It seemed at least four judges – Gerard Brennan, William Deane, John Toohey and Mary Gaudron – were onside.
After lunch, the quartet peppered Queensland’s barrister, Geoff Davies, QC, with questions about whether there was, as Brennan suggested, a “kind of community title”.
McIntyre said his crucial moment came after Deane asked about “the status of the natives” after Queensland annexed Murray Island in 1879.
Deane noted that section 91 of the Crown Lands Alienation Act made it an offence for a person to occupy land unless they had a lease or licence.
“Were they trespassers?” he asked.
Davies said no; the Murray Islanders lived there with the consent of the Crown.
Gaudron chimed in: “Does it follow from what you have said, that at any time from the time of annexation [in 1879] the native population could have lawfully been driven into the sea?”
Davies: It does.
Gaudron: It does, yes.
Davies: And it means also now that they are there at the pleasure of the Crown …
Deane: They did not have to be driven … they were outlaws wherever they went on their island.
McIntyre said it was immediately apparent that Deane and Gaudron had taken a stand.
“The Murray Islanders could be arbitrarily driven into the sea and treated as outlaws on the island – those two judges regarded that as beyond what was acceptable in a civilised society.”
Mabo v Queensland (No. 2) was the High Court unleashed, the highpoint of an “activist” period that produced other landmark decisions on political free speech, foreign affairs and interstate trade.
It helped that Australia had finally severed all legal ties with England, including appeals to the Privy Council with the passage of the Australia Act in 1986. (In 1988, the justices stopped wearing wigs.)
Keon-Cohen says that during the 1980s and 1990s “there was increasing judicial realisation that the political process was unwilling, or incapable, of grappling with some major social issues because they were politically too difficult”.
A creature of the British common law, terra nullius said land could be treated as unoccupied if the natives were “barbarous or unsettled and without a settled law”.
It clearly did not apply to Aboriginals and Torres Strait Islanders, the oldest civilisation on earth. And it had been rejected in legal claims brought by indigenous people in the Western Sahara and Canada.
The changing membership of the court was another plus for Mabo. Brennan joined the court in early 1981, followed by Deane in 1982 and Gaudron and John Toohey in 1987.
Those justices – and not the legal team who worked on the case for 10 years – arguably won the case. Whether they went too far and intruded into areas best left for politicians remains a point of debate.
McIntyre first met Eddie Mabo at a land rights conference hosted by James Cook University in Townsville in August 1981.
It had been 10 years since the first significant land rights case – Milirrpum v Nabalco, brought by the Yolngu people of the Gove Peninsula – had failed in the Northern Territory Supreme Court.
The decision was widely criticised; the judge found native title did not exist, but it was never appealed.
Unfinished business: the late Eddie Mabo, whose successful challenge
to terra nullius did not remove all major impediments to Indigenous advancement. Jim McEwan
The land rights movement was determined to find the right case to take all the way to the High Court. McIntyre himself had investigated a claim by the desert people of Warburton after working there in 1979.
At the Townsville conference Professor Garth Nettheim, the former UNSW school dean, nominated McIntyre to run a claim by Mabo and others.
McIntyre had moved to Cairns in early 1981 for a job with the Queensland Aboriginal Legal Service and was working on a High Court case against the Bjelke-Petersen government.
“Garth said: ‘Young Greg McIntyre is here; he would make quite a good instructing solicitor.’ ”
Castan, a member of the wealthy Smorgon family, signed on as lead counsel, and would help keep the budget operation afloat. He co-opted Keon-Cohen to the cause.
(Another early member of the team was Melbourne barrister Barbara Hocking, mother of historian Jenny Hocking, but she had to leave in 1986 when she took up a tribunal position.)
“The grant money could run 12 months late, and Ron Castan loaned me 10 thousand a couple of times,” said McIntyre.
“I had this Ansett credit card that I used to bring down witnesses [from the Torres Strait to Brisbane]. I couldn’t pay and they cancelled it.
“It would not have happened without him; keeping it afloat was tricky.”
After the case was filed in May 1982, the Queensland Supreme Court was asked to compile a report on the claims. The legal issues would be left to the High Court.
After some legal detours, justice Martin Moynihan delivered his “determination of facts” in 1990. He found against Mabo – and was scathing of his credibility as a witness – but said the litigants, including David Passi and James Rice, had established ongoing ownership.
It is a curiosity of the case that McIntyre, not Castan, acted for Eddie Mabo in the High Court.
As they prepared for the High Court hearing, McIntyre moved back to Perth and began working as a solicitor/advocate. He was going to act as a junior to Castan in the High Court until the Victorian Bar objected. Dividing the case was the solution.
The only time McIntyre spoke on day three was to confirm Mabo would adopt the arguments made by Castan for Passi and Rice.
When the High Court’s decision was handed down more than 12 months after the hearing on June 3, 1992 – 32 years ago on Monday – the exchanges from that third afternoon were writ large.
Brennan picked up the Gaudron-Deane line about being “driven to the sea” in his lead judgment.
Lawyers Greg McIntyre and Bryan Keon-Cohen photographed this year. Eamon Gallagher
He wrote that “the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land”.
“Queensland conceded the Meriam people could lawfully have been driven into the sea at any time after annexation [by Queensland in 1879] and that they have been illegally allowed to remain on the Murray Islands ever since.
“Such a conclusion would make nonsense of the law … [and] would be truly barbarian.”
The majority judgments were anything but dry legal reasoning. Brennan – one of the first advocates to argue for land rights during the Woodward Royal Commission – was especially forthright.
“The common law itself took from Indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the imperial authorities without any right to compensation and made the Indigenous inhabitants intruders in their own homes and mendicants for a place to live.
“Judged by any civilised standard, such a law is unjust.”
However, Brennan could not agree with Deane, Gaudron and Toohey that Indigenous people should be able to claim compensation. On that issue, the plaintiffs lost 4-3, with Mason and Michael McHugh, plus Dawson forming a majority.
In 2019, McHugh said in 2019 that he was swayed by Castan’s argument that other countries had rejected native title.
“It became obvious that the Crown’s sovereignty, radical title, was subject to the rights of the native inhabitants.
“It just seemed to me that [the case of] Stuart and Cooper which was decided by the Privy Council in 1889 and affects Australia’s terra nullius, was just wrong. And so I had no doubt that we had to overrule.”
Keon-Cohen says the Mabo decision “cemented the High Court’s role as the ultimate source of the common law of Australia”.
But did the justices go too far, and intrude into political territory?
Dawson thought so. “If traditional land rights are to be afforded to the inhabitants of the Murray Islands,” he said in his judgment, “the responsibility, both legal and moral, lies with the legislature and not with the courts.”
In 2012, Mason answered the critics, noting the view that “it was better to let sleeping dogs lie than raise an issue which could cause division and controversy”.
“The sleeping dog is the belief that Indigenous people had no title to land.”
Mcintyre said the political and legislative recognition of Indigenous rights to land “had dropped off the agenda by 1983”.
“The path of recognition through litigation was all that was left.”