A YEAR is not long, even in the short 92-year history of the Australian nation, but it is perhaps enough to say that Mabo must rank with the 1920 Engineers Case the two most important High Court cases since the court’s founding.
These two cases stand out because they changed fundamentals. Before the Engineers Case, Australia was a collection of six almost independent states with very broad powers bound together only by the need to have a common defence force and a common market allowing the free flow of goods and people between the states. The national Parliament exercised a few incidental powers over currency and lighthouses, and not much else.Any attempt by the Parliament to enact laws for the general welfare of Australians was struck down as interfering with states’ rights.
The Engineers Case by ruling the Commonwealth’s industrial-award legislation applied to Western Australia’s state-owned railway changed that.
The court said Commonwealth powers had to be interpreted liberally; they could extend into virtually any area previously occupied by the states. Nothing was “reserved” for the states.
Australia was on the way to becoming a nation. Seventy-three years later, the High Court stated again fundamental principles of nationhood, overturning previous certainties.
It declared “that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands” and “that the title of the Meriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth”.
That means that at the time of white settlement Aboriginal people owned Australia.
But settlement resulted in a valid claim of sovereignty by the British and subsequently by national and state Australian governments which the court would not overturn. But native title survived the claim of sovereignty.
Thus, Aboriginal ownership of land remained intact unless it was specially taken away by government. State and national governments could extinguish native title at will, subject to only two things the Constitution and the 1975 Racial Discrimination Act.break The Constitution says the Federal Government cannot acquire any property (including, therefore, native-title land) without paying compensation on “just terms”.
The Racial Discrimination Act says the states cannot extinguish native title in a way that would be racially discriminatory. It is difficult to see, therefore, how they could do it at all.
Mabo is an ingenious piece of judicial footwork, exonerating common law as an agent of Aboriginal dispossession and putting the blame for that firmly in the hands of government.
It has upheld all dispossession until now and ruled out compensation for it because of the doctrine of sovereignty of governments, but prevented any more dispossession through use of the “just-terms” clause and the Racial Discrimination Act.
THE decision itself is about one island. But the likely consequences are far more profound. The High Court has recognised prior ownership and has shown it will enforce it. State and federal governments could now follow suit. At least they will not continue to expunge native title.
The attitudes of non-indigenous and indigenous people have been changing. Now they are jolted to rethink about their place in Australia, perhaps more as joint occupiers, which might mean the need of some mechanism, perhaps constitutional, through which indigenous people can acknowledge non-indigenous people’s moral rights to be here and occupy the land they presently occupy, as distinct from the legal fact of it.
The decision also requires settlement in a different way of the vexed economic issue over half-way land. This is land over which pastoralists graze and under which minerals lie and which Aboriginal people use.
The High Court, of course, might have been reflecting significant community opinion as much as leading it. None the less, the case is a change in institutional thinking about human occupation of this continent which will lead to wide institutional change and, in turn, changes in general thinking.
Mabo is similar to the Engineers Case. The Engineers Case, too, might have been a reflection of opinion. It set in train great changes in the way Australians saw themselves: in the direction of a single nation rather than a collection of six mini-states.
It may be I am overstating Mabo’s cultural significance (leave aside the obvious large economic one). It may be that it was just a case about one small island.
If so, the Engineers Case was just a case about one small industrial dispute in a Western Australian railway yard.