Monday, June 28, 2004
Terra nullius and Henry Reynolds
John Quiggin has a post on this piece of odiferous shiite by Christopher Pearson.
I haven't read the Bain Attwood article that Pearson refers to, which supposedly calls into question Henry Reynolds' whole historiography and oeuvre. What seems clear from Pearson's summary of it though, is that Reynolds's chief sin has been to write "juridical" rather than "academic" history.
As it happens, the particular fault for which Pearson turns his blowtorch onto Henry Reynolds - the origin of the terra nullius doctrine in Australian law - is one which I've researched in depth. I reproduce my (drum roll, please) seminal article here "The Gove Land Rights Case: Hard cases make hard law" below. (NOTE: It's mostly plain text (i.e. names of cases and quotes are de-italicised - manually re-doing the footnotes was labour enough!)
Otherwise, Pearson's other noted Henry Reynolds antagonist – Tasmanian author and newly-minted PhD, Michael Connor – seems a spectacular non-entity. The late 50-something (I’m guessing) Connor’s main claim to fame in life so far seems to have been his dabbling in amateur theatrics in Hobart, and compiling a book of some saucy old newspaper columns. Despite such an undistinguished life, Connor sees fit to write of Reynolds’ The Law of the Land:
What a muddle, what a mass of eloquence has sprung from it. Books, articles, sermons, passions, bitterness, self-righteousness, HSC courses, university courses: all from 10 1/2 lines in a Penguin paperback.
I think that it’s safe to say that Michael Connor’s entire life and oeuvre will never amount to even a single line in a Penguin paperback.
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THE GOVE LAND RIGHTS CASE: HARD CASES MAKE HARD LAW*
Published: (1994) 1(1) Canberra Law Review 97
This is one of those cases which occur rarely but which, when they do occur, test the genius of the British common law.
- Edward Woodward QC, senior counsel for the plaintiffs in
Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1)
I Introduction
A repeated and vociferous criticism of the High Court's recognition of communal native title in Mabo and ors v State of Queensland [No 2] (2) ("Mabo") is that it represents "new" law, and, as a secondary point, it comes after too long a period of authoritative legal pronouncement on the point to be legally credible (3). Three general types of rejoinder can be made to this.
The first answer involves the application of trite and formal jurisprudence: naturally the common law in its evolution must occasionally do what could be termed making new law. Consistent with the paradigm of the common law's moving at glacial pace is the time lapse of more than one and a half centuries between the ostensible non acceptance of the existence of communal native title and the handing down of Mabo in 1992 (4).
The second general answer to the Mabo case being "new" law is a deconstructionist one: the case is simply one of its time. Quite probably then, it would have been decided differently at an earlier time. At a very functionalist level, there has been a significant and relatively recent change in the law. The coming into operation of the Racial Discrimination Act (C'th) on 31 October 1975 operates as a legal watershed date for the broader outcome of the Mabo case; any recognition of communal native title prior to this date would have been a hollow one, as it would not seem to have rendered even future Crown expropriation of communal native title compensable (5). Another significant legal change was the cumulative effect of developments in the 1980's which gave a plaintiff international legal recourse for breaches of human rights obligations for the first time (6). Other suggested ingredients of the deconstructed zeitgeist of the Mabo case are: the mass anti-bicentenary protests, followed by the Prime Minister's Barunga Statement in 1988; the fall of the National Party government in Queensland in 1989 (so changing the underlying identity, and to a lesser extent, the sympathies of the main defendant (7) in the case) and even a best-selling book, for its genre: Henry Reynolds The Law of the Land, first published in 1987, which brought into the broad arena the gist of the reasoning that was to be accepted by the Mabo majority judgements. In this process of deconstruction, there is a built-in rejection of that case's ratio being either capriciously new or suspiciously belated.
But both the ultra-orthodox first answer - jurisprudence - and the rather legally unorthodox second answer - deconstruction - are arguably overly stretched, extreme rejoinders to the criticisms of Mabo. Certainly they are mutually exclusive models of the law. In the middle ground between them there is a third, hybrid approach: the deconstruction of precedents in the case, the old law, rather than the present case. One particular precedent will be the focus here, one which Mabo overruled: the Gove Land Rights Case (8).
The third answer to criticisms of the Mabo case being "new" law is thus to concede them in part; in proportion to the importance of the precedent that was overruled. The legal weight of the overruled Gove ratio - that Australia was and remains terra nullius (9) - was far greater than its textbook legal status, as a mere single Supreme Court judge's decision. Even for Mabo case critics not legally trained, the Gove case had a palpable solidity: it both stood for a considerable length of time and was sufficently well known to be "famous" (10), or "infamous" (11). Over time, most legal writers on Gove came to concur that Gove was wrongly decided (12). Yet this seems to have entailed a dubious tactical choice of approach: Gove was surely best dealt with summarily, as inconsequential law. The outcome was that Gove became anything but inconsequential law, and so the perjorative epithet "new law" does indeed stick to the Mabo case. This label can, however, be effectively removed by the relabelling of Gove.
Gove was a hard case; it was, viewed from almost any angle (13), hard law. Successfully overcoming a hard case, as the Mabo case did, does fairly raise criticisms of "new" law, unless the scale and methods of the endeavour in so doing are recognised. To an extent, the High Court shied away from this sort of transparent decision making in Mabo, for reasons which underscore the almost impenetrable hardness of Gove.
Whether, and to what extent the Mabo case was "new" law thus depends on the deconstruction of Gove, which will occupy the remainder of this article. The particular criticism of the Mabo case being belated can be more shortly answered here. Gove was, of course, the first Australian case to consider the possible existence of communal native title. Hence, in the overall legal scheme of two centuries, the Mabo case was only a tad later than Gove. Nor was Gove itself suspiciously late (14); it was only in the 1960's that the first significant acts of dispossession of the local Aborigines occurred (15).
II The Power ...
Justice Blackburn's 263 page decision in Gove was handed down in Alice Springs on 27 April 1971. In probably the first comment in the legal press on the case, the July 1971 Australian Law Journal gave a short summary of the case preceded by a one paragraph commentary under the title "The Non-Doctrine of Communal Native Title". The article started with the rather strange comment:
The Commonwealth's expressed wish to have .... a definitive ruling on whether the common law in its application to settled possessions recognises communal native titles has been generously granted (16).
In fact this point was more darkly suggestive than it was obsequious (as it would first seem). The Commonwealth had decided to fund the plaintiffs' case after the plaintiffs' success in the interlocutory Mathaman (17) case (18). It is arguable that the Commonwealth had thus placed itself in a position of conflict of interest (19).
The Australian Law Journal went on to state:
[Gove] stands as a mine of reference material of almost encyclopaedic utility which will, no doubt, be worked over for years to come whenever a question concerning customary native title arises (20).
With the mere allowance of some reading between the lines, the effusive praise of the legal scholarship of Gove was more like gloating; in fact, the plaintiffs' defeat in the case was near total, losing on almost every issue of both fact and law (21). With the additional allowance of some hindsight, the prediction of the case's utility for future cases on communal native title was both ludicrous and wrong. The Mabo case, which commenced in 1982, was the next case that directly raised communal native title (22).
Most other commentators in the proximate wake of the Gove decision did see the outcome as one of legal annihilation, from which very little could be salvaged. "The Lost Dreamtime Forever Lost - A Critique of the Gove Land Rights Decision" (23), the title of a conference paper given in August 1972, seems to sum up the then prevailing mood. From very early on, the only escape hatch from the disastrous result in the case was seen as a High Court reversal of it. As a High Court appeal in the actual case itself was ruled out (24), the hopes of a High Court reversal were, for many years, only vague ones, based on another, but then-inchoate, test case. A constructive insight was made early on that the next test case should preferably not involve "a large, well-financed, overseas mining company" (25), such as Nabalco Pty Ltd (26), as defendant. But there was little, if any, momentum towards a new test case.
The scale, and circumstances, of the plaintiffs' defeat in Gove thus stymied both a High Court appeal (27) and, for a long time, a new test case. But arguably there was at least a hint of irrationality here; particularly in the non-formulation of a new test case. Psychologically, a process akin to a shock reaction had set in; the immediate post-Gove legal fallout was a general numbness (28). The reaction was complicated, and submerged, by the promise of statutory land "rights" (29) by the newly elected Whitlam Government in December 1972 (30).
After the initial shock, and the Whitlam Government's election, the legal analysis of Gove did "move beyond" (31) its rawer emotions, and into colder legal analysis. But it was mostly only in the early, though post December 1972, wake of Gove that the formal legal inconsequentiality of the case, as a single judge decision of a Supreme Court, was confidently asserted (32). Likewise, the obvious point that most of Justice Blackburn's judgement, and especially his finding that communal native title was unknown to the common law of Australia, was obiter dicta, was only forcefully made in the earlier writings on the case (33). There was an aura of legal haplessness, attributable, it would seem, to the emotional fallout from the case, which, though unacknowledged, clouded objective critical analysis. One commentator, apparently insulated from the emotional fallout of Gove, ironically expressed his "shock":
A shock because of the curious mystique that has attached in Australian legal, anthropological and lay communities to the decision in Milirrpum. To the foreign observer it is suprising that a decision of a comparatively junior court should have been regarded as so significant as to almost foreclose further legal action (34).
It was to take a generation before the High Court reversed Gove; over this time, the decision hardened to become a legal shibboleth. "[T]he genius of the ... common law" (35) had been tested and had failed; thus it seemed the law itself had reverted into something primitive and irrational.
The "curious mystique" of Gove thus came to entail much more than its formal status of being both wrong in law and not binding on most Australian courts. Part of the mythology of Gove is that it outraged and impelled into action many people who are now prominent Aboriginal rights proponents (36). Another aspect of the mythology of Gove, particularly at the time of the actual running of the case, was its much-vaunted "novelty" (37). Rather than being a weapon in the hands of the defendants - the "new" law accusation - the novelty of the case generated an excitement, an atmosphere of boyish bravado amongst the plaintiffs' counsel, at least in the early stages. The novelty factor also provided a bridgehead to the later mythologising of the case (38).
At the business end of the case, though, Gove was truly hard law. It has to date largely deflected the "repeated scrutiny, analysis and criticism" (39) it is said to have been put through. If anything, most analysis was, perversely, complicitous with the Australian Law Journal's rash, but first in, comment on the decision as "definitive" (40), by seeking to be equally, albeit contra-, definitive. But all this was merely obiter replicating itself; the piling of obiter upon obiter avoided confronting the emotional fallout from the Gove decision.
The critical treatment tended to lock the Gove case up from the inside, not from the outside, as the artificial discourse of pure law would have a case locked up. The case was evocatively termed a "roadblock" in 1973 (41), but arguably it was a species of an emotional, rather than a legal blockage all along. Balanced against this it must be said that the mainstream academic analysis of Gove was later invaluable for formulating the legal reasoning in the new test case, the Mabo case (42). It was also perhaps even a necessary diversion, as the running of the blockade may have thwarted the plaintiffs' chances in the Mabo case. But in any event, these considerations no longer hold; now that the Mabo case has finally overruled the hard case of Gove, the emotionally charged Gove case can now be exploded, rather than gingerly handled.
III ... and the Passion
The Gove dispute had a relatively swift run through the courts (43) but a much longer history, from which a striking pattern of human passion and vulnerability emerges. The first chapter (in the late 1950's and early 1960's) is largely self contained. Without the knowledge or consent of the local people the Commonwealth had granted two mining leases in the Gove area over bauxite-rich land to large mining companies. Following the presentation of a celebrated bark petition to the House of Representatives, a Senate Committee recommended compensation to the Yolgnu, the local Aboriginal people. Even this seemingly modest achievement had come at great personal cost to one man, however. Edgar Wells, in charge of the Methodist mission at Yirrkala during 1962-63, and who had been very much on the Yolgnu side in a brewing controversy, was forcibly transferred from Yirrkala by church authorities (44). This chapter closed when the second of the original leases was forfeited, in 1966. The second chapter began when, also in 1966, Nabalco Pty Ltd, a new entrant, started developing large scale mining operations in the area. Again this was without regard to the wishes of the local people and without any promises of compensation. Starting from a plea for legal help in a letter from Edgar Wells to the Australian in 1967 which John Little, then a newly admitted barrister, answered, an ambitious test case was decided upon and assembled, in contrast to the political redress tactic tried in the first round.
The plaintiffs' case was sought to be struck out as vexatious by the defendants in proceedings before Blackburn J in March 1969 (45). The outcome was that the defendant's case was dismissed, but the plaintiffs needed to lodge a fresh statement of claim. The reconstituted pleadings were to later be inflexibly adhered to by Blackburn J in the substantive case (46). Later in 1969, a dispute ballooned between members of the plaintiffs' legal team (47). On one side was John Little, one of two junior counsel on the team; on the other, the instructing solicitor, Frank Purcell, and senior counsel Edward Woodward QC. The dispute concerned a settlement proposal the latter wanted to put, that was vehemently opposed by Little. The compromise would have been that compensation would be paid in any event, and an "in principle" declaration of land rights made over the plaintiffs' land, apart from the Nabalco lease, in return for dismissing Nabalco from the case. This settlement would have protected the plaintiffs from the possibility of losing completely and also created a precedent of some value for other Aboriginals. John Little, however, countered that the proposal involved sacrificing bargaining power in return for obtaining an "empty declaration" (48) and compensation "of the beads and bracelets variety" (49). Contentious points, that appear never to have been settled, were whether the settlement offer was made pursuant to the plaintiffs' instructions (50) and whether the settlement offer, which involved renouncing any interest in the Nabalco lease, would at least stop further inroads into the plaintiffs' land. The dispute lead to John Little resigning from the plaintiff's legal team, but the dispute lapsed when the Commonwealth rejected the settlement proposal (51) and John Little rejoined the plaintiffs' legal team as preparations for the substantive case were commencing.
Other subtexts were also unfolding in the meantime; the original first named plaintiff, Mathaman, died in January 1970 (52). The new first named plaintiff, Milirrpum, Mathaman's brother, was arrested in February 1970 (53), on charges of resisting arrest and assaulting a 14 year old girl who was promised to be Milirrpum's wife under Aboriginal customary law (54). Two others, including another plaintiff, Dadaynga, were also charged with resisting arrest. These arrests sparked a near riot at Yirrkala. The accused were represented by John Little. Milirrpum's assault charge was dismissed as trivial, but he was convicted and fined on the charge of resisting arrest. The 14 year old girl was abducted by welfare authorities and taken to Darwin. Shortly afterwards, the Gove case began in the Darwin Supreme Court.
In the last days of the case, heard in Canberra in November 1970, a second flash point occurred between members of the plaintiffs' legal team (55). John Little wanted to argue a new and distinct point, that the abolition of slavery in the British empire in 1834 effected a fundamental change in the legal status of Aboriginal people, and hence 1834 was the date at which the law started to resile from the terra nullius assumption. At the request of other members of Little's team Blackburn J refused to hear Little on this point. The substantive argument Little sought to put has not been vindicated in the Mabo case, but there was arguably a solid case in favour of putting the argument at the time: at least for Little, the plaintiffs' case, at that late stage, seemed doomed to fail (56). Little's retainer was terminated that same day (57). In 1973 Little wrote that the legal profession "disgraced itself" in the Gove case (58).
Other participants in the Gove case and its broader background have stories that echo the motif of John Little's painful experience, stories that were only told much later. Edgar Wells, of whom Little wrote of as being "bruised but not subdued" (59) in 1967 when they first met, wrote a book, published in 1982, about the shameful conduct of his employers, the Methodist Church, towards him and the Yolgnu (60). Also in 1982, an anthropologist, L R Hiatt, whose work was used to cross-examine one of the two expert anthropological witnesses in Gove, W E H Stanner (61), wrote to correct what had been pointed out, by another anthropologist, to be "an almost unbelievable conflict of [anthropological] evidence [that] came entirely from one side [ie the plaintiffs']" (62). Hiatt enclosed a letter he wrote to the plaintiffs' legal team in 1969 (63). He suggested that the contents of this letter should have prevented the conflict of anthropological evidence that eventuated in Gove, a conflict that was highly damaging to the plaintiffs' case (64). A recurring theme across each of Little's, Wells' and Hiatt's experiences is that of the individual's powerlessness in the face of a fait accompli (65). Hard law obviously falls as a crushing weight on some. Arguably, vicariously included amongst those crushed was the mainstream legal psyche, hence affecting the nature and content of academic debate on the Gove case itself.
IV Conclusion
The collective emotional blockage, post Gove, meant the fictional construction of a legal roadblock, that was to be ceremoniously torn down in the Mabo case. For a generation, the post-Gove legal discourse was constructed as a dichotomy between law and morality, or between law and justice; rather than seeing Gove formally as both bad and inconsequential law, or transperently as hard law. The nadir of this was in Justice Deane's judgement in Gerhardy v Brown (66):
Yet almost two centuries on, the generally accepted view remains that the common law is ignorant of ... communal native title ... : see Milirrpum v Nabalco (1971) 17 FLR 141. If that view of the law is correct, and I do not suggest that it is not, the common law of this land has still not reached the stage of retreat from injustice ..." (67).
Many other commentators had expressed essentially the same view (68).
The contrary view, that of taking the hard line against Gove by saying it was unequivocally wrong in law, was taken by Murphy J in Coe v Commonwealth and anor (69), who alone in 21 years of High Court pronouncements said that Gove was "not binding on this court" (70). The trouble with taking such a hard line was that saying merely that Gove was bad or inconsequential law was a non sequitur. What had to follow from Gove being wrong in law was that the common law itself had jumped from its tracks in that case. John Little made this point forcefully and clearly in 1973: Gove "is wrong in law and racist in its assumptions" (71).
By focusing on Gove being morally wrong or colloquially unjust, mainstream criticism of it became easily adaptable to suit the arguments of those critics who saw evidence of moralising or "guilt" infiltrating the purity of the law. This type of argument was made by some critics of Gove (72), and it is, of course, another common line of attack on the Mabo decision (73). The intellectual masterstroke, however, against morality and justice being played off against "the law" was made by Richard Bartlett, who pointed out that saying the recognition of communal native title was a matter of morality was "necessarily obiter" (74) anyway.
As the High Court demonstrated in the Mabo case, the legal recognition of communal native title was always going to be more than a matter of pure law. The intervening 204 years was bound to make the turning point, confronting and utterring the accumulated "national legacy of unuterrable shame” (75), an emotional moment. The lost chance for the legal turning point, the "new deal" (76), to have happened a generation earlier, in the Gove case, must now be counted amongst this shameful legacy and so be finally drawn out of its own shell, into its own belated emotional moment.
*Paul J Watson, School of Law, University of Canberra.
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NOTES:
1. (1971) 17 FLR 141; transcript p 2515. Contrast Justice Blackburn's less confident view of himself making legal history, (1971) 17 FLR 141, 262. Barbara Hocking, "Does Aboriginal Law Now Run in Australia?" (1979) 10 FL Rev 161, 174 suggests Blackburn J was saying there that a definitive ruling on the matter should be left to the High Court.
2. (1992) 175 CLR 1.
3. See references in Richard Bartlett, "Mabo: Another Triumph for the Common Law" (1993) 15 (2) Syd LR 178 n 2; Barbara Hocking, "Aboriginal Law Does Now Run in Australia" (1993) 15 (2) Syd LR 187, 197; and Sir Harry Gibbs' Foreword and R D Lumb, "The Mabo Case - Public Law Aspects" in M A Stephenson and Suri Ratnapala (ed), Mabo: A Judicial Revolution (1993) xiii; 1, 5.
4. Cf Mabo and ors v State of Queensland [No2] (1992) 175 CLR 1, 120 per Deane and Gaudron JJ: "Long acceptance of legal propositions, particularly legal propositions that relate to real property, can of itself impart legitimacy and preclude challenge".
5. Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 15 per Mason CJ and McHugh J.
6. Ibid 42 per Brennan J.
7. Below n 19.
8. Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141.
9. This is perhaps an oversimplification of the ratio of Gove. As to what exactly was the ratio, and hence, more importantly, what was merely obiter in the case; see below n 33. The High Court in Mabo differed over exactly what they were overruling in Gove: Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 38-39 and 101-102, per Brennan J and per Deane and Gaudron JJ respectively. Sir Harry Gibbs, above n 3, xiv doubts the legal pedigree of the phrase "terra nullius", used repeatedly in the Murray Islands judgements. The phrase is not used in the judgement in the Gove case: "Blackstone's own" words of "'desert and uncultivated'" were used instead; Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 201.
10. Jack Horner (1972) 46 ALJ 476 (letter); Gordon Brysland, "Rewriting History 2: The Wider Significance of Mabo v Queensland" (1992) 17 (3) Alt LJ 162.
11. Noel Pearson, "204 Years of Invisible Title" in M A Stephenson and Suri Ratnapala (ed's), above n 3, 75.
12. Barbara Hocking, above n 3, 177; Richard Bartlett, "Aboriginal Land Claims at Common Law" (1983) 15 UWALR 293, 293-94; Geoffrey Lester, "Aboriginal Land Rights: Conquest or Peaceful Settlement?" Australian Law News, June 1985, 14, 15; Richard Cullen, "Mabo v Queensland" (Casenote) (1990) 20 UWALR 190, 194. See also n 32 and 33, below.
13. Cf Gordon Brysland, above n 10.
14. Although it was, of course, too late for hundreds of thousands of dispossessed Aborigines. The local point can also be made that the actual decisions in both Gove and Mabo were too late for the original first named plaintiffs: W E H Stanner, White Man Got No Dreaming: Essays 1938-1973 (1979) 278, and Frank Brennan SJ, "Mabo and its Implications for Aborigines and Torres Strait Islanders" in M A Stephenson and Suri Ratnapala (ed's), above n 3, 45 pointing out three of the five original plaintiffs in the Mabo case died before the decision was handed down.
15. John Hookey, "The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?" (1972) 5 FL Rev 85. Blackburn J arrived at the same conclusion via a quite different tack: "I venture to doubt, on the evidence before me, whether it would have been possible to [claim communal native title] before the work of anthropologists of quite recent years": Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 199. Cf Gordon Brysland, above n 10: "[Blackburn J] felt that he could not, at that late stage, rewrite legal and constitutional history to reach some other result".
16. (1971) 45 ALJ 333.
17. Mathaman and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1969) 14 FLR 10.
18. Unpublished manuscript by John Little, 23; and in Garth Nettheim (ed), Aborigines Human Rights and the Law (1974) 97. Prior to this, the case had been funded by the Australian Council of Churches; John Little, 6.
19. Although the Commonwealth also largely funded the plaintiffs in the Mabo case, the Commonwealth there was not nearly as pro-active a defendant as it was in Gove. The Commonwealth was dismissed as a defendant to the Mabo case on 5 June 1989 by the Queensland Supreme Court: Mabo v State of Queensland [1992] Qd R 78, 81.
20. (1971) 45 ALJ 333. Compare "The Yirrkala Judgement" a paper prepared by the Legislative Research Service, Law and Government Section, Parliament of Australia Parliamentary Library, June 1971, reproduced in Smoke Signals June 1971 (Vol 9 No 4) 7 - 12: In a judgement which is both fascinating and erudite ... Mr Justice Blackburn ... has handed down an opinion of great importance in the field of Aboriginal land rights ... [I]n the very scholarly nature of the presentation of the reasons for the judgement of Mr Justice Blackburn against the plaintiffs much value for scholars and lawyers alike may be found.
21. Kent McNeil, Common Law Native Title (1989) 295-96; cf John Hookey, above n 15, 88: "the plaintiffs had been defeated on every substantive issue".
22. Communal native title was obliquely raised in Coe v Commonwealth of Australia and anor (1979) 24 ALR 118, 129-30 and 135 per Gibbs J and per Jacobs J dissenting, respectively.
23. Upendra Baxi; cited in Geoffrey Lester and Graham Parker, "Land Rights: The Australian Aborigines Have Lost a Legal Battle, But .... " (1973) 11 Alberta LR 189, 191 n 5.
24. This decision seemed to have been made by senior counsel for the plaintiffs, almost immediately after Justice Blackburn's judgement was handed down; John Little, above n 18, 40. This decision was probably a sound one at the time: the High Court's rejection of the indigenous Bougainvillean's claim (though this case was not pleaded as a matter of communal native title) in Teori Tau v The Commonwealth of Australia and ors (1969) 119 CLR 564, handed down extempore during the pre-trial preparation for Gove, was described at the time as "immediate, unanimous and ... 'contemptuous'"; W E H Stanner, above n 14, 279.
25. John Hookey, in Garth Nettheim (ed), above n 18, 101.
26. Alusuisse, a Swiss company, owned 70 % of Nabalco Pty Ltd.
27. Kent McNeil, above n 21, 295.
28. Eg: "a swingeing judgement"; John Hookey, above n 15; and "the manifest injustice of the decision", Geoffrey Lester (1971) 41 ALJ 773 (letter). Note also the presumed authorial empathy in: "[i]t would be unfortunate indeed if the failure in this first attempt at victory in the courts resulted in a general Aboriginal disullusionment with this method of redress for their long standing land grievances"; John Hookey, above n 15, 114 (emphasis added).
29. Kent McNeil, above n 21, 296: Aboriginals may ask why they should have to rely on the goodwill of the legislature for recognition of what to many must seem perfectly obvious, namely that they have rights to the lands upon which they and their ancestors have lived for countless generations.
30. It is universally accepted that the adverse decision in Gove precipitated, or at least hastened, the introduction of statutory land rights. But this was only a small consolation for some. John Little thought that the statutory land rights proposal was fundamentally flawed because the Aborigines were bargaining from a point of powerlessness, and further, that the lengthy process involved was "murderous"; in Garth Nettheim (ed), above, n 18, 98-99. Geoffrey Lester and Graham Parker, above n 23, 190 and 237 seemed resigned to the debate being forced from the judicial arena into the political arena, but possibly into the streets as well. The extreme realpolitik view, that statutory land rights overcame the ills of Gove, was put by Gareth Evans at a conference in 1973: "The point is that the Labor Government .... has made a series of quite unequivocal promises about land rights, about this very basic thing that everyone is worrying about, the acceptance of land rights as a principle.... [T]he job now, as I keep saying, is to move beyond [the Gove decision]."; in Garth Nettheim (ed), above n 18, 113 -14.
31. Id.
32. eg John Hookey in Garth Nettheim (ed) above, n 18, 100.
33. Id; cf "The Yirrkala Judgement", above n 20, 12. Barbara Hocking, above n 1 points out that Justice Blackburn's obiter was not gratuitous, but "at the request of counsel": Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 151. Writing more recently, Kent McNeil, above n 21, 295 observed that while almost all of Justice Blackburn's judgement was obiter, this was to be read against His Honour's own statement to the contrary: 17 FLR 141, 293. Such an all-ratio approach is certainly against the grain of legal orthodoxy: Chris Enright, Studying Law (1991) 279. W E H Stanner, above n 14, 276 brusquely, but perceptively, said that the reasoning in the interlocutory Mathaman case had a "delphic ring" to it. The same criticism can be made of the Gove judgement; despite its apparent academic weight and good intentions, Justice Blackburn's overall reasoning is the epitome of the pejorative "palm tree justice".
34. Richard Bartlett, above n 12.
35. Above n 1.
36. Gordon Brysland, above n 10, 162.
37. Mathaman and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1969) 14 FLR 10, 23; Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 150 and 199.
38. John Hookey, above n 15, 85.
39. Richard Cullen, above n 12.
40. Above n 16.
41. "How Much of a Roadblock is the Gove Case?", in Garth Nettheim (ed), above n 18, 93.
42. Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 120 per Deane and Gaudron JJ.
43. The plaintiffs' writ was issued on 13 December 1968.
44. Edgar Wells, Reward and Punishment in Arnhem Land 1962-1963 (1982) 109-118.
45. Mathaman and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1969) 14 FLR 10.
46. Upendra Baxi, and Geoffrey Lester and Graham Parker, above n 23, 191 and 196; Richard Bartlett, above n 12, 322.
47. John Little, above n 18, 10-18.
48. Ibid, 17.
49. John Little in Garth Nettheim (ed), above n 18, 98.
50. Ibid: John Little asserts that Edward Woodward QC had stated in the settlement proposal to the Commonwealth that "we do not have any instructions from our clients on these points". Woodward had continued: "We believe there is no point in trying to obtain instructions (which would involve a trip to the Gove Peninsula) unless and until it appears that some substantial agreement can be achieved"; Little, above n 18, 11. In contrast, Frank Purcell, solicitor for the plaintiffs, maintained that specific instructions had been given to him by the Yirrkala Village Council in February 1969: "that they wished for the mining company to proceed and that they wanted to have protection of their culture and civilisation against the mining company. They also deeply wished to have a public recognition of land ownership which can stop further inroads into their land"; letter from Purcell to Little 23/10/69, quoted in John Little, above n 18, 15. The broader Gove dispute spanned the 1967 constitutional changes that gave Aboriginals a voice in the polity; the allegation of the failure of the plaintiffs' legal team to obtain proper instructions, if it is true, demonstrates that the wardship mentality carried on past 1967.
51. W E H Stanner, above n 14, 291.
52. Ibid 278; Nancy Williams, The Yolgnu and Their Land (1986) 32 (photo).
53. On the day on which the final statement of claim was lodged: ibid 280.
54. John Little, above n 18, 20-23.
55. Ibid 26-40.
56. Ibid 26.
57. Ibid 39.
58. In Garth Nettheim (ed), above n 18, 95.
59. John Little, above n 18, 2.
60. Edgar Wells, above n 44.
61. Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 187.
62. Marc Gumbert, "Paradigm Lost: An Analysis of Anthropological Models and their Effect on Aboriginal Land Rights" Oceania December 1981 (Vol 52 No 2) 103, 110.
63. Oceania March 1982 (Vol 52 No 3) 261.
64. As to the broader misunderstandings concerning anthropological evidence in the Gove case, see Nancy Williams, above, n 52, 158-203, esp 162-63: "[t]he balance of Blackburn's general description of Yolgnu social organisation ... consists of negative characterisations hedged with dubiety".
65. Edgar Wells, above n 44, 52.
66. (1985) 159 CLR 70.
67. Ibid 149; emphasis added. See also Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 42-43 per Brennan J.
68. eg Howard Morphy, Quadrant September 1978 38, and March 1979 55; Gareth Evans, in Garth Nettheim (ed), above n 18, 114. In a intriguing twist, Gordon Brysland, above n 10 has written that "[f]rom a social justice point of view, the Gove Land Rights Case was clearly wrong. Everybody knew that and even the judge said as much".
69. (1979) 24 ALR 118.
70. Ibid 137.
71. In Garth Nettheim (ed), above, n 18, 93.
72. P W Nichols, Quadrant, January-February 1979 71; C A Fryer (1972) 46 ALJ 45 (letter).
73. Cf the disclaimer as to attributing "moral guilt": Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 120 per Deane and Gaudron JJ.
74. Richard Bartlett, above n 12, 322.
75. Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 104 per Deane and Gaudron JJ.
76. Edgar Wells, above n 44, 32 quoting the Rev T T Webb, who wrote in 1944 that there must be "no further filching of the country from this rightful minority".
John Quiggin has a post on this piece of odiferous shiite by Christopher Pearson.
I haven't read the Bain Attwood article that Pearson refers to, which supposedly calls into question Henry Reynolds' whole historiography and oeuvre. What seems clear from Pearson's summary of it though, is that Reynolds's chief sin has been to write "juridical" rather than "academic" history.
As it happens, the particular fault for which Pearson turns his blowtorch onto Henry Reynolds - the origin of the terra nullius doctrine in Australian law - is one which I've researched in depth. I reproduce my (drum roll, please) seminal article here "The Gove Land Rights Case: Hard cases make hard law" below. (NOTE: It's mostly plain text (i.e. names of cases and quotes are de-italicised - manually re-doing the footnotes was labour enough!)
Otherwise, Pearson's other noted Henry Reynolds antagonist – Tasmanian author and newly-minted PhD, Michael Connor – seems a spectacular non-entity. The late 50-something (I’m guessing) Connor’s main claim to fame in life so far seems to have been his dabbling in amateur theatrics in Hobart, and compiling a book of some saucy old newspaper columns. Despite such an undistinguished life, Connor sees fit to write of Reynolds’ The Law of the Land:
What a muddle, what a mass of eloquence has sprung from it. Books, articles, sermons, passions, bitterness, self-righteousness, HSC courses, university courses: all from 10 1/2 lines in a Penguin paperback.
I think that it’s safe to say that Michael Connor’s entire life and oeuvre will never amount to even a single line in a Penguin paperback.
##
THE GOVE LAND RIGHTS CASE: HARD CASES MAKE HARD LAW*
Published: (1994) 1(1) Canberra Law Review 97
This is one of those cases which occur rarely but which, when they do occur, test the genius of the British common law.
- Edward Woodward QC, senior counsel for the plaintiffs in
Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1)
I Introduction
A repeated and vociferous criticism of the High Court's recognition of communal native title in Mabo and ors v State of Queensland [No 2] (2) ("Mabo") is that it represents "new" law, and, as a secondary point, it comes after too long a period of authoritative legal pronouncement on the point to be legally credible (3). Three general types of rejoinder can be made to this.
The first answer involves the application of trite and formal jurisprudence: naturally the common law in its evolution must occasionally do what could be termed making new law. Consistent with the paradigm of the common law's moving at glacial pace is the time lapse of more than one and a half centuries between the ostensible non acceptance of the existence of communal native title and the handing down of Mabo in 1992 (4).
The second general answer to the Mabo case being "new" law is a deconstructionist one: the case is simply one of its time. Quite probably then, it would have been decided differently at an earlier time. At a very functionalist level, there has been a significant and relatively recent change in the law. The coming into operation of the Racial Discrimination Act (C'th) on 31 October 1975 operates as a legal watershed date for the broader outcome of the Mabo case; any recognition of communal native title prior to this date would have been a hollow one, as it would not seem to have rendered even future Crown expropriation of communal native title compensable (5). Another significant legal change was the cumulative effect of developments in the 1980's which gave a plaintiff international legal recourse for breaches of human rights obligations for the first time (6). Other suggested ingredients of the deconstructed zeitgeist of the Mabo case are: the mass anti-bicentenary protests, followed by the Prime Minister's Barunga Statement in 1988; the fall of the National Party government in Queensland in 1989 (so changing the underlying identity, and to a lesser extent, the sympathies of the main defendant (7) in the case) and even a best-selling book, for its genre: Henry Reynolds The Law of the Land, first published in 1987, which brought into the broad arena the gist of the reasoning that was to be accepted by the Mabo majority judgements. In this process of deconstruction, there is a built-in rejection of that case's ratio being either capriciously new or suspiciously belated.
But both the ultra-orthodox first answer - jurisprudence - and the rather legally unorthodox second answer - deconstruction - are arguably overly stretched, extreme rejoinders to the criticisms of Mabo. Certainly they are mutually exclusive models of the law. In the middle ground between them there is a third, hybrid approach: the deconstruction of precedents in the case, the old law, rather than the present case. One particular precedent will be the focus here, one which Mabo overruled: the Gove Land Rights Case (8).
The third answer to criticisms of the Mabo case being "new" law is thus to concede them in part; in proportion to the importance of the precedent that was overruled. The legal weight of the overruled Gove ratio - that Australia was and remains terra nullius (9) - was far greater than its textbook legal status, as a mere single Supreme Court judge's decision. Even for Mabo case critics not legally trained, the Gove case had a palpable solidity: it both stood for a considerable length of time and was sufficently well known to be "famous" (10), or "infamous" (11). Over time, most legal writers on Gove came to concur that Gove was wrongly decided (12). Yet this seems to have entailed a dubious tactical choice of approach: Gove was surely best dealt with summarily, as inconsequential law. The outcome was that Gove became anything but inconsequential law, and so the perjorative epithet "new law" does indeed stick to the Mabo case. This label can, however, be effectively removed by the relabelling of Gove.
Gove was a hard case; it was, viewed from almost any angle (13), hard law. Successfully overcoming a hard case, as the Mabo case did, does fairly raise criticisms of "new" law, unless the scale and methods of the endeavour in so doing are recognised. To an extent, the High Court shied away from this sort of transparent decision making in Mabo, for reasons which underscore the almost impenetrable hardness of Gove.
Whether, and to what extent the Mabo case was "new" law thus depends on the deconstruction of Gove, which will occupy the remainder of this article. The particular criticism of the Mabo case being belated can be more shortly answered here. Gove was, of course, the first Australian case to consider the possible existence of communal native title. Hence, in the overall legal scheme of two centuries, the Mabo case was only a tad later than Gove. Nor was Gove itself suspiciously late (14); it was only in the 1960's that the first significant acts of dispossession of the local Aborigines occurred (15).
II The Power ...
Justice Blackburn's 263 page decision in Gove was handed down in Alice Springs on 27 April 1971. In probably the first comment in the legal press on the case, the July 1971 Australian Law Journal gave a short summary of the case preceded by a one paragraph commentary under the title "The Non-Doctrine of Communal Native Title". The article started with the rather strange comment:
The Commonwealth's expressed wish to have .... a definitive ruling on whether the common law in its application to settled possessions recognises communal native titles has been generously granted (16).
In fact this point was more darkly suggestive than it was obsequious (as it would first seem). The Commonwealth had decided to fund the plaintiffs' case after the plaintiffs' success in the interlocutory Mathaman (17) case (18). It is arguable that the Commonwealth had thus placed itself in a position of conflict of interest (19).
The Australian Law Journal went on to state:
[Gove] stands as a mine of reference material of almost encyclopaedic utility which will, no doubt, be worked over for years to come whenever a question concerning customary native title arises (20).
With the mere allowance of some reading between the lines, the effusive praise of the legal scholarship of Gove was more like gloating; in fact, the plaintiffs' defeat in the case was near total, losing on almost every issue of both fact and law (21). With the additional allowance of some hindsight, the prediction of the case's utility for future cases on communal native title was both ludicrous and wrong. The Mabo case, which commenced in 1982, was the next case that directly raised communal native title (22).
Most other commentators in the proximate wake of the Gove decision did see the outcome as one of legal annihilation, from which very little could be salvaged. "The Lost Dreamtime Forever Lost - A Critique of the Gove Land Rights Decision" (23), the title of a conference paper given in August 1972, seems to sum up the then prevailing mood. From very early on, the only escape hatch from the disastrous result in the case was seen as a High Court reversal of it. As a High Court appeal in the actual case itself was ruled out (24), the hopes of a High Court reversal were, for many years, only vague ones, based on another, but then-inchoate, test case. A constructive insight was made early on that the next test case should preferably not involve "a large, well-financed, overseas mining company" (25), such as Nabalco Pty Ltd (26), as defendant. But there was little, if any, momentum towards a new test case.
The scale, and circumstances, of the plaintiffs' defeat in Gove thus stymied both a High Court appeal (27) and, for a long time, a new test case. But arguably there was at least a hint of irrationality here; particularly in the non-formulation of a new test case. Psychologically, a process akin to a shock reaction had set in; the immediate post-Gove legal fallout was a general numbness (28). The reaction was complicated, and submerged, by the promise of statutory land "rights" (29) by the newly elected Whitlam Government in December 1972 (30).
After the initial shock, and the Whitlam Government's election, the legal analysis of Gove did "move beyond" (31) its rawer emotions, and into colder legal analysis. But it was mostly only in the early, though post December 1972, wake of Gove that the formal legal inconsequentiality of the case, as a single judge decision of a Supreme Court, was confidently asserted (32). Likewise, the obvious point that most of Justice Blackburn's judgement, and especially his finding that communal native title was unknown to the common law of Australia, was obiter dicta, was only forcefully made in the earlier writings on the case (33). There was an aura of legal haplessness, attributable, it would seem, to the emotional fallout from the case, which, though unacknowledged, clouded objective critical analysis. One commentator, apparently insulated from the emotional fallout of Gove, ironically expressed his "shock":
A shock because of the curious mystique that has attached in Australian legal, anthropological and lay communities to the decision in Milirrpum. To the foreign observer it is suprising that a decision of a comparatively junior court should have been regarded as so significant as to almost foreclose further legal action (34).
It was to take a generation before the High Court reversed Gove; over this time, the decision hardened to become a legal shibboleth. "[T]he genius of the ... common law" (35) had been tested and had failed; thus it seemed the law itself had reverted into something primitive and irrational.
The "curious mystique" of Gove thus came to entail much more than its formal status of being both wrong in law and not binding on most Australian courts. Part of the mythology of Gove is that it outraged and impelled into action many people who are now prominent Aboriginal rights proponents (36). Another aspect of the mythology of Gove, particularly at the time of the actual running of the case, was its much-vaunted "novelty" (37). Rather than being a weapon in the hands of the defendants - the "new" law accusation - the novelty of the case generated an excitement, an atmosphere of boyish bravado amongst the plaintiffs' counsel, at least in the early stages. The novelty factor also provided a bridgehead to the later mythologising of the case (38).
At the business end of the case, though, Gove was truly hard law. It has to date largely deflected the "repeated scrutiny, analysis and criticism" (39) it is said to have been put through. If anything, most analysis was, perversely, complicitous with the Australian Law Journal's rash, but first in, comment on the decision as "definitive" (40), by seeking to be equally, albeit contra-, definitive. But all this was merely obiter replicating itself; the piling of obiter upon obiter avoided confronting the emotional fallout from the Gove decision.
The critical treatment tended to lock the Gove case up from the inside, not from the outside, as the artificial discourse of pure law would have a case locked up. The case was evocatively termed a "roadblock" in 1973 (41), but arguably it was a species of an emotional, rather than a legal blockage all along. Balanced against this it must be said that the mainstream academic analysis of Gove was later invaluable for formulating the legal reasoning in the new test case, the Mabo case (42). It was also perhaps even a necessary diversion, as the running of the blockade may have thwarted the plaintiffs' chances in the Mabo case. But in any event, these considerations no longer hold; now that the Mabo case has finally overruled the hard case of Gove, the emotionally charged Gove case can now be exploded, rather than gingerly handled.
III ... and the Passion
The Gove dispute had a relatively swift run through the courts (43) but a much longer history, from which a striking pattern of human passion and vulnerability emerges. The first chapter (in the late 1950's and early 1960's) is largely self contained. Without the knowledge or consent of the local people the Commonwealth had granted two mining leases in the Gove area over bauxite-rich land to large mining companies. Following the presentation of a celebrated bark petition to the House of Representatives, a Senate Committee recommended compensation to the Yolgnu, the local Aboriginal people. Even this seemingly modest achievement had come at great personal cost to one man, however. Edgar Wells, in charge of the Methodist mission at Yirrkala during 1962-63, and who had been very much on the Yolgnu side in a brewing controversy, was forcibly transferred from Yirrkala by church authorities (44). This chapter closed when the second of the original leases was forfeited, in 1966. The second chapter began when, also in 1966, Nabalco Pty Ltd, a new entrant, started developing large scale mining operations in the area. Again this was without regard to the wishes of the local people and without any promises of compensation. Starting from a plea for legal help in a letter from Edgar Wells to the Australian in 1967 which John Little, then a newly admitted barrister, answered, an ambitious test case was decided upon and assembled, in contrast to the political redress tactic tried in the first round.
The plaintiffs' case was sought to be struck out as vexatious by the defendants in proceedings before Blackburn J in March 1969 (45). The outcome was that the defendant's case was dismissed, but the plaintiffs needed to lodge a fresh statement of claim. The reconstituted pleadings were to later be inflexibly adhered to by Blackburn J in the substantive case (46). Later in 1969, a dispute ballooned between members of the plaintiffs' legal team (47). On one side was John Little, one of two junior counsel on the team; on the other, the instructing solicitor, Frank Purcell, and senior counsel Edward Woodward QC. The dispute concerned a settlement proposal the latter wanted to put, that was vehemently opposed by Little. The compromise would have been that compensation would be paid in any event, and an "in principle" declaration of land rights made over the plaintiffs' land, apart from the Nabalco lease, in return for dismissing Nabalco from the case. This settlement would have protected the plaintiffs from the possibility of losing completely and also created a precedent of some value for other Aboriginals. John Little, however, countered that the proposal involved sacrificing bargaining power in return for obtaining an "empty declaration" (48) and compensation "of the beads and bracelets variety" (49). Contentious points, that appear never to have been settled, were whether the settlement offer was made pursuant to the plaintiffs' instructions (50) and whether the settlement offer, which involved renouncing any interest in the Nabalco lease, would at least stop further inroads into the plaintiffs' land. The dispute lead to John Little resigning from the plaintiff's legal team, but the dispute lapsed when the Commonwealth rejected the settlement proposal (51) and John Little rejoined the plaintiffs' legal team as preparations for the substantive case were commencing.
Other subtexts were also unfolding in the meantime; the original first named plaintiff, Mathaman, died in January 1970 (52). The new first named plaintiff, Milirrpum, Mathaman's brother, was arrested in February 1970 (53), on charges of resisting arrest and assaulting a 14 year old girl who was promised to be Milirrpum's wife under Aboriginal customary law (54). Two others, including another plaintiff, Dadaynga, were also charged with resisting arrest. These arrests sparked a near riot at Yirrkala. The accused were represented by John Little. Milirrpum's assault charge was dismissed as trivial, but he was convicted and fined on the charge of resisting arrest. The 14 year old girl was abducted by welfare authorities and taken to Darwin. Shortly afterwards, the Gove case began in the Darwin Supreme Court.
In the last days of the case, heard in Canberra in November 1970, a second flash point occurred between members of the plaintiffs' legal team (55). John Little wanted to argue a new and distinct point, that the abolition of slavery in the British empire in 1834 effected a fundamental change in the legal status of Aboriginal people, and hence 1834 was the date at which the law started to resile from the terra nullius assumption. At the request of other members of Little's team Blackburn J refused to hear Little on this point. The substantive argument Little sought to put has not been vindicated in the Mabo case, but there was arguably a solid case in favour of putting the argument at the time: at least for Little, the plaintiffs' case, at that late stage, seemed doomed to fail (56). Little's retainer was terminated that same day (57). In 1973 Little wrote that the legal profession "disgraced itself" in the Gove case (58).
Other participants in the Gove case and its broader background have stories that echo the motif of John Little's painful experience, stories that were only told much later. Edgar Wells, of whom Little wrote of as being "bruised but not subdued" (59) in 1967 when they first met, wrote a book, published in 1982, about the shameful conduct of his employers, the Methodist Church, towards him and the Yolgnu (60). Also in 1982, an anthropologist, L R Hiatt, whose work was used to cross-examine one of the two expert anthropological witnesses in Gove, W E H Stanner (61), wrote to correct what had been pointed out, by another anthropologist, to be "an almost unbelievable conflict of [anthropological] evidence [that] came entirely from one side [ie the plaintiffs']" (62). Hiatt enclosed a letter he wrote to the plaintiffs' legal team in 1969 (63). He suggested that the contents of this letter should have prevented the conflict of anthropological evidence that eventuated in Gove, a conflict that was highly damaging to the plaintiffs' case (64). A recurring theme across each of Little's, Wells' and Hiatt's experiences is that of the individual's powerlessness in the face of a fait accompli (65). Hard law obviously falls as a crushing weight on some. Arguably, vicariously included amongst those crushed was the mainstream legal psyche, hence affecting the nature and content of academic debate on the Gove case itself.
IV Conclusion
The collective emotional blockage, post Gove, meant the fictional construction of a legal roadblock, that was to be ceremoniously torn down in the Mabo case. For a generation, the post-Gove legal discourse was constructed as a dichotomy between law and morality, or between law and justice; rather than seeing Gove formally as both bad and inconsequential law, or transperently as hard law. The nadir of this was in Justice Deane's judgement in Gerhardy v Brown (66):
Yet almost two centuries on, the generally accepted view remains that the common law is ignorant of ... communal native title ... : see Milirrpum v Nabalco (1971) 17 FLR 141. If that view of the law is correct, and I do not suggest that it is not, the common law of this land has still not reached the stage of retreat from injustice ..." (67).
Many other commentators had expressed essentially the same view (68).
The contrary view, that of taking the hard line against Gove by saying it was unequivocally wrong in law, was taken by Murphy J in Coe v Commonwealth and anor (69), who alone in 21 years of High Court pronouncements said that Gove was "not binding on this court" (70). The trouble with taking such a hard line was that saying merely that Gove was bad or inconsequential law was a non sequitur. What had to follow from Gove being wrong in law was that the common law itself had jumped from its tracks in that case. John Little made this point forcefully and clearly in 1973: Gove "is wrong in law and racist in its assumptions" (71).
By focusing on Gove being morally wrong or colloquially unjust, mainstream criticism of it became easily adaptable to suit the arguments of those critics who saw evidence of moralising or "guilt" infiltrating the purity of the law. This type of argument was made by some critics of Gove (72), and it is, of course, another common line of attack on the Mabo decision (73). The intellectual masterstroke, however, against morality and justice being played off against "the law" was made by Richard Bartlett, who pointed out that saying the recognition of communal native title was a matter of morality was "necessarily obiter" (74) anyway.
As the High Court demonstrated in the Mabo case, the legal recognition of communal native title was always going to be more than a matter of pure law. The intervening 204 years was bound to make the turning point, confronting and utterring the accumulated "national legacy of unuterrable shame” (75), an emotional moment. The lost chance for the legal turning point, the "new deal" (76), to have happened a generation earlier, in the Gove case, must now be counted amongst this shameful legacy and so be finally drawn out of its own shell, into its own belated emotional moment.
*Paul J Watson, School of Law, University of Canberra.
--
NOTES:
1. (1971) 17 FLR 141; transcript p 2515. Contrast Justice Blackburn's less confident view of himself making legal history, (1971) 17 FLR 141, 262. Barbara Hocking, "Does Aboriginal Law Now Run in Australia?" (1979) 10 FL Rev 161, 174 suggests Blackburn J was saying there that a definitive ruling on the matter should be left to the High Court.
2. (1992) 175 CLR 1.
3. See references in Richard Bartlett, "Mabo: Another Triumph for the Common Law" (1993) 15 (2) Syd LR 178 n 2; Barbara Hocking, "Aboriginal Law Does Now Run in Australia" (1993) 15 (2) Syd LR 187, 197; and Sir Harry Gibbs' Foreword and R D Lumb, "The Mabo Case - Public Law Aspects" in M A Stephenson and Suri Ratnapala (ed), Mabo: A Judicial Revolution (1993) xiii; 1, 5.
4. Cf Mabo and ors v State of Queensland [No2] (1992) 175 CLR 1, 120 per Deane and Gaudron JJ: "Long acceptance of legal propositions, particularly legal propositions that relate to real property, can of itself impart legitimacy and preclude challenge".
5. Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 15 per Mason CJ and McHugh J.
6. Ibid 42 per Brennan J.
7. Below n 19.
8. Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141.
9. This is perhaps an oversimplification of the ratio of Gove. As to what exactly was the ratio, and hence, more importantly, what was merely obiter in the case; see below n 33. The High Court in Mabo differed over exactly what they were overruling in Gove: Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 38-39 and 101-102, per Brennan J and per Deane and Gaudron JJ respectively. Sir Harry Gibbs, above n 3, xiv doubts the legal pedigree of the phrase "terra nullius", used repeatedly in the Murray Islands judgements. The phrase is not used in the judgement in the Gove case: "Blackstone's own" words of "'desert and uncultivated'" were used instead; Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 201.
10. Jack Horner (1972) 46 ALJ 476 (letter); Gordon Brysland, "Rewriting History 2: The Wider Significance of Mabo v Queensland" (1992) 17 (3) Alt LJ 162.
11. Noel Pearson, "204 Years of Invisible Title" in M A Stephenson and Suri Ratnapala (ed's), above n 3, 75.
12. Barbara Hocking, above n 3, 177; Richard Bartlett, "Aboriginal Land Claims at Common Law" (1983) 15 UWALR 293, 293-94; Geoffrey Lester, "Aboriginal Land Rights: Conquest or Peaceful Settlement?" Australian Law News, June 1985, 14, 15; Richard Cullen, "Mabo v Queensland" (Casenote) (1990) 20 UWALR 190, 194. See also n 32 and 33, below.
13. Cf Gordon Brysland, above n 10.
14. Although it was, of course, too late for hundreds of thousands of dispossessed Aborigines. The local point can also be made that the actual decisions in both Gove and Mabo were too late for the original first named plaintiffs: W E H Stanner, White Man Got No Dreaming: Essays 1938-1973 (1979) 278, and Frank Brennan SJ, "Mabo and its Implications for Aborigines and Torres Strait Islanders" in M A Stephenson and Suri Ratnapala (ed's), above n 3, 45 pointing out three of the five original plaintiffs in the Mabo case died before the decision was handed down.
15. John Hookey, "The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?" (1972) 5 FL Rev 85. Blackburn J arrived at the same conclusion via a quite different tack: "I venture to doubt, on the evidence before me, whether it would have been possible to [claim communal native title] before the work of anthropologists of quite recent years": Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 199. Cf Gordon Brysland, above n 10: "[Blackburn J] felt that he could not, at that late stage, rewrite legal and constitutional history to reach some other result".
16. (1971) 45 ALJ 333.
17. Mathaman and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1969) 14 FLR 10.
18. Unpublished manuscript by John Little, 23; and in Garth Nettheim (ed), Aborigines Human Rights and the Law (1974) 97. Prior to this, the case had been funded by the Australian Council of Churches; John Little, 6.
19. Although the Commonwealth also largely funded the plaintiffs in the Mabo case, the Commonwealth there was not nearly as pro-active a defendant as it was in Gove. The Commonwealth was dismissed as a defendant to the Mabo case on 5 June 1989 by the Queensland Supreme Court: Mabo v State of Queensland [1992] Qd R 78, 81.
20. (1971) 45 ALJ 333. Compare "The Yirrkala Judgement" a paper prepared by the Legislative Research Service, Law and Government Section, Parliament of Australia Parliamentary Library, June 1971, reproduced in Smoke Signals June 1971 (Vol 9 No 4) 7 - 12: In a judgement which is both fascinating and erudite ... Mr Justice Blackburn ... has handed down an opinion of great importance in the field of Aboriginal land rights ... [I]n the very scholarly nature of the presentation of the reasons for the judgement of Mr Justice Blackburn against the plaintiffs much value for scholars and lawyers alike may be found.
21. Kent McNeil, Common Law Native Title (1989) 295-96; cf John Hookey, above n 15, 88: "the plaintiffs had been defeated on every substantive issue".
22. Communal native title was obliquely raised in Coe v Commonwealth of Australia and anor (1979) 24 ALR 118, 129-30 and 135 per Gibbs J and per Jacobs J dissenting, respectively.
23. Upendra Baxi; cited in Geoffrey Lester and Graham Parker, "Land Rights: The Australian Aborigines Have Lost a Legal Battle, But .... " (1973) 11 Alberta LR 189, 191 n 5.
24. This decision seemed to have been made by senior counsel for the plaintiffs, almost immediately after Justice Blackburn's judgement was handed down; John Little, above n 18, 40. This decision was probably a sound one at the time: the High Court's rejection of the indigenous Bougainvillean's claim (though this case was not pleaded as a matter of communal native title) in Teori Tau v The Commonwealth of Australia and ors (1969) 119 CLR 564, handed down extempore during the pre-trial preparation for Gove, was described at the time as "immediate, unanimous and ... 'contemptuous'"; W E H Stanner, above n 14, 279.
25. John Hookey, in Garth Nettheim (ed), above n 18, 101.
26. Alusuisse, a Swiss company, owned 70 % of Nabalco Pty Ltd.
27. Kent McNeil, above n 21, 295.
28. Eg: "a swingeing judgement"; John Hookey, above n 15; and "the manifest injustice of the decision", Geoffrey Lester (1971) 41 ALJ 773 (letter). Note also the presumed authorial empathy in: "[i]t would be unfortunate indeed if the failure in this first attempt at victory in the courts resulted in a general Aboriginal disullusionment with this method of redress for their long standing land grievances"; John Hookey, above n 15, 114 (emphasis added).
29. Kent McNeil, above n 21, 296: Aboriginals may ask why they should have to rely on the goodwill of the legislature for recognition of what to many must seem perfectly obvious, namely that they have rights to the lands upon which they and their ancestors have lived for countless generations.
30. It is universally accepted that the adverse decision in Gove precipitated, or at least hastened, the introduction of statutory land rights. But this was only a small consolation for some. John Little thought that the statutory land rights proposal was fundamentally flawed because the Aborigines were bargaining from a point of powerlessness, and further, that the lengthy process involved was "murderous"; in Garth Nettheim (ed), above, n 18, 98-99. Geoffrey Lester and Graham Parker, above n 23, 190 and 237 seemed resigned to the debate being forced from the judicial arena into the political arena, but possibly into the streets as well. The extreme realpolitik view, that statutory land rights overcame the ills of Gove, was put by Gareth Evans at a conference in 1973: "The point is that the Labor Government .... has made a series of quite unequivocal promises about land rights, about this very basic thing that everyone is worrying about, the acceptance of land rights as a principle.... [T]he job now, as I keep saying, is to move beyond [the Gove decision]."; in Garth Nettheim (ed), above n 18, 113 -14.
31. Id.
32. eg John Hookey in Garth Nettheim (ed) above, n 18, 100.
33. Id; cf "The Yirrkala Judgement", above n 20, 12. Barbara Hocking, above n 1 points out that Justice Blackburn's obiter was not gratuitous, but "at the request of counsel": Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 151. Writing more recently, Kent McNeil, above n 21, 295 observed that while almost all of Justice Blackburn's judgement was obiter, this was to be read against His Honour's own statement to the contrary: 17 FLR 141, 293. Such an all-ratio approach is certainly against the grain of legal orthodoxy: Chris Enright, Studying Law (1991) 279. W E H Stanner, above n 14, 276 brusquely, but perceptively, said that the reasoning in the interlocutory Mathaman case had a "delphic ring" to it. The same criticism can be made of the Gove judgement; despite its apparent academic weight and good intentions, Justice Blackburn's overall reasoning is the epitome of the pejorative "palm tree justice".
34. Richard Bartlett, above n 12.
35. Above n 1.
36. Gordon Brysland, above n 10, 162.
37. Mathaman and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1969) 14 FLR 10, 23; Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 150 and 199.
38. John Hookey, above n 15, 85.
39. Richard Cullen, above n 12.
40. Above n 16.
41. "How Much of a Roadblock is the Gove Case?", in Garth Nettheim (ed), above n 18, 93.
42. Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 120 per Deane and Gaudron JJ.
43. The plaintiffs' writ was issued on 13 December 1968.
44. Edgar Wells, Reward and Punishment in Arnhem Land 1962-1963 (1982) 109-118.
45. Mathaman and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1969) 14 FLR 10.
46. Upendra Baxi, and Geoffrey Lester and Graham Parker, above n 23, 191 and 196; Richard Bartlett, above n 12, 322.
47. John Little, above n 18, 10-18.
48. Ibid, 17.
49. John Little in Garth Nettheim (ed), above n 18, 98.
50. Ibid: John Little asserts that Edward Woodward QC had stated in the settlement proposal to the Commonwealth that "we do not have any instructions from our clients on these points". Woodward had continued: "We believe there is no point in trying to obtain instructions (which would involve a trip to the Gove Peninsula) unless and until it appears that some substantial agreement can be achieved"; Little, above n 18, 11. In contrast, Frank Purcell, solicitor for the plaintiffs, maintained that specific instructions had been given to him by the Yirrkala Village Council in February 1969: "that they wished for the mining company to proceed and that they wanted to have protection of their culture and civilisation against the mining company. They also deeply wished to have a public recognition of land ownership which can stop further inroads into their land"; letter from Purcell to Little 23/10/69, quoted in John Little, above n 18, 15. The broader Gove dispute spanned the 1967 constitutional changes that gave Aboriginals a voice in the polity; the allegation of the failure of the plaintiffs' legal team to obtain proper instructions, if it is true, demonstrates that the wardship mentality carried on past 1967.
51. W E H Stanner, above n 14, 291.
52. Ibid 278; Nancy Williams, The Yolgnu and Their Land (1986) 32 (photo).
53. On the day on which the final statement of claim was lodged: ibid 280.
54. John Little, above n 18, 20-23.
55. Ibid 26-40.
56. Ibid 26.
57. Ibid 39.
58. In Garth Nettheim (ed), above n 18, 95.
59. John Little, above n 18, 2.
60. Edgar Wells, above n 44.
61. Milirrpum and ors v Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 FLR 141, 187.
62. Marc Gumbert, "Paradigm Lost: An Analysis of Anthropological Models and their Effect on Aboriginal Land Rights" Oceania December 1981 (Vol 52 No 2) 103, 110.
63. Oceania March 1982 (Vol 52 No 3) 261.
64. As to the broader misunderstandings concerning anthropological evidence in the Gove case, see Nancy Williams, above, n 52, 158-203, esp 162-63: "[t]he balance of Blackburn's general description of Yolgnu social organisation ... consists of negative characterisations hedged with dubiety".
65. Edgar Wells, above n 44, 52.
66. (1985) 159 CLR 70.
67. Ibid 149; emphasis added. See also Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 42-43 per Brennan J.
68. eg Howard Morphy, Quadrant September 1978 38, and March 1979 55; Gareth Evans, in Garth Nettheim (ed), above n 18, 114. In a intriguing twist, Gordon Brysland, above n 10 has written that "[f]rom a social justice point of view, the Gove Land Rights Case was clearly wrong. Everybody knew that and even the judge said as much".
69. (1979) 24 ALR 118.
70. Ibid 137.
71. In Garth Nettheim (ed), above, n 18, 93.
72. P W Nichols, Quadrant, January-February 1979 71; C A Fryer (1972) 46 ALJ 45 (letter).
73. Cf the disclaimer as to attributing "moral guilt": Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 120 per Deane and Gaudron JJ.
74. Richard Bartlett, above n 12, 322.
75. Mabo and ors v State of Queensland [No 2] (1992) 175 CLR 1, 104 per Deane and Gaudron JJ.
76. Edgar Wells, above n 44, 32 quoting the Rev T T Webb, who wrote in 1944 that there must be "no further filching of the country from this rightful minority".
