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Lamb, Matthew --- "Book Review - Honour Among Nations? Treaties and Agreements with Indigenous People" [2004] IndigLawB 40; (2004) 6(2) Indigenous Law Bulletin 23


Book Review - Honour Among Nations? Treaties and Agreements with Indigenous People

Edited by Marcia Langton, Maureen Tehan, Lisa Palmer and Kathryn Shain

Melbourne University Press, June 2004

review by Matthew Lamb

This is an important collection of essays covering topics of Indigenous peoples’ rights, treaties and agreement making, in Australia and internationally.

The first set of essays provides an historical overview of Indigenous agreement making over centuries of European expansion. Focusing particularly on New Zealand and North America, it shows how early treaty making practices were used to justify colonisation; that although the international law held that customary law and policies of Indigenous populations was to be recognised, legal tactics were usually employed to circumvent consequent responsibility.

This is then contrasted with Australia where no such official treaty making has occurred; even with the legal fiction of terra nullius overturned by the High Court in recognition of native title. In one of the most important contributions to this collection, Noel Pearson surveys how the potential of the Mabo[1] decision was diminished by the Native Title Act (Cth) 1993 (‘NTA’). In one of the clearest statements on land rights, Pearson argues persuasively on how the definition of ‘native title’ in the NTA can be restored to its original intention, as per the Mabo decision, and become the cornerstone for future agreements.

The second set of essays takes a microscope to some agreement making institutions and practices. Paul L A H Chartrand shows how some Aboriginal groups in Canada, such as the Métis, have been excluded from the process altogether; while Ravi de Costa and Maureen Tehan, in separate essays, look at the situation in British Columbia, and show how the political institutions surrounding the process are fundamentally flawed, and how the heavy legal focus of the process has considerably narrowed the room for useful negotiation.

Joe Williams ends this section on a more optimistic note. He looks at New Zealand’s Treaty of Waitangi and shows how its lack of inherent legal force, once seen as a negative, has actually become one of its main strengths, enabling it to be incorporated widely into legal, political and bureaucratic processes.

This leads into the third set of essays, focusing on the creative possibilities of negotiating coexistence that extends beyond the dry letter of the law, as contained in existing agreements, or, as in the case of Australia, in the absence of treaties. Most notably, Lisa Strelein shows how the symbolic function of native title may suggests alternate ways in which agreements can be used to reconcile and direct future interactions between Indigenous and non-Indigenous peoples. Bruce Harvey examines the internal cultural change within the mining company Rio Tinto, resulting in a positive about-face in terms of recognising Indigenous cooperation and input into their mining operations.

The final set of essays surveys the opportunities and constraints currently facing the agreement making process in Australia. Most notably, Hannah McGlade argues that despite the formal victories of Indigenous people in Australia, from the 1967 referendum win through to the Mabo decision and the Native Title Act 1993, there is still an undercurrent of race discrimination functioning within Australia which needs to be overcome before successful negotiations can take place; while Ciaran O’Faircheallaigh examines the need for further study of the actual outcomes of agreements, both expected and unexpected, which needs to be looked at as an essential part of the agreement making process.

Although this collection does not directly address the possibilities for a treaty in Australia, the sum of its contents does suggest certain directions which could be taken toward this goal. It defines the modern purpose of making agreements as a statement toward a threefold acknowledgment of Indigenous rights: to recognise and redress past injustices, to improve current circumstances, and to define a framework for future interactions between Indigenous and non-Indigenous people. But it also shows the necessity of matching this pursuit for legal rights with more practical means of furthering Indigenous aspirations and goals outside the formal agreement making process.

Honour Among Nations? is an electronic publication, available via print-on-demand (d-book) or as a downloadable PDF file (e-book), from Melbourne University Press: www.mup.unimelb.edu.au/ebooks/0-522-85132-0/index.html, or call 03 9342 0319.

Matthew Lamb is a freelance writer, living and working in Brisbane, Queensland.


[1] Mabo v State of Queensland (No 2) (1992) 1 CLR 175.


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