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Ritter, David --- "Book Review - Justice for All? Native Title in the Australian Legal System" [2002] IndigLawB 45; (2002) 5(18) Indigenous Law Bulletin 22

Book Review

Justice for All?

Native Title in the Australian Legal System

Edited by Christopher J F Boge
Lawyers Books Publications 2001
121 p
RRP $25

reviewed by David Ritter

Justice for all? Native title in the Australian legal system is a short anthology comprised of four chapters of uneven quality. Over half of the work is an essay by the editor, Christopher J F Boge, entitled, ‘A fatal collision at the intersection? The Australian common law and traditional Aboriginal land rights’. This article is politically conservative, strong in clichés, clumsy in syntax and verbose in expression. How, in 2002, anybody can write (without irony) that ‘the Common law is inherently strong and rational ... it favours neither the strong nor the weak – above all, it is a law for all Australians’ is quite mysterious.[1] At its worst, the editor’s essay is so convoluted it borders on parody. Consider:

The ‘guiding principle’ or assumption that pre existing Indigenous rights and property were to be protected by the new common law, although not founded on, accorded with, fundamental notions of justice – recognising the factual occupancy of colonial lands, and a system of traditional laws and customs that awarded rights of property (however characterised) rendered the idea of Australia as being a ‘legal desert’ on colonisation that could develop in disregard of any such rights as unsupportable in principle.[2]

Christopher J F Boge is at his strongest when he is summarising the Australian law of native title. He is much shakier when he attempts analysis, seeing native title as no more than a weak right that is strictly limited within the common law.[3] The author demonstrates knowledge of the cases, but his failure to engage with the broader literature of native title is surprising and problematic. This disappointment is perhaps at its most manifest when he carelessly and glibly dabbles in the relationship between history and law.[4] There is a prima facie thesis within the editor’s article, but his composition would have strongly benefited from some harsh editing by another’s hand.

The second chapter, ‘Balancing native title and mining interests: the Queensland experience’ by Katherine Morgan-Wicks is an illuminating and comprehensive explanation of the state future act system in Queensland. However, this article has appeared in Native Title News and, as such, is old news. Another chapter, ‘The emerging law of native title practice: select issues and observations’ by Mark Boge, also dissatisfies, but for different reasons. The ‘selection’ chosen by the author is too anecdotal, there are oddities in the footnotes,[5] and the article is overwhelmingly confined to the experience in Queensland. There are omissions within the selected issues,[6] and there is also a broader failure to offer any insight from the position of native title applicants or their representatives. This tunnel vision is illustrated by the absence of any real consideration of the chronic under-funding of native title representative bodies. As an aside, the obvious promotion of a particular law firm in the footnotes on the first page of the article is an additional irritation to the reader.

Unquestionably, the highlight of the book is an erudite contribution by Helen Grutzner, who argues the thesis that s 116 of the Commonwealth Constitution (freedom of religion) could potentially invalidate parts of the Native Title Act 1993 (Cth). This is not a subject that has been widely explored and it is given a timely and helpful airing.[7] To some extent then, Justice for all finds its deliverance in Grutzner’s treatment of freedom of religion, but this redemption is partial and not enough to save such a flawed small book in the mind of this reviewer.

David Ritter is the Principal Legal Officer of the Yamatji Land & Sea Council, native title representative body for the Pilbara and Murchison-Gascoyne Regions in Western Australia.

[1] Christopher J F Boge (ed) Justice for all? Native title in the Australian legal system (2001) 1.

[2] Ibid 9 (the author’s syntax retained, footnotes omitted).

[3] Ibid 46.

[4] Ibid 38 & 56.

[5] See for example notes 17, 62 & 88 in the text.

[6] For example where is Phillips v WA [2000] FCA 1274, under the heading ‘Striking out an application’ on ibid 111.

[7] See for a brief discussion of this topic, Nicole Watson ‘A denial of religious freedoms: Section 190C(3) of the Native Title Act[2001] IndigLawB 17; (2000) 5(7) Indigenous Law Bulletin 4.

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