I've been reflecting on the Mabo decision and what it represents for me - a non-Indigenous Australian property lawyer. To me, the case is about subverting the legal system; it's about representations of identity and how we invest power in the law to do so; and it's about creative thinking - particularly creative legal thinking.
Subverting the Legal SystemOne of the things I love about the Mabo decision is that it shows how the existing legal system can be used against itself
The case put by the Meriam people in Mabo, using the common law, subverted the legal conceptual framework - of land ownership - that had previously been applied in Australia in favour of the settlers. In Mabo the applicants sought to use this dominant system to further their own ends. There was no suggestion that in using the common law the applicants had accepted or internalised the values and culture of the dominant group. In legal argument, the applicants did not seek to challenge the sovereignty of the dominant group, but sought to stand alongside the dominant culture within its own broad framework.
Importantly also, the court did not seek to absorb the traditional law and custom of the Meriam people: it did not destroy their 'native title' but recognised it as a separate system. As a result of their action, the Meriam people became a people whose own laws were recognised by the common law.
In this way, I see the Mabo decision representing a powerful dignity. Dignity of those who persisted to bring this case, as well as dignity in the common law - a system with the capacity for imagination and flexibility and justice.
Representations of IdentityThe Mabo decision highlights also the law's capacity to create identity. I've written about this before in terms of women, but in this case it's about identity in terms of culture. In this domain, (international) law embodies a fiction that literally renders people invisible to justify sovereignty (terra nullius). This translates also to a common law (domestic law) principle that pre-Mabo justified Crown ownership of land to the exclusion of the traditional owners.
These doctrines and principles embody a European view of culture that negates the capacity of traditional cultures to support connection to land. The power of the Mabo decision lies partly in its recognition that Aboriginal and Torres Strait Islander cultures do have capacity to support connection to land in a way that is recognisable at (Anglo-Australian) law.
Yet the power we invest in the law to validate cultural expression of land connection is a double-edged sword. We celebrate Mabo as the positive side of this - that the law validated the culture and connection to land of the Meriam people.
But the law continues to tell Aboriginal and Torres Strait Islander Australians that it will not recognise their connection to land. The Yorta Yorta High Court decision is a leading example of this. In this case, the traditional owners were not able to satisfy the tests to validate their claim to land.
It is important to celebrate these important victories, but also to be wary of leaving ourselves vulnerable to the power of the law to cut us down.
Creative Legal ThinkingFor lawyers, the Mabo decision represents a high water mark in legal practice and legal thinking and scholarship. The decade or more of preparation shows us that persistence is a hallmark of good lawyering.
Most importantly though, and grounded on extensive preparation, is the capacity to think outside what might seem possible. The elegance of the argument in Mabo cannot be disputed. Reading the cues in the Gove Land Rights Case and Coe v Commonwealth, leaving aside the tempting but unproductive arguments about sovereignty and focussing on creative legal solutions resulted in the inspired decision. As Kirby J said:
It is advocates, as much as judges, who shape the destiny of the common law. By their imagination, learning, courage and forensic skills, advocates create the agenda and map the course of the greatest legal developments.These words were said of Ron Castan QC, one of the counsel in Mabo: 'widely credited with shaping the High Court's decision in that case' and 'without [whose] vital contribution [along with Eddie Mabo] ... the Mabo cases would never have survived their ten-year torturous course - let alone succeeded'. It is instructive for law students - and indeed all lawyers - to consider Castan's practice and what moved him to engage so consistently, passionately and creatively in the fight for justice and human rights for Aboriginal and Torres Strait Islander Australians and indeed for all.
For lawyers, it is necessary to be intelligent, learned, scholarly skilled - but it is not sufficient. Kirby J points out that for Ron Castan QC, 'his was a spiritual journey of love unbounded'. It is this quality that will enhance the capacity for lawyers' creative engagement in the law, and their capacity for embodying justice - and in the Mabo case, of living reconciliation.
Not a bad aspiration for lawyers, don't you think?