The historical basis of the High Court's Mabo decision demands analysis. A brief comment from a distinguished Professor of History, Professor Les Marchant, formerly from the University of Western Australia is provided.
I noted early on that the High Court Judges who decided on the Mabo case ventured out of the field of law into the realm of history, and did this in a most unimpressive manner. More recently I have noticed that their historical interpretations have been accepted and used as texts for the present debate, and this should not be allowed for the sake of the reputation of the Australian High Court and for the sake of the international intellectual reputation of Australia....For example for a High Court judge to make a decision on a claim made by a Mr Mabo who lived in the Torres Strait Islands and then apply that decision to Australia would be the same as an American High Court judge making a decision about a Puerto Rican living in Puerto Rico and then saying that decision applies to the American Indians. I am not certain how that thinking is to the legal profession. It is certainly unimpressive for the historian. Like American Puerto Rico, the Torres Strait Islands are a lately acquired colonial possession of Australia, inhabited by a separate people whose lands were annexed at a special time for special reasons. As incorrect historical evidence is now being used and warped, the correct facts need to be presented not only to make the debates properly informative and the political decisions soundly based, intellectually, but also to reveal to the High Court judges the important piece of historical evidence they failed to use when they made their judgment. With the correct historical evidence before them they might have reached different conclusions. However that consideration is for members of the legal profession, not the historian. The only role of the historian is to present the factual evidence. —( Marchant 1993)
Marchant's views represent the historical position which would have been accepted by most historians prior to the land rights debate in recent years. Mabo is the consequence of attempting to rewrite history by activist supporters of Aboriginal land rights. This rewriting attempts to pretend that Aboriginal culture and history is different from what it was. It is generally accepted that the Aboriginals were a nomadic people. This historical fact will now be denied and rewritten in order to justify Mabo. Abuse will be heaped upon historians, like Marchant, who will be accused of being racist and much more. This will serve as a powerful factor to inhibit many from expressing their opinion.