The long anticipated telemovie “Mabo” aired last night on ABC1. Like many, I sat, transfixed, at this story of a proud Murray Island man, Eddie Koiki Mabo, his refusal to bow to endemic racism, his groundbreaking legal fight for Indigenous land rights, his untimely tragic death from cancer only a few months before his final legal victory, and his relationship with his wife Bonita, whose support was crucial in Mabo’s making of history. The telemovie also had personal resonance for me: I am humbled to know or have known some of the other players in this drama, such as the barristers Ron Castan and Bryan Keon Cohen, as well as the director Rachel Perkins.
Mabo reminds us that law can be great. Ultimately, after an 11 year battle that outlived him, Mabo prevailed and terra nullius, a racist and objectively absurd doctrine, was swept away by a 6:1 majority in the High Court. Along the way, a 4:3 majority had struck down the Bjelke Petersen government’s attempt to kill the litigation by retrospectively abolishing native title.
Law can also be terrible. The telemovie reminded us how, not so long ago, that Queensland law dictated segregation in pubs and elsewhere, and that an indigenous person could be refused “permission” to travel home to Murray Island to see his dying adopted father. Indeed, extraordinarily arbitrary powers over Indigenous people were exercised by Patrick Killoran, portrayed in Mabo by Rob Carlton. And it was the old “law” of terra nullius that necessitated the legal battle in the first place.
Law can be intimidating and culturally inflexible. Witness the humiliation of Mabo as a witness before a Queensland court which, ironically, dismissed his personal land title claims in applying white man’s standards to that issue.
The Mabo case was hardly the end of the fight for Indigenous rights in this country. While native title was enshrined in legislation in 1993, it was wound back drastically by the Howard government after the Wik decision in 1998. And native title remains difficult to prove in a court: continuous assertion of customary land rights were difficult to maintain on the mainland (in comparison to Murray Island) in the midst of “the tide of history” of white colonization, and Western requirements of documentary evidence pay little respect to Indigenous oral traditions. And Indigenous socio-economic disadvantage remains a national tragedy, and the Northern Territory Intervention a reminder of how Australian governments can so easily rely on coercion as a solution to Indigenous problems.
Eddie Mabo’s story is a crucial signpost en route to true reconciliation in Australia. It demonstrated just what can be achieved when determined people join together to make the effort to combat injustice. The Mabo case and its legacy were driven by Mabo the activist, his family and fellow plaintiffs, and a key support cast of lawyers, academics and now film-makers. Food for thought as we lead up to a referendum on the constitutional recognition of Indigenous Australians.