How Indigenous Australians Are Still Fighting for Their Lands 25 Years After a Landmark Court Case

Eddie Koiki Mabo couldn’t believe his ears. It was 1982, and two professors at Townsville, Australia’s James Cook University, where Mabo worked as a gardener, had just told him he had no right to his native land. Though he’d lived on the mainland for years, his deep connection to Mer Island, one of the Torres Strait Islands off Australia’s northeast coast, never waned. But as Mabo talked about his home, professors Henry Reynolds and Noel Loos realized that Mabo thought Mer still belonged to him and his native community.

No, they haltingly told him—under Australian law, it’s government land. When Captain Cook planted a British flag on the continent’s east coast in 1770, he claimed the lands as if no one was there. The entire country was declared terra nullius: “belonging to no one.”

Mabo was shocked. Thousands of years living on these lands and indigenous people have no rights to them? He joined with four other plaintiffs to challenge the terra nullius doctrine in court. After a ten-year battle, on June 3, 1992, the High Court of Australia recognized what had always been obvious to the First Australians: They were there first, and they have the right to reclaim the lands they had occupied for 50,000 years. Those rights were cemented in the Native Title Act the following year.

The landmark decision—issued 25 years ago this month—changed the lives of Australia’s Aboriginal and Torres Strait Island people. (While both are indigenous to Australia, they have different ancestry.) For cultures so deeply intertwined with the land and sea, reclaiming traditional turf—including hunting areas, rock art sites, fishing grounds and ceremonial lands—meant becoming whole again.

“Having that recognition is very dear to my heart,” says Benton Creed of the Wulgurukaba indigenous group, who recently registered a native title claim for lands near Townsville, Queensland on behalf of his family and community. “We can make sure the land is looked after.”

That concept of stewardship is central in Torres Strait and Aboriginal law, says Torres Strait Islander hip-hop artist and activist Mau Power. “We are custodians and caretakers of the land. We don’t own the land, the land owns us.”

In the years since the decision, more than 300 claims have been granted across Australia, comprising some 927,000 square miles — 25 percent of the continent. They range from the massive 39,000 square mile Wajarri Yamatji claim in remote Western Australia -- about the size of Kentucky — to the Kaurareg people’s claim on a group of small islands in the Torres Strait that include the spot where Captain Cook claimed Australia for the Crown in 1770. When native title claims overlap cities or other developed areas, a compromise is often struck to maintain existing uses of certain lands. (These lands aren’t reservations—unlike Australian “missions” where some indigenous Australians were forced to live, the claims apply to those lands traditionally occupied by first Australians.)
 

“When we look across this great land, we know that we hold at least 40 percent of this continent, and we hold the beauty of this country,” Aboriginal and Torres Strait Islander social justice commissioner June Oscar, of the Bunuba people, told a crowd at the recent National Native Title Conference in Townsville. “And we hold the aspirations for our future.”

Mabo never enjoyed the rights his case secured; he died of cancer five months before the High Court handed down his victory. His daughter, Gail Mabo, delivered an emotional tribute to her father at the gathering. “Mabo is the strength of what native title is, and you can never forget what my father did, because it’s not just what my father did but how he did it — how he rallied all those people and brought them together as one.”

Today, a quarter-century after the Mabo decision, almost every public event, from academic talks to concerts to political protests, begins with a “Welcome to Country”—an Aboriginal hospitality ritual that invites guests in and pays respects to traditional owners of the land through the ages. (When delivered by a non-indigenous Australian, it’s called an “Acknowledgement of Country.”)

“It is a living culture, and just reminding people of that history and culture is part of that acknowledgement of country,” says Justin Mohamed, chief executive officer of the nonprofit group Reconciliation Australia. While it’s not required by law, it’s become increasingly common throughout Australia over the years, he adds.

Yet laying claim to that country has proven far more fraught than anyone expected.

“The whole process is very draining,” says Creed. Applicants have to provide detailed documentation proving their historic connection to, or occupation of, the lands they’re claiming to the courts. That means hiring archaeologists and lawyers to track down historical records and verify claims.

For the “Stolen Generations”—those taken from their families and homelands as children to be “acclimated” into Australian society—the documentation requirements effectively shut them out of the very homelands they were taken from.

“The native title process requires us to prove our ongoing connection to the land, despite the forcible removal of generations of children,” says Mick Dodson, a central figure in the long struggle for indigenous rights, at the conference. “This causes a unique form of trauma and pain.” 

And while native title rights are enshrined in Australian law, they’re not always upheld. A court decision in the early 2000s held that the rights of ranchers and farmers leasing lands in the state of Western Australia prevailed over the native title rights of the Miriuwung and Gajerrong peoples. The court agreed with the plaintiffs that certain "existing interests," like grazing, can “extinguish” native title claims.

Indigenous groups with strong ties to the sea have had special difficulty in securing and defending their customary rights. While the Native Title Act was later amended to specifically confer sea rights, those claims can put indigenous groups at odds with the commercial fishing industry.

“The struggle for sea country has been just as hard as the original battle,” acknowledged Nigel Scullion, Australia’s minister of indigenous affairs, during a speech at the conference. “The artificial distinction between land and saltwater country should not exist.” The Commonwealth government, he announced at the meeting, will dedicate $20 million to help detangle those rights and support indigenous fishing businesses and other economic opportunities.

But it will take more than funding to fully right the wrongs of the past, Dodson says.

“The human suffering of the indigenous people in this country cannot be assuaged by the opening of the purse,” he told a crowded auditorium. “It can only be assuaged by the opening of their hearts.”

That's what many had in mind at a different First Nations conference near Uluru. There, indigenous groups and officials came together to propose a number of reforms, including enshrining Aboriginal and Torres Strait Islander rights in the Australian Constitution and establishing an indigenous advisory group to weigh in on government decisions. The groups issued a "statement of the heart" that calls for "a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.”

“It was probably one of the most empowering meetings I’ve been involved in in my 26 years working in Aboriginal affairs,” Mohamed says. “We’ve got some strong agreement and support. I walked away really inspired.”

Power, for his part, is betting on Australia's youth. He sees signs that over the next 25 years, the next generation will make sure the promise of Mabo’s unlikely victory will be realized.

“Just going around traveling, I’ve seen that the young children are more engaged, and even people of all walks and cultures are expressing interest,” said Power after his performance at the Mabo Day Festival on the anniversary of the High Court’s decision.

Indigenous youth leaders carrying the Mabo torch are finding encouragement in high places. In late May, during Australia's Reconciliation Week, 50 Aboriginal and Torres Strait Islander youth leaders -- Indigenous Youth Parliamentarians -- spent a week in Canberra, the Australian capital, getting schooled in the ways of politics. 

"Our future is bright and I can see how we can quickly grow from five indigenous members of our parliament to many more, given the talent, the passion and the energy of the people here today," Australian Prime Minister Malcolm Turnbull told them. "We look forward to one day soon to the first Aboriginal or Torres Strait Islander Prime Minister. What a great moment that would be." Since Mabo’s victory, eight indigenous people have served in Parliament—up from just two in the years leading up to the landmark case.
 

On June 3, the anniversary of the Mabo decision, Power released a tribute to Eddie Mabo. “Koiki" —Power’s reimagining of a tune co-written by Gail Mabo several years ago — tells the story of Mabo’s journey from local activist to national hero and his enduring legacy. 
 

As the deep sea tones of the Bu shell fade, he raps:

His story was one about birthright

History will remember this great fight