My most enduring memory of Lew Griffiths, and one that gives a nice insight into his character, came on the day that the Native Title legislation passed.
There we were, arguably on one of the most profound points in our nation’s history. Let us recall just a little what this native title thing meant.
Our nation was founded on a terrible lie. It read that our nation was formed on the basis of terra nullius – no one was here when we sailed into town. Well, being more specific, no one owned the place. Or, to use the exact meaning of the Latin expression, it means, “the land belongs to no-one”.
Of course, it is a stupid notion. We know now that, of course, the land did ‘belong’ to someone. But the concept of ‘belong’ was different to our European constructs. It is better to say that someone belonged to the land.
Some might think that this terra nullius concept was just one of those little quirks that didn’t really matter. Sort of like how we put up with “girt” in our national anthem. Sure, it’s a weird old-fashioned word but it does not matter. Indeed, we have all grown a little fond of it.
But terra nullius is a lot more than that. It’s a legal term – an extraordinarily potent legal term. It means what it says. No one owns the land, so from the point we arrived we could do what we wanted – we could take it by any means possible, we could divide it up, and we could sell it in the marketplace (as the famous song says.)
It’s no different than if someone came along and declared the city you lived in as terra nullius. Someone could come and move you along, force you from your house and make it their own. They could sell it in the marketplace.
You would be pretty pissed off about that.
And so it was with the first Australians. Can you imagine how they felt?
With that framing, we arrive at the day that the native title legislation passed.
As you will know, prior to this, the High Court had overturned the legal notion of terra nullius. They declared it not true, in the legal context. But they are the High Court. That is a very important distinction. They interpret the law. They do not make the law. That is up to the Parliament. Or, in practical terms, the Executive Government who brings laws to the Parliament and with their numbers will pass the law.
Until the Native Title Act came to be, the reality was that any court could come along and give a different interpretation. A new government could appoint new judges to sit on the High Court and those judges could hear a case put, say by a mining company, which could then result in a different interpretation. They could conceivably reinstate terra nullius – or at least terra nullius over a certain area of Australia.
But the Native Title Act clarifies the situation with the simple statement:
The Australian legal system recognises native title where:
- the rights and interests are possessed under traditional laws and customs that continue to be acknowledged and observed by the relevant Indigenous Australians
- by virtue of those laws and customs, the relevant Indigenous Australians have a connection with the land or waters
- the native title rights and interests are recognised by the common law of Australia.
With Native Title, the position is clear. A mob can come along and tell their story and be awarded Native Title and these “rights and interests are recognised by the common law of Australia”.
That is what happened that day.
Again, it is arguable that the day in question was one of the most important in our short history as a nation. Certainly, it is the day that our national soul began what is a continuing journey to decency, civility, and righteousness.
There I was, mainly observing the jubilation. It was raucous, it was emotional, and it was truly momentous. I am not sure what I was thinking. I was probably thinking about the work to be done. I am not sure I was really taking it in.
Lew strode up to me, with his usual imposing purposefulness. He stopped abruptly in front of me and said two words. Only two words. No big speech.
And we went out into the world, full of tasks that needed to be done.
It really says everything. We nailed it. We got the baby through.
That was Lew.
I could go on for a million words about every twist and turn of the year that led up to the moment. I could detail the extraordinary tactical strategies that led to the government simply having no choice. I could talk about the historical importance of the alliances that were created – especially with the farmers of Australia – or the procession of Commonwealth cars that made their way to our base at Wamboin (Lew’s house).
But these are not what I want to write about today.
I am hoping that others, especially the extraordinary Noel Pearson, will write the story of Lew so that everyone can know about this most important ‘faceless man’ who was so integral to the advancement of Aboriginal rights.
My story today is about Lew and his absolute dedication to outcomes. It was never about the journey. It was about the result. Did we get Native Title or not? That was all that mattered. The good intentions were fine and dandy. But did we deliver.
So, yes Lew, let me rephrase your utterance from that day.
You nailed it Lew – you bloody nailed it.
You bloody hero.
My heart is breaking.