The Mabo case did not dispute that ultimate ownership of the land had been vested in Crown sovereignty (in order to usurp indigenous control). It did assert that beneficial ownership of land had continued under indigenous law. Mabo overturned the fallacy of equating sovereignty with beneficial ownership of land (the criteria for determining "beneficial" use, of course, being defined unilaterally by the European colonizers). The ruling implies that a change in sovereignty does not extinguish Aboriginal title to land.

Another problematic issue raised by Mabo concerns the extension of common law protection of indigenous land rights to statutory title. Such an extension could provide a significant new mechanism for regaining ancestral domain. Existing "Land Rights" legislation allows indigenous peoples to claim statutory title to vacant Crown land, with or without having to prove traditional association to that land. If the statutory title law were framed within common law, it could restore indigenous title on lands where it had previously been extinguished by an inconsistent grant, and had then reverted to vacant state land. This process conceivably could be more efficient than the method used to win the Mabo case, that is, by having to prove indigenous association with the land. However, statutory law ultimately deals with such issues at the level of the individual, rather than the collective. Thus, despite the gains made under the Mabo ruling, most Aboriginal peoples in Queensland are boycotting the state's Land Rights legislation and are now actively seeking ancestral domain through the courts, suing to assert their indigenous nationhood.

In another point of difference, the Mabo case demonstrated that the High Court conceived of Torres Straits Islanders and Aborigines as a race, not as distinct indigenous nations. The Court made use of the Racial Discrimination Act of 1975 in order to restrain the state from using the "State of Territory" legislative powers to diminish common law indigenous title, while (again) remaining silent on the issue of Aboriginal sovereignty. Under the provisions of Mabo, indigenous communities must retain their "biological" identity, even though their collective right of occupancy on their traditional territory has been restricted to the level of individuals. Here again, Mabo failed to establish the rights of the Meriam to a land base as a nation.

In resistance against such continuing legal actions that limit the recognition and control which are vital to the survival of all nations, Aborigines and Torres Straits Islanders are now moving towards asserting indigenous nationhood, following the direction of the global indigenous peoples' movement. They feel that while the Mabo ruling aided some of Australia's Aboriginal population in regaining territory and in assuming control over some conservation areas, it has not been helpful in the broader quest for nationhood. Of the one-third of Australia's Aboriginal peoples who still live in rural areas, only a fraction of these (those who live in the greatest isolation) are covered under the Mabo ruling. For the other two-thirds, the question of self-determination remains as difficult as ever.

Although Mabo acknowledged that Aboriginal occupancy of the land was "beneficial" (while Aboriginal title remained under Crown sovereignty), it did not take the next logical step and assert the continued existence of Aboriginal sovereignty. Recognition of indigenous peoples' rights to self-determination, then, would be the next logical step for Australia's Aboriginal nations.

One year after the original decision, Australia is at a crossroads regarding ceding land back to indigenous peoples. Mabo has sparked a major reactionary backlash. In early June 1993, the Premier of Western Australia began a "state's rights" battle, stating that "Mabo would quickly render the whole country ungovernable and should be overturned by legislation." The mining and farming sectors, concerned that their operational expenses will increase, also want to overturn the ruling.

Meanwhile, the Wiradjuri people have filed a claim for over one-fourth of west-central New South Wales, and other peoples have filed claims for Canberra, Australia's capital city, and the Capital Territory. The federal government has responded to the crisis with a white paper of 33 principles, calling for "the acceptance that native title is a common law reality," though the Aboriginal Affairs Minister has denied that there was any way that lands or compensation would ever be handed over.

For more information, contact:

Bob Weatherall, Director
Foundation for Aboriginal and Islander Research Action
75 St. Pauls Tce
Spring Hill, Queensland
Australia

Fourth World Bulletin • July 1993

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