Memories of Mabo: How a Trinity alum became involved in a nation-defining legal case

Bryan Keon-Cohen’s family has a long association with Trinity College. His grandfather, father, brother, two uncles and daughter Zoe attended, while his late sister and aunt attended Janet Clarke Hall. Bryan was involved in both sporting and scholarly pursuits during his student days and says, ‘I rowed, I played football, and tried to do some work.’

Bryan (TC 1966) hadn’t always intended to practice law. Upon leaving school in 1963 he studied first-year medicine, failing all subjects except English literature. Interestingly, he read Dostoyevsky’s Crime and Punishment during this time. Perhaps the seed of intrigue regarding the workings of the legal system was planted here. 

After a year jackarooing in the Darling River region in NSW, Bryan returned and started an arts/law degree at the University of Melbourne. After graduating, he undertook a Master of Laws in legal history, examining the early chapters of the Victorian Supreme Court, then taught for four years at Monash University. The seventies were exciting, he says, and at that time, Monash had a radical, socially oriented law course with subjects such as poverty law, human rights and law in the community.

In 1982, after three years working as a senior law reform officer with the Australian Law Reform Commission, Bryan joined the Victorian bar. A few months after his admission, he was briefed on the Mabo case. When asked why he was considered for this role, Bryan replied: ‘I was very new at the bar when Mabo came along … and I had just worked for three years in the area of Aboriginal customary law and had visited many places around Australia.’

Like most junior barristers, Bryan accepted a wide range of briefs as he was building his practice. Throughout his career, he appeared in the Magistrates, Federal, Supreme and High courts and represented litigants in criminal cases, building disputes, refugee matters, and environmental cases. Bryan acknowledges, though, that the Mabo case had a major impact on his career and was his top priority. ‘We knew this case was potentially very significant,’ he says. ‘We knew, of course, that it could completely fail, but we recognised the justice of this cause and there was a crying need to bring it to the High Court for the first time ever, so the High Court could rule.’

Some senior colleagues warned him against getting involved in a case that was diametrically opposed to the obvious desires of the government of the day. The implication was that he’d never get another brief from the ‘top end of town’. Considering that the case continued for the following decade, the fallout was not as significant as forecast. If anything, Bryan’s involvement in the case solidified his place in the legal fraternity and made him a sought-after litigator in all matters of native title.

Bryan had no direct involvement with the Yirrkala bark petitions, presented to the Commonwealth Parliament in 1963 to assert the Yolngu people as traditional custodians of their land. However, he acknowledges the petitions as one of the initial triggers for the Mabo case and the eventual overturning of the terra nullius concept. Another trigger was the land rights conference held at James Cook University in September 1981. Eddie Mabo was in attendance and participated in a closed-door meeting, the outcome of which was the decision to mount a High Court test case. Instructions were given on the spot and senior barrister Ron Castan was engaged by the instructing solicitor, Greg Macintyre, acting for Mabo and the other four Murray Islander plaintiffs.

Australian society was agitating for change during the 1970s and '80s. Bryan recalls that, ‘The legal issue was clearly important, it was unresolved and to that date it had never been presented to the High Court for decision. There was a great deal of discontent and unhappiness, and destruction of cultural connection to country going on around the country, and politicians were unwilling, or unable, to introduce reforms to prevent this injustice.’ The legal team saw this case as a worthwhile exercise and the five plaintiffs were meritorious. All were passionate and each played an important role in proceedings.

After the judgement was handed down in 1992, Bryan was frequently retained in native title claims around the country. His recognised area of expertise came to dominate his practice. ‘It was interesting work, often difficult – difficult for the client communities – trying to present a cohesive single voice as to who owned what country and who enjoyed what rights in what country,’ he says. 

Bryan retired from the bar in 2017 and is now writing native title articles for law reviews, lecturing in university law schools and giving presentations to secondary school legal studies students. In 2012, he wrote A Mabo Memoir: Islan Kustom to Native Title, and was made a Member of the Order of Australia for his service to the law, especially the development of Indigenous rights.  
 

By Danielle Norton

This article first appeared in issue 88 of Trinity Today.