Edward Koiki Mabo: The Journey to Native Title - [API] Network

Noel Loos
Edward Koiki Mabo: The Journey to Native
Title
Noel Loos
Edward Koiki Mabo preferred his Murray Islander name, Koiki, to the colonialist,
Eddie, by which he was known to the Australian public. Koiki was the name used by
other Murray islanders and by those white Australians who had become close friends
and interacted with him over a long period of time. I had addressed him for so long
as Eddie that it took me quite a while to change and then only as a result of his
persistence. My wife, Betty, who saw him less frequently than I, had to do so many
double takes, which they both found amusing, that Koiki eventually gave up. ‘You
can call me Eddie!’ he laughed. He continued to use Eddie as his public name,
probably because he thought it would have been too confusing to change it; and that
was the name that was registered in 1982 in the high court challenge that led on 3
June 1992 to the acknowledgement of native title in Australia. 1 By that time Koiki
had been dead for just over four months.
When George Mye, Eidi Papa, read his poem, ‘Who Was That Boy’ to the united
nations working group on indigenous populations in Geneva in 1995, the name Eddie
did not appear even though the poem counterpointed his childhood on Mer, Murray
Island, with the fame he had achieved through destroying terra nullius. 2 Apek kebile,
the little boy from the other side of the island, was unafraid of lamar, ghost or spirit,
and lug-le, sorceror. George Mye had dramatically highlighted the independence
and assertiveness of the child with the achievement of the adult. The lug-le is still
‘the greatest fear of islanders even today’, George Mye told me. ‘You show me an
Islander who doesn’t believe in sorcery’, said Koiki’s cousin, Donald Whaleboat,
‘and I’ll show you a liar’.
Yet, when I read the poem after George Mye, Donald Whaleboat and Elemo
Tapim had translated the Miriam words and explained the nuances, it was ‘apek
kebile’ that resonated with me. Literally Mabo was ‘the little boy from the other side
of the island’. His village Las, sacred to the Malo-Bomai cult, is as remote as you
can get on Murray Island from the centre of population that had grown up around the
site of the mission. George Mye, Koiki’s friend and relative, had referred with affection
to ‘that Las mob’ when I was discussing Murray Island affairs with him. The small
village of Las was different and special. Apek kebile, ‘the boy from the back blocks’,
I thought, the creative maverick that Koiki had been for the 25 years I had known
him, was moulded by his origin.
Koiki Mabo was certainly a ‘battler and stirrer’. He had grown up on an island
that had become a colony of Queensland in 1879 and had been administered by a
white administration throughout the twentieth century. In this situation, his proud
and independent nature ensured that he would be a ‘battler’. He posed challenges to
white colonial power and to the Torres Strait Islander establishment that had grown
up under it, and this made it easy for him to be treated as a ‘stirrer’, a troublemaker,
to the last years of his life. While this is not an uncommon fate for battlers, it was
not one he deliberately sought.
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Throughout the twentieth century, the oppressive Queensland administration had
segregated the Meriam and other Torres Strait islanders from mainland developments
under the policy of protection. It had fostered the change from a comfortable, satisfying
subsistence economy based on agriculture and fishing to a cash economy based on
the pearlshell, bêche-de-mer and trochus fisheries. The coming of christian missions
in 1871 had, in effect, reinforced the cultural changes occurring in the Torres Strait.
However, the islanders made christianity their own religion. They also incorporated
their involvement in the fisheries and their participation in the colonial administration
of their islands into their culture. Increasingly, Torres Strait Islanders collaborated
in the administration of Queensland government policy. In doing so they were able
to minimise the white colonialist presence on their islands and maintain their life
style in a way unknown on Queensland’s Aboriginal reserves. They also funded
their own colonialist controls by working in the fisheries.
At the time Mabo was growing up on Mer, the islanders provided cheap black
labour for the hundred or so ‘Master Boats’ owned by white businessmen. Throughout
the Torres Strait some islander families owned their own smaller luggers, called
‘company boats’. An early missionary, FW. Walker, had encouraged islanders to
buy their own boats and the Queensland government had supported this development
when, in 1904, they began applying protectionist legislation to the islanders as they
had to the Aborigines. However, the islanders were forced to sell their catch only to
the Queensland administration at a much lower price than was generally available
from the commercial buyers. The master boats and the company boats took most of
the younger men away from the islands for much of the year, leaving the women, the
children, the old men and those who didn’t wish to recruit to attend to church and
council matters, to tend the gardens, to fish, to catch crabs, crayfish and birds and to
collect oysters and other molluscs.
The colonialist controls had been implemented by the protector stationed at
Thursday Island, the administrative centre, and by a teacher-administrator on each
of the inhabited islands. As the controls tightened and the islanders came to understand
their situation, they resented their loss of freedom, especially the government’s control
over their wages and bankbooks, but also such degrading measures as a nightly
curfew.
In 1936, the islanders on company boats stunned their white overlords by going
on strike simultaneously throughout the strait. The Queensland administration had
created a unity of purpose among people who had previously been concerned with
their own island interests. They had also been drawn together into world-wide
capitalism through the fisheries, introduced to a world-wide religion and its Torres
Strait wide organisation through the missionaries, and become enmeshed in a western
colonialist administration. The 1936 maritime strike was consequently successful
because of the wider Torres Strait Islander identity produced by colonialist expansion,
as well as being caused by the domination resulting from it.
By 1936, the year Koiki Mabo was born, Torres Strait creole had developed
throughout the Strait as a lingua franca, and on some islands had replaced the
traditional language, but not on Murray. The islanders were also becoming familiar
with English, the third language of Murray islanders. Torres Strait Islander English
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had become a regional dialect, as different from standard English as Yorkshire or
Cornish English.
The strike lasted for four months in the western islands, while in the east the
Murray Islanders boycotted the government-controlled fisheries until after world
war II. Their gardens and the sea could sustain them. Indeed, Murray islanders are
believed to have instigated the strike. They had always been noted for their selfassertive
independence and had been dubbed ‘the Irish of the Torres Strait’. Strong
leaders emerged to lead their fractious people until another strong leader challenged
the old order. On Mer, ‘everyone mamoose’, the Meriam said of themselves, everyone
is a chief. 3 Throughout much of the colonial history, strong Meriam leaders had
emerged to limit as much as possible the intrusion of Queensland’s colonialist controls
into Meriam life. On more than one occasion they had defied Queensland authority,
the 1936 maritime strike being but the best-known example before the Meriam
demanded of the Queensland government, in the high court of Australia, the return
of the native title to their land. Koiki Mabo was born in the year of the maritime
strike and died in the year the Meriam won their ten-year high court challenge that
destroyed the concept of terra nullius on which Australia was founded.
Koiki was born on Mer, Murray Island, on 29 June 1936, the son of Robert and
Poipe Sambo. His mother died soon after his birth and he was adopted by his maternal
uncle, Benny Mabo, and his aunt, Maiga, in accordance with Torres Strait Islander
custom, a circumstance which was to be heatedly contested in the course of his claim
for native title to his ancestral lands. Because of his grasp of English, his third
language, he was employed briefly as an assistant teacher on Yorke Island and as an
assistant to a Queensland government team investigating an outbreak of malaria in
the Torres Strait. 4
Mabo told me that when he was sixteen, the Murray Island court found him
guilty of drinking alcohol and making love to a young islander woman whom he
thought he might have eventually married. In the eyes of the Queensland department
of native affairs (DNA) and the Torres Strait Islander council implementing the
laws, sexual relations before marriage and the consumption of alcohol were criminal
offences, and Mabo was sentenced to twelve months’ exile from Murray Island. He
decided to turn his punishment into an adventure by recruiting on a trochus lugger
that was working to the south. This could have entailed visits to mainland ports like
Cairns.
He told me how he was taken before the senior DNA official, Mr Patrick
Killoran, when he landed in Thursday Island, who quickly vetoed his plans and
forced him to work on luggers that operated only in Torres Strait. This assertion of
colonialist control angered him and he determined to migrate to the mainland with
the steadily increasing flow of other Torres Strait Islanders. Without realising it the
Queensland government had provided the spark that began his politicisation as a
radical activist. He was going to escape the white domination of his homeland.
He continued to work on luggers out of the Torres Strait until 1957 when he
moved to the mainland. Here he followed the pattern already created by his countrymen
and worked out of Townsville on a trochus lugger, as a cane-cutter, and as a fettler
on the railway in western Queensland, before finding work at the Townsville harbour
board from 1962 to 1967. He had married Bonita Nehou, a young south sea islander
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woman, in October 1959. They saved enough to begin buying a house and had
settled into a comfortable suburban existence when Koiki’s increasing involvement
in black and white politics again brought him into conflict with forces of reaction in
Queensland that identified black activism with white political radicalism.
While working between 1954 and 1957 on luggers that visited the mainland, he
had realised how exploited Torres Strait Islanders were in comparison with white
workers. Islanders were given, he estimated, about one quarter of the wages of an
equivalent white worker and even this income was controlled by a paternalistic
administration. He realised islander initiative was being stifled because the islander
owners of company boats had to sell their shell to the Queensland government at a
much lower price than the owners of master boats received. He also realised that the
Queensland government was subsidising its administration through its involvement
in the Torres Strait Island fisheries. Although the Queensland department of native
affairs practised a policy of soft, personalised control with regard to Torres Strait
Islanders, Mabo realised that his people were just as effectively ‘kept in their place’
as an inferior caste as were Queensland’s Aboriginal people. He was later to entitle
one of his notices in the native title campaign: ‘Qld Govt is our Friendly Enemy’. 5
In 1960, at Hughenden in western Queensland, Mabo had become involved with
the trade union movement when he became a spokesman and union representative
for Torres Strait Islanders working on the Townsville-Mount Isa rail-reconstruction
project. This involvement was to deepen when he moved back to Townsville. In the
west, he had personally encountered racism in the workplace, brushing it aside with
a quite dignity that reflected his assessment that this was what you had to expect
from white Australia. When it affected his young wife and their two small children,
he found it much harder to tolerate:
Several times we brought our kids in to Hughenden when they were sick and the
doctor would see them — Eddie and Maria for instance, when they were babies,
when we were out west. And we couldn’t get a lift. We didn’t have a vehicle at that
time ... And there was no way of getting back so we had to go to the nearest pub, or
whatever, and ask for a room. And for all the times that we used to come in, all of
the pubs didn’t take us. They wouldn’t accept black money, or probably they thought
we’d leave our skins on the sheets. 6
Such discrimination also helped to politicise his wife, Bonita, whose religious
upbringing had initially made her hostile to black activism, trade unions and leftwing
politics, even the labor party.
While working as a labourer at the Townsville harbour board, Koiki soon found
that the whites most supportive of black advancement were radical trade union leaders,
especially the members of the communist party which had supported the Aboriginal
cause since the 1930s. 7 At the time, Mabo did not know what the communist party
was, nor indeed care. It was the only political party whose members were willing to
work with the black advancement movement in a non-paternalistic way. Two black
representatives were invited to attend Townsville’s trades and labour council meetings,
generally Mabo and another executive member of the Aboriginal advancement league,
Dick Hoolihan. They were encouraged to bring up black issues, but not to expect the
white unionists to speak for them. At the TLC meetings and at associated conferences,
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Mabo learned meeting procedures and gained experience at public speaking in what
he would term ‘white-man culture’.
It was also while Mabo was in western Queensland that he was first influenced
by black activists such as Kath Walker (Oodgeroo Noonuccal) and Joe McGinness.
When he returned to Townsville, he became involved with the Aboriginal advancement
league and other Aboriginal and Torres Strait Islander organisations and held executive
positions in most that he joined. 1967 was an important year for black Australians.
They now see it as the year in which they were at last acknowledged as Australian
citizens. The referendum of that year changed the constitution to allow Aborigines
to be counted in the census, from which they had been specifically excluded. And for
the first time, the commonwealth government could legislate and set up administrative
structures on their behalf. Previously, by the constitution, indigenous Australians
had been a state responsibility except in the Northern Territory.
Mabo had been a member of the Aboriginal advancement league in Townsville
since 1962 and involved in the campaign for the 1967 referendum. He wanted to
drive home the significance of these changes to the constitution and in July 1967
suggested to local union leaders that a seminar be held, involving black and white
north Queenslanders, to focus on the problems confronting indigenous Australians
and consequently white Australians. The title, ‘We the Australians — What Is to
Follow the Referendum’ encapsulated the thrust of the conference, and the logo,
two hands, one white, one black clasped in friendship, indicated the positive direction
intended. It also reflected Mabo’s thinking: that it was necessary to work with
supportive whites and through white processes and institutions to achieve black
advancement.
The inter-racial seminar identified three groups in which Mabo realised he could
find allies: the trade union movement, academics from the newly established James
Cook University College, and mainstream churches. Mabo deliberately set out to
strengthen his ties with people who had indicated their commitment to social justice,
especially those from the first two groups with whom he felt especially comfortable.
Even in this, his first major foray across the cultural divide, the Meriam battler
found that he had stirred up a hornets’ nest of white reaction. It was decided locally
that the Townsville branch of the one people of Australia league (OPAL) would host
and advertise the conference as a number of members of the convening committee
believed themselves, to be members of OPAL, the one multi-racial organisation in
Queensland that was socially acceptable across the political spectrum and in the
press. The federal council for the advancement of Aborigines, soon to be renamed
the federal council for the advancement of Aborigines and Torres Strait Islanders
(FCAATSI) on Mabo’s motion, was considered radical, even by some a communist
front. A conservative anglican clergyman, the dean of the cathedral, the police special
branch, and the ultra-conservative Queensland government decided that this conference
was a dangerous communist front manipulating simple-minded blacks who were
content with their existing lot, and set about demonising it. The Townsville clergy
were advised by the dean not to participate in the inter-racial seminar. Some
immediately withdrew, including all roman catholic nuns and priests. Others joined
because they either thought the project was too important to ignore or believed it
should not be left in the hands of left-wing agitators. Others ignored the advice and
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remained involved. Just before the seminar, a new catholic bishop, Leonard Fawkner,
was appointed and a mini-flood of priests and nuns in support of the seminar heralded
a new age in the diocese.
OPAL Queensland, based in Brisbane, ordered OPAL Townsville not to
participate in the conference, a directive which was ignored. OPAL Queensland then
placed an advertisement in the local paper stating it was not involved. OPAL
Townsville informed the community OPAL Townsville was involved. OPAL
Queensland informed OPAL Townsville that none of the people involved had
officially applied for and received membership. Although the putative OPAL members
in Townsville now believed OPAL was a government front, all applied for membership,
and, on memory, only one applicant was rejected. No explanation was offered.
The special branch kept us under surveillance throughout. We were sure our
phones were bugged. Margaret Reynold’s home was broken into and our membership
list taken. It was found on the footpath in front of the office of the communist party.
The special branch had struck again. Exciting times indeed in what was then a
sleepy country town. 8
The inter-racial seminar had by this time achieved a momentum of its own and
went on to become such an outstanding success that Charles Rowley, one of the
guest speakers, wrote about it in The Remote Aborigines. 9 Over three hundred black
and white north Queenslanders discussed the reports that the convening committee
produced in such areas as housing, education, employment, health and citizenship,
and outlined future directions.
In the months of preparation for this conference, I met Koiki Mabo, as did
Margaret (now Senator) Reynolds, Henry Reynolds, Kenneth Orr and other
members of Townsville’s fledgling academic community. Some of us remained friends
with Mabo from this time and entered into an on-going process of cross-cultural
learning similar to one which Mabo had experienced in the upper grades of primary
school with school teacher, Robert Victor (Bob) Miles, the only white teacher Mabo
admired from his childhood on Mer. Miles had taught Mabo English and widened
his understanding of ‘white-man culture’, while Koiki had taught Miles the language
of the eastern islands of the Torres Strait, Miriam.
As I look back on Mabo’s life, it seems to me that his apprenticeship as an
activist was now complete. Once again the Queensland government fanned the flames
of his militancy. In 1973 Mabo was employed at James Cook University as a gardener
and groundsman. Henry Reynolds and I had an oral history project funded by the
ARC and commissioned Mabo, our first research assistant, to collect oral history at
Thursday Island, Murray Island and Yorke Island where he had been assistant teacher
to Bob Miles. The chairmen of Yorke and Murray Islands both refused Mabo
permission to visit and repeated the refusal emphatically when Mabo repeated the
request. 10 Mabo was convinced that the Queensland department of Aboriginal and
islander advancement had orchestrated the response, a conclusion with which I agree.
To the Bjelke-Petersen government, Mabo was non-christian, a radical, a friend of
reds, a stirrer who had already been publicly identified as the originator of the interracial
seminar, and this image would have been communicated to the devoutly christian
islander leaders. 11 At this very time Mabo was openly expressing his hostility to the
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conservative Queensland government over the ‘border issue’ when the
commonwealth searched for a redefinition of the border between Australia and
Papua New Guinea as that country moved towards nationhood. Mabo sent a telegram
from Thursday Island to George Mye, chairman of Darnley island, warning him not
to trust Bjelke-Petersen. 12 In October 1974, when his father, Benny Mabo, was ill,
Mabo was granted permission to visit by the chairman of the council but only on
condition that he did not involve himself with ‘political affairs’, a precondition he
found infuriating and insulting. Benny Mabo died on 11 February 1975 before Mabo
could make the journey. 13
During this period, there occurred two other events which pointed Mabo along
the path to the native title claim. The Queensland government, with the consent of its
advisory council, decreed that islanders on the mainland ‘would have no say’ with
regard to the border issue. This made Mabo very angry. He always saw himself
returning to the Torres Strait despite his lengthy absence. 14 The other important
event that was to have Australia-wide significance came about by accident: Mabo
learnt that he did not have legal title to his land on Murray island. At some time
between 1973 and 1975 Koiki Mabo, Henry Reynolds and I had met in Reynolds’
study to have lunch. Mabo told us of his land holdings on Murray Island, and
Reynolds and I had the unpleasant responsibility of pointing out to him that the outer
Torres Strait Islands were Crown Land. Indeed I pointed out to him that they were
designated on a map we had of the area as ‘Aboriginal Reserve’. We both remember
how shocked Koiki was and how determined that no-one would take his land away
from him. Subsequent events indicate that this was not mere bravado. 15
From this time on Mabo spoke publicly about the need for the Torres Strait
Islands to be self-governing and autonomous, free of Queensland government control,
but part of the commonwealth. He used Norfolk Island to indicate the kind of model
he would like to see developed, but included ‘the right to secede’. 16
Mabo also took the opportunity to spell out land ownership and inheritance
laws on Murray island specifically and in the Torres Strait generally whenever the
opportunity arose. Such an occasion was the 1981 conference in Townsville, ‘Land
Rights and the Future of Australian Race Relations’, co-sponsored by the
Townsville treaty committee (Mabo and I were co-chairmen) and James Cook
University students’ union. Koiki Mabo delivered an address, ‘Land Rights in the
Torres Strait’, which clearly spelled out his understanding of land ownership and
land inheritance on Murray Island. With this understanding clearly established he
repeated and elaborated upon his proposal for an autonomous region for the Torres
Strait, within the commonwealth but separate from Queensland, which would retain
Torres Strait Islander customary law. Once again he referred to the Norfolk Island
model. Barbara Hocking, then a Melbourne barrister, delivered a paper proposing
that an Aboriginal group should consider a high court challenge and detailed the
international and Australian legal history which she believed would support such a
claim. She also sketched in many of the major issues that would confront such a
legal challenge. The Murray islanders returned from a group discussion determined
to take up the challenge. Eddie Koiki Mabo became the leading litigant. 17
In May 1982, Mabo and Others v. The State of Queensland commenced in the
high court and the struggle of Mabo and the four other Murray Island litigants became
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part of a legal and political battle that saw the Queensland government attempt to
subvert the high court by passing the coast islands declaratory act in 1985. It aimed
to extinguish retrospectively any native title which may have existed before annexation
to Queensland by the British government. This legislation was challenged in the
high court and declared invalid by a majority of only 4 to 3 on the ground that it was
inconsistent with the 1975 racial discrimination act. In November 1989 the
Queensland supreme court, under Judge Moynihan, recommenced its hearings at the
request of the high court into the statement of facts with regard to the claims of the
surviving litigants, Edward Koiki Mabo, the Reverend Dave Passi, and James Rice.
Moynihan delivered his judgement on 16 November 1990 and in May 1991 hearings
resumed in the high court. On 3 June 1992, by a majority of 6 to 1, the high court
ruled in favour of Mabo in Mabo and Others v. The State of Queensland (No.2), and
broadened the decision to acknowledge that native title had existed among all Torres
Strait islanders and Aboriginal people ‘since time immemorial’, thus destroying the
legal doctrine of terra nullius on which Australia had been colonised. Mabo had
died in Brisbane while being treated for cancer on 21 January 1992. The last words
he uttered were: ‘land claim’.
As he lay in his hospital bed, he reflected in his diary on his life, realising he
might not live to know the high court decision:
I thought about the struggle I have been through over the past years since 1963 to
1991 or at the beginning of 1992, while the rest of Black Australia awaits with me
for the high court decision to be brought down at any time. Or would it be in time
for me to receive it and make further decisions on the outcome of that decision —
for further actions if this decision is not favourable If I am not around I want my
children to work closely with my lawyers and other advisors to plan future actions.
Working closely with other plaintiffs is also important. I also thought about how
my wife, the most important person in my life, has stuck to me over many hardships
and hurdles in my life, but somehow we made it, perhaps better than others. To me
my wife has been the most adorable person, a friend closest in my life, a most
wonderful lover, and we loved every minute of our lives together. 18
Mabo’s calm acceptance of his role in Australian history, his devotion of his family,
his joy in his marriage and his desire to continue working with the other plaintiffs,
Dave Passi and James Rice, clearly indicate the confidence Mabo had in his cause,
which never wavered throughout his ten year struggle, and the strength of his own
feeling of self-worth. Yet it was only a year previously that he had been publicly
denigrated before his own people and the whole of Australia as a self-seeking,
untrustworthy opportunist who had no claim to any land on Mer.
Mabo had been regarded with hostility by members of the white Australian
culture on a couple of occasions and rode out the opposition. This was especially the
case with regard to the creation of the Black Community School. 19 As a member of
black organisations on the mainland he was sometimes a stormy petrel, in conflict
with some fellow members and supported by others. Again he seemed to take this in
his stride, confident, as always, that he was right. However, the issue closest to his
heart and the one for which he made the greatest sacrifices was the one that gave him
the most humiliating and public slap in the face. In his 1990 report to the high court
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of Australia to determine the factual basis of the claims made by Mabo and the
other two surviving Murray island claimants, Justice Moynihan of the supreme court
of Queensland declared Mabo an unreliable witness whom he would not believe in
any matter associated with Mabo’s own self-interest unless there was other
accompanying evidence. Mabo’s claims to inherit land on Mer were denied totally.
Jeremy Beckett (anthropologist and expert witness called by Mabo’s lawyers) has
given a balanced response which rejected Moynihan’s major conclusions: that Mabo
was not the adopted son of Benny and Maiga Mabo; that Mabo’s own land claims
were invalid; and that Mabo’s explanation of Meriam inheritance custom was selfseeking.
Beckett pointed out that Mabo’s claims were in keeping with Meriam
custom. 20
I can add to Beckett’s analysis, information that was not available to Moynihan.
I met Koiki Mabo just after his biological father, Robert Sambo, died in 1972. When
I expressed my sympathy, he told me he was having difficulty understanding his own
reaction because he did not think of Robert Sambo as his father. Benny Mabo was
his father.
In 1994, Bonita Mabo gave me copies of two letters she had received in 1960
from Koiki Mabo’s mother, Maiga Mabo. Both are addressed to Bonita Mabo as
‘Dearest Daughter in Law’. In the first, which predates the birth of Koiki and Bonita
Mabo’s first child, Edward Benjamin Mabo, Maiga Mabo ‘roused’ on Koiki and
Bonita for not writing to her and her husband, Benny. She continued:
Now you go in the month of September to hospital. I’m so glad to hear this from
my head to foot because he [Koiki] is only son for us ... If you finish from hospital
you tell E.K. Mabo to bring that child and come to home. We wanted look our
Grand Child and we want look you too Mrs Mabo. 21
In the second letter, Maiga Mabo rejoiced because ‘our Grandson was born. I’ll
read your letter to Dad’. The letter is signed ‘Your Mum Mabo’. 22 The second letter
concludes: ‘I am your Mam, Ama [Mother] Mabo’. Neither of these letters was
made available to the Moynihan Inquiry.
An allegation that he had never been happy to be Sambo brought a response
that illustrated the gulf between the western concept of adoption and that of the
islanders:
This is obviously not true at all. I am equally proud of both my biological parents
and my adoptive parents as well who were responsible for and [were] designing my
future which I am very proud about. 23
Justice Moynihan was requested by the high court in 1986 to examine the factual
basis of the case put by the three surviving litigants. His major conclusion was that
a form of native title, a code of custom regarding land ownership and inheritance,
had existed prior to European colonisation and was believed by the islanders to exist
still. It was up to the high court to decide if native title persisted in Australian law
after colonisation, that is, after the assertion of British sovereignty. 24
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Justice Moynihan had also to proceed to adjudicate on the particular claims of
the three surviving litigants. Because of the complexity of islander custom with
regard to inheritance, there were nineteen counter-claims by Meriam relatives to
Mabo’s thirty-six claims. Seventeen, however, were wholly uncontested, and thirteen
only partly contested. Each person asserting ownership of parcels of land seemed
genuinely to believe in his or her case and justified it, pointing out how the disputed
land had passed from one ancestor to another, going back in some cases over a
hundred years to justify a claim. Although genealogies were submitted, much of the
evidence was based on oral testimony of how a parent, grandparent or more remote
ancestor had said the land was to be distributed. Such claims attempted to take
account of direct biological or blood descent, the bewildering frequency of Islander
adoption and fostering of closely related children (and the difference these two
processes could make to inheritance), the legitimacy (or illegitimacy if not adopted)
of the children, and the wishes of the landowner in bestowing his or her land. This
could be done by having a written will registered with the Murray Island council
(Benny Mabo had died intestate) or by a ‘say’, an oral expression of intention to
some relative or relatives who would report it as each had understood the intentions
of the landowner. And then, of course, boundaries continued to be a great source of
dispute as they had been in Melanesian societies before European intrusion.
All of these issues were raised in the supreme court of Queensland in the dispute
over what was or was not land inherited by Koiki Mabo. Needless to say, land
disputes are still occurring in the Torres Strait today. In such disputes, past and
present, participants claim all of the land they believe they own, regardless of how
unreasonable this may seem to the other islanders in the dispute, whose claims will
of course seem equally unreasonable to their opponents. Even on his death-bed
Koiki Mabo asserted his claim to the lands that were under dispute in the Moynihan
inquiry. I personally found the sincerity of my dying friend convincing and very
moving. To date his land claims have not been rejected by the Murray Island council.
Indeed, he is buried at Las on land whose ownership was under challenge. I have
some sympathy with Justice Moynihan as he did not have the luxury of hindsight nor
indeed all of the relevant information. However, to someone who knew Koiki Mabo,
Justice Moynihan’s complete rejection of his claims and his assessment of Mabo’s
character seem harsh indeed.
The high court gave up the battle to determine which particular claimant owned
which particular pieces of land. On 3 June 1992 it declared that, throughout Australia,
native title had existed before European colonisation, ‘from time immemorial’, and
that it still existed unless it had been subsequently extinguished by the sovereign
state, in this case Queensland, by land legislation that disposed of it freehold, or
through leasehold title which was incompatible with the pre-existing native title.
The high court decided that where ‘native title’ still existed it was up to ‘the native’
to determine who owned the land, as indeed Justice Moynihan had recommended in
his report. This the Meriam had been doing ‘from time immemorial’.
On 3 June 1995, three years to the day after the high court judgement, Mabo’s
tombstone was unveiled to commemorate his life and achievements. To the Meriam
community it also marked ‘the end of sorry’, the end of the grieving period, an
affirmation of life and relationships. This had been preceded by a celebration of
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Mabo’s achievements in the city mall and followed by a huge feast and islander
dancing at night. During that night his grave was desecrated. Eight swastikas had
been sprayed in red paint on the black marble tombstone and ‘Abo’ sprayed twice.
Red paint had been sprayed elsewhere around the grave to disfigure it. The bronze
image of Mabo’s smiling face had been removed without the bolts holding it being
cut or the marble damaged. Those responsible have still not been found nor the
bronze face of Koiki Mabo recovered.
Mabo’s family and friends were devastated by this demonstration of obscene
hatred, as were many people throughout Australia. Most of Townsville’s white
community were shocked that this could happen in their city. In September 1995,
Mabo’s body was reburied at his village, Las, on the sacred hill of his ancestors,
and on the following day his tombstone was again ritually unveiled.
Endnotes
* The autobiographical material in this paper is based on taped interviews I made with Edward
Koiki Mabo and on his personal papers, which have been placed in the National Library, MS8822:
‘The Papers of Edward Koiki Mabo’. The entire collection is restricted until January 2005. A
fuller account of Mabo’s life can be found in Noel Loos and Koiki Mabo, Edward Koiki Mabo:
His Life and Struggle for Land Rights, St Lucia, 1996. Some excerpts from this book have been
used in this paper.
1 Mabo and Others v. The State of Queensland (May 1982) and Mabo and Others v. The State of
Queensland (No.2) (1992).
2 Eidi Papa (George Mye), ‘Who Was That Boy’, cited in Noel Loos and Koiki Mabo, Edward
Koiki Mabo: His Life and Struggle for Land Rights, St Lucia, 1996, p. vii.
3 Jeremy Beckett, The Torres Strait Islanders: Custom and Colonialism, Sydney, 1987, p. 112.
4 M. Josephine Mackerras and Dorothea F. Sanders, Malaria in the Torres Strait Islands, South
Pacific Commission, Noumea, New Caledonia, 1954. I am grateful to David Fitzpatrick,
Queensland Institute of Medical Research, for this paper. Mabo is not mentioned by name.
5 Cited in Loos and Mabo, op, cit., pp. 168-9.
6 Ibid., pp. 126-7.
7 Workers Weekly, 24 September 1931. See also M. Franklin, Black and White Australians: An
Inter-Racial History 1788-1975, Melbourne, 1976, p. 134.
8 Kenneth Orr (ed.), We the Australians: What Is To Follow the Referendum: Proceedings of the
Inter-Racial Seminar held at the University College, Townsville, 2nd and 3rd December, 1967,
Inter-Racial Citizens’ Committee, Townsville, 1968, pp. 1-2. I have also added my own
recollections as a member of the Convening Committee.
9 C. D. Rowley, The Remote Aborigines, Victoria, 1972, pp. 106-8.
10 Edward Koiki Mabo, Report of a Visit to Thursday Island, April 1973. On audio cassette, in
possession of the author.
11 J. Beckett, ‘The Murray Island land case and the problem of cultural continuity’, in W. Sanders
(ed.), Mabo and Native Title: Origins and Institutional Implications, Canberra, 1994, pp. 19-23.
12 Ibid., Mabo read his telegram into the tape. See J. Griffin (ed.), the Torres Strait Border Issue:
Consolidation, Conflict or Compromise Townsville, 1976, pp. 34-35.
13 Chairman, Murray Island Council, to Edward Mabo, 17 Ocotber 1974. In possession of Bonita
Mabo, Townsville.
14 Discussion with George Mye, Darnley Island, 19 May 1997. Mr Mye was at that time chairman
of Murray island council. He was not present when the decision was made, only became aware
of it from a newspaper report, and said he did not support it. Mabo rang him to express his angry
opposition to the decision.
15 Discussion with Henry Reynolds, 3 August 1994.
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Eddie Mabo
16 Griffin, The Torres Strait Border Issue, pp. 34-5. Mabo had mentioned secession from Queensland
and the Norfolk island model before this 1975 conference.
17 Eddie Koiki Mabo, ‘Land rights in the Torres Strait’, pp.143-48 and Barbara Hocking, ‘Is might
right An argument for the recognition of traditional Aboriginal title to land in the Australian
Courts’, pp. 207-22, in E. Olbrei (ed.), Black Australians: The Prospects for Change, Townsville,
1982. See also Greg McIntyre, ‘Aboriginal Land Rights — a definition at Common Law’, pp.
222-23 and ‘Resolutions 20-24’, pp. 247-48.
18 Koiki Mabo, Diary, 1992, Mabo Papers. This entry was made in the Townsville general hospital,
in the first two weeks of 1992 before Koiki went to Brisbane for radium treatment. It is entered
under 31 December 1991, in one of the introductory pages to the 1992 Diary.
19 Morris, The Black Community School, pp. 9-11. See Townsville Daily Bulletin, 14, 17, 19, 21
September 1973; 6 April 1974. Mabo designed the Black Community School with the assistance
of his friend Burnum Burnum. Mabo was director throughout its existence from 1973 to 1985.
20 Beckett, ‘ The Murray Island land case and the problem of cultural continuity, op. cit., pp. 19-23.
21 Maiga Mabo to Bonita Mabo, present date [prior to September 1960], Box 2, File 1, MS8822,
National Library: ‘The Papers of Edward Koiki Mabo’. I have made some minor editorial changes
to the texts of both letters. It is customary for Torres Strait islanders of these generations to
address each other quite formally in English.
22 Maiga Mabo, Murray island, to Bonita Mabo, 23 November 1960, Box 2, File 1, MS8822,
National Library: ‘The Papers of Edward Koiki Mabo’.
23 Koiki Mabo, Diary, 5 May 1989, Mabo Papers. I was introduced to Marinda Mareko (nee
Mabo) in Townsville on 6 August 1995 at the National Library’s launching of Guide to the
Papers of Edward Koiki Mabo. She told me proudly, without any questioning or prompting from
me, that she was Koiki’s sister. It was a very brief, informal conversation.
24 Writ No.1594 of 1986, supreme court of Queensland, Justice Moynihan, Brisbane, between
Eddie Mabo, David Passi and James Rice, Plaintiffs, and state of Queensland and commonwealth
of Australia, and Mabo v. Queensland and the Commonwealth, supreme court of Queensland,
Moynihan J., 16 November 1990, Determination Pursuant to Reference of 27 February 1986 by
the high court of Australia to hear and determine all issues of fact raised by the pleadings,
particulars and further particulars in high court Action B12 of 1982.
119