A criticism of the Mabo Edict is the wide ranging uncertainties generated. The High Court may have envisaged that the Mabo Edict would be followed by other decisions during which the principles could be developed and refined. The development of the common law and the High Court interpretation of constitutional powers and principles provide the model. The High Court may have expected such a course of development.
If they had paused to think, they would have realised that the course of development of the common law and the Constitution were totally inappropriate analogies. The Mabo Edict with its near equation of Murray Islanders and Aborigines on the mainland created a climate of uncertainty which would necessarily end all development on land which might be subject to a claim, however remote. Therefore legislation was inevitable and necessary to deal with that uncertainty.
Thus the responsibility for the problems that have risen in working out the legislation must be placed on the 6 judges in Mabo. They cannot escape responsibility for what has followed.
There is another and more disturbing possibility. The majority judges (or some of them) may have realised that the gradual development of the law through litigation was inappropriate in the circumstances. They may have seen the Mabo Edict as a means of prompting the Commonwealth Parliament to act. The Commonwealth Parliament has been pressured to provide land rights legislation. It cannot but yield to that pressure — and because Mabo has created a maze of uncertainty which cannot be allowed to continue. Was the Mabo edict a means of prompting the Commonwealth government to bring legislation before Parliament, given its delay on the matter in the context of political realities. If this was the motivation, it constitutes a far more serious abuse of the judicial process.
This analysis raises two possibilities. The six judges of the High Court were unaware of the implications. Alternatively, they understood the implications and provided a judgment which was a catalyst for political action. Were they fools or knaves?