Comment

Katie Kiss
Rebuilding a village after Mabo

A few days from now, it will be 33 years since the Mabo decision.

Dr Koiki Mabo, of the Meriam People, was a humble man, determined to right the wrongs of a system imposed on these lands and its peoples by those seeking to extend their empire.

The landmark High Court decision that bears his name overturned the legal fiction of terra nullius, changing the course of Australian history and the foundations of the Australian legal system forever.

The Mabo decision confirmed the pre-existing and continuing native title rights and interests of First Nations peoples. It stands for much more than this, however.

It fundamentally rejected the notion that First Nations societies were “without a settled law”. It confirmed that our traditional laws and customs survived the imposition of British law. It recognised traditional law and custom as not only a “coherent system”, but as an “additional source of law in Australia that does not derive from the Crown”.

I believe that Uncle Koiki’s vision was about rebuilding the village – our Aboriginal and Torres Strait Islander villages.

If we are to progress towards a common purpose – for a future that is strengths-based, self-determining and sustainable for our peoples – we need to re-establish ways of working together to recentre respect for senior eldership and cultural authority and to rebuild our villages.

These are villages that ground our people in our cultures and our obligations to kin and Country. They provide solid foundations for our young people to develop independence, but provide support when needed and lift us up when we are struggling.

They expose young people to the older generations talking, planning and coordinating, and slowly and organically build the capacity of future generations.

They connect First Nations peoples from across Australia and across the globe to come together respectfully and with a unity of purpose to share knowledge and advocate our rights, instilling in us the resolve to never compromise on our rights.

In the absence of a treaty being signed at first contact, I believe Uncle Koiki’s legacy set us – the old peoples, First Nations peoples; and the new peoples, who now call Australia home – on a path to understand how our two worlds coexist. It is on one land – recognising and respecting each other’s differences, responsibilities, laws, cultures, values and needs, without destroying each other.

While I never got to meet Uncle Koiki, I know this vision. The conversations he was having were also being had around the kitchen table in my family home, and others that I visited in my village. The same conversations are still being had by indigenous peoples globally.

Our people have learnt how to navigate the two worlds we are now forced to straddle. But I don’t believe that is where our Elders – our leaders, our visionaries – saw this path taking us.

I believe that their vision was to ensure that we did not lose who we are in the face of merciless colonial incursion.

My grandfather, Reggie Dodd, would always say: “Play the game – succeed in their world – but don’t ever forget who you are and where you come from.”

The story of this land since colonisation is a tale of two worlds colliding that has continued for more than eight generations.

The question I seek to engage with is how do two radically different social and legal systems coexist? How do we move forward – existing together – while trying not to devour and destroy each other?

For more than 65,000 years, Australia’s First Nations peoples have managed and sustained these lands, territories and resources.

Unlike other Commonwealth colonies that engaged in treaty processes with Indigenous peoples early on in their respective colonial incursions, the Australian state, its jurisdictions, its institutions and its laws were established and developed without even the most tenuous forms of consent.

From 1788 to the present – across the full breadth of this continent, its islands and its waters – our peoples have resisted. Our methods have been diverse, taking on many forms depending on the circumstances we have faced and the tools and mechanisms available to us.

As was the case the world over, the ultimate outcome of the civil rights era in
the 1960s and ’70s was limited to our recognition as citizens in the Western democratic process and to formal equality before the law – their law.

This did not address our rights as First Nations peoples to recognition, to self-determination and to redress for the dispossession of our Country.

There were genuine attempts under the Keating government to provide a suite of mechanisms to give substance to its official policy of self-determination. However, this was ultimately short-lived.

The Howard government drew this era to an abrupt close with measures such as the Wik 10-Point Plan, the abolition of ATSIC, focus on practical reconciliation and the removal of protection from racial discrimination for First Nations communities – and only for First Nations communities – through the Northern Territory Intervention.

In doing so, it sought to blame policy failure in Indigenous affairs on the concept of self-determination, as if self-determination was the causal factor. Today we would call that gaslighting.

The reality is that it was a lack of political will and a lack of respect to even contemplate that we should have a seat at the table and that our voices should be heard.

In the years that have followed, the relationship between First Nations peoples and the state has essentially relegated us to the role of interest group lobbyists or protesters, rather than autonomous rights-holders with particular and inherent entitlements.

Nevertheless, we persevere in our fight for justice. While we have worked within the system to try to get fundamental structural reforms, we have never ceded our Country or our sovereignty.

There have been recent, positive developments. In the Timber Creek decision of March 2019, the High Court ruled for the first time on compensation for the extinguishment of native title.

In the Yunupingu decision of March this year, it was established that native title is a property right and, like any other property right, if it is taken away by the Commonwealth then native title-holders are entitled to compensation on just terms.

I hope that these cases will set a platform for other Aboriginal and Torres Strait Islander nations to be recompensed for their dispossession, case by case, nation by nation.

But it is an imperfect, expensive and slow way of achieving justice. And so I hope these cases and what follows will also open a pathway back to discussions about broader processes of Treaty and truth-telling.

Some of our wins over the past 20 years have been retained. Nonetheless, it is a sad truth that many have subsequently been undermined in whole or in part and it has become clear – not only in Australia but the world over – that the progressive 21st century many of us hoped for has failed to materialise.

Indigenous peoples’ rights the world over are under attack. We are in an invisible war for our survival, dignity and wellbeing.

It is a war not reflected from our perspective on the front page of newspapers or on your television screens, but one that is being lived in our homes, on the streets of our communities, through our most vulnerable and our human rights defenders, utilising any and all tools available to us to advocate and secure our rights.

It is important to emphasise that recognition of Indigenous cultural laws and customs by states is supported by international law. Article 34 of the United Nations Declaration on the Rights of Indigenous Peoples states that: Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

The Mabo decision’s recognition of native title and the establishment of the Native Title Act demonstrated that the development of domestic legislative arrangements that facilitate greater capacity for the coexistence of two laws on one land is possible in Australia.

In so doing, native title set a foundation for a broader application of cultural law and custom to be recognised by the Western legal system.

To date, there are only a handful of examples throughout Australia of laws and policies that are generally aligned with the declaration. Queensland’s since repealed Path to Treaty Act 2023 was one.

Another is the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act.

Following through on its election commitment, Queensland’s then Palaszczuk government took a historic step in 2020 by establishing legislation that provides legal recognition of Torres Strait Islander families’ continued use of traditional child-rearing practices.

Informed by the Declaration on the Rights of Indigenous Peoples, this act stands as a clear example of how to give practical effect to our rights.

It addresses longstanding issues faced by Torres Strait Islander people whose legal identity does not reflect their cultural identity, allowing for an application to the commissioner (Meriba Omasker Kaziw Kazipa) for permanent transfer of parentage from biological parents to cultural parents.

It provides a sense of stability to the social order that has seen generations of Torres Strait Islander children raised in supportive and loving extended family environments.

It also makes basic administrative tasks that most Australians take for granted, such as school enrolment, obtaining a birth certificate and accessing financial support, accessible to Torres Strait Islander families.

Looking to the future, I believe there are opportunities to establish domestic arrangements such as the Meriba Omasker Kaziw Kazipa Act in other areas of life, and that this is a worthy area of focus as part of a wider set of strategies to give effect to our rights.

In his opening address to this year’s United Nations Permanent Forum on Indigenous Issues last month, António Guterres, secretary-general of the United Nations, emphasised that “the individual and collective rights of Indigenous Peoples are non-negotiable”.

Uncle Koiki knew so well in his heart that this is true. Our rights may not always be reflected in the laws and policies of our country, but we know what they are. They are there all the same, and they are always worth fighting for.

This is an edited extract of the Mabo Oration 2025: “One Land – Two Laws – It’s Black and White”.

This article was first published in the print edition of The Saturday Paper on May 31, 2025 as "Rebuilding a village after Mabo".

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