#22 Bryan Keon-Cohen on Mabo, Native Title & Justice

What does it take to challenge centuries of accepted law and change a nation forever?

In recognition of Mabo Day, Burning Bridges travelled to Melbourne to sit down with Bryan Keon-Cohen, the junior counsel who stood alongside Eddie Koiki Mabo and the Meriam people throughout the historic 10-year legal battle that culminated in the 1992 Mabo decision.

From 1982 to the landmark High Court decision in 1992, Bryan was at the centre of the case that would forever change Australia's understanding of Indigenous land rights and Native Title. In this powerful and deeply educational conversation, he shares firsthand accounts of the challenges, setbacks, political pressures and personal sacrifices that shaped the Mabo case.

Bryan speaks candidly about travelling to Murray Island, meeting with the Meriam people, working alongside Eddie Koiki Mabo. Drawing on his firsthand experiences in the Torres Strait and throughout the Mabo proceedings, Bryan provides rare insight into a case that recognised the traditional land rights of the Meriam people and paved the way for Native Title recognition across Australia.

This is more than a history lesson. It is a story of courage, persistence and purpose. Whether you're passionate about Indigenous rights, law, social justice or the power of standing firm in your convictions, this is an episode you won't want to miss.

The legacy of Mabo continues to shape Australia today. Understanding how that legacy was built is essential viewing.

Burning Bridges Podcast would like to acknowledge the traditional custodians on the land on which we live and pay respects to Elders past and present. 

Warning: This episode contains the names and discussions of Aboriginal and Torres Strait Islander people who are deceased. Viewer and listener discretion is advised.

Transcript

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Hi, I'm Tom Manna.

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SPEAKER_01 0:27

Let's get into this episode. We had the privilege of sitting down with Brian Keon Cohen, who is one of the lawyers in the Eddie Marbot case from 1982 to 1992. This episode is a historical moment in Australian history for Australian Indigenous people. Brian shares with us his experiences of the events that took place of 10 years at all. We'd love to pay our respects to the traditional custodians of this country and to the Marbot family. Aboriginal and Torres Strait Islander people are advised that the following episode contains names of deceased people.

SPEAKER_00 1:02

Hello, I'm uh Brian Kieran Khan. I'm a retired barrister at the Victorian Bar. During 1982 to 1992, I was junior counsel acting for the plaintiffs in the Marbot case. And I'm here doing a podcast for Burning Bridges.

SPEAKER_03 1:18

Hi Brian, thank you for being here. We're really excited to have you join us today. Thank you. Appreciate it. Pleasure.

SPEAKER_01 1:24

Brian, it's both uh honour and a privilege to have you here with us and talk about a significant moment in history, especially for Indigenous people of Australia, with uh Eddie Marbo case, where there were five plaintiffs in that case. Yeah. And can we just start with what made you want to become a lawyer?

SPEAKER_00 1:43

Uh that's a good question. And there's uh no a simple answer. I was initially uh interested in medicine. My father was an orthopedic surgeon, so I initially studied medicine at Monash University, passed English literature and didn't pass much more. Thereafter, I went jackarooing and met some Aboriginal boundary writers in a property on the Darling River in New South Wales. Then came back and started law arts at Melbourne University because I became interested in legal issues. I was studied there and uh during that time became interested in legal history and wrote a master's thesis on the first uh resident judges of the Supreme Court of New South Wales for the district of Port Phillip, 1839 to 1841. And uh during that time, being the 1960s, we had the constitutional referendum in 1967, which of course amended the Constitution, Section 5126, to enable the Commonwealth Parliament to pass laws in the area of Aboriginal affairs, and of course enabled indigenous people to be counted in the census. So this was of interest to me. Thereafter, there was, of course, continuing agitation in the land rights arena, and all of this was of interest to me in my legal studies.

SPEAKER_01 3:02

And how did the Eddie Marbo case come about in 1982?

SPEAKER_00 3:07

Well, it came about because there was in the early 1980s continuing agitation for land rights and the the J the Students' Union at James Cook University in Townsville cooperating with the Aboriginal Treaty Committee. That was a national committee headed by Nugget Dr. Nuggett Coombs, with leading Australians such as Judith Wright, the poet, also in leading that Aboriginal Treaty Committee. And the Townsville branch of the Aboriginal Treaty Committee was in fact headed up by a fellow called Eddie Corgi Marbo and Professor Noel Lewis from James Cook University. So the Students Union and the Townsville branch of the Aboriginal Treaty Committee convened a land rights conference. That was in October 1981. And a number of leading advocates for land rights attended that conference, including Eddie Marboh, including another of the five plaintiffs, Dave Passy, including the instructing solicitor in Marbo, Greg McIntyre, plus the uh a junior barrister from the Melbourne Bar, Barbara Hawking, who had written extensively on this area of law. Leading lawyers such as Professor Garth Netheim from University of New South Wales Law School, who had written books criticizing the very paternalistic and racist Queensland laws then in place under the long-established Bielkie Peterson National Country Party government. Also Professor Henry Reynolds, who of course has written a great deal about Aboriginal treaties and Aboriginal sovereignty and Aboriginal uh issues. And at that conference there was a session on whether or not it would be a good idea to run a test case in the High Court. And Barbara Hocking and Greg McIntyre and Eddie Marbo all spoke about that issue. There was then a committee or a meeting of interested people on that topic. And at that meeting the case started. They decided to pursue the case with Eddie Marbo as a lead plaintiff and Dave Passi as plaintiff. Greg McIntyre as an instructing solicitor, Barbara Hocking, who's now passed away as junior counsel. They Barbara Hocking returned to Melbourne. Greg McIntyre went back to his position then as a lawyer with the Aboriginal Legal Service in Cairns. And that was the start of the case. And then I at that time I was a very young, very uh very uh junior, um, very cheap um barrister at the Victorian bar. I just started practicing at the bar in June of 1981. And I'm sitting there in my chambers feeling very unwanted and unloved, and the telephone rang, and it was Ron Caston. We knew each other. We'd worked working in the Victorian Council for Civil Liberties together, and he had an outstanding reputation and was a really, really wonderful guy. He was a leading Queen's counsel in Melbourne at the time, highly regarded by the High Court judges, very knowledgeable about constitutional issues. And he had been retained as leading counsel for the plaintiff's legal team, and he rang me up and said, uh uh Brian, uh, have you heard of a bloke called Eddie Marbo? And I said, No idea. Who's he? And he said, Have you heard of the Torres Straits? And I said, Who are they or where are they? And are they part of Australia? And he said, Perfect, you're the right man. I'd like you to join us to, as part of the legal team, to run a high court case on establishing indigenous land rights in Australian common law because we knew each other. He knew that I had prior three years worked with the Australian Law Reform Commission in Sydney when Justice Michael Kirby was chairman, and my particular task in that office over the prior three years was to be a researcher in the reference concerning the recognition of Aboriginal customary law within the Australian legal system. In that task, I had visited communities, for example, in Central Australia, in the APY lands, the Angru Pitinjar and Younger Dejara lands, sitting down with uh groups and communities to talk about their customs and traditions, their leg their traditional laws, and how they might or might not interact with and be part of the broad Australian legal system. So Ron Roncaster knew that I was very familiar with a lot of these issues, and that's how I joined the team, and that's how the case started.

SPEAKER_01 7:32

Wow, so it originally started by it being a test case. Yes. And in the High Court. In the High Court.

SPEAKER_00 7:39

Yes. So the proceedings we w worked over the next months uh drafting and redrafting and redrafting a statement of claim, which is the way you initiate court proceedings. Ron Caston's Secretary Glenda McNaught, who subsequently became the first female barrister at the Victorian Bar uh clerk at the Victorian Bar, she typed and retyped this document using state-of-the-art, absolutely brilliant modern technology being an IBM golf ball typewriter. That was that was the best available on talking. January, February, March, April, May 1981. And there was no internet, there were no iPhones, computers, or anything like that. And that's how we typed up the statement of claim and the claim. We also at that time had a research trip to Murray Island to meet the plaintiffs, meet some of the people who might be witnesses, become familiar with the way that traditional interests in land worked on Murray Island. And that was very different to Aboriginal Australia. This was a community that essentially were focused on gardening. They had designated defined blocks of land on the island where you would where you would have your house and garden. These blocks of land had boundaries which were raised mounds of earth or tree trunks or mounds of rocks, and we were taken through these very, very precise areas, owned by under custom and tradition by particular families, and used to grow food. There were also three islands in the Murray Island group, and there was Murray or Mr, Dawa and Waia. And we were told that there were traditional interests on those islands as well. Also in the offshore reefs, which were you know fifty, fifty meters wide, and where there were fish traps being lines of rock reaching out the reef, around at the edge of the reef, and back maybe twenty, thirty meters back to shore. The tide would come in, fish would come in into this fish trap, tide would go out, and there was fish to be caught by the Murray Islanders. These two were areas under claim. And in addition to that, there are areas of s offshore seas in the offshore Murray Island and also extending out to the Great Barry Reef, a particular area that Eddie Marbo claimed. And so we, over those months, after a lot of discussion, including with Eddie Marbot, he was the only plaintiff we could contact easily by phone, because he lived in Townsville with his wife Benita, and ultimately they had ten children, seven of their own, three adopted, Island away. Finally settled on five plaintiffs. Eddie Marbo, Dave Passey, who was an ordained Anglican minister. I led his evidence in his clerical robes very deliberately, because his very important evidence was that Christianity, which arrived through the London Missionary Society in 1871, did not, as Queensland counsel argued fiercely, completely destroyed custom and tradition and traditional philosophies such as Marlowe's law. Christianity, according to the Anglican minister, plaintiff Dave Passey, Marlowe's law prepared the way for Christianity. The two philosophies worked together and continued to coexist on Murray Island. And that was a very important element of the evidence. So we had Eddie Marbo, Anglican minister Dave Passey, his elder brother Sam Passey, former chairman of the Murray Island Council, and a leading man, a school teacher, James Rice, and Eddie Marbo's aunt, Sir Louis Amarpo-Sili. I mean, there are five plaintiffs. Sir Louia Marpo-Saly died in 1985, just two years after the statement of claim and proceedings were issued in the High Court. And Eddie Marbo assumed all of her claims. That meant that he was claiming about 40 blocks of land and areas of seas and areas of offshore reef. Dave Passey was claiming about four or five blocks, Sam Passey four or five blocks, James Rice about three blocks, and Silia Marpapaly, of course, had passed away. So we had to detail all of these claims over the succeeding years in what became known as a statement of facts. The claim was issued in the original jurisdiction of the High Court. That means the High Court from day one had control of the claim but did not conduct any trials. High Court judges are far too busy to conduct trials. The last trial conducted was by Justice Lionel Murphy in the 1980s in a case called the Dogs Case, Defense of Government Schools case. They do not conduct trials after that. So a major issue was to was who was going to how are we going to decide the facts of this case to trigger the ultimate legal issues? And the High Court Chief Justice at the Times, Gibbs, after four years of harji-bargee and twoing and frowing with Queensland legal team, trying to agree facts so that we wouldn't have to go to a trial. We drafted volumes of suggested agreed facts which Queensland would not agree to. And these facts covered historical events such as colonization in 1879, such as the customs and traditions that occurred, the uh activities of the Queensland Department of Aboriginal and Island Affairs, often called the Department of Native Affairs, the operations of the Island Court, which was established under legislation and bylaws, and the sorts of rights that were claimed under custom and tradition. Queensland wouldn't agree all of these facts, so that the matter could then, on the basis of agreed facts, go straight back to the High Court for the ultimate legal argument. So after four years, the matter was referred to trial and was referred to the Supreme Court of Queensland to be heard by a single judge, Justice Martin Moynihan of the Queensland Supreme Court. So after four years, that was that was referred to trial. And the trial began in Brisbane. Then there was a very uh difficult ten-year progression. We had a four-year period of toing and froing, trying to agree the facts, and that did not happen. And that led us to the commencement of the trial in 1986, in about October 1986. Uh that was set down for four weeks and was a disaster in a variety of ways. Firstly, the trial judge got sick for for some days, uh, such that hearing days were abandoned. I got sick and had to return to Melbourne for a few days and then came back again. The conduct of the hearing was interrupted over and over again by Queensland objecting to the evidence because it was hearsay. So we only called two witnesses. One was an elderly man, and then I called Eddie Marboe to present his evidence in chief. And over four or five days of delivering presenting his evidence with breaks and with uh interruptions, there were 274 objections to his evidence. And this was because it was hearsay or irrelevant, according to Queensland's counsel. He essay is when a witness wants to say, for example, my father told me that objection. You can't say what your father told you to this court as evidence of the truth of the facts of what you say your father said. He wants to say, of course, my father told me that when he passed away, his traditional lands would be passed on to me, and I would be become under Islander custom and tradition the owner of those lands. Objection. And this completely derailed the progress of the evidence, such that and there was serious argument about this. Ron Caston was called up from Melbourne, this is all happening in Brisbane, to conduct the the final arguments against Queensland's senior counsel, and the judge decided to quote unquote let it all in, subject to weight. That is to say, we submitted various exceptions to the hearsay rule applied here, e.g., there was evidence of the fact of the event as well as the contents of the statement and so on and so on. He d decided that uh he would let it all in, but at the end of the day he would look at it as a question of weights to whether or not he would believe the evidence and be uh convinced by that witness as a witness of truth. So uh that was a very critical moment, and with all of those difficulties, the evidence we only called two witnesses in the end in that initial hearing in Brisbane over four weeks in late 1986. So then the trial adjourned, but it adjourned uh to d to pursue another problem, and that was in 1985 the Bjorg Peterson government decided that they were sick of this Marbo nonsense and these Southern lawyers who were misleading and uh the Merriam community and causing unnecessary uh uh trouble uh in Queensland, um, which including comments in the in the Parliament by Queensland Parliament members of of the Senate criticizing these barristers from Melbourne, interlopers into into the Queensland justice system. Uh in 1985, the Queensland government passed an act called the Declaratory Act, and that act was one page long, and it said, as at the extension of sovereignty of the British Crown to the uh Torres Straits, annexing the Torres Straits to the colony of Queensland, any traditional rights that may have existed at that time are hereby retrospectively extinguished without compensation. Full stop. There was a brutal one-page act of parliament passed by the Queensland Unilateral Parliament, one chamber of the Parliament of Queensland, in in a week. And we were thus faced with a serious challenge, which, if that was a good law, that was the end of Marbo. So as part of the initial four years of R. G. Bargy and discussion with Queensland about how matters should proceed, including with directions hearings before High Court judges, we had decided to start on the trial rather than challenge this 1985 act. Well, after the trial, uh, in its first phase was finished in uh November 1980, we then issued what is known as Demurra pleading, which is a an unusual pleading in the High Court, but which brings the matter back to the High Court to agitate this particular issue. That is to say, was we challenged this Queensland law as invalid and inoperative because we argued it was contrary to the Commonwealth Racial Discrimination Act, section 10. The Racial Discrimination Act, as you will know, was passed by the Whitlam government in 1975 and was an important piece of legislation in terms of protecting indigenous uh indigenous rights. Greg McIntyre and Ron Caston had interfered in a case just a year before in the High Court called Kuwata, Queensland case, where an Aboriginal person in Mr. Kuata wanted to uh hold title to a pastoral lease. The Occupy's government refused to allow that. That was challenged in the High Court and succeeded in that challenge, and particularly it succeeded in a finding that that Racial Discrimination Act was constitutionally valid, was within the powers of the Federal Parliament to pass such a law. Um, using the uh constitutional amendment of 1967, investing powers in the parliament to pass laws on Aboriginal affairs. So we knew that the Racial Discrimination Act was constitutionally valid, and we challenged this Queensland law. That became a that went to the High Court for argument. There was three days of argument before the full High Court in 1987, and a decision was handed down in 1988 by the full High Court. Four judges to three. We succeeded. It was a very close thing. The four majority judges decided that this was a law which distinguished between Torres Strait Islanders and Whitefellas in terms of their property rights. It abolished Torres Strait Islanders' property rights while leaving unaffected white fellows' property rights. And so the four judges in the majority decided that it was contrary to the Racial Discrimination Act, and therefore, under section 109 of the Constitution, when that arises, the state law is deemed to be invalid and operative to the extent of that inconsistency. So Marbo survived and we were able to continue with the litigation. That meant we came back to trial in 1989 and started again in May of 1989. We then, with the judge's agreement, visited Murray Island for three days to hold hearings on Murray Island. And that was a very important exercise. The Murray Island community were very uh good. They entertained the judge in terms of providing morning tea and sitting around the court. They attended the court, which was conducted in the Murray Island Community Hall during the hearings. We uh called witnesses on Murray Island, being the elderly people in particular, who were unable to travel to Brisbane to appear there. Do you want me to go on?

SPEAKER_01 21:57

Yes.

SPEAKER_00 21:57

Yes, we're enjoying this.

SPEAKER_03 22:00

Fascinating.

SPEAKER_01 22:00

Just you're talking about the anti-discrimination act law that came into Racial Discrimination Act.

SPEAKER_00 22:06

Racial discrimination. Yeah. And you used that against Against to say, to argue that the Queensland Declaratory Act of 1985 was invalid because uh it was in conflict with a federal act. And under federal under uh constitutional law, if a state act or territory act is in conflict with a federal act, then the federal act prevails.

SPEAKER_01 22:39

It overrides it.

SPEAKER_00 22:40

Yeah. Yeah. That's section one hundred nine of the Constitution, right? I'm just trying to find my note. Bloody lawyers. Yes. In the trial of facts 1989, Supreme Court visited Murray Island to hear evidence. The court sat in the Murray Island Hall, and we called uh Merriam witnesses who were in the main too old or fragile or unable to travel to Brisbane to give evidence in Brisbane. And we called 25 Miriam witnesses talking about custom and tradition in total, many of them at Murray Island, uh two or three in Thursday Island, and the remainder in Brisbane. Queensland called nine Miriam witnesses to give evidence against the claim. Some in Murray Is uh most of those in Murray Island. And that's just an example of how uh how how disputatious the Miriam people can be when it comes to uh traditional rights to land. They r are very passionate about their rights to land, and there can be disputes about what precisely grandfather said before he died as to who it was to inherit his rights and interests. And another important area of evidence that we discovered on Murray Island uh during one of our research trips was the records of the Murray Island Community Court. This was a court established by the Queensland Department, which was constituted by the Murray Island councillors, senior people on the island, including Sam Passy, for example, had been a council chairman and a member of the Murray Island Community Court. That court sat uh every few months on Murray Island and other islands around the Torres Straits to hear disputes, including disputes under the bylaws. The bylaws were a very paternalistic set of laws which were introduced by the department pursuant to uh Aboriginal Island of Reserve legislation, which said you shall not uh dance or drink alcohol at after certain hours, you shall not speak with girls after certain hours, and also mentioned that uh there were laws about land under customs being inherited and so forth. So there were disputes about a Murray Island inheritance of land, which went to the Murray Island Community Court. And when we were up there in our research trip in early of 1982, I walked into this rather dilapidated-looking tin hut, which I think was a former police station or prison, and tripped over a bundle of papers lying on the ground amongst the vegetation and the spiders and the ants and whatever. And it was a pile of paper being records of the Murray Island Community Court. And we picked them up and looked at them and discovered cases recorded, written out, dealing with the inheritance and dealings with land pursuant to Murray Island customs and traditions. And we thought this was a very valuable set of uh uh uh area of historical evidence to present to the court as evidence that of two things, that the of traditional land rights on Murray Island had had continued since uh annexation and since colonization in 1879, had been recorded. And uh not only that, some of these records had been signed off by departmental officers. For example, people called Mamusas, who were leaders appointed by the department, indigenous or Tros Strait Islander people to take leadership or all, or by council chairmen, or sometimes by visiting officers of the department. And this gave them a quasi-official role, and we were considered these very valuable. So those court documents, after discussions with the Murray Island leaders and community council, were taken back to Melbourne to our chambers. We typed them up, we extracted the relevant uh records dealing with islander land issues, typed them up and presented to them to a trial judge as evidence of a continuing system of custom and tradition. He he considered them in his final decision called a determination of facts, which was handed down in December of 1990, and he found that basically they, in his view, were not a record of custom and tradition, rather a record of the local island court trying to maintain peace and order and civil civil society and uh resolve disputes in an amicable way. Whereas we had put a very different submission. Queensland, of course, had put the submission that they were of no value and and uh the and the Archives Department of the Queensland, uh associated with the Queensland government were outraged and were writing letters to Greg McIntyre during this period to say, how dare you take our documents away? Not the Mary Island documents, our documents. That was the attitude of the of these departments. So the evidence on Mary Island was important. Another element in this whole trial process was a very difficult exercise where one of the Queensland departmental officers in in the education department, a man by the name of George Passey, an actual brother of the two plaintiffs, Sam and David Passey, we believe under instructions from his department, came to Murray Island and spoke to the plaintiffs and tried to influence them to withdraw. Now, that you cannot do in Australia's court system. That can amount to a contempt of court, and you can go to jail for that. And this is another example of how Eddie Marbo and the pla uh in particular and the plaintiffs were seen as disruptors, as aggressive radicals who are disturbing the the order and and laws and management of Murray Island and possibly the Torres Strait community, and how Queensland was determined to stop this case. He spoke to the to the plaintiffs, Suluya Marpo Solis, she was dead, but the four remaining plaintiffs. Two of them announced at the start of the trial, in the first phase of the trial in 1986, that they had withdrawn. They that was Sam and Dave Passey. They apparently went to solicitors, unbeknownst to us, unbeknownst to Greg McIntyre, went to solicitors in Cairns, who issued a notice of withdrawal and r wrote to our instructing solicitors. Sam Passey did not come back, gave limited evidence for the plaintiffs on Murray Island. He had suffered a stroke and w gave some evidence, but he also gave evidence that rejected Eddie Marbo's claims, as did other witnesses called by Queensland. Dave Passey, uh, to his credit, spoke with anthropologists, I think, and made application to return as a plaintiff.

SPEAKER_01 29:52

So just to cut in there, so two of the plaintiffs, uh Passey brothers, were influenced to take their claims out.

SPEAKER_00 30:00

Correct. Were influenced to withdraw and leave the claim. Do you know if they were done by threats? I I don't know. I don't wish to exaggerate what took place, but I do know they were spoken to. Eddie Marbo said go away. James Rice, to his great credit, said go away. But the two brothers, Sam and David, apparently were influenced to withdraw.

SPEAKER_01 30:25

Who are the people that influenced them to do so?

SPEAKER_00 30:28

The information provided to me was that it was George Passy, their brother, who was a man uh employed by the Department, Department of Aboriginal Island Affairs, uh, I believe in an educational role for many years. You have to realize that the island itself had people who were sportive of the department and its regime. Whereas many other Murray Islanders supported Eddie Marbo and the plaintiffs, and who rejected the what I considered to be very paternalistic controls of their daily lives, where they could work, whether they could leave the island, whether they could come back to the island. You had to get permission. For example, Eddie Marbo wanted to return. Eddie Marbo was deported. Exiled. Exiled, sent away from the island at the age of about 18 or 19, because the community court decided that he had acted improperly in breach of the bylaws, drinking alcohol and talking to girls, right? But he was under the regulations, exiled for two years, and sent to work on the trochus boats. He therefore left the island, thereafter worked in on Western Queensland Railways, he worked with the Siemens Union in Townsville. He married a wonderful lady, Benita Naho, Benita Marbo, his wife, and bought a house and lived in Townsville. So he was absent from Murray Island from an early age, the age of 18 or 19, and therefore was considered by many of the islanders as almost as an outsider, as not welcome, as an interloper, rather like me in standing up in the Queensland Supreme Court, coming from the Victorian Bower. And that was one one of the reasons why he was both of independent mind, highly intelligent, had beautiful English, had lived with a school teacher for two years on Mary Island. He taught him to teach, to speak English very, very well. He had also very profound knowledge of custom and tradition. At an early age, he was adopted. His mother died soon after childbirth in 1936. His father was a man called Sambo, who was very prominent in the 1936 uh seafarers strike across the Torres Strait. He was then adopted, island away, to his mother's brother, uh Benny Marbo. Benny Marbo was a senior guy on Murray Island, and Eddie Marbo claimed that he, his adopted father, Benny Marbo, transferred his lands to him, to Eddie Marbo. And one of his adopted sisters gave evidence for Queensland that that didn't happen. And so it was a very contested exercise. And in the end, the trial judge, Justice Martin Moynihan, in his final determination of facts, uh rejected all of Eddie Marbo's claims. All 36 claims, being four original, plus a large number he inherited from the deceased plaintiff Sir Louis Amarpe Soline. He rejected them all. He found reasonably strong results and reasonably strong findings for the returned plaintiff Dave Bassey, whose findings for an area called Zomered, which is a little village block of garden and housing land, was perhaps the best outcome of all. He also made reasonably strong findings for James Rice, two or three areas of his land, all on Murray Island, right? So we lost all of our claims, save you could say lost on the decision of facts, save all of Eddie Marbo's claims were rejected. All of Dave Passy's claims save two or three, which were quite firm, and James Rice's claims also succeeded. We lost all of the offshore seas and reefs beyond the high watermark, not the low watermark. So all the beaches were lost, lost all the claims to the outer seas, to the Great Barrier Reef, and to the two adjacent islands. Well, and on that basis, we had a a serious problem, and that is what do we do next? Eddie Marbo had been the instigator and the prime mover and the uh essential plaintiff in this exercise. He devoted ten years to this claim. He was always available for me to ring him. He understood the issues and was able to find witnesses, able to organize uh the community to receive the trial judge. He stood against significant opposition from people in Townsville and people on Murray Island against the claim. I visited him in Townsville and visited his house with Panita and the children and discovered inside his front door was a rifle. And that was because Townsville people, some of them, were driving up and down his street, threatening him. And Townsville, in fact, has quite a conservative population. Its vote in the voice was one of the most against the voice, for example. And Eddie Marbo stood against all that. But we now had a difficult decision. Should we appeal these adverse findings by the trial judge to the Court of Appeal of the Queensland Supreme Court? Or should we go directly to the High Court based on the reasonably strong findings for the Reverend Dave Passey and James Rice? Ron Caston and I and Greg McIntyre advised him not to appeal. We didn't have legal aid for such an exercise, which could take two years. We uh had reasonably strong findings in any event for Dave Passey and James Rice, upon which to go back to the High Court and trigger the ultimate legal issues before the full High Court. And to his credit, he accepted that advice. And hence, and thus we did not appeal those rejections by the trial judge and were able to go collect these trial judges' findings of facts in three volumes, send them off to the High Court judges, and return to the High Court to organize the final hearing. So uh there were many very near critical failures in this ten-year exercise. And for example, had Dave Passey not returned as a plaintiff, and had there not been reasonably firm findings by the trial judge in regard to his individual claims, uh, we could have been in serious trouble because James Rice's claims findings weren't weren't as strong. And Queensland's main argument was these findings are far too vague and unsubstantiated to enable the High Court to hear any legal argument, and the claim should be rejected on day one of the High Court.

SPEAKER_01 37:28

So from the start, you used the federal law against them against uh Queensland law to be overturned. Yeah. And that was able to succeed through the court case. Yeah. And then again, your second major challenge was Eddie Marbo's 36 land claims were immediately rejected. Yeah. And then you used Dave Passey's acceptance of his lands being accepted against them to accept Eddie Marbury's lands to be accepted in into it.

SPEAKER_00 38:01

Well, it it it gets it gets more difficult than that. Okay. The final hearing before the High Court uh in in May of 1991 uh was remarkable for a variety of reasons. Firstly, let me say, when the const constitutional issues are in play, and there were constitutional issues here of a high order, for example, the doctrine of Terranalius. I was just wanting to get to that to explain what did that doctrine apply to the annexation of the Torres Straits when it was colonized in 1879, not 1788, not 1836 for Strouth South Australia, not 1829 for Western Australia, but 1879 for the Torres Straits, right? Terrenalius, which says land belongs to no one because this land is unoccupied, or the enlarged notion of Terranalis, as discuss as discussed by Justice Brennan in his High Court judgment, where it wasn't completely unoccupied, like Antarctica, but occupied by a community of people who were so unsophisticated in their social and their legal arrangements, so savage, uh so backward. And these are words of the Privy Council in England in important precedents. They were so uncivilized that they that they could not be considered to have uh a legal system that was recognized by the colonizers. And thus, even though there were people there, clearly there were. Captain Cook saw them when he was sailing up the e up and down the east up the east coast in 17 uh seventy-six. And even though there were people there, the British authorities decided that it was Terranalis. We need not enter into any treaties as occurred in in America, in Canada, in New Zealand in 1840, the Treaty of Waitangi. And we need not recognize any sovereign status, as has occurred in those three countries, also colonized by the British, who also received British common law. But in Australia there was no recognition of any sovereign government or sovereign entity. So we had to challenge these issues which are of constitutional nature, right? In that circumstance, the the Judiciary Act says that any state of territory can intervene, can also appear to put arguments for or against the plaintiff's case, for or against Queensland. In Marbo number two, this is the second Marbo case, no one appeared except Queensland. And that's always astonished me. And I've always wondered why, because this was a significant issue. And my only answer is politics. So they didn't want to be seen to take one side or another. But that's the nature of High Court litigation. You can never be quite sure what the Commonwealth or the states may or may not argue because their political considerations come to play. When we arrived at the High Court in May of 1991 for the final argument, there was a series of issues that were resolved. And before the High Court, um, Eddie Marbo was separately represented by Greg McIntyre, and Ron Caston and I represented the other six successful plaintiffs, being Dave Passy and James Rice. Not Sam Passy, because he'd withdrawn. And Eddie Marbo and Greg McIntyre said only two sentences that he appeared for the plaintiff, Eddie Marbo, and he adopted would adopt the submissions to be presented by Ron Caston on behalf of the other two plaintiffs and sat down. Because he couldn't say any more on behalf of Eddie Marbo because he'd been rejected at trial. So I say three things about Eddie Marbo. Firstly, without him, no case. He drove the case. He understood it and recruited plaintiffs and witnesses. He was constantly working throughout the ten years and was a critical contributor to the presentation of the case. Second, if only him the case was lost. Because ultimately, before the High Court, he had nothing to say because he'd been rejected at trial. And thirdly, it was actually a team effort. There was five plaintiffs, there was the legal team led by Ron Caston, who was a wonderful counsel and very knowledgeable in constitutional issues and presented very persuasive arguments and experience before the High Court. There was Greg McIntyre who did an enormous amount of work trying to achieve legal aid from Commonwealth authorities. This is in the 1980s, the Hawke government. And uh sometimes that came and sometimes it didn't. And on in several areas, Ron Caston funded various aspects of the case. For example, to fly me to Brisbane to appear in a directions hearing before the trial judge, uh, to recruit his daughter, Melissa Caston, now professor of law at Monash Law School, and her then boyfriend, now husband, Robert Lehrer, to uh live in Brisbane during the 1989 second phase of the trial, where we were there for three or four months. We were residing in in Brisbane, and their role was to meet the witnesses flying down from Murray Island, many of whom had never been to Brisbane before, let alone appear in the Supreme Court. Let alone be involved in this crazy white fellow judicial system with people in robes and jabos and let alone be cross-examined. I mean, Eddie Mubber was cross-examined over five days or uh on and off by Margaret White very professionally and very well, and no one survives that unscathed. No one. They provided administrative support during that period, which legal aid never supported. Melissa Caston and Robert Lara, they're also support from people. Like uh Professor Garth Netheim. He and I organized for his students to write essays on how to argue uh the hearsay rule and where the hearsay rule might not apply. Because I had to argue that before the trial judge. There was a team effort by a lot of people, and not to mention the community of Murray Island who supported the claimants and key and anthropologist Dr. Jeremy Beckett, who had visited Murray Island and written his PhD thesis on traditional uh Murray Island customs and traditions and including land issues. So he was a very important expert witness for the plaintiffs. I was talking about uh the High Court proceedings. The argument went for three days. The first day, Ron Caston was subject to a lot of questions and challenges, and we were feeling a bit depressed at the end of the first day. But then the court began to indicate a more supportive role. You have to understand that this is the court of Chief Justice, then Sir Anthony Mason. This is the High Court following an important piece of Australian legislation dealing with how the High Court operates. That was the Australia Act of 1986. That act removed the last remaining lines of appeal from Australian courts to the Privy Council in London. And that released the High Court from any precedence that might be handed down by the Privy Council in London. Its role since earliest colonial times was to try to m try to establish common law, same principles of law across the British Empire, across the various Commonwealth countries. And so strangely, we had decisions by the Privy Council, for example, Cooper and Stuart in 1889, which were very adverse to the continuation of custom and tradition. And it supported notions of communities that were so barbarous and so uncivilized that they could have no conception of system of law and no land rights. That was a decision that was very influential in the Gove land rights case of 1971. That case was the first land rights, significant land rights challenge in recent times. That was forward Mr. Justice Blackburn, uh, sending a Northern Territory Supreme Court a claim by the people from Cove Peninsula, Nolanboy people to their traditional lands. Galloway Unapinguo was in fact an interpreter in that case. And he ruled that that this was a system of, this was a community governed by a system of traditional laws, not by not by men. But there was a system of cultural and spiritual laws uh regarding land. But he decided that it was not of a type that he could decide, could rule, recognized in Australian law, traditional rights to land. And in that decision, he was also uh guard guided or governed by privy council precedent, including this uh particular case. Now, the Australia Acts of 1986 removed any notion that the High Court would be subject to appeal or subject to privy council precedence. Judges have have commented on this. This created a new uh reformist attitude uh by way of judicial philosophy of the High Court under Mason from 1986 going forward. And in that sense, the delays that the Marboe litigation encountered acted to the plaintiff's benefit because they ultimately came to the High Court in uh 1991 at a time when the Mason Supre was applying a more creative and reformist attitude to difficult legal issues, where it considered itself as the ultimate court to state the constitutional and common law of Australia, and where it was not bound by any other court anywhere as to uh the attitude it might take. So the court heard argument, and and on the third and final day of argument, when Ron Caston was summing up, the Chief Justice Anthony Mason leaned forward and said, Uh, Mr. Caston, we've had your submissions about making findings concerning the three or four blocks of land that you are focusing on in respect of I'm I'm not quoting him exactly, but you're focus that you're arguing about concerning the plaintiffs, Dave Passey, James Rice, who note is a representative action. That is to say, from day one, the plaintiffs sued on their own behalf and on behalf of their respective family groups. So there were in fact 30 or 40 people already, or more probably, within those extended family groups who were represented by the plaintiffs and who would have been directly affected by the decision. And the Chief Justice said, We're not so interested in looking at those individual blocks. We'd like you to consider whether or not you should this should be an action on behalf of the Miriam people for the whole of Murray Island. If you get those little blocks, we would like to consider that as an ad as an additional option to the declarations you want us to make as to them, whether or not the plaintiffs enjoy traditional rights founded on custom and tradition, not on crown grants. And so we were very uh uh interested in that suggestion. Said to us immediately, well, if they weren't interested in this case, they wouldn't have made such a suggestion. So the Chief Justice adjourned the court for a one-hour further session the following morning. So we raced back to our hotel, and that night we drafted up amendments to our statement of claim originally of May 1982, which had been through many amendments along the track and added an additional prayer for relief, it's called, which uh is in my in my Marbo book, this one. Marbo Memoir. Um, we attended court the next morning, and against fierce Queensland opposition, of course, we handed up amendments to our statement of claim where the Miriam people sought declarations that they, as a people, enjoyed the traditional rights to Murray Islands. And on the 3rd of June 1992, when the High Court handed down its decision, 6-1, Justice Daryl Dawson, formerly a Victorian Solicitor General, was the sole dissenting judge. The High Court made a High Court's declaration was that the Merriam people declare that the Merriam people are entitled to possession, occupation, use, and enjoyment of Murray Island full stop. And well, there was there was other language, but that's the essence of it. So that was a remarkable um and unusual uh initiative by the High Court judges to get us to frame our prayer for belief in the manner that they were looking at. And that's an example of the Mason Court pursuing what it perceived to be not adherence to precedence, but dealing with new problems in a changing and evolving society and economy and culture that will achieve justice in the community and for these particular plaintiffs. That was a remarkable outcome. Queensland, of course, objected to us handing up this amendment. The judges, the the high the Chief Justice said did not rule on at the moment. He said, Thank you, Mr. Caston, we will consider our decisions and adjourn the court. That was that.

SPEAKER_03 52:02

Wow. What um just quickly, how young were you when you first went to Murray Island? And what did you think of the community there when you were when you first went there?

SPEAKER_00 52:13

Uh I first went there in 1982, shortly after we issued the proceedings. And I was uh uh 38.

unknown 52:23

Okay.

SPEAKER_00 52:24

Born in 1945. Does that sound right? Yeah.

SPEAKER_03 52:28

And what did you think of the community when you flew in there? Because uh I I've never been there.

SPEAKER_00 52:33

It was it was a very um impress impressive community. It was a uh community with established leadership and with uh a r a range of people who were supportive of Eddie Marbo and who were supportive of us. They they were very hospitable. We were accommodated in Meb Sali's house. Meb Sali is a was a friend of Eddie Mabo, a witness in support. His father was quite elderly, and I uh when the judge visited Murray Island to take evidence, I asked the judge to walk down the road to Meb Sali's house, Meb Sali Sr., where he was in bed, unwell. There we stood around his bed, the judge, Queensland barristers and solicitors, me, our solicitor Greg McIntyre, and I handed him his written statement. He said, Yes, I I swear an oath to tell the truth, yes, that's my statement. And there were one or two questions only, and the judge accepted that evidence. Uh so they were well organized. They also had, as all communities do, differing views, as I mentioned already. Uh some of the uh important influential elders opposed the case. They had a airstrip at the on the top of the island, which was critical because it enabled it had only been introduced in in the 1970s, but it enabled the judge to visit the island. Prior to the airstrip, the only way to visit the island was to get in a ferry at Thursday Island and do the milk run, passing through various islands on the way until you arrived at Murray Island. They also had uh as a community a a long history which had been documented. And one of the I don't know if I mentioned it, but one of the important historical items of evidence that the community was well aware of, was visits by a Cambridge anthropological expedition to Murray Island and to the Torres Straits in 1888 and again in 1898. These were led by a Professor Haddon. He was on, he visited Murray Island for six months. They returned to Cambridge. They then produced five volumes, beautifully printed and bound reports of the Cambridge expedition to the Torres Straits and to Murray Island. And we tendered those volumes as evidence of very scholarly anthropological evidence of the existence of custom and tradition in Murray Island when they were there in 1898, remembering that that's only 20 years after colonization of 1879. So those historical accounts were well known about on Murray Island. So it was an impressive community with a lot of aspects to it. Since the decision of 1992, they have continued to pursue their claims. For example, in 2001, under the Native Title Act, there was a further claim called PASI against Queensland for the two islands that were rejected by the trial judge in Marbo and that were not the subject of any argument before the full High Court. That's Dawa and Wire. And as an example of progress that has been made, along with a lot of criticism of the Native Title regime introduced by the Native Title Act in 1993, following Marboh, as an example of some progress, that claim under the Native Title Scheme was agreed to, and there was an agreement that the claim would be would succeed. There was a consent determination by the federal court. So the federal court judged, the Chief Justice at the time, Michael Black, in 2001, flew to Murray Island. They took a boat to the adjacent Dadawa Island, erected a tent on the island, and they held court. Held the federal court to announce the consent determination whereby the Miriam community succeeded. This is now 2001, where they had failed before the High Court in 1992. But it doesn't stop there. That community joined 12 others, so there were 13 islander communities who claimed the seas of the Torres Strait. And that claim went to the federal court and included the Murray Island community claiming the surrounding seas that they had lost in the Namabo litigation. And that went to the High Court. And in 2013, the High Court delivered a very important judgment called Akiba, AKI B A, where that C's claim succeeded. And it not only delivered for the first time in Australia traditional rights based on custom and tradition to those areas of seas, that means, across Australia to that moment, the ability to use natural resources for a personal and community use only, right? In accordance with tradition and cut when accordance with custom. In Akaba, the full High Court decided that the rights to the Torres Strait Seas would include not only rights to traverse the seas and engage in traditional fishing and so on, but also for commercial purposes. And that uh thus that in 2013 was the third and final element that the Murray Island community were claiming. So from 1982, issuing the claim to 2013. What's that? That's 30 years? 35 they have persisted with this claim. It was an example of a traditional community that believes in their way of life and that it should be respected and legally recognized. They uh well deserve their place as a very significant player in this whole arena of land rights and and recognition of indigenous self-determination, etc.

SPEAKER_03 58:32

Wow. That is fascinating. That really is.

SPEAKER_00 58:38

There's another interesting area, and that is the uh relevance and impact of international legal developments during this period. We in Australia, as I've mentioned, did not in enter into any treaties, did not recognize any sovereign status of indigenous communities in this country. When I say we, I mean the colonizers, that British mob. And I say that in the knowledge that my mother was born in Yorkshire, so I'm half a POM. When we were preparing the Marber Statement of Claim, we had to research well, what is the state of the common law of Australia as introduced into this part of Australia, particularly in 1879, in regard to whether or not British common law has introduced into Australia upon colonization recognized traditional rights and interests in land. Being rights and interests not granted by the Crown, which is the way everyone else enjoys property rights, but sourced in their customs and traditions alone. Australia is the only country still without national treaties with its indigenous people, being the only Commonwealth for the former Commonwealth country. Canada, United States, New Zealand all entered into treaties of various types since uh their colonization. Many of those have been breached and abused and sometimes brutally. But still there has been that recognition from day one by the British governments of those times. And the justice uh I've already mentioned the Treaty of Waitanya is a good example in New Zealand in 1840. The understanding is that the same officers in Downing Street in London, in the colonial office of the time, decided that they should enter into a treaty because otherwise there was going to be serious warfare. There would be serious conflict with a Maori community in New Zealand in a much smaller geographical area, much more battle-oriented, and there would be casualties on both sides. And so the Colonial Office, I think, my view of it, decided that a treaty would be a simpler and safer option. And that treaty uh in both Maori and English recognized rights of self-government, and has there have been disputes about it continuing, but it was a very significant legal development. Similarly, in USA and Canada, lots of treaties were recognized and and impacted upon the development of the laws of those countries as determined by the court. And as and similarly in in the constitutional arena, the American Constitution from day one, and that is 1789 when it became operative, uh the Commerce Clause, Article 1, Section 8, states that the Congress can regulate commerce with foreign nations, states, and Indian tribes. So from day one, the Indian tribes were recognized as entities in the same breath as sovereign nations and states of the of the of the United States. So there that form of constitutional recognition was important in the development of the law. Also in Canada, in very in recent time, in 1982, the Canadian Constitution was significantly amended. We have such trouble in this country amending our constitution. But in Canada, in 1982, there were wide-ranging amendments, including Section 35. Let me read it to you. Section 35, subsection one. The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. Full stop. I mean, what a beautiful, simple, powerful sentence. Adopted by the Canadian people in 1982. Section 35 subsection two says Aboriginal peoples, referring to the prior subsection, includes the Indian, Inuit, and Metis peoples of Canada. So these countries have established constitutional recognition, and that is a very clear recognition. Similarly, in the Supreme Courts of Canada and the USA, there were important decisions which recognized traditional rights and recognized sovereign, quasi-sovereign status and powers of self-government. The Marbo case was decided by the USA Supreme Court, headed up by Chief Justice John Marshall, in 1823, a case called Johnson and Macintosh. And it was decided by the Canadian Supreme Court in 1973, a case called Calder. And these cases were very influential, particularly the Marshall decisions. There were three cases by the called the Marshall Trilogy in 1823, 1831, and 1832. Johnson Macintosh, 1823. In 1831, there was a case called Cherokee Nation and Georgia, where the Indian tribes were described as domestic dependent nations. There's a notion that has ramified through the U.S. Supreme Court judgments ever since, describing the U.S. Indian tribes as dependent nations, having a form of modified sovereignty, of, if you like, dependent sovereignty. Just like the states of Australia are a modified form of sovereignty subservient to the nation state of Australia. Similarly, in Canada, in terms of Supreme Court cases touching upon these important issues for indigenous people, the Supreme Court of Canada decided a case called Gurin in 1984. That's two years after we'd filed our statement of claim. In Gurin, the Supreme Court decided that when that traditional owners of country, being the Indian Metis or Inuit or tribes of Canada, when governments are dealing with their lands, they have a fiduciary duty owed to that Indian tribe. And that was an important decision in Canada. Imposing upon governments fiduciary duties, which are higher than duties of care in the law of negligence, means they have to have regard to the interests of those Indian tribes and not be in conflict with those Indian tribes when dealing with their traditional lands. So Ron Caston and Greg McIntyre and I thought, ah, jolly good. We then amended our statement of claim to introduce a new cause of action. We alleged that the state of Queensland, when dealing with the lands of the Miriam people and dealing with their traditional rights in those lands, owed a fiduciary duty to the Miriam traditional owners of those lands. That, of course, was strongly rejected by Queensland's counsel. Well, that was supported by three judges of the High Court, especially Justice John Toy. He had been a former commissioner in the Northern Territory Land Rights Regime, introduced in 1976, Northern Territory. Aboriginal Land Rights Act introduced by the Whitland government, it fell to its credit. Fraser introduced it and enacted it in 1976. And that judge, Justice John Tui, wrote extensively on this topic and decided that there was fiduciary duties owed. And it was supported briefly by Justices Dean and Gordon. But the other four judges rejected or didn't rejected it. That issue remains alive today. And whenever I speak to law students, I say, you've got only one responsibility, only one uh practice that you need pursue, and that is to deal with what Marbo failed to resolve. You have to establish a fiduciary duty owed to traditional owners under the native title regime when governments are dealing with their lands. Okay? There has been comment about this, and judges in by way of comments or dictar, or not carefully reasoned decisions, have noted that fiduciary duties are not owed to traditional owners. So that's a challenge for your law students today.

SPEAKER_01 1:07:11

Brian, can I ask you to explain the meaning of of the land rights for our Indigenous First Nations people? The difference between land rights and having title deeds to the land.

SPEAKER_00 1:07:23

Well, the difference you mean title deeds uh provided by the Australian property system by governments.

SPEAKER_01 1:07:33

Yeah, so for example, the land rights, that's just given that's giving the Aboriginal people the rights of the land, but it's not giving them the property of the land.

SPEAKER_00 1:07:43

Well, okay. Under British property law introduced to Australia upon colonization, the Crown had absolute title to all lands. This was the doctrine of ten years. This goes back to feudal times, where the Crown owned everything. And you were allowed property rights in your area of country. If you're a landlord or if you owned a suburban block in London, uh, you owned property rights in that area of land by reason of the crown through its governments and through its legislation, um, creating a system of property titles. So there are a range of property rights that have been created by the Crown, by the governments across the common law world, which you can purchase. In colonial times, you drove your cattle uh out into the bush and you squatted on on crown land, on unoccupied crown land. And after a period of time that the governors uh through their administration might grant you a lease to being, which these days is called a pastoral lease. Now, we have thus in uh in our property law a series of titles that the crown could grant you. The strongest is a fee simple title. That's the title that most uh suburban uh houses are based on. You buy a house in anywhere in the country and you can get a range of titles. The strongest title is a fee simple title, which is it gives you absolute rights to that property, subject to legislation from the crown, which you can transfer to your children, which you can sell, which you can develop, right? Beneath that are a range of other titles, such as leasehold titles, where you lease it, where you enter into a lease to live in a unit or a flat. You enter into a pastoral lease, where under the legislation you have certain rights, which are less than freehold rights. Pastoralist has rights to do certain things, to live on the land, to pasture stock, to build shearing shares, to grow wheat, whatever it is. And beneath that are licenses of various sorts. There might be an exploration license, might be a license to run a pub. And there are further uh minor uh tenancies or rights in land that you can acquire from the property law system set out in statutes of this country, right? So, uh for example, the WIC decision is a good example of your question. In the WIC decision, which concerned a property in Queensland, handed down by the High Court in in 1996, it decided for the first time that a pastoral lease issued to a Queensland pastoralist did not extinguish all the native title rights uh that existed under tradition and custom of the local one year Aboriginal community. Right? Those uh traditional rights were the land rights that that indigenous communities have agitated for for a hundred years. These are the land rights which are delivered to the Northern Territory uh uh Aboriginal people through the Northern Territory Aboriginal Land Rights Act of 1976, where you go before a commission and you convince a judge, and it's not a a court hearing, it's uh more an inquiry, that you are the traditional owners, you have lived there for j countless generations or as many generations as you can get evidence of, that you continue to hunt, fish, gather, conduct ceremony uh uh uh on those lands, that you have very important cultural and spiritual places that you can identify, and thus you satisfy the Land Rights Act requirements, and the judge will announce that you are to be delivered your land rights. In the territory, that's these are held in trust in fee simple title. That's just that scheme. In New South Wales, you have a 1983 New South Wales Act called the Land Rights Act 1983. That's a different statutory system where there are thousands of claims outstanding, where there are hundreds of local Aboriginal land councils under the New South Wales state scheme. Under that scheme you claim land uh for historical occupation, i.e., you've been there since 1788 or whenever, and it's not it's not as as closely tied to your traditional connections to country. The Native Title Act of 1993, where now we have more than 50% of Australia the subject of Native Title determinations by the federal court, or be it after litigation or by consent agreements, such as are now, you know, 70 or 80 percent of terminations are now by consent, such that governments are learning to live with, not act against these new regime. Under the Native Title Act, you claim an area of traditional country, and you say you and your ancestors are the traditional owners of that country that you have inherited since time immemorial and continue to practice your customs and traditions connecting you to that country. This is the test and the requirements are set up under section 2231 of the Native Title Act, and they are very onerous and the subject of a lot of criticism, and the subject of a huge debate in the Federal Parliament when when the uh Keating government introduced the Land Rights Act in uh 1993. You have to show that you uh uh uh continue to uh enjoy and to practice the customs and traditions which are substantially the same as those that were practiced back at the date of colonization. And this is of course impossible. You do the best you can, and the federal court will acknowledge that if you can prove demonstrate existence back to 1850, then they will assume that that continued back to 1788 for New South Wales. And you have to demonstrate that you continue to practice essentially the same, substantially unaltered customs and traditions today. You need to show who your people are. So there will be presented to the federal court huge lists of names of your ancestors to that area of land. You have to show what the rights and interests are that you claim. So you will speak about hunting, fishing, gathering, conducting ceremony, uh, including whether or not you have the ability to prevent others from entering your land. And the court will then issue a determination. They'll reject you, as happened to me, for example, when acting for the order yard people, or they'll accept it, or accept it in part to certain areas and not other areas. They won't accept it under the legislation, being the Native Title Act, and a maze of legislation passed by the states and territories, which after the WIC decision of 1996 and the Howard government amendments, the 10-point plan of 1998, really uh increased the sorts of legislation that can extinguish historically your native title rights. So there are large areas of Australia, particularly urban and rural uh settled areas that are deemed to have extinguished native title, which you cannot claim. There are equally many areas in remote Australia, which, as you know, are subject to claim. More than 80% of Western Australia is now subject to native title determinations, be they exclusive or non-exclusive. There is about 14% of Victoria. There are none currently in Tasmania. There are about 90% of offshore seas along the Northern Territory shores, subject of claims on determinations. And as I mentioned, there's a large area across the Torres Straits of seas and now islands, subject of determinations. So your land rights are under the native title regime based on your community's traditional history and traditional ability to demonstrate continuing connection to your traditional country reaching back to colonization. And that is founded on the common law's recognition of those rights and interests as enforceable property rights, sourced not in the common law but in your customs and traditions, but recognized by Australian common law and now by Australian statutes. Those traditional owner or marbo land rights are to be compared to land rights, say in New South Wales or in the Northern Territory, based on solely on statutes. Though in the Northern Territory it's also based on ability to demonstrate traditional connection to country. Does that explain it?

SPEAKER_01 1:17:38

Yes. Yes, thank you for that. For those out there, our viewers that may not be aware the difference between the land rights, native rights, and with because I think some might some people might think that with the land rights is that they're gaining ownership of that land, which is incorrect.

SPEAKER_00 1:17:57

Yes. They gain they gain particular rights pursuant to the common law and pursuant to statute in relation to that land, right? And those rights are uh are spelled out by the federal court. And they do not amount to self-government, let alone sovereign status. They do not amount to fee simple ownership in that sense, but they do deliver uh uh extensive rights in some circumstances. They are two basic types, exclusive native title determinations, and non-exclusive. Non-exclusive means, as in the WIC case, that you share land with someone else who, prior to the enactment of the Native Title Act, enjoyed was granted by the Crown, by the government, a r rights to that land. For example, in this instance, a a pastoral lease with rights to run cattle, let's say. So in that circumstance, your your land rights, your your traditional ownership rights are not total ownership, they're not exclusive, because they are shared with the pastoralist. And the WIC decision uh decision also said that okay, the traditional owners have their rights, the pastoralists have their rights to run ship and sheep and erect fences and build a homestead. But where the traditional rights conflict with the pastoralist rights under his pastoral lease, the pastoralist rights prevail. So if he wants to build cattle yards on your uh sacred site, subject to cultural protection legislation, he can build those cattle yards. Also, remember the rights of ownership are are respected when it comes to compensation. There have been recent cases discussing compensation for loss of your traditional rights. A very important uh issue was how is native uh traditional ownership rights extinguished? And the High Court has decided that state and Commonwealth legislation prior to the enactment of the Racial Discrimination Act in 1975 are effective to extinguish if that's their impact. And that was hotly contested and considered uh uh very unfair in the sense that it does not deliver equality before the law. That the Racial Discrimination Act was operative in October 1975. But the High Court said the requirement of the Racial Discrimination Act, i.e., equality before the law, is that if if your title is extinguished, you will be given compensation so that you are left in equal standing in terms of of your assets, right? But that was not applied to any extinguishment prior to 1975. It's been a subject of some criticism of the of the of the judgments of Brennan and me in particular, who's uh who was agreed with by two other judges, Mason and McHugh. After 1975, if you pass a statute which enables Rio Tinto to mine on your country and extinguish your native title rights, you have to be given compensation. Uh that how you calculate compensation was not decided until the High Court handed down a decision called the Timber Creek case in 1919. We're talking 30 years after. Uh, these are evolving uh decisions, just like Acabat for the seas in 2013. So here we have another issue to be resolved. The High Court decided in the Timber Creek case in 1919 that compensation is calculated on three criteria. First, the fee simple value of the land that has been extinguished by virtue of the government's actions. In this Timber Creek exercise, it was a town in Northern Territory, a school, school, football oval, bridges across rivers, houses, relatively small area. You know, we're only talking five or ten hectares. The first calculation is 50% of the freehold value of that of that school property at the date of extinguishment, right? When the school was created. Second criteria is 50% of that sum of money calculated by reference to 50% freehold value. And the third very important criteria was a sum of money to compensate for loss of cultural and spiritual connection to that country. And that was thousands and thousands of dollars over and above that fee simple 50% fee simple value or simple interest on that fee simple value. And that has been a very important element in mining companies, for example, dealing with traditional owners when wanting to go onto their land and mine. We've seen disasters such as the Juk and Gorge travesty where Rio Tinto blew up very important uh uh ancient caves holding archaeological relics, etc. And it's also been important in a recent High Court decision involving again the people of Gove Peninsula, involving uh compensation for that community due to Nabalco mining on their country, which was triggered the original um Nabalco uh Gove case for Justice Blackburn in 1971. But is now again important case concerning whether or not that land, subject of Nabalco mining without consent, without any any discussion, let alone negotiation, and we're talking in the 60s and 70s, whether or not the the loss of traditional country to that land and loss of traditional connection, extinguishment of native title, should be the subject of compensation, and if so, how much? And that land was held to be properly owned in terms of ownership of land under the under section 5131 of the constitution. That is to say, compensation must be paid for loss of property, right, in broad terms. This constitution of 1901, of course, only applied to property as known under our property law systems, v simple title. This extended that property notion to traditional uh title under custom and tradition. And that now has to be quantified, and that could be a large, large sum of money worth millions. And that is a very important additional uh high court decision, which is uh which is supportive of the native titled traditional annual regime.

SPEAKER_01 1:25:26

What was that third compensation again that was um spiritual connection?

SPEAKER_00 1:25:30

Lots of cultural and spiritual connection.

SPEAKER_01 1:25:33

There's no price you can put on that, no, really.

SPEAKER_00 1:25:36

No, but these are the the challenges for uh for courts, the federal court and if on appeal to the high court, to put a qu a put a value on that. And you're quite right, very difficult. And the traditional owners have to do the best they can to convince the judge that we're worth a hundred billion, and the opposing mining company or state government will say, no, that's rubbish. They're they're worth a hundred thousand only. And you have to demonstrate w what you have lost and the value of that cultural and spiritual connection to your community and to your your uh children and descendants. And it and you need to look at those discussions, look at those judgments, for example, from the Timber Creek case, uh before the federal court uh on trial and before the high court on appeal to see the sorts of considerations that were given to trying to quantify this unquantifiable loss.

SPEAKER_01 1:26:45

Because I know currently at the moment how it will work with how you explained about the shared ownership, with you've got your traditional native ownership, and then you've got the lease of those um pastory, is it? Pastoral lease. So they're um working the land, cattle, and then if they're wanting to build or do anything else with it on that land, they've the indigenous people will come onto that land and they they might spend, say, for example, a week walking those lands looking for artifacts, yeah, and then then it will go into a case of like they can't do anything on that area.

SPEAKER_00 1:27:25

Yeah, well, part of the native title scheme is a uh called Indigenous land use agreements, ILUAs, and there are hundreds and hundreds of them now around Australia. And this is a scheme whereby the pastoralists uh will say, Well, look, uh I don't wish to uh uh impose uh impose unnecessary grief on you guys, but I do want to build my new shearing shed, right? Let's talk about uh an appropriate place that does not impact too much. on your traditional rights, on your traditional relationship to country, on on your your continuing cultural practices. Okay? We'll use that that that acre on that corner of the property. And uh we will enter into an agreement about this. Uh this happens particularly with mining companies. And the agreement is called an Indigenous land use agreement, ILA, Indigenous Land ILUA. There are hundreds of them now around Australia. And this is a process whereby you, the leaders of the traditional community or the local land council or the local representative body under the a scheme under the Native Title Act, where there's a dozen or more around Australia representing the Aboriginal community in that state. I was the principal legal officer, for example, in Marimbiac, representative body under the Native Title Act for Victoria, where we were we our role was to assist traditional owners throughout Victoria to work and deal with government and people wishing to use traditional land. So you would enter in you would enter into discussions, you would seek legal representation, perhaps you'd be wise to, because your opponent, the pastoralist or the mining company, or this or the state education department that wants to build a school, they will have legal representation. One of the great criticisms of the Native Total Act is that the the the representative bodies aren't funded sufficiently to enable fair stealing between the parties or or to go to the federal court if necessary. You would nevertheless sit down and discuss with the with the pastoralist the the project and what compensation should be provided to you and in what form. It might be usually dollars or it might be support for your cultural centre, support for your medical centre on your uh run by your Aboriginal health health organization, uh whatever it might be. Now there's a good example of that is the Noonga settlement in the southwest of Western Australia. That's been called Australia's uh first treaty going back uh entering into under legislation by the Liberal government in Western Australia in the early in about 2009 the Noonga people wanted to claim Western Australia. It's a large area about the size of Victoria in the southwest of Western Australia and they are over many years negotiated with the West Australian government under the native title regime and entered into agreements there are six noonga groups there are six noonga um uh man uh management groups there's one over there's an overriding group there's a trustee organisation and the West Australian government paid millions to the noonga community they number about 30,000 they have their own internal management and rights to to country and all of this was the subject of legislation. Leading academics have called it Australia's first treaty because it it goes a long way down the path of delivering self-determination and self-government to that Nungar community including millions of dollars over a period of paid over a period of 20 years to their trust organizations to assist them in the management of their land and their resources. In Victoria also of course we've had the truth the the Europe Justice Commission deliver its reports and we now have operative as of last year 2025 a statewide Victoria treaty that is the m legislated in Victoria which provides to the First Assembly that the which is operating in Victoria an elect democratically elected body of about 50 or so Aboriginal leaders who meet as a governing body for their communities called the First Assembly and who deal with the state government and sometimes meet in Parliament House. Those groups have negotiated Victoria's first statewide treaty which delivers to the treaty management group powers across the state to protect country and so forth engage with various government departments especially Justice Department, health department education department to assist in delivering services to Aboriginal communities. The treaty process in Victoria is now moving to community treaties. There are dozens and dozens on the horizon focusing on traditional owner groups groups established under Cultural Protection Acts in Victoria and these are is now the next step. All of this designed to close the the gaps which aren't closing or widening and designed to deal with questions of self-government self-determination and a modified or state sovereignty well a lot of discussion and Victoria's leading the country in this particular arena of entering into treaty arrangements at the state level forget the Commonwealth they are not going to pursue it. Of course the states dominated by mining pastoral interests Western Australia Queensland in particular uh New South Wales which are after early decisions under the Native Title Act have it has been detemed that a large proportion of that state under pastoral legislation extinguished native title back in the early part of the century. Tasmania after the uh genocidal activities in the early colonial days uh has not moved very far in this area though Michael Mansell is a well known and uh continuing activist for traditional uh r recognition of traditional rights in Tasmania. Um Northern Territory has a uh has a native title scheme. In South Australia the government the Labour government of 1966 was the first government in Australia to pass land rights legislation. They were small areas in the south of the strait and delivering trust arrangements to Aboriginal communities in Aboriginal land trust legislation in 1966. And since then of course there has been additional legislation to large areas in the north delivering land rights regimes to those communities right across the centre and north of South Australia. We've moved away from Mabo and gone on to it's all it's all connected though I feel and so everything's by each state then that's how I'm guessing by the sound of the states subject to overriding federal legislation goes back to the uh section 109 of the Constitution which I mentioned when talking about the declaratory act of the Bielkie Peterson government of 1985 remember which we challenged in the High Court as contradicting in in in conflict with sections of the Racial Discrimination Act of the Commonwealth and the Commonwealth Act prevails under our constitutional structures. So equally for example the after Marbot uh the West Australian government influence of the West Australian mining industry passed legislation immediately after the Native Title Act of 1993 which ignored the Native Title Act and which applied its own very restrictive regime. So that legislation was challenged in the High Court and I appeared in that case with Ron Caston acting for groups from the Kimberley to challenge that legislation as unconstitutional as in conflict with the Native Title Act and that challenge was successful. So again an example of how important it is for the Commonwealth Parliament to take responsibility for this area under the 1967 referendum supported by 90% of the electorate as compared to 60% supported the voice referendum in 2023. Ask yourself what has happened to our cultural and political ideas since over that over that period and that but that is the system that continues. So the Western Australian government despite pressure from the West Australian from the mining industry and pastoral industry and others cannot of its own volition override the Native Title Act. If a Conservative government gets into power uh as may happen of course it can of course pass new legislation overriding prior legislation for example the Liberal oppos up opposition in Victoria has stated more than once that if it wins the next election due next November in Victoria it will pass legislation to abolish the current treaty legislation operating in Victoria. That's its policy it's entitled to its policy uh watch this space that no doubt will be an issue in the forthcoming Victorian election. Now if that happens and the Liberal Party or the Liberal National Party or the Liberal National One Nation Party, whoever gets into power and they follow up on that election promise, the treaty movement in Victoria will close. For one thing at the official level it won't have funding. For another thing it won't have supportive legislation. So no doubt amongst amongst the uh Aboriginal and Torres State Islander community Victoria they will continue their activism and their fight and they're entitled to the Liberal government in the Liberal or national country party government in Queensland which recently came into power a year ago abolished the then uh existing legislation for a truth uh uh commission and for treaty negotiations so that's already happened in Queensland so welcome to the Commonwealth of Australia how many um Lambright court cases have you done since Marbot? I would say um up to up to a dozen up to ten maybe in Vic in Victoria the case the case in the in uh Western Australia reaching across to the South Australian border the constitutional challenge to the West Australian legislation uh others can't quite recall.

SPEAKER_03 1:39:12

And are you still actively doing cases?

SPEAKER_00 1:39:15

Like are you No no no I retired from active practice in the Victorian bar tried retired in 2016. I'm a retired member still of the Victorian bar. I'm I'm an adjunct professor at Deakin University and also at James Cook University in Townsville and I give lectures um supervising law students uh uh for example at Deacon University over the last three years I've been supervising a group of fluctuating group of about 20 law students indexing a collection of Marbo papers that I've provided to the Deacon Archives people where they've drawn up an index of about 82 Archlever files of pleadings, statement of claim, defenses, affidavits, uh transcripts of the court proceedings, copies of correspondence with the legal aid office of the Commonwealth, historical documents and so on and so forth. So that's been an interesting exercise. Another aspect of that is that in that leading up to about 2000 I provided to the National Library in Canberra a large number of papers that sat in my chambers concerning the Marbot litigation right there was dozens and dozens of boxes of material of the same sort of material original material. And that was combined with in 2001 that was combined with the personal papers of Eddie Marbo and his family. Eddie Marbo wrote diaries he drew very impressive diagrams and paintings including diagrams of landholdings of blocks of land on Murray Island that we handed up as evidence. So there were his personal papers there's also the regional Captain Cook's journal from the Endeavour. Now that collection of my Marbo papers, Eddie Marbot's personal papers and Captain Cook's Diary from the Endeavour was recognized by UNESCO's Memory of the World as a collection of papers of of national and international significance and value and were Australia's first item registered on the World Cultural Heritage Register. That's impressive so that was rather uh unexpected and there was apparently a uh a party in the National Library when it was when it was uh registered and and I wasn't invited I wasn't there it was like when I rang up Murray Island at the end of the Marbo judge Marbo hearing and I sorry the end of the when the judgment was handed down I'm talking 3rd of June 1992 and the high courts all walk into the main uh main uh ceremonial court which is a large and massive courtroom in in the high court building in Canberra and they hand down their decision physically a piece of paper not a digital not a digital file I hand I I find for the plaintiffs I hand hand down my decision and this happens seven times or if it's a joint judgment uh I I hand down a joint judgment with Justice Michael McHugh which would be Sir Anthony Mason for example and it and when all those decisions were handed down I realized we'd won. So I took judgment and I went upstairs to the sixth floor of the uh High Court building and rang the only phone on Murray Island being the phone booth outside the council chambers of Murray Island quite close to the council hall where the where the trial judge conducted his hearings and a lady answered the phone and I subsequently it was Lillian Passey and I said hello it's Brian here and she said yes I'm I'm uh I'm uh the lawyer in that Marbo case you know about the Marbo case and she said yes he said well I'm ringing you from the High Court in Canberra and those High Court judges have just handed down the decision and you've won your case the Murray Island people own own their treasural rights to Murray Island and she said yes all that's wonderful thank you very much and she dropped the phone and went screaming I heard this screaming noise down the main road main street of Murray Island and I was left swinging in the Torres Strait breezes while she announced made this announcement to the community and apparently there was a big party in Murray Island that night and I wasn't invited. So that's how I delivered the uh decision to the Murray Island plaintiffs that's great you were a great story. Yeah Benita Marbot was driving to Canberra to attend the hearing and heard it on the radio because she didn't she was still on her way to Canberra and they stopped beside the road and celebrated with I think uh her daughter her daughter Gail or and others.

SPEAKER_03 1:44:38

And so that significance the 3rd of June became Eddie Marbo Day.

SPEAKER_00 1:44:43

Yes and still remembered yes yes there's a lot of work still to be done particularly in reforming the very onerous and unnecessary legalistic provisions of the Native Title Act where they deal with how you claim land. Matter has been agitated by leading indigenous advocates like Noel Pearson and Marcy Langton and and so on and so on for years. The Australian Law Reform Commission was given a reference to look at the possible reforms to the Native Title Act. In 2015 they handed down their decision, their their their report and it was tabled in the federal parliament and released publicly called Connection to Country they recommended all sorts of reforms particularly to the provisions whereby under section 223 you have to prove continuing connection back to what the customs and traditions in substantially the same form of at the date of colonization they made recommendations like that is that is unrealistic. All communities change and develop and modify their their their practices over generations there should only be a need to demonstrate customs and traditions as practiced today and not necessarily the same as or closely connected to those that were practiced at the time of colonization and other reforms no government has acted on that report that was 2015. Also the former Chief Justice of the High Court uh Robert French in a uh lecture in the around about 2001 he advocated that the onus of proof should be reversed that is when traditional owners are claiming their country the burden should not be on them to satisfy these very difficult evidential requirements in the Native Title Act but there should be an assumption that their traditional owner traditional connection to country continues given one or two basic factors established such as I am of Aboriginal descent such that my community has lived there since a long time such as we continue with our language continue with our ceremonies and so on and so on. But thereafter if their claim is to be rejected the onus of rejecting the claim lies on the respondents that is Rio Tinto BHP the state of Western Australia or the Achuka Shire Council or the Shepherd and Shire Council all of whom were defendants there were 40 or 50 of them initially in the Yordyord claim for example remember also that the Keating government response to to the MABO was three elements firstly the Native Title Act and its various schemes and and subsections. Secondly the Indigenous Land Corporation and the Indigenous Land Fund that was designed specifically to assist traditional owners and and indigenous communities who had their traditional ownership extinguished by colonization. For example many of many people living in rural New South Wales in rural Victoria where settlement was violent and closely settled and people were were thrown off their country or in Tasmania for example in rur in urban centres across Australia. This Indigenous land corporation was funded by Commonwealth funds into the Indigenous land fund. Its job was to to purchase properties on the open market whether pastoral leases or fee simple pastoral properties as in Victoria to then provide those properties to the relevant traditional owner group for that area of country through trusts and corporations and so on. And it has purchased a lot of properties over the years throughout Australia. It's now called the Indigenous Land and Sea Corporation because in recent years last five or ten years its area of operations has been extended to offshore seas. Hence for example a lot of the seas in the Northern Territory and around the country. That was the second element the third element was a social justice package which was to provide assistance to indigenous communities. It was referred to atSIC ATSIC produced a report and it died with ATSIC when ATSIC was terminated by the Howard government yes so the Native Title Act Indigenous Land Corporation Indigenous Land Fund to purchase properties and the social justice package.

SPEAKER_03 1:49:27

Okay thanks for that okay so we've got a closing question. Yeah if you could leave one message for the next generation about justice persistence and standing up for what's right what would that be?

SPEAKER_00 1:49:38

My one message would be um uh uh uh follow your beliefs and continue to activate for reforms that you consider to be necessary and beneficial for the for the community especially for disadvantaged members of the community I would say persist in your beliefs because there is in this country institutions such as the High Court which will give you a fair hearing which are concerned to deliver justice across the community which are under current philosophies are not so concerned or obsessed with following precedents but are more open to within limits reforming the law and ensuring that legal rules and practices deliver fairness and justice to the community. The High Court and on occasions reformist governments at state and federal level can deliver those reforms and thus people can have confidence that their activism for fair and just outcomes can achieve real results.

SPEAKER_01 1:50:46

Great thank you Brian for being here with us today we really appreciate I wanted to have an episode out to acknowledge Eddie Marbo and Eddie Marbo day 3rd of June and thanks for green for coming on and sharing your stories and your knowledge of that case being involved in it and thank you to the legal team uh Ron Cuskin for selecting the team and yourself because other than that you wouldn't be a part of this and you wouldn't be here today sharing your experience of that time.

SPEAKER_00 1:51:20

Well thank you for the opportunity it's been a pleasure and uh I do congratulate you for could continuing to publicize these uh historical events which are still of current importance and provide some uh examples of reforms that can be achieved.

SPEAKER_01 1:51:37

Okay thank you and I want to just highlight too people might think that their beliefs and what they believe in the knowledge or the fear takes over to pursue it it's not impossible to achieve something that's never happened before with for example the Eddie Marbo case.

SPEAKER_00 1:51:53

Yes and achieve it in a proper and uh lawful way. We're not talking about violence or terrorist activity to achieve reform. We're talking about legal processes that are available for everyone that sometimes are are very difficult to access because of costs, for example, and because of ability to access legal advice and assistance but they are there and they are open to uh new ideas and to suggestions for reform. So you can get Brian Kian Cohen's published book a Mabo Memoir and whereabouts can people get this available now as an ebook online and go to my website Big KianCown available on my website Brian Kian Cohen at www BriankeanCowen.com great thank you we'll end this episode and great it's been an honor. Yeah it's been great having you here it's it's actually been amazing to hear your stories um fascinating so thank you so much appreciate you thank you and and uh look forward to seeing uh the results and hearing the results okay okay lasers