McCall, Grant --- "Book Review - Indigenous Rights in the Pacific and North America: Race and Nation in the Late Twentieth Century" [1993] AboriginalLawB 6; (1993) 2(60) Aboriginal Law Bulletin 14

• Book Review-Indigenous Rights In The Pacific And North America: Race And Nation In The Late Twentieth Century

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Book Review -

Indigenous Rights in the Pacific and North America: Race and Nation in the Late Twentieth Century

Edited by Henry Reynolds & Richard Nile

Sir Robert Menzies Centre for Australian Studies,

University of London, London,

1992, 202 pp.

Reviewed by Grant McCall

Eleven authors and eleven articles, plus an introduction by the editors, constitute the just over two hundred pages of this work, cast mainly, but not exclusively, from a legal historical point of view about the indigenous peoples of the Asia-Pacific region.

The starting point is really a comparative view of First Peoples in Canada, Australia and the USA, with one article each on the Pacific Islands, Melanesia and Fiji. The term 'Fourth World' to describe a people without a state springs to my mind, but not to those in this volume. The salience of this definition, in terms of international advocacy, is apparent below: people without states have great difficulty in prosecuting their claims in international fora.

Garth Nettheim lays down the law in an introductory comparative overview, from which a number of the authors derive perspectives for their individual studies. He makes the point, long felt by those nations without states that the world has been captured by the concept of nation state. That is, the only legally recognised entities in the modern world are those administrative inventions called the state.

Nettheim, for example, alludes to the fact that only states can petition the United Nations for recognition of grievance. Perhaps that is why although there are only five people who are the official members of the UN Working Group on Indigenous Populations, "about 400 or so people ... attend" the meetings!

Randall Garrison writes on the administrative arrangements made by the colonial powers with and to their former possessions. Whilst this might seem like dry reading indeed, this article is perhaps the one place where a succinct summary can be had of how Pacific Island states came to be, some more than others.

Peter Larmour narrows his focus to the large land areas with substantial populations of Melanesia, to review the administration of land, its exploitation and potential for alienation. After reviewing the history of colonial land systems in Vanuatu, Solomon Islands and Papua New Guinea (Fiji is treated separately, but New Caledonia is ignored), he concludes on a rather pessimistic note about the pressures of contemporary resource exploiters on land in that region and how deals struck now could reverberate on into the next millenium.

Ralph Premdas, a political scientist, does consider land and legality, but his goal is to lay out clearly recent developments in Fiji, including internal conflict between western and eastern Fijians as forming the substantial foundation for the dramatic coups in that country in 1987. His analysis of chiefly conflicts and the failed rise of the 'Fourth Confederacy' offers considerable insight into the contemporary scene in that troubled republic.

Paul McHugh takes us into the encapsulated world of the Maori, who are struggling in a settler colony to re-assert their self-determination. He examines in considerable detail the two main Pakeha (outsider) institutions that have most benefited modern Maori: the Treaty of Waitangi and the Maori Land Court, both with their attendant problems, but offering amelioration and sometimes solutions to the thorny dilemmas being considered and worked out in Aotearoa, as New Zealand has come to be known, even officially, of late.

With Sidney Harring piece, we jump over the Pacific to the northwest coast of the USA, to consider Tlingit sovereignty, of which the opening sentence could well have served as the motto of the entire volume:

"The study of the legal history of native people must begin with a study of the legal history of tribal sovereignty".

One is impressed by the author's careful attention to accounts of Russian colonialism in what is now Alaska, and the tenuous hold those outsiders had on the people they imagined they had conquered and subsequently sold. Harring stresses that this history is in process still.

Mary Ellen Turpel looks at Canada as a whole and its indigenous peoples and makes the point that:

"...indigenous peoples are searching for an international review procedure which can scrutinise state action in their particular context."

Indeed, that problem lies at the very heart of much Fourth World struggle, since in international law, it is generally people with states (rather than those without) who are recognised to petition United Nations and other tribunals in matters of self-determination, "...the most significant agenda item for indigenous peoples".

Once again, our conceptual jumbo jet crosses the Pacific, to land with Kenneth Maddock in "Aboriginal landscape", and to consider the intellectual history of the concept of the sacred in contemporary legal, political and public discourse. Looking at a number of cases, he concludes his article with an examination of the Upper South Alligator Bula Complex, concluding that the traditions involved are very real, but that mining had taken place on the contested site. He makes a point also that "...Aboriginal traditions are more malleable and flexible - dynamic is the word sometimes used - than once was thought". His final sentence raises some interesting questions, particularly in terms of consequences for indigenous sovereignty hopes:

"The intriguing question is whether and to what extent a desire to protect the sacred from profanation is mixed with political strategies to achieve essentially secular ends."

Ken Coats bridges that Pacific divide when he looks at land and cultural rights in Australia and Canada, beginning his article with a candid reflection on his own and other white Canadians reactions to land claims:

"...[there is a] continued sense that land claims represents an act of generosity - not justice or natural right".

Coats' closing point is one that has a wide applicability: there must be a change from 'Welfare colonialism' for indigenous peoples. Concessions and 'wins' must be not only in the remote, underpopulated (by colonial invaders) parts of the state, but throughout. In Australian terms, there are claims outside Catherine, to be sure, but also Colloroy and Cronulla, please, too!

Christine Stafford takes us to justice systems, comparing Australia and Canada, and neither comes off well.

In the last article in the collection, Gerald McHeath takes a broader canvas, considering the USA, Canada and Australia, in terms of political structure and native self-government, both of which, as this volume has demonstrated so far, are central to these Fourth World debates, about the 'first peoples' who have become last in their own lands. One of the points of contrast McHeath notes is that whilst rights in the USA have been pursued through legislation, in Canada and Australia it has been through hundreds of court cases. As he observes:

"Natives are the only minority group in the post-war United States that has depended primarily on a legislative, rather than a legal strategy to protect and further their claims and interests."

The book finishes with an Appendix, the Draft Universal Declaration on the Rights of Indigenous Peoples, tables from the Larmour and Premdas papers and a select bibliography.

Those last two arrangements, I should say, constitute the two major criticisms that I have of the book. The tables not being with their respective articles is perverse; there are no footnotes or citations of sources in any of the articles, which seems to have been an editorial decision.

The book is a remarkable collection of materials, but worthy of remark also are those nations without states who are not mentioned and are less comfortable to mention. What do we make of the Banabans encased in both Fiji, because they are on Rabi Island, and Kiribati, because their homeland floats there? Are Rotumans, also in Fiji, to be left out? Considering the attention to one vertice of the Polynesian triangle (Aotearoa), why are the other two, Hawaii and Rapanui (Easter Island) omitted?

No, there is no conspiracy, for how much can the pages of a book contain? Neglected, too, is a thornier question: what about those Fourth World peoples encapsulated by earlier waves of European colonialism on their own continent, really a little peninsula off the west coast of Asia? I refer to the Basques and much suffering Celts, amongst others.

Perhaps the most difficult area not considered by the authors is that of individual rights before the state and the rights of groups or categories. This lies at the very heart of much of the ambiguity in contemporary race relations. Do groups have rights over individuals? That is, must a person categorised, by the state or community, as an Aborigine, in Australia, for example, be an Aborigine or can they choose to be White Australian? I do not mean this as some kind of volunteerism; I am referring to legal definitions and legal negotiations. Does the category 'Aboriginal' have a collective right to retain valued individuals (and to reject others)? Should individuals submit themselves to the needs and desires of their collectivity, or act as independent citizens before the state?

Those are not the sort of questions that the authors set out to answer; what they have done is to produce a stimulating and informative discussion of the legal terrain through which the current International Year for Indigenous Peoples will be played. Anyone interested in the issues relevant to that landscape, to use Maddock's metaphor, will find this a very worthwhile and useful volume, for reference and for reading.