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Indigenous Law Bulletin

Indigenous Law Bulletin
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de Ferrari, Lisa --- "Book Review - Indigenous Legal Issues - Commentary and Materials (2nd ed)" [1997] IndigLawB 82; (1997) 4(5) Indigenous Law Bulletin 19

Book Review

Indigenous Legal Issues -
Commentary and Materials (2nd ed)

by Heather McRae, Garth Nettheim, Laura Beacroft

The Law Book Company, Sydney, 1997

Reviewed by Lisa de Ferrari

Since the first edition of Indigenous Legal Issues (in 1991), there have been a number of fundamental political and legal developments in Australian Indigenous affairs: the final report of the Royal Commission Into Aboriginal Deaths in Custody, Mabo [No. 2] (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1), the Native Title Act 1993 (Cth), and Wik (Wik Peoples v State of Queensland & Ors (1996) 141 ALR 129).

These developments are, however, only part of a rapidly changing legal landscape. The study of Indigenous legal issues encompasses much more than native title and the deficiencies of the criminal justice system. Non-Indigenous Australia and its legal system have finally woken up to the prior existence of Indigenous peoples and their laws on this continent, well before the reception of the common law at the time of colonisation. As a result, many legal doctrines in constitutional law, anti-discrimination law, child welfare and family law, environmental and heritage protection law, and intellectual property law, as well as native title law and criminal law, are now being challenged. While some of the developments and relevant cases are incorporated in other legal subjects, more often than not the context from which the 'legal issue' originated, that is, the experiences of Indigenous peoples and communities in Australia today, in the context of the historical background of settlement and dispossession, is not taught or even mentioned.

Indigenous Legal Issues is written as a textbook for a discrete law subject; however, individual chapters could be incorporated in the study of other law subjects, like family law. Following Mabo [No. 2], it should not be difficult to recognise that in Australia we have the co-existence of two distinct systems of laws. Consequently, an essential component of legal education should be a comparative approach, analysing the Indigenous system of laws side by side with the common law system. The chapter on 'Indigenous Laws' should be read by everyone interested in legal issues in contemporary Australia. While Indigenous Legal Issues is intended primarily for law students and legal practitioners, the use of a wide range of materials, including articles and news reports, should make the presentation of even some of the more difficult legal issues accessible to non-legally trained readers as well.

The authors have concentrated on the topics of land rights and native title, racial discrimination, criminal justice issues, child welfare, and aspects of constitutional law and sovereignty. Cultural heritage and international law are not covered as separate topics; however, there are references to international perspectives throughout the book, and particularly in the chapters on 'Indigenous Sovereignty' and 'Native Title: Recognition'.

Major themes in Indigenous Legal Issues

There are three main themes which can be discerned in Indigenous Legal Issues. First, as the authors explain in the preface, they share a view that 'the disadvantaged position of so many Indigenous Australian today is, in large part, a legacy of legal doctrines-or of the misapplication of legal doctrines'. The legacy of discriminatory laws is discussed as a theme in various chapters (for example, 'Child Welfare' and 'Criminal Justice Issues'). The book has also a particularly good exposition of why and how the legal doctrine of terra nullius was misapplied. The chapter on 'Indigenous Sovereignty' invites the reader to consider whether the basis for denying Indigenous sovereignty might also be in the misapplication of legal doctrines.

Second, the authors more optimistically believe that 'law, as well as being part of the problem, can also be part of the solution'. However, for that solution to eventuate, for lawyers and non-lawyers to be able to challenge and change the present situation, it is crucial to analyse contextually the mode in which legal doctrines (misapplied or not) operate to generate and/or sustain the disadvantaged position of Indigenous peoples. This contextual approach constitutes one of the strengths of Indigenous Legal Issues. While the first chapter on 'Background and History' provides a general contextual framework on Indigenous Australia today and through the different stages of government policy (from the killing times, to protection/segregation, to assimilation/ integration, to the limited power of decision-making by Indigenous people in the policies of the 1980s-90s), other chapters also strongly emphasise the historical and cultural contexts. For example, the chapter on 'Child Welfare' discusses Indigenous child rearing practices and the experience of the Stolen Generations, before analysing whether the Aboriginal Child Placement Principle or the 'best interests of the child' test in family law are adequate legal responses to the continuing disproportionate removal of Indigenous children from their families.

The third theme is self-determination. Throughout the text, the authors ask the reader to consider whether self-determination would provide a better answer to the present legal and political approach. Self-determination is not defined directly as a concept; rather, some concrete examples both in Australia and overseas are presented, together with an analysis of the limitations imposed on the possible success of self-determination initiatives by lack of resources, inappropriate modes of providing resources, or sheer lack of political commitment on the part of governments, as in the case of regional agreements under the Native Title Act.

Content of specific chapters

The chapters on 'Territorial Issues' represent a major change from the first edition. The material on 'Land Rights Legislation' has been. reduced and now focuses on the Northern Territory model, with brief references to the legislative models in the various States. A welcome addition is the material on women as traditional owners.

Native title has been divided into two topics. The chapter on 'Native Title: Recognition' traces the historical legal developments from the initial assertion of terra nullius, to Milirrpum v Nabalco Pty Ltd & The Commonwealth ((1971) 17 FLR 141), to Mabo [No. 2]. The case of Mabo [No. 2] is presented mainly by using secondary sources that discuss its legal and political significance, with only small extracts from the case itself. This style of presentation should appeal to readers less interested in the complexities of land law, and more interested in gaining an understanding of the historical and international background of legal cases against which Mabo [No. 2] was decided. The rest of the chapter covers the political process leading to the enactment of the Native Title Act. The chapter on 'Native Title: Law and Process' integrates a discussion of the legal requirements for establishing native title at common law (as defined in Mabo [No. 2], and now also Wik) with the legislative scheme of the Native Title Act, which sets up different categories of land for the purpose of native title claims. It is, unavoidably, the most strictly legal chapter of Indigenous Legal Issues, but it should provide an invaluable guide to anyone approaching the complexities of the Native Title Act for the first time.

The final chapter, 'Towards Resolution', outlines a number of options for further progress towards the resolution of outstanding issues: reconciliation, constitutional change (for example, in the form of an express prohibition against racial discrimination), regional agreements and self-government. As the political situation presently stands, these options will not self-eventuate. If they are to be realised, it will be through the strong and continuing commitment of a majority of Indigenous and non-Indigenous Australians. As the political process following both Mabo [No. 2] and Wik has shown, a number of people will be more interested in increasing the level of disinformation rather than in educating non-legally trained citizens as to the legal significance of particular cases or legislative changes. Hopefully, a book like Indigenous Legal Issues can be a reference guide for those Australians interested in an informed and educated debate. The book also includes one of the most comprehensive bibliographies of any legal textbook (over 50 pages of references).

Any criticisms of Indigenous Legal Issues are minor. In places, it could benefit from longer extracts from source materials. The inclusion of cultural heritage and international human rights law as distinct topics would also have been desirable. However, this edition of Indigenous Legal Issues is stronger than the pioneering first edition, and will prove an extremely useful resource for legal research in any of the topics that are covered.

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