Obituaries Australia

Two hours away from death, Eddie Mabo suddenly spoke through the mist of drugs easing the anguish of cancer. His wife, Boneta, leaned forward. She caught only two words..."land claim''. She understood. She had lived for decades with his cause, his obsession. 

In Townsville's Calvary Temple, at the graveside and later at a traditional Torres Strait island feast during Eddie Mabo's funeral and wake this month, people spoke again and again of land and of justice. Eddie came from Murray Island, the eastern-most of the specks of land that break the turquoise surface of Torres Strait. From Eddie Mabo's sense of personal injustice and from the stubborn refusal of Murray Islanders to accept the European version of Australia's history has sprung a challenge to the legal basis of the European settlement of this country. 

In legal circles, it is known as the Mabo case and it has been fought for 10 years. A Queensland Government attempt to nullify it was defeated in the High Court, which asked Mr Justice Moynihan of the Queensland Supreme Court to determine all issues of fact raised in the case. Now the judges who make up the Full Bench of the High Court are considering their decisions in what is officially listed as the case of Mabo, Passi and Rice versus the State of Queensland. 

The statement of claim begins: "Since time immemorial, the Torres Strait islands of Mer (known as Murray), Dawar and Waier and their surrounding seas, seabeds, fringing reefs and adjacent islets by people called the Meriam people...'' So far as the Meriam people are concerned, the volumes of legal argument, the learned references to dusty cases fought long ago in India and Africa, the strange and wonderous language, the biting politeness of barristers and the quaint protocol of the courts, are irrelevant to the one central fact of their existence: Murray Island belonged to their ancestors, it belongs to them and will belong to their children. 

Up on Murray Island, life is simple. People work their gardens as Meriam people have down the centuries; women fish from the beach; men dive for trochus shell; young men and women play touch football along the single, sandy street; church is big on Sundays and drinking beer in the canteen is big at night. But they know about legal terms such as terra nullius - an outrageous doctrine which makes the claim that at the time of European settlement, Australia was no one's land, a country belonging to no one. This cleared the way for the successful dispossession of Aborigines and islanders and the attempted destruction of their culture. 

Massacres, heartbreak and softly killing paternalism took their toll on Aboriginal people. So did the courts. Until now the landmark case on Aboriginal sovereignty has been the 1971 challenge by the Yirrkala people of Gove Peninsula who claimed that a mining company and the Commonwealth Government had unlawfully invaded their land. 

In his historic decision, Mr Justice Blackburn coined this aphorism: "It seems easier on the evidence to say that the clan belongs to the land than that the land belongs to the clan.'' He found that the doctrine of native land title did not form and never had formed part of the law in any part of Australia. 

Aborigines I have spoken to down the years react with puzzlement and anger to the assertion that this Australia was not and is not their land. When the bits and pieces Europeans do not want are handed back to them after hard-fought legal processes, they are less than grateful that they have been given "a white man's piece of paper'' to say that what they regard as forever theirs does indeed belong to them. 

The Murray Islanders reject the offer of the Queensland Government to hand back the land to them as a deed of grant in trust. The land, the islanders say, simply is not Queensland's to grant. Through their lawyers, they argue that the annexation of Murray Island in 1879 by the Queensland Government did not extinguish native title to the land, nor has anything the Queensland Government has done since. 

Lawyers acting for the islanders are careful not to predict what the Full Bench decision will be – or what wider impact a finding in favor of the Murray Island plaintiffs would have. But there is no doubt victory would be regarded in the Aboriginal communities as of great symbolic importance, a small step in the righting of a historic injustice. It would provide, says solicitor Greg McIntyre, a legal hook on which other Aborigines could hang their claims for traditional ownership. 

If the Murray Islanders do triumph, it will be a tragedy that Eddie Mabo, aged 55 when he died, did not live to share it. But, ironically, he has already been relegated to a footnote in this monumental legal case. His land claim rested on his adoption into the Mabo family under the complex island system: Mr Justice Moynihan was not prepared to accept Eddie Mabo as adopted and an heir. 

I sat one day with Eddie Mabo at Las, an isolated beach three kilometres' foreshore walk from the main village. He had built a traditional bamboo and thatch hut there and planted a sem tree, a flowering yellow hibiscus that is sacred to Malo, the creator god of the Meriam people. 

He talked of many things: living off the sea, the interweaving of Malo legends with Christianty, Murray-Island style, and the lingering influence of the old octopus god on contemporary Meriam society. 

Neither Eddie Mabo nor Malo fared well under Mr Justice Moynihan's legal scrutiny but those who spoke at his funeral acknowledged Eddie's role as the prime mover in the legal challenge. 

The barrister Bryan Keon-Cohen said: "He was in the best sense a fighter for equal rights; a rebel; a free-thinker; a restless spirit; a reformer, who saw far into the future and into the past. In all this he embodies in Australia a long and noble tradition of fighting for black rights. If I might paraphrase the words of another great Australian law reformer, Mr Justice Lionel Murphy of the High Court, when speaking about an Aboriginal accused person: "Mr Mabo is entitled to be an agitator.'' There are other agitators abroad. 

A claim has been lodged in the High Court on behalf of three Aboriginal tribes – the Wanambul, Ngarinyin and the Worora – for about 20,000 square kilometres of the north Kimberly. Backed by the Uniting Church, the tribes' lawyers will argue that Western Australia was not "discovered'' by the British and that Captain James Stirling did not gain sovereignty over the region when he landed in the south in 1829. 

They will claim that Australia was neither settled nor conquered but a hybrid and that Aboriginal customary title can be shown not to have been extinguished. They will say that what the occupying British perceived in Australia was not terra nullius – land belonging to no one – but gens nullius – people belonging to no one, people with their own system of law. 

While battles go on in the highest court in the land, Aborigines involved in the born-again tent embassy outside the old Parliament House want to fight the issue of Aboriginal sovereignty before the International Court of Justice. 

Robert Tickner, the well-meaning Federal Minister for Aboriginal Affairs, vigorously works what can so easily be a graveyard portfolio, a desert of dead hopes. He is enthusiastic about the process of reconciliation now officially launched and the impact of measures that should follow the recommendations of the Royal Commission into Aboriginal deaths in custody. 

Miss Lois O'Donoghue, the chairwoman of the Aboriginal and Torres Strait Islander Commission, which is a body claimed to give blacks a measure of self-management, has called on Aborigines to think seriously about reconciliation: "It seems to me that the process of reconciliation is asking Aboriginal people to stop beating their heads against the now unalterable facts of Australian history.'' She says that Aborigines must reconcile themselves to having been swept aside by immensely powerful forces and to their weakness as they work towards a realistic accommodation with modern Australia. 

An effort at understanding will be a precondition for the process of reconciliation. Non-Aboriginal Australia should understand that there is anger among Aborigines, both traditional people such as those in the north Kimberly and the young in the cities. There is a determination not to accept Eureopean "facts'' about Australia. Eddie Mabo's spirit lives on.