘it is in the discretion of the Court or a Justice to direct whether the issues of law or fact shall be first disposed of.’[278] Further, the Court has power to set down a question of law to be heard and determined, and to stay all other proceedings.[279] A Justice has a wide discretion to make orders as are considered just in all the circumstances[280] — including the attitude of other parties. After much discussion the plaintiffs decided to pursue demurrer proceedings in order to test the law.
On 19 June 1985 the plaintiffs’ amended Demurrer to Queensland’s amended defence was filed and served.[281] In essence, this pleading went for broke: it pleaded that the Declaratory Act was invalid on a variety of grounds (one only of which ultimately succeeded) and sought an order striking it down as beyond the powers of the Queensland Parliament, as void, and of no effect. Meanwhile, a further decision was taken: that so far as the plaintiffs could achieve it, the matter should proceed nevertheless to trial — even given the risk that all that cost and expense might be thrown away should the demurrer fail, and the Declaratory Act be declared valid. Thus during 1985–88, before Mabo [No 1] was handed down, the plaintiffs were fighting on two fronts: pursuing the trial before Moynihan J; and preparing for and arguing the demurrer proceedings in the High Court.
On 3 April 1987, prior to recommencing the adjourned trial, the plaintiffs, after discussion and reaching agreement with counsel for Queensland and the Commonwealth,[282] obtained from Toohey J an order to set down the demurrer for argument before the Full Court of the High Court.[283] The trial was thereafter adjourned by consent on 22 April 1987. The demurrer was heard before a Full Court during 15–17 March 1988. Ten arguments were pleaded in the plaintiffs’ amended demurrer but these came down to four principal points.[284]
First, as a matter of construction, the plaintiffs contended that the Declaratory Act applied to land areas only, a position consistent with the rulings in the Seas and Submerged Lands Case which held that the colonies’ boundaries extended to the low water mark, and no further.[285] Second, the plaintiffs argued that Queensland lacked legislative power to enact the Declaratory Act, due to the impact of the applicable Commonwealth offshore legislation[286] and the ‘just terms’ requirements of the Commonwealth Constitution (s 51(xxxi)) in relation to extinguishing, retrospectively or prospectively, without compensation, the claimed rights, being rights vested and protected by s 4(2)(a) of the Coastal Waters (State Title) Act 1980 (Cth). Third, the Declaratory Act was inconsistent with Chapter III of the Constitution in that it determined the ultimate issue then before court amounting to an unacceptable interference with the judicial power of the Commonwealth.[287] Associated with this argument were the propositions that the Declaratory Act was beyond the powers of the Queensland Parliament, as not being a law for the ‘peace welfare and good government’ of Queensland within the meaning of s 2 of the Constitution Act 1867 (Qld);[288] and that the law was in direct conflict with Magna Carta of 1215,[289] a law which operates in Australia as a fundamental principle.[290] Fourth, the Declaratory Act was invalid and beyond power by reason that it was racially discriminatory, in that it expropriated, without compensation and retrospectively, the Islanders’ traditional rights and interests in land, whilst leaving untouched non-Islanders’ equivalent interests, contrary to ss 9 and 10 of the Racial Discrimination Act 1975 (Cth). As is well known, this argument succeeded, albeit by a bare majority, upon delivery of the Court’s judgment in Mabo [No 1] on 8 December 1988.[291]
Having survived the demurrer, the plaintiffs took a deep breath, dusted off the piles of paper by now accumulated in every corner, began badgering legal aid authorities all over again, and generally prepared to recommence the trial. This second phase was the substantial hearing. The trial recommenced in Brisbane, after a directions hearing, on 2 May 1989 (the 17th day), and Eddie Mabo continued his evidence in chief on 4 May, after which he was cross-examined. The trial ended, after 67 days, on 6 September 1989, with the completion of final written[292] and oral submissions to Moynihan J. The Judge delivered his Determination of Facts on 16 November 1990.[293]
During the plaintiffs’ opening on 15 October 1986 the Court was advised that two plaintiffs, Dave Passi and his elder brother Sam Passi, had retained new solicitors; that these solicitors had instructed that those plaintiffs wished to withdraw from the action; and consequently that they were not represented by the plaintiffs’ lawyers, and no cases would be presented on their behalf.[294] Why this occurred is still something of a mystery. The decision was taken without notice to the plaintiffs’ legal team. However, prior to the reconvened sittings on 2 May 1989, Dave Passi gave instructions, and an application was then made to Moynihan J at a directions hearing on 18 April 1989, to readmit him as a plaintiff.[295] No such application was made on behalf of Sam Passi, who was by then unwell, having suffered a mild stroke. Sam Passi did not participate further in the action as a plaintiff. However, he gave some limited evidence, with the assistance of his daughter, during the sittings held on Mer.[296]
Father Dave Passi, however, was an important plaintiff (and witness). As is discussed below, the attrition rate in terms of loss of specified garden and other areas claimed on the island was severe: of an original 45 named and mapped areas about which evidence was given, the trial Judge found some traditional rights survived in relation to only four — depending how one reads his Determination. Of those, one — Dave Passi’s claimed area in the village called Zomared — was amongst the most sound in terms of findings of fact. Bearing in mind that, at the commencement of the final legal argument before the High Court in May 1991, Queensland continued to argue that the claim should be peremptorily dismissed due to insufficient factual findings by Moynihan J, had Dave Passi’s claims, and perhaps his evidence, been entirely lost, that particular submission might have gathered strength and perhaps found favour. In the event it did not, and in the final outcome individual claims lost their significance, in favour of community entitlements.[297] But that result was not known in April 1989.
The application to readmit Dave Passi was contested by Queensland. On 18 April 1989 Moynihan J deferred argument.[298] Following the visit to Murray Island, a summons seeking orders that David Passi be joined as a party was filed on 2 June 1989. On 5 June this question, plus objections to further proposed amendments to the statement of claim to include fiduciary duty as a new cause of action, were argued.[299] This was as important a moment as any throughout the decade. The defendants objected on the basis that to admit Dave Passi, with his allegedly different claims introducing a ‘caretaker’ element to traditional land-holding arrangements, meant recasting their defence midstream, and that prior cross-examination of witnesses may need to be revisited. Castan QC, for the plaintiffs, resisted these complaints, pointing out that Dave Passi’s pleading had been known from day one, and in any event, the caretaker element complained of was a matter of his proposed evidence, not pleading. Reluctantly, Moynihan J allowed the joinder[300] — or re-admittance — and the ‘fiduciary’ amendment.[301] In the end Dave Passi’s reintroduction as a plaintiff was critical, whilst the fiduciary question was not resolved in Mabo [No 2].[302] Toohey J, however, ruled that such a fiduciary obligation ‘in the nature of ... a constructive trustee’ did exist,[303] whilst Dawson J reached the opposite conclusion.[304] As mentioned, Father Dave Passi subsequently gave important evidence concerning his claimed areas, and the traditional and spiritual life of the Meriam people.
Questions and argument arose concerning the admissibility of evidence and extent of the trial Judge’s powers under the remitter: that is, his power to rule out items of evidence as inadmissible prior to rulings on ultimate questions of law to which that evidence related; and to order amendments to the pleadings, including the incorporation of a new cause of action (breach of fiduciary duty) not contained in the pleadings when the remitter was originally ordered. On 2 May 1989, after argument, Moynihan J expressed uncertainty about his powers, suggesting he lacked jurisdiction under the remitter to make such amendments.[305] As a result, on 3 May 1989, the parties adjourned to Canberra for a hearing before Toohey J. After argument[306] on these issues, Toohey J ruled ‘that the Supreme Court of Queensland may make orders and give directions as may be appropriate for amendment of the parties and the pleadings and for the giving of further particulars in respect of the pleadings in this action.’[307]
The parties also agitated before Toohey J whether Moynihan J should rule on evidence to which objection had been taken.[308] Further, the Commonwealth Solicitor-General applied to vary the remitter by having all issues of fact and law referred.[309] Toohey J declined to intervene in relation to both issues, considering it premature to do so.[310]
On 13 February 1987, at a prior directions hearing before Deane J in Sydney, admissibility issues were also agitated[311] but Deane J also declined to interfere with ‘[Moynihan J’s] dealing with [the] issues of fact at this stage.’[312]
After some argument Moynihan J accepted the plaintiffs’ request that the court should adjourn and reconvene on Murray Island for three days, to take evidence, particularly from 16 witnesses, mainly elderly and frail, and also to take a view of the claimed areas of garden plots and adjacent seas. The Court’s visit between 23–25 May 1989 was a valuable exercise evidentially for the plaintiffs, and a significant and enjoyable event for the Court, court staff, the lawyers, the Meriam residents, and various journalists who also turned up.[313] When opening proceedings on the Island on 23 May 1989, Moynihan J ‘doubted [whether] the Court has ever sat further north or perhaps further east’, and certainly never before on Murray Island.[314] On 26–27 May 1989 the Court also sat in the Magistrates’ Court of Thursday Island and heard five Islander witnesses.[315] The visit, as Moynihan J noted in his opening statement, provided a better understanding of the evidence, and of island life.[316] It also revealed the first opposition from some Islanders to the claims being made: two Islanders were called by Queensland during these sittings to oppose Eddie Mabo’s claims.[317]
McIntyre and I stayed with some of the witnesses in their homes. The Queensland team stayed in a hot, cramped, ugly looking barge, commandeered for the purpose, which was anchored 50 metres offshore. The sight of the Queensland team, robed, clambering into a dinghy each morning, and being rowed ashore was too reminiscent of certain past events to be pure chance! The gods are sometimes great!
Bearing in mind the alleged ‘judicial revolution’ constituted by the Mabo decision,[318] some, particularly in the mining sector, have asked: what happened to the Commonwealth? Why did it not participate in the High Court hearing in May 1991 to oppose the claim? As mentioned, the Commonwealth was named in the writ filed in May 1982, as a second defendant, although no relief other than declarations was sought against it. Likewise, notices under s 78B of the Judiciary Act 1903 (Cth) were forwarded to the Attorneys-General of the various States and Territories, advising them that the case raised constitutional issues (per s 109), and that they had the opportunity to intervene as of right, either to support or oppose the claim. None did so. During 1982–86 the Commonwealth duly appeared at various directions hearings, and was involved in negotiations with the plaintiffs,[319] who in the early years sought to convince the Commonwealth — ie, Attorney-General Gareth Evans — to become a plaintiff and to support the claim, logistically and substantially — all to no avail. Thus in the early weeks of the trial in 1986, and again in 1989, the Commonwealth appeared, through counsel[320] as a defendant, and participated fully, cross-examining the plaintiffs’ witnesses and generally opposing the claim in so far as the pleadings touched upon Commonwealth interests, being claims to seas around, and small portions of, the Great Barrier Reef.
In his evidence in chief Eddie Mabo, during the opening weeks of the first phase of the trial in Brisbane, spoke of these areas, of visiting them occasionally over his lifetime, and of harvesting bird eggs, turtle eggs, crayfish and other marine resources. During the Court’s visit to Murray Island in May 1989 further evidence was sought concerning this aspect of the claim, but only a little was forthcoming. Thereafter, upon return to Brisbane and during a short break in proceedings, these claims to the outer seas and reefs, were reviewed. A view was reached that the evidence, as it then stood, was too thin, and with no more available, that success at trial was unlikely. Upon instructions, it was decided that these areas should thus be abandoned. Such are the decisions that are made, on the run, in litigation.[321]
This then leads us to the Commonwealth, for these remote seas claims were the only areas of interest to it. Consequently, on 26 June 1989, an agreement was reached between counsel for the plaintiffs and the Commonwealth, documented, and tendered in evidence as Exhibit 225.[322] It records that the plaintiffs’ claims against the Commonwealth ‘will be wholly deferred and put on one side’ until the claims against Queensland are ‘finally disposed of by the High Court’.[323] On 7 July 1989 Moynihan J accordingly ordered, by consent, that ‘the Commonwealth be dismissed from the proceedings.’[324] Despite the fact that the Constitution was pleaded, and a s 109 point was lurking involving, critically, the Racial Discrimination Act 1975 (Cth), the Commonwealth was happy to withdraw. Why this was so is a matter, one presumes, for the then Attorney-General, and perhaps the federal Cabinet. Upon the trial Judge making the appropriate orders[325] counsel for the Commonwealth thereupon withdrew, and that party did not appear again. The plaintiffs were on balance content: at least now witnesses would be cross-examined once only, and their stretched legal team faced somewhat reduced paper warfare — especially in relation to final submissions.
A thorough review of the trial Judge’s Determination is unnecessary here. Suffice to say his Honour reviewed the issues arising on the pleadings, especially their representative character; discussed various categories of evidence and the vexed question of admissibility; raised considerations of the evaluation of the evidence arising from an oral tradition, with regard to ‘the Perception of One Culture from the Perspective of Another’;[326] reviewed the history, culture and relevant social features of the Meriam people with special focus on their relationship to land and the effect of European contact; and ruled on the claims of each of the plaintiffs to specific pieces of land and seas.
A map of the garden plots, fish traps immediately offshore, and other areas is shown at Appendix II. Approximately 45 specified areas of gardens, beaches, fish traps and seas located on and around the three islands, and on the Great Barrier Reef, were claimed, 36 of them by Eddie Mabo.[327] As mentioned, Moynihan J rejected all of Mabo’s claims, and all claims offshore commencing from the high water mark, including claims to land areas on the two adjacent islands, Dawar and Waier. This left positive findings in relation to one residential block in the village claimed by Dave Passi,[328] and three garden blocks claimed by James Rice.[329] Moynihan J’s findings of fact in relation to James Rice’s claims were expressed in somewhat equivocal language[330] — leaving, on one view, the whole case swinging on one block: Zomared. As to this block, the Judge concluded that
the Passi lands are held pursuant to ... a group holding arrangement usually involv[ing] brothers and sisters ... Such arrangements, which depend essentially upon acceptance by those affected, reflect an aspect of Murray Island social organisations [sic] for generations — probably antedating European contact.[331]
Eddie was the biological son of Robert Sambo and Poipe Sambo, née Mabo. Shortly after his birth, his mother died, and Eddie (as he claimed in evidence) was adopted,[332] in accordance with ‘Islander custom’, to his maternal uncle, Benny Mabo, and his wife, Eddie’s aunt, Maiga. He grew up on Mer as a member of Benny Mabo’s family and, he alleged, inherited traditional land through his adopted father and mother. These were the portions of land detailed in the pleadings, described on maps, and claimed by him under custom and tradition[333] for himself, and on behalf of the whole of the Meriam people.[334] As Moynihan J recorded: ‘Whether Eddie Mabo was adopted by Benny and Maiga Mabo with the consequence that he became their heir is very much in issue in the proceedings.’[335]
These claims through inheritance were, indeed, all hotly contested at trial, and were the subject of much Queensland research and cross-examination, occupying a significant part of Queensland’s case. Queensland contended that Eddie Mabo was not adopted at all, either under ‘Aislan Kustom’, or any other system. Rather, it was put to him, he lived with Benny Mabo and his family on an informal basis for a variety of reasons, including enabling his adoptive parents to claim extra social security payments to which they were otherwise not entitled.[336] In the event, Moynihan J ruled:
It seems that it is acknowledged by some at least of [sic] Murray Islanders that there is Mabo land on the Islands. I am however not prepared to find on the evidence in these proceedings that Eddie Mabo was adopted as heir by Benny and Maiga Mabo or that Benny transferred land to him during his lifetime.
There are moreover considerable difficulties in Eddie Mabo establishing, even if he was Benny and Maiga’s heir, descent through the male line to the eldest son, [which] is the basis on which he started out advancing his claims.[337]
His conclusion was very clear:
Eddie Mabo is, in my view, quite capable of tailoring his story to whatever shape he perceived would advance his cause in the particular forum. A particular illustration of this is found in the saga of his claim to be the Aiet and traditional leader of the Murray Islanders. ... I was not impressed with the creditability [sic] of Eddie Mabo. I would not be inclined to act on his evidence in a matter bearing on his self interest (and most of his evidence was of this character one way or another) unless it was supported by other creditable [sic] evidence.[338]
Thus, Eddie Mabo’s claims (as compared to the claims of the two other surviving plaintiffs) to his portions of lands, fish traps, fringing reefs, and seas, failed.[339]
As mentioned, Mabo gave evidence over nine days in chief, and was cross-examined for a further six by Queensland’s junior counsel, Margaret White. Mabo traversed many aspects of the traditional life of the Island, but especially his boyhood memories of discussions with his (as he claimed) adoptive parents, Benny and Maiga Mabo, at their home at Las. As mentioned above, Moynihan J rejected this evidence, including the crucial claims to inherited land through adoption.
Mabo, as might be expected, was devastated by these rulings, and his lawyers were equally concerned. What now was to be done? Many anxious conferences were held, involving phone link-ups (no e-mails) between Melbourne, Townsville, Cairns and Mer. Advice was given regarding appealing the factual findings of Moynihan J, being advice not confined to findings relating to Mabo’s particular claims. That advice, to his credit and that of the other plaintiffs, was accepted, and the case proceeded to the High Court for final argument, relying now upon the somewhat ambivalent factual findings of Moynihan J in relation to the plaintiffs James Rice and Father Dave Passi. Since the plaintiffs did not appeal, no submissions were made on Mabo’s behalf before the full High Court. He was separately represented before that Court[340] for this reason. Of course, had the plaintiffs rejected that advice and provided instructions to appeal, the procedural history of this case might have been very different,[341] perhaps with a different result. Who knows?
Moynihan J found the conduct of the trial under the terms of the remitter frustrating. He gave that impression during the running, and forcibly said as much in his Determination. His Honour there stated under the heading ‘Conclusion — a personal view’:
I have found the experience of dealing with the remitter both enriching and rewarding. The process is however essentially both unsatisfactory and unsatisfying.
This may perhaps ultimately be because adversarial litigation is not apposite to the resolution of the issues which arise as a consequence of the proceedings brought in the High Court.
More immediately however the process is unsatisfactory because a remitter restricted — however widely it is expressed — to issues of fact has the consequence that the ultimate issues in the action are not readily addressed either in the course of hearing the remitter or in its determination.
As I understand, and have experienced it, the role of a Judge at first instance is to determine the issues of fact and law in the action — and hence the action. They seem to me