Solicitor Greg McIntyre,barrister Ron Castan,Eddie Mabo and barrister Bryan Keon-Cohen at the High Court of Australia 1991.
The system treated Indigenous peoples as if they did not exist. Australia was regarded as terra nullius,meaning an empty continent in which the land belonged to no one. It was a convenient approach because it permitted the British settlers to strip Aboriginal people of their lands without compensation.
Mabo changed this. After a protracted 10-year struggle,Eddie Mabo succeeded against the odds in convincing the High Court that Australian law was based on racial discrimination and false understandings. The court instead set down a radically different perspective of Australia's first peoples.
As Justices William Deane and Mary Gaudron stated,it may be"accepted as beyond real doubt or intelligent dispute"that the Australian continent in 1788 was occupied by up to a million or more Aboriginal people. They lived under local laws and customs that were"elaborate and obligatory". It was also accepted that the boundaries of their tribal lands were"long-standing and defined".
In short,despite centuries of denial,Aboriginal peoples had rights and interests that could and should be accorded protection under the common law. The court did so by recognising the continuing rights of the Indigenous people to their ancestral lands and waters.
The Mabo decision was handed down on June 3,1992 in the High Court's grand courtroom in Canberra. I was there as a young associate working for a judge,and saw the jubilation and relief of Aboriginal peoples whose rights had been recognised after more than two centuries. This though was tinged with sadness as Eddie Mabo had died just months before.
Prime minister Paul Keating responded to the court's decision by seizing the opportunity to legislate for a national native title act. It engendered a long-running,and often bitter,political debate that culminated in 1998 in prime minister John Howard's 10-point plan. In the words of then deputy prime minister Tim Fischer,this sought to pour"bucket-loads of extinguishment"on the native title rights of Indigenous Australians.
The Mabo case gave rise to great expectations and fears. Some people produced maps showing how swathes of the Australian continent would be transferred into Aboriginal hands. Others foresaw that the courts would recognise further Aboriginal rights. None of these has occurred.