Land Rights: The Mabo Case and “Terra Nullius” Seminar Presented by Byron Jenssen Please note this presentation depicts persons that have passed. If you would like a copy of the presentation without pictures/video please request one from your teacher. The pedagogy is embedded within the presentation that also links with the lesson plans.

Summary Part A This presentation will cover the following: What does “terra nullius” mean and where the term originated? That Australia was founded upon an untruth which remained a work of fiction in the legal system: that it was uninhabited and therefore annexed to the British Empire legally. The decade long fight for land rights for Aboriginal/Torres Strait Islanders through the Australian Commonwealth legal system.

Summary Part B Who was Eddie Koiki Mabo who pushed successfully and won the case for native title in Australia? Some responses from Australian Government ministers after the Mabo case and native title was established in Australia. What does native title mean and its implications today. Reflection on past events since European settlement of Australia including land rights with a strong focus on the Mabo case and terra nullius.

Acknowledgement to Country “We acknowledge and pay respect to the Tasmanian Aboriginal community as the traditional and original owners and continuing custodians of this land.” Retrieved from: http://www.dpac.tas.gov.au/divisions/executive/protocol_office/acknowledgements_and_welcome_to_country

This seminar presentation is dedicated to Eddie Koiki Mabo. Image source: http://www.indigenous.gov.au/eddie-mabo-the-man-behind-mabo-day/ This seminar presentation is dedicated to Eddie Koiki Mabo. 1936-1992

Where are the Torres Strait Islands? The Torres Strait Islands lie between Cape York in Queensland and Papua New Guinea. The Torres Strait was named after the first European to navigate it in 1606, a Spanish explorer, Luis Vaez de Torres (Nakata, Chapter 6, 2012, p. 82). Eddie Mabo was born on Mer (Murray Island), located on the far right hand side of the map below. Image source: http://ican.org.au/post-2/

Timeline of Events Indigenous Australians have been estimated on the Australian continent approximately 50,000 years. (source: http://www.migrationheritage.nsw.gov.au/objects-through- time/essays/50000-years-before-present/). 1770, 22nd August: Captain Cook lands in Australia and against orders by the Royal Society of London does not make a treaty with the indigenous people of Australia but instead claims Australia in the Name of the King of Great Britain and states the continent to be “terra nullius”. A Latin word meaning “land belonging to no one” (Gwynn, 2009, p. 699). 1936, 29th June: Edward Koiki Sambo is born however his surname is changed to Mabo after being adopted by his maternal uncle, Benny Mabo , due to his mother dying soon after giving birth. Edward’s name is nicknamed to Eddie (Loos and Mabo, 2013). 1967: Eddie Mabo is employed by the James Cook University (pictured below) as a groundsman and gardener until 1975 (Loos and Mabo, 2013). Image source: http://www.jcu.edu.au/flbca/JCUDEV_003552.html

High Court of Australia. Timeline of Events 1981: At a lands right conference at James Cook University, a group of Murray Islanders with Eddie Mabo as the leading litigant decide to take their claim for native title to the High Court of Australia (Loos and Mabo, 2013). 1982, May: Mabo and Others v. the State of Queensland commences legal proceedings. This case becomes known as Mabo v. Queensland (no. 1) (Loos and Mabo, 2013). 1985: Queensland Government passes the Coast Islands Declaratory Act to extinguish retrospectively any native title to land that existed prior to British annexation (Loos and Mabo, 2013). 1988, December: High Court declares the 1985 Queensland Coast Island Declaratory Act invalid by a majority of four to three votes due to being inconsistent with the 1975 Commonwealth Racial Discrimination Act. Under Commonwealth Law, Commonwealth Acts take precedence over State Acts. High Court of Australia. Image source: http://www.hcourt.gov.au/about/the-building

Timeline of Events 1989, November: Moynihan Inquiry commences. 1991, May: The case is heard in the High Court of Australia (Loos and Mabo, 2013). 1992, 21st January: Eddie Mabo dies of cancer aged 55 at a hospital in Brisbane (Loos and Mabo, 2013). 1992, 3rd June: The High Court announces the historic decision that invalidates “terra nullius” as a legal doctrine by a majority vote. This becomes Mabo v. Queensland (no. 2) case (Loos and Mabo, 2013). 1992, 10th December: Paul Keating (pictured right), then prime minister of Australia, delivers what is now known as his Redfern Address. The speech also marks the opening of the United Nations’ International Year of Indigenous Peoples in 1993. Image source: http://www.abc.net.au/am/content/2012/s3650348.htm

Mabo Decision 1992 to 2012 20th anniversary news report Mabo Decision 1992 to 2012 20th anniversary news report. Copyright Australian Broadcasting Corporation. Source: http://www.youtube.com/watch?v=e2KPAuuwYfs

Timeline of Events 1993: The Keating Government passes the Native Title Act 1993 in response to the High Court Decision. As a Commonwealth Act it overrides any State Act and comes into effect 1st January 1994. 1995, 3rd June: After the unveiling of Mabo’s tombstone in Townsville, that night Mabo’s gravesite is vandalised with swastikas and the word “Abo” on his tombstone. A bronze bas-relief portrait of Eddie Mabo is also stolen (Loos and Mabo, 2013). 1995, 18th September: Mabo’s body is reburied at Las, his village, on the sacred hill of his ancestors (Loos and Mabo, 2013). Reburial of Mabo on Mer (Murray Island). Image source: http://merrillfindlay.com/wp-content/uploads/2010/12/mabo-grave.jpg

Redfern Address 1992 Copyright of Australian Broadcasting Network (ABC) Source: http://www.youtube.com/watch?v=CRNG3srP6zY

Political responses after the Mabo Decision and Native Title Ray Groom, then Liberal Premier of Tasmania accused Paul Keating of being hell bent to rewrite Australian history and denied that genocide ever occurred in Tasmania (Craven, 2011, p.120). Tim Fischer, then Federal Leader of the National Party stated that Aboriginal dispossession had been inevitable and was not something to be ashamed of (Craven, 2011, p. 120). In 1996, John Howard then Liberal Leader described to give Aboriginal people the right to negotiate native title interests as “unAustralian” (Behrendt, 2009, p. 201). Paul Hanson then a Federal MP said that land rights was a smoke screen for a more sinister plot by Aboriginal people. (Behrendt, 2009, p. 201).

The myths debunked Myth 1: Native title means my backyard is not safe from a native title land claim. A. False! Native title cannot be claimed on land that is already owned. This means native title has been extinguished over most of Australia. Myth 2: Native title allows indigenous Australians to take over farms. A. False! Almost all farming land in Australia is held under freehold, leasehold or long term leasehold arrangements. Due to this, native title cannot be claimed because native title has been extinguished. Myth 3: Native title is all about guilt. A. Native title has been recognised in New Zealand, United States of America and Canada. The High Court of Australia determined that Australia was not terra nullius. Myth 4: Native title means indigenous people will be given land for free while other Australians have to purchase land. A. Native title does not mean they are given land but the opportunity to practice their native title rights on land where native title has not been extinguished. Information sourced from: http://www.noongar.org.au/images/pdf/facts-sheets/NT_myths_fact.pdf

Let us reflect on the words of this historic speech. Reflection Let us reflect on the words of this historic speech. It was us who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases (and) the alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. (Keating, 1993 (sic)) (Craven, 2011, p. 119)

Pedagogy Used Part 1 This presentation and lesson plans were designed for adult students that are learning within a prison environment with varying levels of numeracy, literacy and learning skills. This presentation did not use indigenous themed templates to be inclusive of all students regardless of race and to make it easy to read. The presentation used video footage at the time of events and recent video footage reflecting back to provide a historical context link to the then and now. The presentation provides a timeline of the Mabo case and terra nullius that breaks it into bite size chunks to encourage digestion of information and promotes self discovery learning.

Pedagogy Used Part 2 The lessons form a link to the presentation that helps reinforce the learning. The presentation caters for visual/auditory learners while the print out of the presentation provides for reading and one lesson caters for kinaesthetic learners, VARK principles (Fleming and Mills, 1992, page 137). The lesson activities and presentation provides opportunities for reflection, deep and critical thinking for the students. The presentation and lesson plans do not teach about aborigines but rather teaches for understanding. It reminds students that Aboriginal history is Australian history and goes tens of thousands of years before European settlement.

Lesson Activity 1 What land can be claimed by Aboriginal people under the Native Title Act? 1. Local parks run by councils. 2. Beaches that are National Parks. 3. Vacant government-owned land, also known as crown land. 4. Farmland. 5. Anyone’s property if it is on a sacred site. 6. Your own backyard. Please write down your answers before proceeding to the answer slide.

Lesson Activity 1 Answer Aboriginal people can only claim vacant government-owned land under the Native Title Act and they must prove a continuous relationship with this land. All other land cannot be claimed because it is already someone’s property. Does the answer surprise you? If it does surprise you, why?

Lesson Activity 2 How many Indigenous languages were spoken in Australia before European settlement. None 1 to 50 51 to 100 101 to 150 151 to 250 over 250 Write down your answer as either A, B, C, D, E or F.

Lesson Activity 2 Answer Over 250!!!! Each colour representing an indigenous language. Not so terra nullius after all! Image source: http://www.abc.net.au/indigenous/map/ Please visit the above web site for a more detailed look at the interactive map. See if you can find the nearest tribe where you live and conduct research of that tribe on their culture and traditions online.

Lesson Activity 3 Case Scenario: You own your family home on a 5 acre block and have lived there for at least 10 years and own it outright. You take great pride in your house, you built itself yourself and your family have grown up there. It has a productive vegetable garden, plenty of room for the kids to play and your partner loves sitting out on the balcony and watching the sunset. Then one day you get a visit from the government authorities who decide to: Take possession of your house and land. Tell you your house is to be demolished. State they are going to mine your land for rare earth metals. You are not going to be compensated and must vacate the area immediately. Write a paragraph or two on how you would feel? Image source: http://www.webuyhousesfastandeasy.com.au/_blog/We_Buy_Houses_Real_Estate_Blog/post/The_Essential_Guide_to_stopping_House_Repossession_and_Foreclosure_-_Part_2/

Lesson Activity 4 Break the class up into two groups. Group one is given important historical dates relating to the Mabo case and terra nullius on laminated cards. Group two is given the important historical descriptions of events on laminated cards relating to the Mabo case and terra nullius. The two groups must work together and match the historical date with the historical event. Once they have found a match it is taken and placed on the table. Once complete compare the answers with the historical timeline in the presentation and make any corrections as required.

Lesson Activity 5 Take a historical event or year from the timeline provided in the presentation and using research skills write 3 to 5 dot points that provides further information. For example: If you have picked a year: Write 3 to 5 dot points of events which were occurring in Australia and how they may or may not relate to land rights. If you have picked a historical event: Research further information about the historic event and write at least 3 to 5 dot points of facts that were not covered in the presentation. Once finished share them with the rest of the class. What else did you learn by sharing with others?

Controversial Issues The main controversial issues in the classroom environment are: Resistance to learning Australian indigenous history. Indigenous Australians may have issues watching the presentation as it contains video and pictures of Australian Indigenous people that have deceased. There are myths surrounding native title that can make people fearful or may unearth racist views. Some students may act upon these racist views. Some students may take a passive approach when learning about Indigenous history and may believe they know it all already. Some students may hold views that are stereotypes of Indigenous people. Teachers may have hidden racism views about Indigenous Australians.

Resolving Controversial Issues The resolution of main controversial issues in the classroom environment are to: Encourage student engagement in Australian indigenous history through the use of unknown facts. Support indigenous students by providing alternative learning resources and/or transcripts when deceased indigenous people in learning materials are present. Debunk the myths about native title claims. Knowledge empowers students to know the facts and challenge untruths. Create lesson activities engaging and to cater for all types of learners using the VARK principle (Fleming, 1992, page 137). Do not use learning materials that stereotype indigenous people or that is racist (Craven, 2011, p. 151). Encourage students to develop an ethical positioning about Indigenous issues. Promote cultural awareness and to understand Aboriginal perspectives through a reflective lens (Brookfield, 1995)

References Behrendt, L .(2012), Indigenous Australia for Dummies. Milton, Qld: Wiley Publishing Australia Pty. Ltd. Brookfield, S. (1995), Becoming A Critically Reflective Teacher. San Francisco: Jossey-Bass. Craven, R. (2011), Teaching Aboriginal Studies: A Practical Resource for Primary and Secondary Teaching (2nd ed.). (2011), Crows Nest, NSW: Allen and Unwin. Fleming, N.D. and Mills, C. (1992), Not Another Inventory, Rather a Catalyst for Reflection, To Improve the Academy, Vol. 11, 1992. Gwynn, M. (2009), Australian Integrated Primary Oxford Dictionary and Thesaurus (2nd ed.). (2012). South Melbourne, Vic: Oxford University Press. Loos, N and Mabo K (1996), Edward Koiki Mabo: His Life And Struggle For Land Rights (2nd ed.). (2013). University of Queensland Press (Kindle Edition acquired through www.amazon.com). (note: this source has no page numbers). Nakata, M. (2012), Better: A Torres Strait Islander’s Story of the Struggle for a Better Education in K. Price (Eds.), Aboriginal and Torres Strait Islander Education: An introduction for the teaching profession (2nd ed.). (2012). Port Melbourne, Victoria: Cambridge University Press.

References - Multimedia Eddie Mabo  [Image]. Retrieved from http://www.indigenous.gov.au/eddie-mabo-the-man-behind-mabo-day/ Torres Strait Islands map [Image]. Retrieved from http://ican.org.au/post-2/ James Cook University [Image]. Retrieved from http://www.jcu.edu.au/flbca/JCUDEV_003552.html High Court of Australia [Image]. Retrieved from http://www.hcourt.gov.au/about/the-building Paul Keating (1992) [Image]. Retrieved from http://www.abc.net.au/am/content/2012/s3650348.htm 7:30 report ACT, Australian Broadcasting Corporation (2012) [Video]. Retrieved from http://www.youtube.com/watch?v=e2KPAuuwYfs Reburial of Mabo (1992) [Image]. Retrieved from http://merrillfindlay.com/wp-content/uploads/2010/12/mabo-grave.jpg Paul Keating, Redfern Address, Australian Broadcasting Corporation (1992) [Video]. Retrieved from http://www.youtube.com/watch?v=CRNG3srP6zY Indigenous Language Map, David R Horton, creator, Aboriginal Studies Press (1996) [Image]. Retrieved from http://www.abc.net.au/indigenous/map/ Woman with eviction letter [Image]. Retrieved from http://www.webuyhousesfastandeasy.com.au/_blog/We_Buy_Houses_Real_Estate_Blog/post/The_Essential_Guide_to_stopp ing_House_Repossession_and_Foreclosure_-_Part_2/