IT WAS an unusual conveyance. Usually conveyances of land are done in land-titles offices by lawyers and their clerks dressed in business clothes. Usually conveyances require long-winded documents expressed in legalese in an attempt to prevent subsequent disputes. The land is described with great precision. The rights of those involved are defined clearly. Not on Friday. I witnessed what could loosely be described as a conveyance on Murray Island in the Torres Strait.
Murray Island, you will recall, was the island that was subject to the now-famous Mabo case in the High Court. Their Honours would be pleased to know that Mabo Case T-shirts are regularly worn by Islanders. The Islanders would prefer the case to be known, however, as the Murray Island case, or the Mer case, Mer being the traditional name. Eddie Mabo, you see, lived much of his life on the mainland. He was, however, a political stirrer and propelled the case.
Only 400 of perhaps 3000 Murray Islander people inhabit the island. Many of the others come back from time to time, some to live, especially after their children have grown up and been educated in Cairns or Townsville. And Thus it was that a Murray Islander with the improbably name of called Elsie Smith came back to Murray Island earlier this year with her son, Carl, to ask for possession of her family lands on the island.
On Friday the elders formalised that. They agreed that she could occupy the land that had been occupied by her family, but handed over to a caretaker decades ago.
The president of the council of elders, Doug Bon, explained that Elsie Smith would take possession under traditional law. There were several considerations. One: she must live on the island. Two: she had shown that she was in the bloodline of the previous occupiers. Three: she accepted the traditional law of Malo. Four: the wishes of the previous deceased owner were that Elsie would get the land. Five: the caretaker agreed to surrender it.
It was a straightforward case. It was also the first since the Mabo decision a year ago,; such is the stability of Murray Island society.
Mr Bon explained that living on the island, Malo and the bloodline were essential conditions to the transmission of the land. The wishes of the previous occupier and the caretaker were helpful in making a claim conclusive.
So on Friday four elders took Elsie who is now in her 70s, and her son, Carl, to the land. The elders were Mr Bon, Father Nagai Tabo, George Kudub and James Rice. Mr Rice is vice-president of the council and was one of the three plaintiffs in the Mabo case. The elders showed Elsie her land by walking around the boundaries and handing it over to her formally. One boundary was the sea.
It all worked very satisfactorily. The elders, however, have a tribunal to hear disputes over boundaries, possession, caretakership and buildings.
Before whites came to the island it was all done orally. Borders were marked with the white shell of the giant clam, and still are.
However, since the Coming of the Light (when missionaries brought the Gospel in 1871) more written records have been kept. Mr Bon has a copy of the Cambridge anthropological survey’s genealogy done last century, which he updates. That prevents a lot of bloodline disputes.
The elders have a tribunal for disputes. I suspect that under the reasoning of the Mabo decision, the elders’ rulings on land possession would be final. The courts would not interfere unless there was were some massive injustice or irregularity. That was Justice Brennan’s view.
To date Mabo discussion has centred on native title versus mining/pastoralist/development title.
Little thought has been given to the internal administration and judicial oversight, if any, of the native title itself.
In Elsie’s absence a track had been was carved from the sea to a road at the edge of her land. It has been used for two decades to unload barges. I think she is stuck with it, if the elders say so. In the unlikely event that the elders stop the barge unloading over that land, it will invite Queensland Government intervention through legislation.
Let us hope that the internal administration of the title can stay in the hands of the elders. The last thing Murray Island needs is a battery of white lawyers arguing (expensively) over which individual should get which land, with conveyances done far away in land-titles offices.