Somewhere in the council “”office” on Murray Island is a typewritten piece of paper which may have some historic value.
I was reminded of it this week by the inclusion of the Mabo papers in the Memory of the World register set up by the United Nations Educational, Scientific and Cultural Organisation.
Murray Island (the locals prefer the name Mer) is in the Torres Strait. It was here that the Mabo case started. Eddie Mabo resisted moves by the Queensland Government to takeover the island irrespective of generations of dwelling by the native people.
His case came to the High Court, initially in the early 1980s, coming to final judgment in 1992 in the now famous Mabo case which recognised native title in Australia.
When the case first came to the High Court, I was reporting the court, and with typical journalistic prescience pooh-poohed the case: it was obvious from earlier cases that native title was nonsense.
In 1992 I – like many of my colleagues – wrote much about the case from the comfort of a newspaper office.
Then in 1993 I was invited to Murray Island. It is a tropical gem – only four non-traditional buildings of note: the school, the church, the council office and the guest house. The island had some drawbacks, the most critical being that the pub – run by the council – shut at 8pm and only served open cans of beer. Food was fairly average, at least until I and a couple of refrigeration engineers on the island got a local – Ben — to take us out fishing. I’m hopeless at fishing, but Ben could read the sea, telling us where to stop and which side of the boat to drop a line, so we caught a dozen coral trout in no time.
I walked around the island and to the top of the single hill in its middle, talked to the locals and wrote up a feature article on where native title started. They mark the land with giant clam shells — up to a metre across and as reliable as any city surveyor’s marker – as the picture shows. Sea claims are marked similarly. Islanders have built fish traps – several hundred square metres enclosed by stone walls which allows the sea in and out. The fish are chased in through an opening in the wall which is closed with stones at high tide. When the tide goes out the fish are trapped. All the fish traps are marked and owned. It was obvious there was a sophisticated system of land tenure here which should be respected under common law.
I was about to head home when a call came though on the island’s public phone. It serves all 400 inhabitants. It rings, someone answers and gets the person being called. I was the only white person on the island (the engineers were half Chinese) so I was easily identified. Besides Michelle Grattan (then editor) is notorious for tracking down anyone anywhere by phone. She had tracked me down via one public phone on an isolated island on Torres Strait.
“”Don’t leave the island,” she ordered. “”Hewson [then Opposition Leader] is going up there.”
Like me John Hewson wanted to see native title first hand. He arrived in a helicopter and was gone in two hours.
I had waited for him for two days, and in that time the typewritten piece of paper came into being.
Doug Bon, the head of the Council of Elders, came to me. I had told him while interviewing him for my feature articles that part of my interest in native title was because I was also a lawyer. He told me that a woman, Elsie Smith, and her son from Townsville had returned to the island to claim their land. It was the first claim since the Mabo judgment almost a year before. The land had been left unused in the hands of a caretaker years before. About 3000 Murray Islanders live in Townsville, well out-stripping the 400 on the island itself.
The council had agreed to give Elsie the land. “”Now we’ve got this Mabo thing,” he said, “”We want to do it properly, legally. Can you help us.”
I tried to explain that the very point of the Mabo case was the Torres Strait Islanders were to transmit their land according to the way they have done it from time immemorial. It was not a matter for white-fella law. But he insisted. I didn’t want to disappoint him so I suggested that the best thing to do would be to draw up a deed that merely witnessed that all of the things that Torres Strait Islanders do to transmit land had been done.
So, I sat in the council “”office” (a basic single-storey besser brick building with iron roof and no air-conditioning) and typed the deed, with a carbon copy. The council was the elected Queensland Local Government council, not to be confused with the unelected council of elders which had no real power other than, it seemed, the allocation of land. I suspected there was some conflict at the time between them. But I was allowed to use the office. – it had no computer or printer to connect to my portable.
I gleaned from Doug Bon that there were seven elements to the transfer. That Elsie Smith must live on the island; she was in the bloodline of the previous owners; she accepted the traditional law; the previous deceased owners indicated that she should get the land; the caretaker agreed to surrender it; the Council of Elders agreed; and a formal ceremony take place. The ceremony was merely walking around the boundary of the land ensuring the giant clam shells were in place.
So I typed up the deed. We walked around the land. We went back to the council office and signed the deed which I witnessed. I think Elsie Smith got the carbon and the original stayed in the council office.
It may have been chucked out. I wish I had been as diligent as Bonita Mabo who kept every scrap of paper in this saga.
But if it has not been chucked out or if Elsie Smith or her son still have the carbon, it will be a record of what was perhaps the first native title transmission of land in Australia’s history — well before the Native Title Act and the transmissions of communally held land under it.