Vol. 15 No.11 (November 2005), pp.968-971

RECOGNIZING INDIGENOUS TITLE: THE MABO CASE AND INDIGENOUS RESISTANCE TO ENGLISH-SETTLER COLONIALISM, by Peter H. Russell. Toronto: University of Toronto Press, 2005. 450pp. Cloth $65.00/£42.00. ISBN: 0-8020-3863-8.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email l.westnewman [at] auckland.ac.nz

“It arrived like a tidal wave on the beaches of a country whose legal profession was still dominated by the myth that judges are – or at least ought to be – apolitical eunuchs who spin their judgments entirely out of legal whole cloth” (p.5).

In these terms, Peter H. Russell sets the scene for his exploration of MABO – the famous Australian Indigenous land rights case which extended, in two segments known as MABO (No.1) and MABO (No.2), over ten years – and explains its particular interest to him as a compelling and multilayered instance of judicial politics at work. The MABO 2 judgment, deciding the substance of the claim, was delivered in 1993. Depending on the respondents’ political and ideological positioning in the country, it was greeted with either enthusiasm, muted approval (especially by those Aboriginal groups who saw clearly that the ‘victory’ was likely to remain symbolic), or horror. The decision “challenged the vision of their country held by many Australians – that it is a political society formed by British settlers which non-British immigrants and native people have been allowed to join” (p.6). Twelve years later its place in Australian settler-Indigenous relations is still under construction. Certainly it represents a legal victory for the complainants and their supporters who brought the case. Equally certainly that victory has not translated into anything like the significant political and practical gains that some hoped for and many more wished to subvert.

The cover image and the shape of this book locate one man, Eddie Koiki Mabo, at the heart of Russell’s exploration of indigenous resistance to English-settler colonialism. This is the man whose determination, Russell says, placed the question – ‘who owns Australia? – squarely within the political agenda of that nation for the first time. The challenge was to a presumption that, uniquely in English-speaking settler colonies, European arrivals had come into an empty land; “at the time of annexation Australia was without settled inhabitants or settled law” (p.255). Under this convenient fiction of terra nullius Australian settler society rested not on conquest but on a legal fiction through which a whole continent was effectively appropriated from its indigenous inhabitants. The majority in MABO (No 2) overturned (English) Privy Council and Australian precedents based on the assumption that Australia was entirely a colony of settlement. This classification defines the land as entirely unoccupied and in the case of Australia defines, by implication, the native inhabitants as not fully human; “Aborigines were not high enough in the scale of human evolution to count as [*969] societies with legal rights meriting recognition by their new European sovereign” (p.255).

Russell’s argument is that that in bringing this fiction to judicial determination MABO not only mounted an effective challenge to the fiction but also introduced Australia to the reality of judicial politics. He describes the MABO case as a belated awakening to legal realism – “the reality of judicial power and the inescapably creative nature of adjudication” (p.4). As a political scientist active in the field of constitutional law and judicial process since the 1960s, Emeritus Professor Russell draws on his deep and extensive knowledge of indigenous political and constitutional issues in Canada and the United States to examine issues of land, appropriation, and law in Australia and (for purposes of comparison, and to a limited extent) New Zealand. In particular, he goes in search of the local and international forces which produced the conditions under which the MABO ‘revolution’ could happen in Australia.

In a somewhat unusual strategy for a scholarly work in this field, the book contains two entwined strands – the life of Eddie Mabo and a wide ranging exploration of the politics of indigenous rights in settler societies. As such, it is a book which skillfully moves between the local and the global, the general and the particular, to place the significance of the legal determinations known as MABO into the deep (deep) context of several hundred years, four countries, and a range of international commissions and committees. This strategy, which may be said to have something in common with Clifford Geertz’ notion of anthropological thick description, is an interesting and successful way of investigating issues of constitutional politics and law. I found that it not only adds new and telling detail but, more importantly enriched my thinking about material with which I am for the most part quite well acquainted.

Russell describes developments and ideas from the international field of indigenous rights communities, for example the United Nations Working Group on Indigenous Populations and its meetings which bring together indigenous activists from around the world, to illustrate the kinds of ideas to which Australian judges may now be exposed. He suggests that together with their knowledge of significant decisions in other settler jurisdictions these are, even when they deny it, “a strong influence on how they perform their adjudicative role” (p.197). Optimistically he suggests that “the High Court’s decision in Mabo opens up a new way of thinking about Australia – a way of thinking that could enable Indigenous and non-Indigenous Australians to move beyond the settler state and share participation in a common but deeply pluralist political community” (p.197). Realistically he ends with the predication, based on the most recent judgments in Aboriginal land claims, that the courts, having reached the limit of judicial activism that might be tolerated in the current political climate, can deliver no more; political agreements are now the only conceivable route to substantive justice for Indigenous peoples in Australia, and under John Howard’s leadership these are unlikely to occur.

Russell has a fine grasp of the issues and paradoxes that bedevil attempts to assert, [*970] from within an imposed (and superseding) legal system, a conceptual construction of indigenous peoples’ rights grounded in and affirming, not in sameness but meaningful difference. He is able to explain them clearly and give a clear sense of just how significant, in litigation of this kind, is the difference between formal and substantive conceptions of equality. He eloquently makes the crucial point, which is so often disregarded in policy and public debates, that in certain circumstances (especially for indigenous peoples in settler societies) the right to be equal entails “protection of the right to be different” (p.212). Furthermore, he states clearly that “the ideal of equality as requiring identical rights for all citizens has been an ideological barrier to recognizing the distinctive rights of Indigenous peoples in all the English-settler countries” (p.212). In general he attributes the adoption of such a position to incomprehension rather than willful denial – an interpretation perhaps more charitable than some of the protagonists deserve. But the central point remains: such clarifications are valuable and deserve wide dissemination in scholarly and public debate.

There is, of course, always something to quibble about in even the most excellent book. So I would observe that the kind of epistemological position which accepts that facts can be “constructed through entirely different cultural lenses” hardly deserves a (pejorative?) attribution to the work of ‘postmodern deconstructionists.’ Anthropologists and sociologists of knowledge have a longstanding awareness that meaning is culturally constructed.

A second point of concern is an impression which may be created though the way in which New Zealand’s relatively small role in this account is usually to exemplify more desirable ways for settler societies to engage with Indigenous issues. Maori are, quite correctly, described as having made more progress than Aboriginal, Native American, or even First Nations people in their dealings with the settler state. Developments in Aotearoa may consequently seem, at times, more effective in securing Indigenous rights and just outcomes than those who live with the day to day effects of local racism, majority resentment, and political expediency would recognize; much depends on how bad things are elsewhere. As a prescription for the future, Russell’s generous endorsement of New Zealand’s experience as the model of a better way does not necessarily reveal the demonstrably flawed, difficult, and politically fragile nature of such arrangements. For example, since this book was written, new legislation extinguishing Maori customary rights to seabed and foreshore to vest “full legal and beneficial ownership . . . in the Crown” is a graphic illustration of lawmaking framed through political expediency under pressure from emotionally fuelled (white) majority opinion. Russell’s account of the history and aftermath of the MABO decisions similarly demonstrates that legal decisions on indigenous rights are inevitably and often desperately vulnerable to the political and economic fears, demands, (and prejudices) of the majority.

The clear and sparse writing communicates easily as it defines and explicates the issues through simple but [*971] never simplistic analysis and description. Unusually, for such a scholarly work, the characters come to life in a manner more common to fiction – indigenous complainants, lawyers, and judges all have recognizable points of view and feelings. The accessibility this gives to even quite abstruse points of constitutional law generates an energy and readability quite uncommon to the field. The book would, for this reason, as well as for its extensive coverage of the central issues of colonialism and aftermath for indigenous peoples in Canada, Australia, the United States, and New Zealand, teach very well at the undergraduate level, where it might provide the framework for a course, or alternatively contribute particular chapters for study. It could be the focus of a graduate proseminar session and would fit well into judicial process as well as indigenous rights courses. I would also, in fact, recommend it to anyone (inside or outside academia) who wishes to become better informed on significant political and constitutional issues for settler societies which will inhabit their geopolitical landscape for many years to come.

And finally, I note with interest how the proliferation of on-line (virtual) knowledge sharpens the mind to the pleasures of the real world book as object of pleasure. Pleasingly produced, with a wonderful cover photograph of its central character, this is just such an object.

REFERENCES:

Geertz, Clifford. 1983. LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY. New York: Basic Books.

CASE REFERENCES:

MABO v. QUEENSLAND (No. 2) (1992) 175 CLR 1.

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© Copyright 2005 by the author, Catherine Lane West-Newman.