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Justice Moynihans Determination of Facts

Eddie Mabo was an important witness in the plaintiffs' case. He gave evidence on almost every aspect of the case and was examined, cross-examined and re-examined over 19 of the 66 days of sitting. My assessment of his creditability is, among other considerations, based on my observation of him during this process.

Eddie Mabo was born on Murray Island on 29 June, 1936. He was the sixth (four boys and two girls) child of Robert and Poipe Sambo. His mother died shortly after his birth and he spent his childhood with Benny (his mother's brother) and Maiga Mabo. Whether he was adopted by them and if so to what effect is an issue which will have to be addressed in due course. Robert Sambo died on 10 June, 1972 while Benny Mabo died on 3 November, 1974. Maiga had died on 3 February, 1965.

Benny Mabo lived and went to school on Murray Island until 1952 when he went to Yorke Island to continue his education to 1954. He there worked for a Queensland Government research team. It seems that between 1954 to 1957 Eddie Mabo was employed on local luggers. In fact it seems that in 1956 a decision of the Island Council made up on the occasion by Sam Passi and George Mei ordered him off the Island to work on the luggers for a year for some sort of anti-social conduct apparently associated with drinking. It should be said that the course was not an unusual one in respect of those perceived by the Council members to be troublemakers. The incident is of no consequence in my assessment of his creditability. Following his time on the luggers Eddie Mabo cut cane, worked for the Railways and engaged in various other employment on the mainland where he also remained during some short periods of unemployment.

Benny Mabo married Ernestine Boneta Nehow, who was not a Murray Islander, in 1959. In 1966 he bought a house in Townsville in which city he and his wife have continued to live and raise a family of seven children.

In recent times Eddie Mabo has been active in a fairly large Islander community in Townsville and in Aboriginal and Islander community affairs. Thus he has been an administrator of the black community school of Townsville and a field officer for the Aboriginal and Islander Legal Service. He has furthered his education obtaining a Diploma of Education at James Cook University in 1956.

Eddie Mabo has not lived on Murray Island since 1956 and since about 1958 has been a resident of Townsville. The


reliability of his claims of visits to the Island came under somewhat of a cloud in the course of cross-examination. There is evidence that the Island Council or its Chairman refused him permission to visit the Island on occasion. Although the allegation was persisted on until the end there is no evidence to sustain a view that the Queensland Government intervened either directly or indirectly to prevent Eddie Mabo visiting Murray. There are indications that at various times the Island's elected council or its chairman may not have wanted him there for reasons which have not emerged.

Eddie Mabo has apparently been at the centre of a large and active Murray Islander community in Townsville. This community is part of a larger vigorous Torres Strait Islander community.

Doctor Beckett explained how he had become interested in the Murray Island community in Townsville, had spent time with them and indeed dealt with the community in his book 'Torres Strait Islanders' Exhibit 213. He spoke of members of that community who had grown up on the Island and then gone to the mainland as being 'positively obsessed with matters of land'. He was asked if he could get hold of the Court book, which dealt with the resolution of land disputes on the Islands by some of the community. One of them commissioned a purchase of Haddon. At t. 2244 Dr. Beckett speaks of the Murray Islanders on the mainland having a 'more abstract' interest in the land they may claim on the Island by contrast with 'the more immediate interest' of other people 'who were living on the island and have to cope with problems of isolation and so on'. Eddie Mabo is a product of all these influences. In fact interestingly enough


each of the plaintiffs spent significant time away from Murray - less so in the case of James Rice than the others.

Eddie Mabo is, in my view, quite capable of tailoring his story to whatever shape he perceived would advance his cause in the particular forum. A particular illustration of this is found in the saga of his claim to be the Ai et and traditional leader of the Murray Islanders.

Paragraph 2 of the various editions of the statement of claim included an allegation that the first named plaintiff:

'is a descendant of the traditional leaders known as 'AI ETS' of the Meriam people.'

Eddie Mabo gave evidence in support of the claim which was put in issue by the various editions of the defence. He claimed that as the 'modern Ai et' he was 'the leader in the people's memory according to tradition'; see Exhibit 35 p 10. In an affidavit sworn in these proceedings in October 1982 Mr. Mabo refers to 'Ai et' as head of the Bomai-Malo Order of Murray Island who traditionally laid down laws concerning land ownership and dealt with disputes in respect of land. In Exhibit 35 Mr. Mabo, in the same connection, made assertions about his leadership of the Council of the Zogo Le which was 'traditionally the real ruler of Murray Island'.

Exhibit 734 is an extract from the Australian newspaper of 28 May, 1986 which reports an interview with Eddie Mabo. In it Mr. Mabo is reported as having advanced claims to the hereditary position of 'At' and made extravagant claims as to the role and power associated with the position and his occupation of it along the lines already mentioned. Even allowing for journalistic


licence there is little occasion to doubt that the story reflects claims by Eddie Mabo.

Eddie Mabo may have perhaps persuaded himself of the validity of some, but in my view by no means all, of this. The claims may owe their inspiration to the writing of Ion Idriess and Haddon (Exhibit 117) and other sources altered and embraced from the point of view of advancing Eddie Mabo's cause. The claims are largely without foundation and Eddie Mabo must have known it.

By the time of the final edition of the reply the Plaintiffs no longer relied on allegations that the first named plaintiff was a descendant of traditional leaders known as AIETS or that the word had the meaning contended for in the statement of claim and particulars. By then the writing was on the wall. The evidence tendered inexorably to a conclusion that Ai et was a personal name used by the Passi and Modee families of Murray Islanders. That evidence does not support the view that Murray Island had traditional leaders of the kind to which Eddie Mabo claimed to be the heir or who played the roles in which he cast himself. The claims had a slight basis in fact but they reflect a distortion and embroidering of fact to advance the plaintiffs' case.

For the various reasons which I have been canvassed? and for others which will I trust, to a degree at least, emerge elsewhere in the course of these reasons I was not impressed with the creditability of Eddie Mabo. I would not be inclined to act on his evidence in a matter bearing on his self interest (and most


of his evidence was of this character one way or another) unless it was supported by other creditable evidence.

Keywords: Mabo Case, Mabo, Edward Koiki, Moynihan, Justice Martin, Moynihan's findings, 1990

Justice Moynihan's Determination of Facts, 1990, pp 67-72.
Author: Kenna, Jonathan