Remembering Eddie Koiki Mabo
National Native Title Tribunal President reflects on Australia’s land rights pioneer
Warning: Aboriginal and Torres Strait Islander people should be aware that this story contains images and names of deceased persons.
In 1982, Eddie Koiki Mabo and 4 other plaintiffs initiated a legal case that would change Australia forever. Mabo, a Meriam man of Mer Island in the Torres Strait, was determined to get his people’s traditional land rights formally recognised by the High Court of Australia.
After a decade-long legal trial, on 3 June 1992 the High Court ruled in favour of Mabo's case. Tragically, Mabo passed away 5 months before this momentous outcome was reached. His legacy, however, would live on – this was a turning point for Australia. Known commonly as the Mabo case, the landmark decision was the first to officially overturn the British’s claim that Australia was ‘terra nullius’, or uninhabited.
A year after the decision, the Native Title Act 1993 and the National Native Title Tribunal were established.
33 years on, to mark Mabo Day (3 June), Contact sat down with UQ alum and current President of the National Native Title Tribunal Kevin Smith (Bachelor of Laws ’95) to reflect on Mabo’s legacy and discuss Smith’s extensive career in native title law.
President of the National Native Title Tribunal Kevin Smith. Image: Supplied
Smith became the first First Nations person to be President of the National Native Title Tribunal (NNTT) on the 10 July 2023 when he was sworn in.
He is a Torres Strait Islander man with connections to Ugar and Erub. Like Mabo, he shares roots in the Torres Strait and – in a moment of deep personal significance for Smith – was present during Mabo’s final days.
“When I was a trainee lawyer, I went to visit Uncle Koiki in the Royal Brisbane Hospital and I did his bedside Will. This was 5 months before the High Court handed down its decision,” Smith said.
“What resonated with me was Uncle Koiki’s love of his people, love of family, his culture and love of his island home. Those personal things remind me on a daily basis that there is a human behind this legal label called ‘native title’ and the famous Mabo judgement.
When Mabo Day is celebrated on 3 June each year, Smith says he’s transported back to that hospital bed and those sentiments the land rights pioneer shared with him.
“The way he spoke so powerfully has stayed with me.”
For over 30 years, Smith has worked in native title and First Nations law. In each role he has worked in, Smith has dedicated his time to advocating for the rights of his people.
This is something he has felt passionate about since he was a child.
“I grew up in a poor neighbourhood in Townsville but had the luxury of going to a private school. I saw daily the difference between how I lived and how other people lived and, at times, how discrimination could occur because of that difference,” he said.
“As a result, something was stirred in me to want to make a difference.”
His first job was at law firm Paul Richards & Associates. It was here that he was inspired to make a career for himself in the law.
A photo from Paul Richards' retirement in 2000. Back row: Tony McAvoy SC (Widi), first Indigenous Senior Counsel in Australia, Lincoln Crowley (Warramunga), first Indigenous Supreme Court Justice, Gary Lui (Erub) and Kevin Smith (Ugar), first Indigenous President of the NNTT. Front row: Jacquie Payne (Butchulla), first Indigenous Queensland Magistrate and Paul Richards of Paul Richards & Associates.
A photo from Paul Richards' retirement in 2000. Back row: Tony McAvoy SC (Widi), first Indigenous Senior Counsel in Australia, Lincoln Crowley (Warramunga), first Indigenous Supreme Court Justice, Gary Lui (Erub) and Kevin Smith (Ugar), first Indigenous President of the NNTT. Front row: Jacquie Payne (Butchulla), first Indigenous Queensland Magistrate and Paul Richards of Paul Richards & Associates.
“Social justice has always been a big part of my life growing up, but it was only when I went to work at Paul Richards & Associates that I put that into practice,” Smith said.
“To have your own mob and various other mobs sitting down and talking through complex matters was an amazing community of practice for me. Every Friday we would go down to our local pub and talk about the cases we worked on that week.”
It was during this time that he heard news of the Mabo decision.
“We happened to be there when word of the Mabo decision was announced earlier that day. There was a euphoria in the sense of, ‘wow, this is something enormous for Aboriginal and Torres Strait Islander people’. I will always remember being there with my Indigenous brothers and sisters, enjoying a normal Friday afternoon."
“There was an air of anticipation about what this meant. It was the start of something that was incredible for the country.”
Since 1992, there have been many successful native title determinations – 526 in total. But one of the biggest impacts beyond legal recognition, Smith said, was the strong mindset of self-determination that accompanies a legal decision and how that is actioned on the ground for First Nations. Cultural independence can be a powerful force for positive change.
“First Nations people have been able to incorporate a strong sense of self-determination of cultural independence with native title recognition,” he said.
“I have been to many native title determinations and the struggle for determination can be long, but on that very day when the Federal Court recognises a First Nations people is significant and emotional.”
President of the National Native Title Tribunal Kevin Smith. Image: Supplied
President of the National Native Title Tribunal Kevin Smith. Image: Supplied
Torres News celebrates the landmark decision. Image: Found in Trove reproduced courtesy of the National Library of Australia.
Torres News celebrates the landmark decision. Image: Found in Trove reproduced courtesy of the National Library of Australia.
Torres News celebrates the landmark decision. Image: Found in Trove reproduced courtesy of the National Library of Australia.
Native title law comes with many challenges.
“The complexity of the legal test and discharging the burden of proof present the biggest challenges for native title claimants. To prove the ‘connection elements’ involves 3 things, each of which are difficult,” Smith explained.
Legally, native title claimants must prove at the time of British colonisation in 1788 there existed:
- A body of people united in their observance and acknowledgement of;
- Traditional laws and customs that gave rise to;
- Rights and interests over land and waters.
“The evidence must prove that each generation of that body of people possessed those laws and customs, continuously or substantially uninterrupted, until modern times. Even when native title claimants satisfy these elements – something very difficult noting the well-documented disruptions of colonisation – there may have been extinguishing acts by the government, such as a grant of freehold, that prevent native title being recognised.”
Will we see another historical moment like the Mabo case? Smith thinks it’s unlikely because that case abolished a long-held legal fiction, terra nullius (empty land) as well as recognised collective rights for the first time in Australia, but there have been significant cases since.
“As we’re 30 years into the jurisprudence, we’re probably not going to see any more major cases in the native title claims space. The bulk of those have already been made,” he said.
“Compensation is going to be the second-generation issue. You still need to prove the connection elements of native title in compensation matters, but where there has been extinguishment, the native title act affords a right for compensation.
“The Timber Creek case handed down by the High Court in 2019 was the first judgement by that court that dealt with native title compensation under the Act. It was important because the High Court set out that there was compensation for economic loss and interest calculated on that loss. Importantly, this was a case that set out compensation for cultural loss caused by extinguishment.
“If it took 30-odd years to get to where we are now; we’re now moving into the compensation phase which will take a long time as well. This next phase of native title will be just as exciting and critically important for First Nations.
In his current role as President of Australia’s Native Title Tribunal, Smith understands – and embraces – his role in keeping Eddie Koiki Mabo’s legacy alive.
“This is reconciliation in action, working in this space.”
