Four Corners tonight on ABC at 8.30pm
ABC News – 7 May 2012
Former chief justice Sir Anthony Mason has taken the unusual step of breaking ranks to speak publicly on the historic High Court Mabo judgment.
He has spoken to Four Corners, which is examining the impact of the historic judgment 20 years after it was made.
Former prime minister Paul Keating has told the program that senior figures in his Cabinet wanted him to "give up" on passing the key law for Indigenous Australians.
"I said 'you've got to be joking'. But they weren't joking," Mr Keating said.
Tonight's Four Corners report includes reflections from key players involved in negotiations to create the laws that would pave the way for the Native Title Act.
It has long been a judicial convention that judges do not comment on cases on which they have sat and do not respond to criticisms of the judgments they have reached.
Sir Anthony was in the majority of judges who overturned 200 years of Australian common law by finding that British sovereignty had not extinguished native title in 1788, and that despite the "parcel by parcel dispossession" that followed, the remnants belonged to native title owners.
"I foresaw that the judgment would be controversial," he told Four Corners.
Sir Anthony also said he expected objections from "mining interests and pastoral interests", as he could see it would lead to successful native title claims.
The former chief justice criticised the role played by media organisations in inciting racial intolerance.
"The media did play a part in creating an atmosphere of apprehension and fear, the notion that Indigenous people might jump over your backyard fence and stake out a claim to your land," he said.
"Well, that was nonsense."
Sir Anthony defended the court over criticism it received that such a significant change of the law should have been left to the democratic political process.
"The court has always been free to reconsider its own decisions and depart from them when it thinks the decisions are incorrect," he said.
"It was better to let sleeping dogs lie than raise an issue which could cause division and controversy.
"The sleeping dog is the belief that Indigenous people had no title to land."
Reporter Liz Jackson says Four Corners wanted Australians to fully appreciate the significance of the Mabo judgement.
"A lot of people just dismiss the complexity of the High Court decision and miss the fundamental shift it made in terms of how we approach our history," she said.
"The judgement was welcomed by Aboriginal people.
"But it was treated [by others] with fear, resentment, dismay, dismissal and finally acceptance."
Four Corners: Judgement Day can be seen at 8.30pm tonight on ABC1 or at www.abc.net.au/4corners