NATIONAL: Two land rights warriors – Eddie Mabo and John Koowarta – passed away without seeing any sort of justice. What does that say about this country, asks NICOLE WATSON*.
Most of us are familiar with the maxim, “justice delayed is justice denied”. I have always understood that principle to mean that if an individual has suffered an injury, he or she is entitled to timely redress.
That rule is topical in light of two recent anniversaries. May 11th was the 30th anniversary of the High Court’s decision in Koowarta v Bjelke-Petersen.
The 20th anniversary of Mabo v Queensland was celebrated a little under a month later.
Both men were heroes who achieved extraordinary feats by anyone’s estimation. But neither Koowarta nor Mabo received justice that was timely.
Biographies, documentaries and a recent movie have been devoted to Eddie Mabo’s inspiring story.
Although John Koowarta’s story is also moving, comparatively little has been written about his life.
John Koowarta was a Wik man from Aurukun, and one of the rightful owners of the lands within the Archer River Pastoral Holding.
He was also an experienced stockman who aspired to purchasing the property and eventually running it as a business.
Between 1974 and 1976, Koowarta worked with the federal Aboriginal Land Fund Commission to buy the property.
The Commission subsequently entered into a contract with the lessees to purchase the lease, but this contract was subject to the approval of the Minister for Lands.
The requisite approval was withheld on the basis of the following policy:
‘The Queensland government does not view favourably proposals to acquire large areas of additional freehold or leasehold land for development by Aborigines or Aboriginal groups in isolation.’
Koowarta argued that the policy was in breach of the Racial Discrimination Act (RDA).
His opponent responded that the RDA was unconstitutional.
The High Court found in favour of Koowarta.
In other circumstances, the decision would be celebrated as a rare victory for Aboriginal people.
But as most readers will know, the Queensland government dedicated the Archer River Pastoral Holding as a national park, effectively thwarting Koowarta’s aspiration to get the land back.
It was not until May this year that the state finally revoked part of the dedication and recognised the rightful claims of John Koowarta’s relatives.
Tragically, John Koowarta did not live to see Premier Newman deliver a belated apology on behalf of the state, because he passed away in 1991.
There are many commonalities between John Koowarta and Eddie Mabo. Both men fought courageous battles against a powerful adversary that had achieved international notoriety for its racially discriminatory policies.
Each changed Australian law forever.
But arguably, the most poignant commonality between Eddie Mabo and John Koowarta is that both men passed away before receiving justice.
After pursuing a decade long legal battle against the State of Queensland, Eddie Mabo perished in January 1991.
The High Court would deliver the historic decision that carries his name five months after his death.
I never had the privilege of meeting either John Koowarta or Eddie Mabo.
But I would have thought that what each man sought was nothing more and nothing less than simple justice.
Each asserted rights to his home, or using the Australian vernacular, his ‘castle’.
In a country where one’s castle is apparently sacrosanct, it is truly outrageous that Indigenous people should have to resort to legal processes, in order to achieve recognition of our rights to home.
That those legal processes proved to be so unwieldy that justice in both cases was delivered only posthumously, speaks volumes about the racism that lurks at the foundations of our national institutions.
Some would argue that the unreasonable delays in both cases should be attributed not to the courts, but to the obstructionism of the former Bjelke-Petersen government.
But surely a legal system that can be so easily manipulated by governments with wealth and power, at the expense of individuals with comparatively few resources, is also deserving of censure?
Many would like to think that the bad old days of the Bjelke-Petersen era are behind us.
It is comfortable to imagine that our national institutions now have respect for the relationships between Indigenous peoples and our lands.
But the facts suggest otherwise. According to the National Native Title Tribunal’s most recent National Report, as of December last year, there were 443 claims by Indigenous people seeking recognition of their native title that were yet to be finalised.
Almost half of those claims were more than 10 years old.
One cannot begin to grasp the pressure that such a protracted and, at times, invasive process places on family relationships.
Likewise, it is impossible to fathom how many Elders have passed away, while waiting for the native title recognition process to deliver something that should be theirs as of right.
Which begs the question – does the principle of ‘justice delayed is justice denied’ have any application when the injured parties are Aboriginal and Torres Strait Islander peoples?
*Nicole Watson is a Murri lawyer and researcher with the Jumbunna Indigenous House of Learning at the University of Technology, Sydney.