Mabo – End of Terra Nullius?

Diane Fieldes

A massive demonstration in Sydney of 40,000 Aboriginal people and their supporters greeted Australia’s bicentennial celebrations in January 1988. The demonstrators were determined to expose the truth of 200 years of colonial rule, and the lie of terra nullius which was still the official doctrine justifying Aboriginal dispossession. Despite government attempts to sell the nationalist celebrations as being for “all Australians”, the inequalities of Australian society could not be glossed over. In particular, the theft of Aboriginal land was the focus of anger. In June 1992 the High Court overturned terra nullius. After 204 years there was recognition that Aborigines and Torres Strait Islanders were here when the British invaded. In legal terms this meant recognising “native title” to land. The Court made its decision after a ten year legal battle waged by Eddie Mabo and others of the Meriam people to get title to their land, known as Murray Island.

Why now? The political climate of working class confidence and activity had led many people to see through the old racist divisions in the late 1960s and early 1970s. Widespread trade union and community support had greeted the removal of the grossest legal discrimination in the 1967 referendum which gave Aboriginal people political rights. When the Aboriginal Embassy was set up on the lawns of Parliament House in Canberra in 1972, hundreds of people including prominent trade unionists, rallied to its defence as the McMahon government ordered the police to tear down the tents.1

In the 1980s a lot of that solidarity was undermined by high unemployment, economic instability and a general downturn in the level of struggle. Instead of feeling able to combat the cause of the problems our bosses – workers became more susceptible to the arguments that scapegoat some of the victims of the system. So, for example, when Hugh Morgan attacked Aboriginal people in 1984,2 he did so in a climate of more generalised racism which blamed Asian immigrants for unemployment. Fear for your own job or your ability to find another one can be a powerful deterrent to strike action in support of others.

But when land rights again came to the forefront of Australian politics in 1993 following the Mabo decision, the situation had dramatically changed. While the level of working class struggle remained low, bitterness and cynicism about the system and its rulers had built up. Ten years of wage cuts under the Labor government’s Prices and Incomes Accord had produced nothing but falling living standards followed by the highest unemployment since the 1930s. Workers were much less likely to accept the arguments against land rights when they were put by those they knew were responsible for this situation.

The decision itself provided for very limited rights to land – it applied only to Crown land, and indigenous people had to prove a continuous relationship with the land they claimed. For the two-thirds of Aboriginal people who live in urban areas it represented no more than a moral victory. Nevertheless, this was too much for the powerful racists and rednecks in the Australian ruling class. At the same time that an Age poll was showing that 60 per cent of ALP voters and 51 per cent of the population as a whole supported Aboriginal people’s right to veto mining on their land, a racist backlash was building.3

It originated not in some racist groundswell by ordinary people but from the highest echelons of society, assisted by their hired mouthpieces in the media and academia. A lot of it was the crudest form of racism. Speaking at a London financiers’ conference, Rob Davies, a mining analyst from Lehman Brothers International, attacked the Mabo decision in this way: “If this decision stands, Australia could go back to being a stone age culture of 200,000 people living on witchetty grubs”.4

Western Mining’s Hugh Morgan and National Party leader Tim (“if the sheet fits, wear it”) Fischer also pushed the “inferiority of Aboriginal culture” line. Morgan continued to defend terra nullius on the basis that “the Aborigines had not worn clothes, had only primitive shelters, no written language, no sense of time or history, and no political institutions”.5

Various right-wing academics backed up this racist nonsense. Professor Geoffrey Blainey,6 already well-known for attacks on Asian immigration, weighed in behind Fischer and Morgan, as did Ron Brunton of the rightwing think tank, the Institute of Public Affairs. Dr Rupert Goodman seriously suggested as “a plausible explanation” for supposed Aboriginal backwardness that Aboriginal people “were of lesser intelligence, a not uncommon feature of primitive tribes”.7In the media, a fear campaign about “Aborigines taking over your backyard” was whipped up by the likes of Alan Jones, A Current Affair, and even the more “respectable” programs which continued to peddle stories like “Mabo land grab”.8

Behind all of this hysteria were the “reasonable” voices of the Australian ruling class – people like Campbell Anderson, head of Renison Goldliclds and of the Australian Mining Industry Council. In his considered Opinion Mabo was fine in relation to Murray Island, where there was no grazing, or mining, but its operation must be confined. It must not interfere with the sacred right to make profits, or, as he more subtly put it, with the “development of minerals for the good of the country as a whole”.9

The threat was pretty plain – give land rights and the mining industry will refuse to invest. (Of course, at the same time this scare campaign was being waged, mining exploration expenditure rose by 7.7 per cent for the September 1993 quarter, and the Australian Mining Industry Council was predicting a 39 per cent increase for 1994.)10

The mining bosses needn’t have worried. The “good of the country as a whole” argument was bound to appeal to the Keating Labor government as much as to the Liberal State governments. Alter all, it is the same argument that Labor used to justify wage cutting under the Accord in the 1980s and is still using to justify workers’ loss of penalty rates and other conditions in the enterprise bargaining I 990s. So, for instance, when mining company MIM expressed concern about land claims by the Borroloola people affecting its $290 million McArthur River project in 1993, Keating immediately pressured the Northern Territory’s Country-Liberal government to pass legislation granting mining leases immunity from Mabo-style claims.11

Queensland Premier Wayne Goss most succinctly summed up Labor’s capitulation to the racist bosses: “I’ve been accused of springing to the .Ittention of mining companies when they snap their fingers. To that I plead guilty.” Goss put his pledge of loyalty into practice, threatening to hnng in McArthur River-type legislation to protect Coma1co’s bauxite mine at Weipa from a claim by the Wik people.12 The Sydney Morning Herald’s headline of 29 April 1993 – “Mabo will not harm property titles: PM” – gives the lie to Keating’s fine speeches about justice and reconciliation. Land rights is the real test, and Labor has failed. The extent of that failure can be seen in the native title legislation that was eventually passed through parliament on 21 December 1993.

Although the media greeted its passage as a victory for Aboriginal people (“Mabo a new beginning says PM”, “Miners big losers in final Mabo deal”13), the new law was anything but. Instead, it was a victory for Labor’s determination to limit the impact of the High Court’s Mabo decision. If there was reconciliation, it was between Labor and the Liberal State Governments and the National Farmers’ Federation. Victorian Premier Jeff Kennett called the new law “a solution we could all live with”. Like the Mabo decision itself, the legislation did nothing for the already dispossessed. There was to be little compensation for prior loss of native title. All existing pastoral leases are guaranteed. This means that large landowners, like Liberal MP Ian McLaughlin whose family owns a large chunk of South Australia, are immune to land rights claims.

Keating’s legislation restricted Mabo even further by denying a veto over mining to Aboriginal people who did succeed in claiming native title. The Northern Territory Chief Minister immediately wanted to water down the Northern Territory land rights legislation (brought in by the Fraser Liberal government in 1976) to bring it into line with Labor’s new legislation. Under the old Northern Territory legislation Aboriginal freehold title includes the right to veto mining exploration. Finally, the law allows any State government to over-ride land rights decisions made by the new Federal Native Title Tribunal.

In the last week of September 1993,500 Aboriginal representatives at the Eva Valley II summit meeting in Canberra marched to Parliament House and burnt a copy of the draft Mabo bill. Aboriginal lawyer Paul Coe called the legislation “genocide by statute” .14 The final legislation was reluctantly accepted by Aboriginal negotiators because of a fear that without federal legislation the Liberal State governments would produce something even worse. This argument was never accepted by many Aboriginal people. Clarrie Isaacs from the Fringe Dwellers of the Swan River, W A, argued that the negotiators should have stuck to rejecting the legislation, as had been decided in September. And it very quickly became apparent how mistaken its acceptance had been. Two days after the legislation was carried, a land claim by the Wiradjuri people to a large area of NSW was thrown out of court by the Chief Justice Sir Anthony Mason. According to him, it had been “brought for an improper purpose” – getting land rights, presumably! 15

The passing of this discriminatory piece of legislation, which by-passes the operation of the Racial Discrimination Act, was not the end of the story. By January 1994 Aboriginal people had renewed their campaign for the right to veto mining on their land, demanding that the new legislation be amended to include it. ACTU President Martin Ferguson offered support for this demand. But while many Aboriginal people have seen beyond Keating’s legislation, Queensland’s Labor government has been doing its best to reinforce its discriminatory thrust. In a bid to reassure business investors, Wayne Goss vowed to strike out what he called “political ambit claims” lodged in Queensland in 1993 in anticipation of Mabo legislation being passed. His own words condemn him. Goss said some Queensland claims referred to rape, kidnapping, pillage, murder and the destruction of culture. He said such claims were offensive and did not deserve to be let stand in the courts. “That’s why we’re going to act swiftly to get this nonsense off the books.”16

To date no land claims have been granted under the Native Title Act. So the struggle for justice continues.


  1. Diane Fields, Land Rights Now!, Sydney, Bookmarks, 1984, pp.17-20
  2. The Age, 3 May 1984.
  3. The Socialist, August 1993.
  4. Sydney Morning Herald (SMH), 15 June 1993.
  5. (Morgan) SMH, I July 1993, (Fischer) SMH, 21 June 1993
  6. Australian Business Monthly August 1993, p.43.
  7. SMH, 12July 1993.
  8. For example, the Sunday Telegraph’s 13 June 1993 centre page bore an article whose headline was “Bid for all land south of harbour”
  9. Lateline, 28 April 1993.
  10. SMH, 1 February 1994.
  11. The Socialist, June/July 1993; .SMH, 28 May 1993.
  12. The Socialist, August 1993.
  13. SMH and Financial Review, 22 December 1993.
  14. The Socialist, October 1993.
  15. SMH, 24 December 1993.
  16. Financial Review, 25 January 1994.