Nettheim, Garth --- "Book Review - Your Land is Our Land. Aboriginal Land Rights" [1984] AboriginalLawB 16; (1984) 1(11) Aboriginal Law Bulletin 12

• Book Review-Your Land Is Our Land. Aboriginal Land Rights

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Book Review -

Your Land is Our Land. Aboriginal Land Rights

by Kenneth Maddock

Penguin Books, Ringwood, Victoria, 1983,209pp.

Reviewed by Garth Nettheim

What better time for such a book to be available than now, as opposition to Aboriginal land rights becomes increasingly vociferous. What better qualified person to write such a book than Kenneth Maddock who combines qualifications in law and anthropology with first-hand experience in the working out of the Northern Territory land rights law.

Maddock's achievement is to provide a bridge, accessible to the general reader, between, on the one hand, the complexities of anthropological learning and land rights law and, on the other hand, the generalities of the daily headlines. But the book also contains much of interest to the reader with some knowledge of the subject. For all readerships it has the benefit of being eminently readable.

In one regard the book does not quite live up to its title. While it purports to be about Aboriginal land rights generally, its primary emphasis is on the Northern Territory. This poses a potential danger. Those who oppose land rights at State level tend to do so by reference to Territory law and experience whereas, as Maddock notes, there is little, if any prospect of the Territory model being adopted elsewhere, at least on the same scale. But by placing the Territory in the foreground of his study he may serve to fortify the views of those who oppose land rights.

There are several factors, however, which justify the Territory emphasis. One is that Maddock has particular knowledge of the situation there. Another is that land rights (in one sense of that fluid phrase) were first conceded in the Territory which, accordingly, offers a relatively long period of experience. Another is that the Northern Territory model is the only one that makes express provision for a continuing process of associating rights under Australian law with rights under Aboriginal law; this is a process in which anthropologists are called upon to play a significant role and one on which Maddock has much to contribute.

Maddock is particularly interesting in his discussion of the problems of translating Aboriginal concepts into Anglo-Australian law through the intermediariship of anthropologists and lawyers. Nowhere did these problems prove more formidable than in the first case in which they had to be examined, Milirrpum v. Nabalco, otherwise known as the Gove land rights case. In that case, discrepancies between the evidence of Aboriginal plaintiffs and their anthropologist witnesses ultimately proved fatal to the success of the case. Maddock examines the way in which the case was conducted and steers the reader with ;kill and insight through the shoals of the different fields of discourse of Aborigines, anthropologists and lawyers who may be "tricked by their shared vocabulary into thinking that their words have a common reference'.

The failure of the Gove case led to the establishment of the Woodward Commission. In an interim report Woodward recommended the establishment of the Northern and Central Land Councils with the immediate function of presenting Aboriginal views to him. In practice, much of the task was performed by white lawyers representing the Councils and here, too, problems of translation occurred. They occurred again in the institutional provisions established in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.), based substantially on Woodward's recommendations, with its panoply of trusts, titles, bodies corporate, statutory functions, and so forth.

Were Woodward J. and the legal advisers to the interim land councils too clever by half, designing a labyrinth in which ordinary men and women, holders of traditional entitlements, could only lose themselves? ... Unfortunately, the means to straightforward ends can be complicated.

The Act give traditional owners of land very important powers (exerciseable, mostly, through the Land Councils). Only the traditional owners may bring land claims, only they can veto development on Aboriginal land. The most sensitive area under the Act for interplay among Aboriginals, anthropologists and lawyers lies in the definition of Aboriginal traditional owners and the working out of that definition in a series of land claims before the Aboriginal Land Commissioner. Maddock traces this process, indicating, through examples, the nature and the complexity of land claims and the importance of the role which anthropologists are called upon to play (sometimes with considerable professional qualms). In particular, he explains how the Act's definition of traditional owner has been expanded over the course of time from a narrow patrilineal interpretation in the early claims to a wider interpretation which would include children of female members of the patrilineal clan whose role in relation to land, (as 'managers' rather than 'bosses') is distinct but of similar importance.

Problems of translation occur again in relation to sacred sites. Australian law tends to proceed on the assumption that protection can be accorded only to specific places which can be precisely delineated on maps. By contrast, Aboriginal concepts are much more diffuse. The legislative response "thus divorces the sites from the far-flung network of paths joining them. Moreover it can do little to sustain the myths, rituals and economic pursuits that give these places their significance."

One of the virtues of this book is the balance which Maddock brings to bear on the question of the case for land rights. He explores the juridicial basis for the Pre-Woodward denial of land rights (in Australian case-law, North American jurisprudence, international law, political philosophy) and he also gives serious consideration to contemporary arguments against any special dispensation for Aborigines. He expresses his own support for some form of Aboriginal land rights, providing due accommodation to other interests, and he demonstrates that such a claim can be readily accommodated within the principles and precedents of Australian law. He comes down against federal legislation because of the marked diversity of circumstances from state to state; but in this context he does not give specific consideration to proposals for national legislation of the "minimum standards" variety which would leave scope for differential State development.

The book is balanced, informative, lucid and insightful. When someone coming fresh to the subject asks me to nominate a suitable single reference on Aboriginal land rights in Australia, I have no hesitation in recommending Maddock's book.

(This review is reproduced by permission of Macquarie University News.)