THE INTELLECTUALLY WEAK DECISION OF THE HIGH COURT ON WIK

Con George-Kotzabasis

The following article was written on November 1997, but no newspaper at the time had the gumption and the historical insight to publish it. It's published here for the first time hoping that the readers of this blog will find it of some historical interest and will enjoy reading it. Since its writing many lawyer's reputations have been irreversibly tarnished and most of all the reputations of the majority of the august justices who passed this historically ignorant, ignominious, and most unwise decision.

The High Court's decision that Native Title could coexist with pastoral leases, will remain in the annals of legal decisions as one of the most intellectually weak, matted, mechanistic, and unimaginative decisions that have ever been issued from the highest bench of the land. The decision has breached Aeolus's casks releasing the winds of controversy, that generations of lawyers will have to contend with, and be haunted by, until "atonement" day. As no less is, and will be, at stake, than the professional and intellectual integrity of present and future generations of lawyers, and, indeed, their amour propre.

The paramount, the profound importance of the Wik Case, has been conceded and acknowledged by the eminent justices themselves. By the fact that all seven of their constituent members sat and adjudicated on the case, which rarely happens, except in the most important cases that come before the court. Hence, the eminent justices were deeply conscious of the unfathomable significance of their decision. However, they were completely unconscious that their decision had the potential to be the catalyst that would raise the ugly face of racism from the atavistic miasma that afflicts parts of the country, and from which no other parts of the world are immune.

It's for this reason therefore, that the decision of the justices should not have been limited and confined only within the domain of the law, and its pros and cons should not have been debated and resolved solely by judicial arguments, without considering the widespread and portentous repercussions such a decision could have upon the country and its institutions. As it was inevitable that such judgment, on this grave and contentious issue, would "somersault" beyond the issue of "juridical" justice. And one must note, that even the strict legal arguments of the case were not clear cut to the justices themselves, as the decision was split four to three, and that in itself should have alarmed the begetters of the majority opinion and should have awakened them from a most serious lapse of cognitive awareness, since the Law itself upon which the decision rested was disputable. But there is no doubt that the majority judgment emanated from "a fine cloud of solicitous idealism," to quote the great Austrian writer, Robert Musil.

It was this "seraphic" zeal of the justices to render ideal justice to the Wik case, that has sundered the aborigines from a substantial part of the rest of the community, and is threatening to unhinge the reconciliation process--a process which, like everyone else, the justices themselves are sensitively concerned with, as by "reading the lips" of their judgment, one can easily tell that the latter "secretes" this lofty desire and aspiration for reconciliation--as the nature of the decision imperils the interests of the pastoralist, logging, and mining industries. And causing all people whose income is derived from these, to rise up in arms.

The eminent justices "shelved" in the ethereal atmosphere of their glasshouse existence, could neither imagine nor foresee the upheaval their decision would bring forth amongst the contending groups and were obliviously ignorant of the mundane interests of ordinary mortals. All they could see in the reflective glass of their craft, was the reflection of their perceived law--even if the law itself was misty and far from clear. And in their idealistic and romantic innocence pursued its shadowy beauty, and by coupling it with their unimaginative and mechanistic thinking, they hatched this cerebrally "ugly" judgment.

The judgment proved to be a veritable Pandora's box placed on the bosom of the contending groups, if not on the bosom of the country. As it was evident, that by pitting the interests of the aborigines against the interests of the pastoralists, the loggers, and the miners, the justices would unleash the destructive emotions of the cave amongst them all. Furthermore, they were unable to anticipate that their decision would passionately rally all those who care for the disadvantaged in our society behind the aborinal cause, especially the good Samaritans of the middle class. Whose involvement and concern in the plight of the disadvantaged often is, an escapist distraction from the ennui of their economic comforts, if not a sedative for their collective guilt, for their disinclination to pay higher taxes, which would be the most effective way to help the disadvantaged to cross the street of their plight. As well as all the "fief-holders" of the welfare protectorate and their hangers-on, who long ago abandoned their status of a volunteer calling and transfigured it into a profession. With all the "fixtures" (including those of the mind) of vested interests that inexorably accompany all professional bodies.

Hence the venerable justices, fugitives from reality, bondaged to their mechanistic thinking, and unfailingly callow in human affairs, committed the "caring" folly that not only divided the contending groups and their auxiliary supporters on economic and political lines, but, also, because of the pigmentation of the contestants, on racial lines too. (Despite the fact that we are all subject to the vagaries of chance for the colour of our skin, the latter always seem to have, in disputes between humans, the last word.) Therefore, the judgment of the Court has lit the fuse of a time-bomb that threatens to explode into a ferocious and ugly war fought on racist lines. Such an outcome would seriously harm the reputation of our country of being generally free from the perniciousness and woes of racial intolerance. It would diminish Australia in the eyes of the rest of the world and could damage some of our economic interests, particularly those of our tourist trade with countries in our region that are justifiably sensitive to the rise of even a semblance of racism.

ARE NATIONS CREATED BY IMMACULATE CONCEPTION?

The claim of Sir William Deane, a former Chief Justice of the High Court and presently Governor-General, that the violent settlement of the continent is a shameful aspect of our history and will 'haunt us as a source of bitterness', and if we don't come to terms with it he would 'weep for Australia', is singularly puzzling, to say the least. It would have been wiser for Sir William to weep for the un-illuminated judgment of his former colleagues of the High Court that has thrown the country into this social and political upheaval, before he considered and condescended to weep for Australia. One is tempted to ask Sir William, where in human history the "transmigration" of peoples to other areas and continents of the world has been non-violent? Does the Governor-General believe that the building of nation states has been an immaculate conception? History has been an endless "play" of violence of human beings against one another, as depicted by the great tragedians, from Sophocles to Shakespeare. If Sir William widened the horizon of his humanitarianism and religious fervour to encompass all the victims of mankind's violent history and weeped indiscriminately for all of them, his weeping would have dried the oceans of the earth. Not that such weeping of intellectual weariness, coming even from the highest office in the land, would have changed anything.

The Wik decision not only lacks, and is totally devoid of, historical and anthropological groundings, but is also an attempt to cross and hybridize Aboriginal culture with the values of Western culture. As it grafts upon the former the values of proprietary rights and possession which are totally alien to it. The aborigines have a spiritual bond with their ancient territories that is linked to their dead ancestors. But as nomadic tribes always on the move in search of food and water, this spiritual bond had no fixed territory and hence historically they never developed the sense of private or collective property. This is illustrated by the present fact, that when they are moved in more modern homely surroundings their houses are soon run-down, as a result that their occupants have no regard for private or communal property. Moreover, the question is not whether the High Court "created" these rights to property, but whether by the Wik decision it acknowledged and reinforced this figment of their imagination. The decision, furthermore, spawns among aborigines a destructive divisiveness, in the form of the sacred and the profane, i.e., between the purists who resolutely want to uphold the sacredness of their vital bond with ancestral territories, and the "less pure", the more "entrepreneurial", such as the misters ten percent of the aboriginal elite, who want to sell these sacred grounds to the highest bidder. Such a conflict was clearly illustrated by the Carpentaria's Land Council coordinator Murrandoo Yanner, who, representing the purist side, refused to sign the 1.1 billion Century Zinc project agreement, and by those other less pure representatives of aboriginal communities who were willing and desirous to sign the agreement , and hence receive their pound of flesh for the sites of their sacred bones. And one must also note, that the beneficiaries of Native Title will not be the aborigines of the woodlands, but the urban aborigines, of the "plastic mobile" elite, whose affinity with the former is becoming more and more slender and frail.

Ostensibly, the justices of the majority opinion, had a greater desire to tack the halo of "saintliness" on their "headlong" decision, than the halo of sober earthly reason. Not that the latter would have been an easy task! Since in their deliberations they had aborted prudence and reason, as a result of their abject failure to consider the events that their umimaginative decision could set in train. Being temperamentally unable to be instructed by reality, they found it easier and more congenial to their mental make-up, to be instructed by the simulacra of their idealism. "Victims" of their training and profession, the precedents of law had priority over the precedents of history. Effete descendants of Blackstone, von Gierke, justice Holmes, and our own, Sir Harry Gibbs, unburdened with the heavy weight of philosophy and history, they craved nonetheless to set an historical foundation to this most unwise judicial judgment. But to erect such a statue of their "weak" justice on Wik, is like erecting a statue of Napoleon riding a donkey. Alas, such is the fate of farcical judgments and the deconstruction of reality by idealistic simulacra.