Reflections Upon a Memoir: The Mabo Story Afresh

Memoir is based on personal observation and memory; it is intimate and selective, influenced by our understanding of an event. I have just read Bryan Keon-Cohen’s book Mabo in the Courts: Islander Tradition to Native Title. Here is a memoir that carries much of the élan of a ten year battle – for battle, it was, often quite nasty – a scholarly work about a legal contest of a lifetime. Nineteen years since the High Court judgement, Bryan Keon-Cohen has given a fresh perspective on the trial, its outcomes and historical background. It is a great account of an historic case by a steadfast member of a legal team. But like all memoirs, it is selective.

Bryan Keon-Cohen’s account of the ten-year history of the case, necessarily given from the viewpoint of his clients, adheres closely to that objectivity for which the best of his profession is known and respected. The author reminds the reader that this is a lawyer’s account – a rather different perspective to say that of a poet, an ecophilosopher or an anthropologist.

The memoir starts off with an opening to drama. A test case begins within the historical context for both the Meriam and the Defendants and takes stock of an unsuccessful land rights case known as Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia, 1971, the first litigation of native title in Australia. Chapter by chapter the author takes us through the stages of the Mabo case: the life of Eddie Mabo, the birth of the case at a Land Rights Conference at James Cook University in August 1981, the formation of the legal team and a first search for funds.

The book follows the lawyers’ first visit to the island of Mer, the Statement of Facts, and Money Matters. The story is a combination of hard slog with many disappointments sprinkled with small successes up to 1984. And then in 1985 there comes `Queensland’s King Hit’ – their legal move to end the case before it began.

The story moves to the Trial in its various phases and forms, all part of what came to be known as Mabo (No1). And so the case continues with a move back to Brisbane and Canberra; through the Supreme Court of Queensland and the Determination of Issues of Fact. The Commonwealth is then struck out as a contender, for the sea claim – viz, all lands below high-water mark – is abandoned.

Then finally we reach the High Court at last in Mabo (No.2): the days of Judgment; the death of Eddie Koiki Mabo ‘before victory’ and on to Judgment day on 3 June 1992, and reactions to it. Significant changes at Mer sees the Islanders decide on where to live – they spread out along the coastline in the villages where they dwelt before they were bundled together for close supervision following the annexation of their islands in 1879.

My memories of the events are necessarily different to those of this author. Firmly in my mind is a notion of ‘dual beginnings’ to the case, firstly with the conference on Land Rights and the Future of Race Relations at James Cook University in 1981, and Mabo’s spiritual beginnings which can be traced back to the 1930s. The early Mabo story has the quality of conspiratorial drama: with ‘all those plots and counter-plots’, as Judith Wright, an active participant in the conference, wrote to me with zest.

My contribution to the Mabo case was not wholly in the public domain. Bryan Keon-Cohen mentions that I had a lot to do with the beginnings of the case, but does not fill in the details. I have told some of it in instalments. Here is the final one.

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‘Beginnings’ then, has two layers of meaning. For different reasons each is hidden from our view. The first concerns the story of moves that took place during a conference on Land Rights and the Future of Race Relations at James Cook University in Townsville in August 1981. Our first steps there were so shrouded in secrecy that even the main organisers of the Townsville branch of the Aboriginal Treaty Committee remained unaware of our conversation behind a closed door. Bryan Keon-Cohen gives an accurate account of an ‘in camera meeting held during the conference’. There it was argued and accepted by those present – Dr HC (Nugget) Coombs, Chairman of the Aboriginal Treaty Committee, Eddie Mabo, Revd. Dave Passi, (who became a plaintiff), Professor Garth Nettheim, Flo Kennedy, Phillip Mills (observer) and myself – that the Meriam had an especially strong case to put to a court. To this day, the organisers of the conference may still believe we were just having another workshop.

If this sounds like a conspiratorial drama, well, that’s because it was. Today it may be a little difficult for anyone who wasn’t part of that story to imagine or comprehend just how strict our secrecy was; or the very good reasons for it. Even after the legal action was launched, there was a firm belief by the senior QC and others, that should the State of Queensland get wind of the legal moves they would use their considerable resources to put a stop to the Islanders’ action.

In February 1982, at the request of senior counsel Ron Castan QC, I found Court records at Mer of sales of land by their Murray Island owners in 1913. I took them to Thursday Island and hid them at the home of Torres Strait Islander, Flo Kennedy (an early and passionate advocate of a land case) before bringing them to the barristers in Melbourne. After all, I thought, sale of land by traditional owners to the Government could seem like dynamite to the defendant – the State of Queensland. You can only buy something from people who own it!

Very early in the conference in August 1981, ‘the Mabo move’ came to take precedence over another plan for a claim by a mainland group, already known and supported by leading members of the Aboriginal Treaty Committee and by barrister Barbara Hocking. Her pioneering work on the continuity of Aboriginal law in Australia was recognised and applauded there. As Keon-Cohen writes, the wheels were already turning. When the conference began I sought out Dr Nugget Coombs and explained rather passionately why I believed the Meriam and Eddie Mabo had a particularly strong case to put to a court. The in-camera meeting followed our corridor conversation. Here at James Cook University was a ‘meeting of minds’, in the words of Gregory McIntyre, who in a matter of hours became instructing solicitor in the nascent case. And Barbara Hocking became the first barrister to be briefed. It just so happened that the Mabo option rose up like a little volcano out of the sea like the isle of Mer itself and took over. Eddie Mabo wasn’t just being opportunist as the author of this memoir believes. The prospects of a land case with him at the centre were already in train.

I wrote some of the story for the first time with the title ‘Learning to Listen’ in Meanjin Vol 6, No 3, 2007: 105-109. The relevant part of the article is about talks I had with Eddie Mabo in Townsville in December 1980 and then a later discussion with constitutional lawyer, the late Professor Colin Howard in 1981. He had written an insightful essay on the unsuccessful land case brought by Yolngu plaintiffs known as Milirrpum and Others v Nabalco and Others and the Commonwealth of Australia (1971). In that case, Justice Blackburn had argued that as an itinerant people, the Yolngu plaintiffs could not show to his satisfaction that the land they were claiming was the same land as that occupied by their forebears in 1788. ‘Neat’, said Professor Howard, when I’d explained that the Meriam were a sedentary people. Thrilled with his reply, I wanted to sing.

‘Beginnings’ has also a second layer of meaning. In an important sense one may trace the spiritual beginning of the case to about the time Eddie Mabo was born in 1937. This deeper sense of beginnings concerns its historical setting, and in particular the contentious matter of cultural continuity. The belief among scholars and administrators that the culture of the Torres Strait Islanders had long since faded was upheld by the imposition and the taking on of new ways. Among administrators these certitudes were often accompanied by a cultural arrogance combined with political might.

Acceptance of this position was taken for granted by the authorities in Brisbane until the Meriam plaintiffs filed their claim: ‘This position was accepted until a small group of Murray Islanders commenced an action in the High Court Australia on 20 May 1982’. So ran the words of W. Gunn, deputy Premier of Queensland, in introducing the second reading of the Coasts Islands Declaratory Bill into the Queensland Legislative Assembly in 1985.

Those attitudes have an important political background in the Torres Strait Islands. Keon-Cohen draws attention to events in 1936 when the men on the luggers known as Company Boats, owned by the Islanders and controlled by the Protector, went on strike; not for better wages, but for the Islanders’ right to control their own boats, their own earnings and their lives. That strike for home rule led to a partial freedom and this was reflected in the Torres Strait Islanders Act 1939 which incorporated major elements of self rule. Mabo in the Courts gives some coverage to those events, and importantly, to the way the Act was amended and made subject to by-laws over the years that curtailed the rights the Islanders had won in 1936.

Until 1982 the rather telling and impressive story and outcome of that move for home rule was locked up by the Department. At the end of 1978 and after older Islanders had told me about the events of 1936 and 1937, I began searching for these files. Much of this story had been hidden in Departmental files, labelled ‘Refusal of Natives to work boats’, and marked ‘Away B’. In response to my enquiries, PJ Killoran, Director of the Department of Aboriginal and Islanders Advancement (DAIA), had written to me on 17 May 1979 (see Acting Police Commissioner, 11 November 1981): ‘I must point out…that…all records, other than those held by State Archives…are considered to be confidential and therefore inaccessible.’ What was it that the Department did not want the Islanders, the outside world, to know?

Strangely, it might seem, these ‘Away B’ secret reports on the events of 1936 and 1937 were flushed out by the Mabo action, and assembled in the Affidavit of PJ Killoran. The reasons for secrecy were transparent in the missing reports: the Department and its officers then and now did not want the world to know that the Islanders had confronted them with major success. According to the reports, the strike, as it was called, never finished at Murray Island. The men’s ‘altered outlook’ ruled out direct subordination. In 1980, a leading Torres Strait Islander, George Mye, recalled to me the words of the Protector, Mr Con O’Leary on his retirement in Brisbane in the mid 1960s. In answering a question on his strongest memory of that time, he recalled: ‘The day in January 1936 when the Murray Islanders refused to be recruited for work on their boats and jumped through the windows, saying “We will never sign back!”’ And they did not.

In its wake the question arose: Had the local Protector ‘granted them too much freedom?’ wrote Chief Protector JW Bleakley. After all, The Torres Strait Islanders Act 1939 incorporated provisions of self rule which were absent from the Aboriginals Preservation and Protection Act 1939.

When Eddie Koiki Mabo talked with me at the Black Community School in Townsville in 1980 I found him a man with assuredness of intent, of an understanding of his situation, of pride in his Piadram clan – and above all an utter fearlessness. He spoke of his early life at Mer, of his land and sea territory, and his recent history. When some white teachers had turned their backs on him at a meeting in Townsville in the 1960s, ‘I got up and did my dance. Everyone stood on their feet and I walked out.’ And after that the Black Community School began. He was a man with the spiritual resources to follow his dream and he never faltered.

As the years of the case went by I looked in wonder at the breaking forth of seemingly hidden memory. The common theme of Keon-Cohen’s memoir and my own is that this event was life changing for both of us. Mabo in the Courts is a lawyer’s memoir, but it is also a journey across cultures by the author and the team involved; a work that relates a significant episode in the history of the Meriam people and Australia.

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Nonie Sharp is an Honorary Research Fellow at La Trobe University. Her book No Ordinary Judgment: Mabo, the Murray Islanders’ Land Case, Aboriginal Studies Press, Canberra 1996 was shortlisted for the Australian Cultural Studies Prize and the NSW Premier’s Literary Awards 1996.

Bryan Keon-Cohen QC, Mabo in the Courts: Islander Tradition to Native Title, Two vols, Chancery Bold, North Melbourne, 2011.