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Mabo in a world perspective: recognizing aboriginal title.

Peter H. Russell's recent book Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English Settler Colonialism has been a long time coming, but it has been well worth the wait. (1) I met Peter Russell in the mid-1990s when he visited me at James Cook University to discuss the research he was undertaking, which is broadly indicated in the title of this book. Like most academics, I had a regular stream of students and academics drop in on me to discuss their work. Peter Russell, a political scientist from the University of Toronto, was certainly one of the most impressive academics I met in this way. I soon realized that something important would result from his inquiries, but I was puzzled about his interest in the details of Edward Koiki Mabo's life (Koiki Mabo, as he was known to friends and relatives). How might he use the personal material I had included in my Mabo biography (2) in his searching analysis, which stretched back over five hundred years and across many countries? He was clearly interested in the minutiae of Mabo's life, as well as the significance of the High Court challenge to the Mabo legislation. Who had desecrated Mabo's grave? Where was the map of Queensland I had used twenty years earlier to show Eddie Mabo that the Torres Strait Islands, including his beloved Mer, were marked as an Aboriginal Reserve and therefore not owned in Australian law by the Torres Strait Islanders?

Recognizing Aboriginal Title is not just a traditional academic study. Eddie Mabo and those with whom he interacted in his struggle for justice are not just names on pages or in references. They emerge as characters themselves, caught up in a complex drama more important than any could have fully realized at the time. And the life of their friend, or acquaintance, Eddie Mabo is the measure of the challenge that history had posed for Aboriginal and Torres Strait Islander people and their tortuous struggle to destroy the white man's legal fiction of terra nullius. It was only after such a struggle that the Australian nation might acknowledge and come to terms with the original invasion and forced dispossession of the peoples who had owned and occupied the land 'since time immemorial'.

For Eddie Mabo it was merely a matter of getting the High Court to state the obvious. He was confident of ultimate victory from the start. I must admit that it was many years before I could share his confidence, although I did not express my doubts to him at the time. They were not based on any sophisticated legal knowledge, merely a gut feeling that no one would be able to overturn the legal basis on which Australia had been colonized: that might is right and law the tool of those in power. Mabo's life is threaded through this exhaustive study, but Russell also looks to the history of European colonization across the world to reflect upon the struggle taken up by Mabo and his Miriam supporters.

Peter Russell brings over thirty years of academic experience and personal commitment to his study. This includes his involvement in Canada's Royal Commission on Aboriginal Peoples and, subsequently, the period he spent as Canada's 'envoy' to the Deh Cho Dene of Canada's North West Territories to help develop the mutual trust that might lead to a treaty on land and self-government issues. One of the strengths of this book lies in the comparisons made between Australia and the three other English-settled democracies: Canada, the United States and New Zealand. As is often the case, an outsider's perspective can highlight issues overlooked or insufficiently stressed by Australians.

Russell confronts Australian readers with the fundamentally racist assumption on which the colonization of the four English settler democracies was based. It was right because the colonizers were able to assert their superiority, however defined, over the indigenous people they encountered. Might made it right. Treaties, alliances or agreements were necessary in North America and New Zealand until settler states were formed and settler dominance was asserted in the 19th century. Then the rights of the indigenous peoples could be largely ignored as the interests of the settler society were met. Australia's indigenous peoples were further disadvantaged. Australia was deemed a colony of settlement, terra nullius, its indigenous population now British citizens whose rights to live on their land depended on the grace and favour of the invaders. As a consequence, the fight by Aboriginal and Torres Strait Islander people to have their native title recognized was much more difficult as it lacked the earlier recognition in treaties and law that the indigenous people in the three other English settler democracies still had, however unimportant those laws and treaties had become in the settler mind and politics. Again, Russell has to state the obvious: in settler societies the struggle for justice for indigenous peoples is always going to be different from the struggle of other minority groups because they cannot have justice until their native title to land is recognized and a mutually acceptable understanding between the settler state and the indigenous peoples is reached.

The present position of the Howard Government indicates how distant that possibility is in Australia. Following the Sydney riots in late 2005, the degree of racism and tolerance within Australia was hotly debated. (3) At the time the successful integration of migrants was trumpeted in an editorial in The Australian, yet I saw no mention of the racism inherent in our continuing refusal to come to a mutually acceptable understanding with those we have dispossessed. It is in such a context that Russell has to state 'the obvious', which most Australians do not accept because they think there was nothing wrong with robbing Aborigines and Islanders of their land and living on the spoils of conquest. In the words of President Clinton in another context, they did it because they could.

Another major theme Russell explores throughout his book is the white man's 'legal magic' created in the process of imperialist expansion. The various settler states created a body of law that, naturally, justified and codified their colonization and dispossession of indigenous peoples. The majesty of this law looks less majestic if you are indigenous. The courts created by the settler states are confronted by almost impossible challenges even if they accept the 'justice' of indigenous claims. A great deal of this book explores the painful process by which the indigenous peoples of the United States, Canada and New Zealand made the incremental gains that were to influence the judges deliberating on the Mabo challenge and other Australians--decisions such as that of Chief Justice Marshall in the United States, the Treaty of Waitangi in New Zealand and the Calder case in British Columbia.

Another theme Russell explores is the relationship between the legal system and the political situation. The courts hand down judgements, but governments legislate to implement them--as the Keating Government did after the High Court decision in Mabo 2 on 3 June 1992--or to neutralize them--as the Howard Government did with its Ten Point Plan after the Wik decision. Russell exposes the naked bias of the Howard Government against the interests of Aboriginal and Islander people. I believe that the Howard Government is continuing the process of colonization and dispossession.

Russell also shows how the courts have varied in their conservative or liberal interpretations and application of the law from time to time. It is now accepted that governments try to influence this process by their appointments to the High Court. Russell points out that the political climate of the day also exerts an influence. In particular, it influences those who are thinking of taking cases to the courts. In Recognizing Aboriginal Title, Russell shows the very human side of the 'majesty' of the law. I was told by a lawyer involved in the ten years of Mabo litigation how they waited for one judge to retire before they proceeded with the next stage of the challenge.

In his Introduction, Russell points out how he had been attracted to this study because it brought together his three research interests: judicial politics, constitutional politics and indigenous politics, or as he terms it 'Aboriginal' politics. (4) He shows that, until the last few decades of the 20th century, it was commonly believed outside the United States that the judiciary was not, and ought not be, political. Most Australian barristers, he asserts, still believe this. I would add that the fevered response to the Mabo and Wik decisions owed a great deal to the belief that in these cases the judges making the decisions had transgressed the judicial limits of interpretation. Russell devotes the last four chapters of this book to exploring the political and constitutional implications of the Mabo case, and the Wik case which grew out of it.

He spells out at length both the revolutionary nature of Mabo and the subsequent Wik case in the Australian context, and the conservative nature of the decisions when viewed from the comparative perspectives of the other three English settler democracies. However, like the positive gains made in decisions won by indigenous peoples in these three countries, the consequences of Mabo and Wik were to validate dispossession and to downgrade the meaning and value of native title. I found it depressing to have our noses rubbed again so effectively in the embarrassingly rapacious politicking of the Howard Government as it legislated to complete the process of colonization and dispossession while mouthing platitudes about reconciliation and 'practical recognition'. It is difficult for me to judge whether this is nothing but hypocrisy or whether their minds are so blinkered that they cannot understand Australia's history and the challenges that will continue to confront the nation while it fails to work for a mutually acceptable consensual agreement with Aboriginal and Torres Strait Islander people.

Russell points out the practical consequences on the international stage of the Howard Government's 'rolling back of rights' to Aboriginal and Torres Strait Islander people. (5) He notes that no other English settler country in recent years has received so much condemnation in the international community as Australia. The United States, Canada and New Zealand, for the last thirty years, have moved slowly towards acknowledging the rights of their indigenous peoples. The Howard Government's action has run counter to the direction of the United Nation's Committee on Human Rights and in 1997, as Russell points out, it parted company from states like Canada, New Zealand, Denmark and Norway to join, not surprisingly, the United States, the United Kingdom and Japan. (6) However, he notes, it was Australia's reduction of native title rights that led to the conclusion that Australia had violated the UN Convention on the Elimination of All Forms of Racial Discrimination. Australia found itself under UN scrutiny for its treatment of Aboriginal and Torres Strait Islander people. Russell details how this adverse UN scrutiny has continued with the involvement of Kofi Annan and the UN High Commissioner for human rights, Mary Robinson. (7)

Russell cleverly illustrates the importance of international opinion by comparing this situation with the positive response Australia aimed for and received by focusing on the importance of its indigenous people in its presentation at the 2000 Olympic Games in Sydney. The present flack it is attracting is a long way from that which the white South African government received for its Apartheid policy, but Australia will not be able to ignore such scrutiny, no matter how stridently and arrogantly it dismisses it for domestic consumption. Howard will pass. A more enlightened leader will have to exhibit concern for Australia's international reputation. Russell brings out the importance of Australia's Racial Discrimination Act. This itself was a result of Australia's need to respond to the movement in international opinion. Australia's indigenous people will increasingly seek such support.

This is an inspiring study by an academic who has dedicated most of his academic life to showing to the blinkered societies resulting from British imperialism that they cannot ignore the rights of the original owners and occupiers of the land, in part because morally they should not, but also because indigenous people will never rest until their land rights are recognized as deserving at least as much consideration as the interests of those exploiting that land. And that is all of us non-indigenous people. Russell quotes Pat Dodson, former chair of the Reconciliation Council:
 The sovereign position that Aboriginal peoples assert
 has never been ceded. Recognition starts from the
 premise that terra nullius and its consequences were
 imposed upon the Aboriginal peoples, and certainly
 there was never any choice given to the Aboriginal
 peoples concerning the Constitution or the rule of
 law. (8)

Russell makes clear that the ten years' long Reconciliation 'show' failed because no mutually acceptable 'treaty' or 'comprehensive framework agreement' was reached. Howard's aim is to assimilate the Aboriginal and Torres Strait Islander people. This is also his aim for the rioting Lebanese youth in Sydney. It is to be hoped that a leader will emerge who can recognize the difference and take the Australian people along with him or her. But then Peter Russell, Pat Dodson and I are again stating 'the obvious'.

Russell's sweep, from the 15th-century expansion of Europe to the Americas, to the development of relationships between the indigenous people and the invaders in the United States, Canada, New Zealand and Australia today, is magisterial. It is certainly never boring. Indeed, I found some chapters, like 'Ten Long Years of Litigation', gripping reading. The struggle for recognition in each of the settler countries becomes a heroic narrative in which each incremental gain is painfully measured out by the years that committed indigenous activists had to spend fighting for what should have been theirs by right. Russell shows us Eddie Mabo working on a trochus shell boat, as a fettler in the railway, on the waterfront and as a gardener at James Cook University; as a family man with the support of Bonita and the children; as someone who was obsessively committed to having his title to his land recognized even as he sickened and died with cancer. This is the human side of indigenous resistance rarely seen in scholarly studies. The drama of this lifetime of struggle, not merely the ten years of the court case, colours the whole book, even the last five chapters, which take place after his death. Indeed, the last sentence is: 'I hope Eddie Mabo would say "Amen" to that'.

Towards the end of Chapter 6, 'The Land Rights Movement', Russell brings one of the truly dramatic moments in Australia's history to life--the decision by the Murray Islanders to go to the High Court. The vitality is in the detail and in the focus on people who made history at the 1981 Townsville conference without knowing it, such as Eddie Mabo himself, Flo Kennedy, Ben and Phillip Mills, and other Torres Strait Islanders, together with academics and legal activists like Nonie Sharp, Nugget Coombs, Garth Nettheim, Greg McIntyre, Henry Reynolds and Barbara Hocking. (In No Ordinary Judgment, Nonie Sharp has a different list of people who were at the specially convened meeting where the decision was made to go to the High Court: Eddie Mabo, Nugget Coombs, Garth Nettheim, Dave Passi, Nonie Sharp, Phillip Mills and Flo Kennedy, (9) not Russell's more extensive list. (10))

I would like to conclude with two personal observations. I hope I did not say, as reported by Russell, that Mabo 'screamed' 'I'd like to see someone take my land away from me'. (11) Eddie was certainly shocked and angry and these words exploded from him very strongly, very confidently and with great passion in the close confines of Henry Reynolds' study. It was, however, much more dignified, more unforgettable than a 'scream'. It was profound.

I must admit I was surprised to find myself referred to as a 'mentor' of Mabo. I met him in 1967 when we were both committee members of the 'Interracial Seminar: What is to Follow the Referendum?'. We became friends involved together in various Aboriginal advancement activities and in other ways. I suppose I was the academic who was involved must closely with him as I invited him to lecture in my race relations course once or twice a year and even taught him for a semester in my history of Australian Black-White relations, needless to say with some trepidation when I dealt with the Torres Strait Islanders, even though I had long had Aboriginal and Torres Strait Islander students in the course. And of course, I recorded his life story that appears in our biography/autobiography produced after his death. In all that time it never occurred to me that I was his 'mentor' and I am sure that it never occurred to Eddie either. I can say, with no hint of false modesty, that I learned as much from him as he ever learned from me, and I hope Eddie Mabo would say 'Amen' to that.

(1.) P. Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English Settler Colonialism, University of Toronto Press, Toronto, 2005, reprinted in paperback by the University of New South Wales Press, Sydney, 2006.

(2.) N. Loos, Edward Koiki Mabo: His Life and Struggle for Land Rights, St Lucia, University of Queensland Press, 1996, co-authored posthumously with Edward Koiki Mabo.

(3.) The Australian, 22 December 2005; The Sydney Morning Herald, 20 December 2005.

(4.) Russell, Recognizing Aboriginal Title, p. 4.

(5.) Russell, Recognizing Aboriginal Title, p. 351.

(6.) Russell, Recognizing Aboriginal Title, p. 353.

(7.) Russell, Recognizing Aboriginal Title, p. 354.

(8.) Russell, Recognizing Aboriginal Title, p. 361.

(9.) N. Sharp, No Ordinary Judgment, Mabo, The Murray Islanders' Land Case, Aboriginal Studies Press, Canberra, 1996, p. 23.

(10.) Russell, Recognizing Aboriginal Title, p. 195.

(11.) Russell, Recognizing Aboriginal Title, p. 20.
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Title Annotation:Images of Aboriginality
Author:Loos, Noel
Publication:Arena Journal
Geographic Code:8AUST
Date:Sep 22, 2006
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