Today, the third of June, is an informal Australian national holiday called Mabo day. This year marks the 22nd anniversary of the landmark case in the High Court of Australia, called Mabo v Queensland. The case is seen as a highly significant one from the point of view of recognising aboriginal rights since it established a doctrine of native title, meaning that, in limited circumstances, indigenous peoples may claim title over their territories. Whilst the precedent is seen by many as unsatisfactory, it is celebrated by aboriginal Australians, white Australians and citizens further afield for its implications.
The case was brought forward by a man named Eddie Mabo, a man living in the Murray Islands, in the Torres Strait off the coast of Australia. The case was brought forward to determine the rights of people living in the Islands, which were annexed by the British Crown in 1879. Before the invasion, a complex myriad of traditional customs and Aboriginal laws had governed each community. But all that changed when the common law was imposed on the Merriam people. Colonisation of the Islands was, until the Mabo judgment, justified in international law on the following grounds: the Islanders were too barbaric and uncivilised to have any notions of ownership and proprietary interest in the land, so it was terra nullius– land belonging to no-one- and the Crown could legally assert sovereignty over it.
The Mabo case overturned this precedent, to the relief and joy of the Merriam people. But what it failed to do was pave the way for the many other indigenous groups in Australia to establish a successful native title claim, or relieve much of the deeply entrenched inequality that persists between white and indigenous Australians.
This is tragically reflected even in recent government policy, perhaps best demonstrated in the ongoing struggle with Homelands. Homelands are semi-autonomous communities established by aboriginal groups, enabling them to maintain their threatened connections to their ancestral and cultural land. They therefore allow indigenous peoples to access and preserve their heritage in a country where they are a marginalised minority. But the Homelands are consistently neglected by the Australian government. Funding towards the provision of basic services such as clean water, healthcare and education is limited in an attempt to incentivise aboriginal people to move towards more centralized locations such as towns and cities. In essence, they are faced with a hapless ultimatum: either try to prevent their communities from becoming history, or have access to essential services.
Pivotal to the issue of aboriginal rights is the question of self-determination. This is inherently intertwined with the recognition of indigenous peoples, and is stated thus in Article 3 of the UN Declaration on the Rights of Indigenous Peoples:
“Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
Regrettably, however, the Australian government’s policy in recent years has moved away from self-determination as the basis of indigenous policy. In its place, a ‘third way’ approach is adopted, whereby equality between white and aboriginal Australians is realised not through appreciation of difference, but through social and cultural assimilation. Whilst this tactic has its merits, it seems to mischaracterize what self-determination theory aims to achieve. It hopes not to create a separate Indigenous state isolated from the rest of Australia: it seeks to recognise that, as the original inhabitants of the land, they have their own social and economic interests in the land which give rise to needs that they themselves, autonomously, should be able to fulfil.
The evaporation of this right lies at the heart of the current disadvantage experienced by Indigenous Australians. Without the right to self-determination, it is difficult to imagine how indigenous Australians may fully overcome the legacy of colonisation and dispossession which has tainted their history since Captain Cook’s arrival in the Southern Hemisphere.
The consequences of centuries of discrimination are palpable. In the 20 years between 1983 and 2003, for example, the difference in life expectancy between white and indigenous Australians was up to 20 years in some areas of the country. In some age groups, the mortality rate was up to nine times higher. The achievement gap between indigenous and white school pupils is also stark- perhaps explaining why, in 2006, only 48% of indigenous Australians were in full employment. With their white counterparts, it was 78%.
Discussion has centred on the best way to mitigate this inequality, and reconcile the existence of two very culturally and anthropologically different groups within the same finite space. Some have suggested complete legal assimilation, whilst others have advocated the paying of reparations towards those who have been wronged. But at the heart of this conflict lies a deeper belief: the underlying and poignant sentiment that debating the “recognition” of Aboriginal rights should never have begun in the first place.
When, in the Mabo judgment, the justices talked about the doctrine of native title, they reaffirmed how it could still be extinguished by the Crown, and the case is seen as the case which recognised aboriginal title. This, in itself, is problematic. Indigenous peoples’ interests in and rights over their land preceded the Crown even knowing the land existed. They exercised sovereignty over it until the Crown unlawfully interfered. Why, then, must Crown intervention be required for their rights to be recognised? For the Crown, and subsequently the Australian government, to be able to assert control over the land and be the source of aboriginal rights harks back to Colonial thinking, and is not only arrogant, but deeply.
Aboriginal rights do not exist by virtue of invading governments making concessions. They exist because aboriginal peoples exist.
Struggles such as these can be found in all corners of the post-colonial world, from Canada and Peru to the Western Sahara. But it will take more than a UN Convention and several Memoranda of Understanding before centuries of struggle, pain and turmoil can be reconciled with a modernizing world.
And as for Eddie Mabo himself, he passed away before the judgment in his favour was handed down. Overnight, his grave was desecrated with Nazi symbols and opponents of his activism spray-painted the word “Abo” on the stone. His family reburied him on Murray Island. That night, the Islanders performed their traditional ceremony, normally reserved for the burial of a king: a ritual not seen on the island for 80 years.
Title may be extinguished, rights may be conditioned, and inequality may be deepened. But communities can never be replaced.