ACU (Australian Catholic University)

ACU Alum

Issue 4, Autumn 2013

Native title: completing the circle

Native title

Topics such as Mabo, land rights and social change were hot on the agenda at ACU's Law Induction Week in Melbourne. Professor of Law Fr Frank Brennan delivered the inaugural lecture to the first cohort of students to study law at the University. This is an excerpt.

“Just as we have commenced with an acknowledgement of the traditional owners, I was very taken by the swearing in of Justice Gaegeler in the High Court on October 9, 2012. The then Attorney General Nicola Roxon made the first speech from the Bar Table, and this is what she said:

‘First might I acknowledge the traditional owners of the land we are meeting on and pay my respects to the elders, both past and present.’ She continued, ‘Your Honours and distinguished guests, particularly Former Chief Justices and Justices of the High Court, we are of course thrilled that your Honour on this occasion is joined, not just by all of your new colleagues, but indeed an entire additional full bench of the High Court.’ She then listed the seven retired judges in attendance, four of whom had sat on the 1992 Mabo Case.

It was as if the circle was now complete. Twenty years ago, the judges acknowledged that most, if not all, land had been the traditional country of Aboriginal and Torres Strait Islanders prior to the assertion of British sovereignty. Now the Commonwealth Attorney was acknowledging that the traditional owners still exist, even in relation to lands where native title has undoubtedly since been extinguished.

Prior to 1992, the Australian legal system treated land as if it were terra nullius – land belonging to no-one. Aborigines and Torres Strait Islanders were treated as if they had no rights to land, other than those rights specifically granted to them after the assertion of British sovereignty. The High Court’s Mabo decision changed all this and it changed our way of thinking about Aboriginal rights in contemporary Australia.

My point to you tonight is that law can helpshape and change attitudes. Lawyers need to know much more than the law. Those very High Court judges, of whom Brian [Fitzgerald, Executive Dean of Law] was speaking, were law students 30 years before, when there was absolutely no notion of native title. And so they had to apply their critical intelligences as to how the law might be developed so that justice might be done according to law.

Twenty or so years on from that decision I want to focus on two anniversaries which put the case into perspective and which take me back to my days when I was a first-year law student.

[In] 1972, at the commencement of my second year in law, there was the establishment of the so-called Aboriginal Tent Embassy outside the front of the old Parliament House in Canberra. That resulted because Aboriginal people were upset at how litigation was proceeding in the Northern Territory in a case you later study called Milirrpum v Nabalco, which was the first real land rights case in Australian history.

In 1967 we voted overwhelmingly as a nation to acknowledge the place of Aboriginal and Torres Strait Islanders and we amended the constitution. The vote was a big surprise to the then Prime Minister Harold Holt, who had never taken much of an interest in Aboriginal affairs. He thought, after the 1967 election, that the feds should do something and so he set up a three member council for Aboriginal affairs. None of them were Aboriginal but they were three very outstanding white Australians. They were Dr Nugget Coombs, Professor Bill Stanner and Barry Dexter. They were given the task of conducting the policy in relation to moving from terra nullius to land rights, from assimilation to self-determination.

It will come as a shock to you as contemporary students, but I recall that there was a student who went to the professor of property law and said he would like to write his annual assignment on Aboriginal land rights. The professor told him he couldn’t, because there was no such thing. And so that was the state of learning that existed in 1971.

In 1971 Bob Ellicot QC, who had appeared in the case succeeding for the Commonwealth contesting the Aboriginal claims, sent the then Prime Minister William McMahon a 28-page memo entitled Recognition of Aboriginal Land Claims on Reserves on the Northern Territory. Here was a leading conservative lawyer, who had argued the case successfully for the Commonwealth but could see in terms of justice that there was a need for legislation to enhance the rights of Aboriginal people to their land.

Bob Ellicott wrote ‘this paper is based on the view that if a practicable way could be found, claims made by Aboriginal people to land situated within reserves in the Northern Territory should be recognised. The problem we ought to be facing is not should we recognise, but what is the method of recognition most likely to be in the interest of the Australian community.’

The complexity of the issues thrown up at the time is nicely highlighted by the internal correspondence of the Council for Aboriginal Affairs, in relation to the McMahon Government’s folly in wanting to close the Aboriginal Tent Embassy in July 1972.

Barry Dexter wrote to Nugget Coombs stating, ‘another matter we’ll be considering at tomorrow’s council meeting will be what, if anything, we can do to prevent the government’s mad approach to question of the Aboriginal Embassy outside Parliament House. Without ever seeking our advice the government seems to have decided to make an ordinance making camping illegal and has stated its intention of removing the Embassy as soon as this ordinance is through, in the next week or two.’

He goes on to point out how the members of the Council for Aboriginal Affairs are fully supportive of the Aboriginal aspirations which were being expressed, sometimes violently at that time.

In his characteristic mode, Dr Coombs provided a comment on the closing of the Embassy by the government on July 20 1972. He said he would not comment then proceeded to comment!

‘I have no comment to make on the closing of the embassy. This is a government decision and it’s a matter for them. I have heard the reports of protests and that there has been some violence. I regret the violence very much. The only comment I would make is that the closing of the embassy has cut off one channel of protest open to Aborigines and others interested in their cause. But Aborigines and others have a right to protest about these matters and there remain other avenues for protest which I hope they will continue to use.’

You can see that at the very time you have Aboriginal people in the streets protesting, you had some well-meaning white fellow, at the highest level of government, who were there agitating their claims in the name of justice.

The question for you as law students of the future will be, if you are, for example, highly placed public servants, will there be issues where you think in conscience you should be agitating with political leaders, on the basis of how justice might be done according to law?

Fr Frank Brennan SJ, OA

Fr Frank Brennan is a Jesuit priest and Professor of Law and Director of Strategic Research Projects at ACU. A distinguished academic, he is an Adjunct Professor at the Australian National University College of Law and National Centre for Indigenous Studies.

Published widely, particularly on Indigenous and land rights and asylum seekers, his most recent book, Acting on Conscience, looks at the place of religion in Australian politics and law. At the launch, former Prime Minister Kevin Rudd described Fr Frankas “an ethical burr in the nation’s saddle”.

He is an Officer of the Order of Australia (AO) for services to Aboriginal Australians, particularly as an advocate in the areas of law, social justice and reconciliation, and The National Trust classified him as a Living National Treasure at the same time that Paul Keating labelled him “the meddling priest”.

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