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00:00I'm sorry.
00:30My dad, when I was 15, he was drawing himself.
00:35And I walked in, stood behind him, and I'm looking at his picture.
00:39Then he draws this red bandana in his head.
00:42And I'm like, oh, that's very radical, that.
00:44That's very radical.
00:45And he goes, well, my girl.
00:47And he kept drawing, and it was a matter-of-fact moment.
00:49He turned and looked, and he goes, one day all of Australia will know my name.
00:53And I went, like, whatever.
00:55And I walked off, because I'm 15.
00:57You're telling me that all of Australia's got to know your name?
00:59Yeah, whatever.
01:01Are you sure enough?
01:03They did.
01:06One of the greatest things about Australia is the ability of everyday Australians to be
01:11able to go to the highest court in the land.
01:15Sexual acts between consenting male adults in private are illegal.
01:20We knew that the High Court was the likely destination for this issue.
01:27It is a check.
01:28It's a limit on government power.
01:30It's shown courage at times, but it's been really gutless at other times.
01:35A Victorian prisoner is planning to challenge the law, banning Australia's inmates from voting.
01:41That did not seem very fair.
01:44That did not seem very fair.
01:44How dare they?
01:45It is constantly doing things that affect everyday lives of Australians.
01:50It wields enormous power.
01:54If you haven't a visa, you must be detained.
01:56It's my life you're deciding on.
02:01And the judges are a kind of safety valve.
02:05They can look freshly at things that elected politicians won't.
02:11They are unelected.
02:12Who do these people think they are?
02:15The islanders will then have a chance to prove their traditional title.
02:19Commonwealth has no rights to send people here and sell it for their benefit.
02:24It's fundamental to the operation of democracy.
02:26It doesn't get any higher than the high court.
02:29It doesn't get any higher than the high court.
02:47Wow.
02:48My dad.
02:55He was a very proud man.
02:58He was a very strong man.
03:00Very strong in his culture.
03:02Very strong in his own beliefs of right and wrong.
03:09He was our world and we were his world.
03:12Because he had seven of us.
03:15And so for me, that's who my dad is.
03:21Eddie clearly never thought, he never thought he was inferior to white people.
03:27He wanted to understand why white men had such power.
03:35He was a patriot.
03:37He had a great patriotic sense of his island.
03:42But he had absolutely no sense that the islanders had lost their land.
03:47I own half of Murray Island.
03:51And it's still, nobody uses it when I'm here.
03:54Nobody gets into it because the name is sacred.
03:59They were Torres Strait Islanders who were relatively newcomers to Townsville.
04:06I'd gone to Townsville to lecture in history.
04:10Eddie was working as a gardener in the university.
04:15And because I'd known him for a long time, we would have lunch together.
04:19After one event, when he talked so lovingly about his land, Mabo Land, I said to him, I said, Eddie,
04:30you do realise, do you, that you don't own the land?
04:34That it's all Crown Land.
04:35And he looked at me, aghast.
04:39Well, I think it had really affected him.
04:41And he said, oh no, bees are going to stuff me from, you know, my land.
04:47He said, over my dead body.
04:49So that this really was the beginning, when he realised he had no rights to his land.
05:01From day one, the law was a tool of colonisation.
05:06Terra Nullius meant land belonging to no one.
05:09This concept of the enlarged notion of Terra Nullius means that even though Aboriginal people were here first,
05:17we were so low in the scale of social organisation that we were not even regarded as the owners of
05:22the land.
05:33Well, it's had a huge impact on us.
05:36It is the way that they have been able to dispossess and dehumanise and delegitimise us as the first peoples
05:44of Australia.
05:46When they say, oh, it's the law, it's the law.
05:48There's almost nothing we can do in response to that.
05:55This fiction that it was an empty country, and that decision to deny reality right from the very start of
06:06the colony,
06:07permeates its history, and it was bullshit from the start.
06:33We are black people from this country.
06:36I think Dad had an understanding that my land belongs to me and I will pass it on to my
06:43children.
06:45And they sort of went like, no, that's not how it works anymore.
06:54The conference organised by Townsville University students, James Cook students, brought to Townsville legal experts who knew about native title.
07:05And they had invited at least three of the key figures.
07:09One was Barbara Hocking, two was Greg McIntyre, and three was Garth Netheim.
07:14These were people who all had been working in relation to land rights, but they also understood the law.
07:22So Barbara and I were in a session called a high court test case, question mark, and Barbara delivered her
07:30paper and I was advocating that a test case could and should be run.
07:38My mother, she presented a paper there that was a very powerful argument for bringing a case to the high
07:46court to try to recognise native title at common law.
07:52Her paper was called Is Might Right?
07:55I've asked what is not a rhetorical question. I've asked a very serious legal question. Are we a nation of
08:02thieves?
08:03And one of the most critical things, as she saw it, was that the plaintiffs needed to be a group
08:10of people who still had that unbroken connection and still remained to that day on their traditional lands.
08:19One of the key arguments about Aboriginal Australians was that they didn't really use the land properly.
08:29They were nomadic and they hadn't really occupied the land in a way that could be understood by the common
08:36law.
08:37Whereas that wasn't true of the Murray Islanders, of the Merriam, because they did.
08:42And they realised that the Murray Islanders had the perfect case to take to the court.
08:50Because the Islanders had always run their own affairs, they had their own system of property rights.
08:58This had been operating before the Queensland Government arrived.
09:03There were all of the records about island life that showed that indeed they had their own system of property
09:10rights, their own system of inheritance.
09:13And this was a revelation to the lawyers who understood it, and they had met the people who had the
09:20perfect arguments to take to the courts.
09:25My grandfather taught me not to walk on anybody else's properties.
09:32Now the same thing was reinforced by my dad, who would say that you must withhold your feet from entering
09:42someone else's property.
09:46Where I come from, a land would be owned by an individual, is a legal entity of his pre-assessors.
09:53That makes me feel that our case is strong.
09:56Eddie and David Pasi and James Rice had met the lawyers and had long, long discussions.
10:04So that yes, I realised this was very, very significant.
10:09There was that understanding about the strange contradiction that this was all done at James Cook University.
10:18And so by the end of the conference I had instructions from Eddie and Father Dave to go away and
10:24put together a legal team to run the case.
10:27And a week later, Eddie rang Ron Caston, who was a great, one of the great lawyers of the period.
10:34And that's where the case began.
10:38He then rang me at the Melbourne bar and said,
10:42Brian, have you heard of the Torres Straits?
10:44And I said, no idea.
10:45Where are they?
10:46Have you heard of a guy called Eddie Mabo?
10:48I said, no, who's he?
10:49Perfect.
10:50You know all about this question.
10:52Would you like to come on board and help us with a test case in the High Court?
10:59I still regard him as my most important role model.
11:03He was very clever, very enthusiastic and had smart ways of putting arguments to the court.
11:13From the point of making the connection with Eddie Mabo and with Father Dave Passy and being asked to be
11:22the first barrister in the Mabo case.
11:25My mother describes that as the beginning of what became her professional life's work.
11:30And that was the fight to see native title recognised in Australian common law.
11:39The doctrine of precedent is there to say that you will normally follow prior decisions of the same court in
11:47the interest of consistency and predictability.
11:49It's clearly desirable that the law be understood and be settled.
11:57So the High Court is obliged to follow its previous decisions and lower courts are obliged to follow what the
12:03High Court says.
12:04It can be expressed as treat like cases alike.
12:10To the Akala, the Nabalco Company's mining of their land for bauxite is not only plain robbery, but a rape
12:18and desecration of sacred ground.
12:20While the bulldozers rip the valuable ore from the earth, the Aborigines are fighting their claim in a white man's
12:27court.
12:30So Malerpum and Nabalco is part of a much longer story in which Yolnu have fought for recognition of their
12:38relationships with their lands.
12:40It was the first land rights decision before the Mabo decision.
13:08I am the first son of my father, Melerpum.
13:13He's one of the plaintiffs in the land right case.
13:17My family and other tribe plan groups came together to form a land right battle.
13:24So in 1971, the Yolnu took their fight to the Supreme Court of the Northern Territory,
13:30where they sought recognition of their rights to their lands.
13:34It was a very important case in terms of the legal issues that had been much agitated in the land
13:43rights campaigns that were being pursued during the 1960s and 1970s.
13:49And this was the time of the Gurindji strike.
13:53You have the Aboriginal 10th Embassy.
13:54And that political activism, it has an effect.
14:00And there was a massive hearing which went for a long time before Justice Blackburn in the Supreme Court in
14:07Northern Territory.
14:08He brought out a very, very comprehensive judgment.
14:11Crucially, he said that Australian law did not recognise the doctrine of native title.
14:17He also considered that the relationships between the Yolnu and their lands were spiritual rather than proprietary.
14:26He felt bound by precedent to reject their case.
14:55We are inextricably interconnected with everything in the cosmos.
15:00We are inextricably interconnected with everything in the cosmos.
15:01The land, the sky, the sea, the water, the stars.
15:11I can only imagine the heartbreak and the anguish that my father and grandfather and the other elders and leaders
15:19of the time must have felt.
15:22Knowing that they were there, but yet still invisible.
15:28Mr. Woodward represented the Yakalas in their unsuccessful land rights case against the Commonwealth and the bauxite miner Nabalka.
15:35So it was a warm welcome for him at Gove Airport.
15:39Ted Woodward deliberately decided not to appeal that decision to the High Court.
15:46Apparently at that time he formed the view that the High Court was likely to reject it
15:51and that he did not want to establish a precedent in the High Court adverse to this issue.
16:03You really have to commend the patience of the people that decides now is not the time.
16:10Let's wait. Let's wait.
16:12And it was crucial in that case.
16:15For Aboriginal people broadly, we think about our ancestors and we think about the future.
16:20It's circular. It's all happening at the same time.
16:24Y'all are playing the long game.
16:25They're thinking about not just the now, but what will be the right thing to assert for future generations.
16:32Mr. Justice Woodward's mission in the Northern Territory now and later in the States
16:36is to determine how the law can be changed to provide for Aboriginal land rights.
16:41The Malerpin case was both a failure but also a trigger for further action.
16:47And out of those recommendations of the Woodward Royal Commission,
16:51you have the very first Commonwealth Aboriginal land rights legislation.
16:56And that was the Northern Territory Aboriginal Land Rights Act of 1976.
17:00And it sets up a process for Aboriginal people to claim unalienated crown land.
17:06It's a very significant piece of land rights legislation.
17:09I think it's actually resulted in the return of almost half of the territory into Aboriginal ownership.
17:17So Malerpin, even though you might say they lost the battle,
17:21it set the stage for the winning of a war in terms of recognition of First Peoples rights.
17:36First Peoples
17:36Dad, look what I found.
17:38Oh, wow, that's beautiful.
17:39What are you doing?
17:41What am I doing? I'm reading this book.
17:43I remember watching him in these towers of books.
17:46For a person who'd only went to grade four, you know, that was fantastic.
17:50Because he picked up a dictionary and learnt every word in the dictionary,
17:54so he could understand the white man's world.
18:07So when the Maba case first started, I was actually probably a student in high school.
18:13And I have this clear memory of Dad saying,
18:16I'm going off to far north Queensland, right up to the top to Torres Strait,
18:20and I'm going to be talking to the islanders about how they own their land.
18:24And I was like, well, so what are you talking about?
18:27Like, they own their land.
18:29And he was like, well, the law doesn't say that they own their land.
18:32The law says that Queensland owns their land.
18:35His interest and engagement and conversations with us about the law
18:40and about the work that he was doing must have sparked my interest
18:43and sent me in that direction.
18:46Once I was working on the case, I was actually sort of in a hands-on situation,
18:51going, oh, now I think I see how you can get things done with the law.
18:56For me, my father was my father.
19:00On reflection now, I realise that he was different in the public world.
19:04His leadership was both a privilege and a pleasure.
19:07Over ten years, he was, on many occasions,
19:11he provided financial support to the case.
19:14Any time Mabo appeared, everything else was put aside.
19:18The Murray Islands lie at the northern tip of the Great Barrier Reef.
19:22The 5,000 people who live there fish and grow vegetables.
19:25The islanders say they're the longest established community in Australia.
19:30Now the tribal elders and their Melbourne legal team
19:33hope to change the 1879 Act that annexed the islands to Queensland.
19:38They say they want their land back.
19:43We had to research the Murray Island traditions and customs.
19:48That meant looking at anthropological works
19:51and also we conducted two research trips to Murray Island.
19:57One of the things that my mother remembered particularly and very fondly
20:02was the visit to Murr, to the island of Murr,
20:04as part of the case, as part of the fact-finding.
20:09One of the interesting aspects of this case
20:13is that islander tradition does very clearly define boundaries
20:18and so we're able to produce a map like this
20:21which shows different people's pieces of land.
20:25These are ones which Eddie claims.
20:27The boundary line here.
20:29These sort of things that can be seen all over this island.
20:33Other families have constructed these things not just lately
20:38but over many years to mark their boundaries off from another family.
20:46There was also the Queensland legal team.
20:49Margaret White, junior counsel, very professional, very efficient.
20:55We just started doing long analyses of all the families
21:00and the land and the history and the dealings
21:02so we looked at all of the departmental records
21:05back to the time when the islands were proclaimed
21:09to be part of Queensland.
21:10It was terrifically interesting.
21:12How lovely. Thank you Kathleen.
21:14No, this is from Mrs. Plus.
21:16Oh, it's from Mrs. Plus.
21:17Just to hold it.
21:19Just to hold it.
21:19I thought you would.
21:20That was a lot of work
21:22to get a whole history of a people into your head
21:25and I loved every minute of it.
21:27We want gold!
21:29We want gold!
21:31We want gold!
21:33Joe Bajolki-Peterson was Queensland's longest-serving Premier
21:37from 1968 to 1987.
21:40He was deeply conservative.
21:42Joe Bajolki-Peterson was also stridently opposed
21:45to Aboriginal people exercising their right to self-determination.
21:49No way that they will be given land rights
21:51because I can't give you and I can't give you
21:54or anybody else land in this state.
21:56Nabo starts his litigation
21:58and Queensland tries to pull the rug out from under his feet
22:01by saying, well, all native title in Queensland will be extinguished.
22:10The Queensland Government decided that it would snuff out the plaintiff's claim.
22:16It's got to be stopped, this land rights business
22:18and continually giving away the national assets
22:21and not only giving it away
22:23but giving the militant leaders in this area
22:25the right to veto mining and all the rest of it.
22:29The Queensland Government passed legislation
22:31called the Queensland Coast Islands Declaratory Act.
22:36The effect of that legislation was to declare
22:39that native title had been extinguished.
22:43Retrospectively, without compensation, full stop.
22:46Now, if that act was good law, we were dead.
22:49Mabo wouldn't have to, would be struck out.
22:57The question of law, in effect, was taken to the High Court
23:01to determine whether that piece of legislation was unlawful
23:06by reason of its inconsistency with the Racial Discrimination Act.
23:13Acting for the Islanders, Ron Caston, QC, said the 1985 Act
23:18is an attempt by the Queensland Government
23:20to operate as an international sovereign.
23:23He said later, to do so interferes with the role of the Commonwealth.
23:26If the full bench invalidates the Queensland law,
23:30the Islanders will then have a chance to prove their traditional title.
23:33If that title is upheld, it will put a lie to the notion
23:36that Aborigines and Islanders at the time of British settlement
23:39had no rights to land.
23:45If there is an inconsistency between a law of the state and a law of the Commonwealth,
23:50the law of the Commonwealth prevails to the extent of any inconsistency
23:54is an essential element of the kind of federation we have.
24:00When the colonies became states and then part of a federation,
24:05the balance that was struck was that where a state law is inconsistent
24:10with the Commonwealth's law, the Commonwealth's law prevails.
24:21The Commonwealth's law prevails.
24:27We raise a number of arguments, but the key argument,
24:30and the argument that succeeded four judges to three,
24:34was that the 1985 Declaratory Act was inconsistent with the Racial Discrimination Act
24:41because it sought to wipe out property rights of one race, the Murray Islanders,
24:49whilst leaving untroubled the property rights of another race,
24:54being non-Indigenous people, whitefellas.
24:59So the Queensland Parliament's attempt to destroy the action fails.
25:07Well, we were delighted.
25:09And I would have rung Eddie Mabo in Townsville to let him know.
25:13It was a real watershed in terms of First Nations, Indigenous people's rights in this country,
25:21and their willingness of the highest court in the land to uphold those rights
25:27against the political determinations of the states.
25:38The facts had to be heard by a judge.
25:42The High Court doesn't hear issues of fact.
25:44And because the facts were in dispute between Mabo and the other plaintiffs
25:48and the Queensland Government, the High Court sent it across
25:52to a single judge of the Queensland Supreme Court
25:54before Justice Moynihan to hear the case to determine the facts.
25:58During the trial of facts, after we made application,
26:04the judge accepted that he should visit and conduct hearings on Murray Island.
26:10And he did that for three days.
26:13And he conducted a view, and a view is not evidence,
26:18but it allows the judge, this is common practice,
26:21to see what the evidence is talking about
26:23and thus to better understand the evidence properly admitted to court.
26:28O-yay, o-yay, o-yay, o-yay.
26:31All persons have any business before this honourable court in its civil jurisdiction.
26:34Now draw an eye and give her attendance, and they shall be heard.
26:37The particular facts we relied upon were regarding the Reverend Dave Passy.
26:42If I don't fight for it, then I will be moved out of it
26:48and never lose the loss of my identity.
26:50He had claimed four or five blocks.
26:53James Rice had claimed about six blocks.
26:55This land is ours.
26:57Our ancestors were living here for many, many, many years before I was born.
27:04Mehdi Mabo had claimed 36.
27:06But the only way that we can prove that the system do exist
27:09is to convince the white man's law system.
27:13I think we started straight in on Mehdi Mabo's cross-examination.
27:17And one of the lines of attack was on the central proposition that he had inherited land from his parents
27:25by reason,
27:26that he had been adopted customary style.
27:28Which meant that possibly he personally didn't have rights to the land in question.
27:34Well, it was important from a legal aspect to show that the land which was claimed specifically by Eddie Mabo,
27:43he needed to be a Mabo to be able to claim that land.
27:46And bear in mind, if anybody is cross-examined for several days on and off, nobody survives that unscathed.
27:55Margaret White, completely professionally, did a very thorough job on Eddie Mabo, putting it brutally.
28:08The facts as found by the trial judge, Justice Moynihan, in his determination, which was five volumes delivered in 1990,
28:18were sufficient as a basis to trigger the ultimate legal issues.
28:28But, Justice Martin Moynihan rejected all of Eddie Mabo's claims, that was devastating for him.
28:37The findings of fact were that the judge couldn't actually conclude that Eddie Mabo was entitled to any portions of
28:46land on the island.
28:49He wasn't adopted into the Mabo family in accordance with island tradition.
28:55And so, at that point, in a sense, he was seen to be to have lost out.
29:03This was devastating for Eddie Mabo.
29:07He'd attacked his sense of self.
29:09It amounted to the Australian legal system saying to Eddie Mabo,
29:12you aren't what you claim to be, and you don't enjoy the traditional rights and interests on Murray Island.
29:18They just swore and carried on.
29:22I'm a Mabo, and that's it.
29:25Nobody's going to change that.
29:36I remember Dad coming to visit me.
29:41And we're sitting there, and we're talking, and I said,
29:45where's your case going?
29:46He goes, it's all right.
29:49And then he dropped his head, and he started crying.
29:57And so, for me, it's like, how do you comfort your dad when he's, like, sitting right there?
30:05And do you hug him? Do you just lean on him? Do you just let him have his moment?
30:15He felt comfortable crying in front of me.
30:17And, you know, I felt sorry for him that he was being attacked.
30:25And he's, you know, because that's an attack of your self-worth.
30:30And that, over time, starts to eat at you.
30:34But once again, he was a very strong man.
30:39We had to discuss with him what to do about that.
30:42We advised him not to appeal because, A, we had fairly strong findings from,
30:49particularly, Reverend David Pessy and reasonable findings for James Rice.
30:55We had no legal aid for an appeal.
30:57It would delay the whole proceedings for years.
31:00Eddie Mabo, to his great credit, accepted that advice.
31:03And there was some discussion towards the end as to whether the case should be renamed.
31:10That didn't happen, and I think rightly so.
31:17Mabo number two is the first time in our history that the High Court directly considers this question of the
31:24legal status of the rights of First Nations people to their lands and waters.
31:30So, the Merriam people are asserting that they have occupied their lands since time immemorial, that they have their own
31:39systems of law, and according to those systems of law, they have rights to their country.
31:49The lawyers arrived here from Melbourne and Perth.
31:52Eddie arrived by bus from Brisbane.
31:54He was quietly confident.
31:56He, I think, with all of us, was relieved that the final chapter was about to start.
32:00There was no question other than we all believed we had a just cause and that we would get a
32:09reasonable hearing from the High Court.
32:13Outside the front doors of the Court, carved onto the walls, is Chapter 3 of the Australian Constitution, which sets
32:21out the judicial powers of the Commonwealth, engraved on the walls.
32:25And it's a reminder as you enter the court that this is a unique court with unique powers.
32:38Now, the plaintiffs argue the Crown's acquisition of the title does not give the Crown the full beneficial interest in
32:47the land.
32:48They argue that their land rights survive as a burden on the Crown's title.
32:54Now, the state of Queensland disagreed.
32:57It argued that when the Crown acquired this title, it acquired the absolute beneficial interest in the land.
33:07Now, if Queensland's argument prevailed, then First Nations people had been entirely stripped of any legal recognition of their age
33:17-old relationships with their country without any consultation and without any compensation.
33:24Now, for example, I was the only one thing to do that.
33:33Towards the end of our argument, Sir Anthony said,
33:35So, Mr Caston, what orders would you be seeking if we were unable to find in favour of any of
33:42the individual plaintiffs?
33:45We're a bit concerned that you're asking us to make decisions about a dozen blocks
33:51of land individually as to whether or not native title exists in each and every one
33:57of those blocks.
33:58We'd rather like to look at what the community as represented may or may not achieve.
34:07The High Court really had come prepared to think adventurously.
34:12So, the change to community, the community of the people of Murray Island was a big step.
34:23We returned to our hotel room feeling uplifted because if the court was not interested in
34:32a result favouring the plaintiffs, they would never have asked this.
34:36And we all stood around Melissa Caston who had the only laptop that I'd ever seen.
34:41While Ron and Ryan and various of us dictated words to go into what we said we were asking
34:49for.
34:52We appeared in court the next morning and without any ruling the Chief Judge said, thank you,
34:58Mr. Caston, we will reserve our decision, court adjourned.
35:03I suppose there was a bit of a sense of grievance amongst those of us on the Queensland side that
35:11it was a bit of an uneven battle at this stage when you have the referee joining in the fray.
35:24Can you, in a court that is supposed to deal with precedent, precedent is overwhelmingly important
35:32in the common law, how can the highest bench in the country overturn precedent that has been
35:42there for 204 years?
35:48The High Court does not and never has had an agenda.
35:53What it has done is it has decided cases in real time that have come before it.
36:01Sometimes you reach a tipping point where the common law requires adjustment to new circumstances,
36:08circumstances which it hadn't had to address before.
36:11Sometimes it is necessary to develop the law and to recognise that a precedent really did
36:17involve a wrong turning.
36:19But there are clear principles that govern the circumstances in which the court would take
36:23that step.
36:24Those are not easy choices to make, but again, they are the kinds of choice that the court
36:31sometimes does make and sometimes has to make.
36:49Dad started to get really sick, really sick to the point where he thought he had a laryngitis.
36:57Because I remember ringing home and he answered the phone and he goes, hello.
37:02I said, Dad, you sound funny.
37:03And then he goes, I'll get your mum.
37:07And so he goes off and gets mum and I come back and I go, what's wrong with dad?
37:10She goes, oh, he's got laryngitis.
37:14That's, that's, that's what we thought.
37:23And the next one I get is to say that he died.
37:42And all I remember is throwing that phone in disbelief.
37:46I said, my dad's too strong.
37:47He's not going to die.
37:48He'll live forever.
37:49I threw the phone and I walked out and then I found strength in just talking about him
37:58because talking about him and talking about what he taught us was my saving grace.
38:10Six months later, I'm sitting in a car and I hear on ABC that he's won.
38:20Today, the High Court in Canberra ruled the Merriam people are entitled to possession, occupation,
38:25use and enjoyment of the island, effectively recognising their native title.
38:30Oh my God, I just sat there and the tears were just running out and I'm looking to the sky
38:36and I could literally see the clouds rolling and I went like, oh, and I could hear the thunder.
38:43And I went, oh my God, my dad's celebrating.
38:46He's moving the furniture.
38:47He's going to dance.
38:49I looked up and I just said, you did it, Dad.
38:53You said that all of Australia would know your name and they do now.
39:05For the first time, Australia has recognised the legal existence of Aborigines prior to white settlement.
39:13The case is a moral victory, as well as having great significance for land rights.
39:19I think probably the hairs probably stood up on the back of my neck.
39:26When I finished my law degree, my graduation day was the day that the Mabo case was actually handed down.
39:31And I remember my dad came up to me and went, we've won, we've won, we've done it.
39:36And I'm like, oh, well, that's nice.
39:38And I'm like, hang on, what about me?
39:41Aren't I the main character in this story?
39:44I think on discussion with those who were in it on the Queensland side, we felt that it was the
39:52right outcome.
39:53I certainly did.
39:54And I know the others did.
39:57The fact that, first, Australia was not an uninhabited country.
40:05Secondly, that the Indigenous people were not uncivilised without customs of their own and recognition of
40:17some rights of their own. And thirdly, that they did have ties with land.
40:29They were rights that existed under traditional laws and customs as they existed pre-sovereignty,
40:38that were able to continue to exist, notwithstanding the acquisition of sovereignty
40:45as the British put it.
40:49That was a shift in the common law, to say the common law in Australia can recognise
40:55and give effect to traditional rights and interests arising under traditional law and custom of
41:00Aboriginal communities.
41:02I think it was the overturning of the doctrine of terra nullius which was particularly emotional for me.
41:12It was what caused me to shed a tear.
41:15It felt like justice may be possible for Aboriginal people all over Australia.
41:23And so it means a lot to us, like just the knowing that you're a native title holder, this is
41:29our country.
41:30We knew it was a positive thing, but it wasn't going to deliver all these other things.
41:35It's always like, whenever we have these decisions, it's always thinking about what happens the day afterwards.
41:52If they want to be seen as equal in the public eye, they will go out and do the same
41:57as what a white person does.
41:59They've got nobody right to it anyway.
42:01I want everything, don't I?
42:02We were all not naïve to know that there would be this reaction,
42:10because this has been part of our history.
42:14The subjugation and denial has always been part of our history,
42:17so you wouldn't expect all of a sudden people are going to roll over and say,
42:22whoopee-doo, you know, let's help the natives.
42:24Okay, the Prime Minister is here.
42:26Yes, good morning. Just a very broad question is, Mr Keating,
42:29is why does your government see the Aboriginal people as a much more equal people than the
42:35average white Australian?
42:36We don't. We see them as equal.
42:38Well, you might say that, but all the indications are that you don't.
42:42But I think what's implied in your question is that you don't.
42:45Aren't they more equal than us at the moment with the preferences they get?
42:49More equal? They were, I mean, it's not for me to be giving you a history lesson.
42:53So there was a big policy call to be made and Australia, in my view,
43:00was very fortunate that we had at that stage Paul Keating as Prime Minister who put enormous
43:07effort and capital into picking up the native title decision of the High Court and running with it.
43:14It begins, I think, with an act of recognition. Recognition that it was we who did the dispossessing.
43:23He took the very important step of supporting the enactment of the Federal Native Title Act.
43:30Without the Federal Native Title Act, you would not have had a system, a process,
43:36a process for orderly handling of indigenous land claims. And that was absolutely essential.
43:45When I became president of the National Native Title Tribunal, my informal mission statement was to
43:51make native title boring in the sense that it didn't arouse the same sort of anxieties that were there at
43:59the beginning.
44:01We had to explain the notion that, you know, native title is not going to take away your backyards or
44:08change life as we know it. I don't say that during my time at the Tribunal or subsequently the Tribunal
44:15solved the problem. I think we took a lot of the heat out of it. Well, I think one of
44:20the most important
44:21legacies was a very heightened awareness of Aboriginal culture and traditional relationship with
44:28country. I have received a commission from His Excellency the Governor-General appointing me as Chief
44:35Justice of the High Court of Australia. One of the things I took to heart was the notion of
44:40the equality of individuals. And one of the things that was utterly inconsistent with that was racial discrimination.
44:57We're on the high road to building a better and fairer and more just society. And the courts,
45:08including the High Court of Australia, have had quite an important role in giving effect to that. And
45:16that an institution that does that has a special role in the nation's story because Parliament is
45:25pretty good in looking after majorities, but it's not always good in looking after minorities.
45:33What we have arrived at 30 years later is an opportunity. But now it's up to us to grasp that
45:40opportunity to do that. So you can tell I'm an optimistic person. And I think as an Aboriginal person,
45:46I can't help but be optimistic because I can't think of what the alternative is.
45:52We are so lucky that we are still here. We have our song lines, we have our kinship,
46:01we have our ceremony, we have our sacred designs, we have our connection to each other and to everything
46:07in the cosmos. And that is something that we need to ensure is continued for countless generations to come.
46:23I think that the story of Mr Mabo and his fellow plaintiffs should inspire all of us to believe
46:32that individuals really are capable of changing the world. Here you have a small group of people
46:39who go up against a powerful government that has extraordinary resources at its disposal
46:45and was used to writing roughshort over First Nations people. After 10 years of battle,
46:52they emerged victorious and they changed the Australian legal landscape forever.
47:05It was just a door that was opened to many other doors that needed to be opened.
47:15He handed them the key. Now it's up to you to step up to open your door how you need
47:22to.
47:29Australia cannot afford to allow unauthorised boat arrivals. We were held in Port Helena Detention Centre.
47:35Does the government have the power to hold these people indefinitely? We will decide who comes to this
47:41country and the circumstances they come. This high court is my only hope.
47:44theme music
47:53As Pony
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