Indigenous Law Bulletin
Peter H Russell, University of Toronto Press, 2005 – also co-published in Australia by UNSW Press
review by Garth Nettheim
Peter H Russell is a political scientist and is Professor Emeritus in the Department of Political Science at the University of Toronto, Canada. In his Introduction, the author writes that the Mabo project ‘had the attraction of bringing together all three of my research interests – judicial politics, constitutional politics, and Aboriginal politics.’ He has previously worked on constitutional comparisons between Canada and Australia.
Mabo v Queensland (No 2) was decided by the High Court of Australia on 3 June 1992, and the political responses were not settled by legislation until December 1993 (to the extent that they were then settled). Soon after, the author visited the Australian National University in Canberra, and began work on this important study. He continued over the following years, traveled widely in Australia, and met a range of the people who could contribute to the project. Work in New Zealand, Canada and the United States contributed comparative perspectives.
The dedication of this book is disarmingly non-academic: ‘In memory of Eddie Koiki Mabo, a shit-disturber par excellence’.
In Chapter 1, Russell introduces the reader to Eddie Koiki Mabo. Chapter 2 sketches the main themes of the past half-millennium relating to European attitudes to the inhabitants of ‘the New World’. Chapter 3 returns to the key protagonist and the circumstances that built up to the celebrated court case.
In Chapter 4, Russell surveys ‘the... relationship ... between settlers and Indigenous peoples from ... colonization ... to the birth of the Australian Commonwealth ...’ Comparisons are made with contemporaneous developments in the USA, Canada and New Zealand. Chapter 5 picks up the story in Australia with Federation in 1901 and examines ‘the national and international conditions ... that brought the aboriginal issue to the centre of Australian politics and laid the foundations for Eddie Mabo’s successful challenge.’
Chapter 6 traces the evolution of the land rights movement. It picks up the Nisga’a action in British Columbia, Canada and developments in Alaska. In Australia, Russell’s discussion includes Milirrpum v Nabalco (known as ‘the Gove land rights case’), the Tent Embassy, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the first land fund and the Noonkanbah dispute. The hard-line attitude of the Queensland Government in the Bjelke-Petersen era follows, with an account of the Koowarta v Bjelke-Petersen case. The issue of land rights in Queensland, together with the push for a treaty (which is discussed in this chapter), led to a conference at James Cook University, Townsville in 1981, at which Eddie Mabo instructed Greg McIntyre to institute a legal challenge.
Chapter 7 follows the development of litigation, including Queensland legislation intended put an end to the proceedings, and the High Court decision in Mabo v Queensland (No 1) that the Queensland Act was invalid under the Racial Discrimination Act 1975 (Cth). Related political developments during this period are discussed including the election of the Hawke ALP Government, proposals for national land rights legislation and for a treaty, the establishment of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) and the Council for Aboriginal Reconciliation. At the international level, the United Nations (‘UN’) Working Group on Indigenous Populations was established and began work towards a Draft Declaration on the Rights of Indigenous Peoples; and the International Labor Organisation adopted its Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries. In addition, it became possible for Indigenous peoples to lodge ‘communications’ with committees established under relevant UN human rights treaties. Important developments in comparable countries – New Zealand, Canada and the United States – are discussed. The chapter concludes by noting that Eddie Mabo died shortly before the case proceeded to victory.
Chapter 8 provides a concise and accessible account of the High Court’s decision, and of the judgments that led to the 6:1 majority that upheld the challenge and declared ‘that the Meriam people are entitled... to possession, occupation, use and enjoyment of the island of Mer’. The lightness, however, of the burden thus placed on the Crown is noted. The limits of what could be achieved at common law are compared to developments in the United States, Canada and New Zealand.
Chapter 9 records the political responses to the decision, particularly from the mining industry. The Keating ALP Government hoped to broker a legislative deal which would have the support of state and territory governments, industry and Indigenous Australians, but this proved to be impossible. Landmarks along the way included the Aboriginal Peace Plan, the McArthur River mining deal, an unsuccessful Council of Australian Governments (‘COAG’) meeting, ‘Black Friday’, ‘Ruby Tuesday’, and the enactment of the Native Title Act 1993 (Cth). The chapter ends with the desecration of Eddie Mabo’s grave after its unveiling in Townsville, and his reburial on Mer itself.
Chapter 10 takes the story to the 1996 election of a Coalition Government led by John Howard, and to the High Court’s Wik Peoples v Queensland (‘Wik’) decision that native title had not necessarily been extinguished in the large areas of Australia subject to pastoral leases. The political fall-out, headed largely by farming interests, led to the Government’s 10-point plan and to the formation of the National Indigenous Working Group to defend the 1993 Act. The role in Federal Parliament of Senator Brian Harradine, and the political rise of Pauline Hanson and the One Nation Party, eventually led to the deals that saw the enactment of the Native Title Amendment Act 1998 (Cth).
Chapter 11 discusses the importance of Indigenous self-determination and developments in relation to this issue in the United States, Canada and New Zealand. It also discusses the criticisms of Australia by key UN treaty committees relating to the cutting back of native title rights. The failure of the referendum on the proposed Preamble to the Constitution is noted.
The final chapter begins: ‘The long-term importance of Eddie Mabo’s judicial triumph depends much more on its broad political effect in helping to build a climate of opinion more conducive to respectful and just relations with Indigenous peoples than its usefulness as a legal basis for recovering terra nullius’. Russell notes that the larger part of the gains achieved for Indigenous peoples over land in Australia were the consequence of pre-Mabo developments, notably land rights legislation. (In presenting figures for native title gains and, indeed, land rights overall, it is unfortunate that the author’s statistics appear to cut out at June 2000.)
Mabo still has much work to do. But as we watch the High Court abandon its leadership role in vindicating the rights of Indigenous peoples and observe Aboriginal and Torres Strait Islanders turning to less litigious and more political ways of securing their interests in traditional lands and waters, it becomes clear that ... Australia’s Indigenous peoples are running up against the limits of judicial power.
Russell discusses a number of the post-Wik decisions of the High Court which appear to limit the scope of native title and suggests that changes in personnel, and sensitivity to politics, may have contributed to this ending of leadership, as well as possibly excessive deference to the terms of the native title legislation. He notes that one of the few positive features in the 1998 amendments to the 1993 Act are the provisions for Indigenous Land Use Agreements (‘ILUAs’), and that Indigenous Australians are increasingly turning to ILUAs and negotiated deals to protect their interests.
The book is very well researched, as is to be expected given the long period Peter Russell has worked on it, plus his interviews with many of the most notable contributors to the native title issue. It is also highly readable. (But I was disconcerted by the number of typographical errors that have eluded the proof-reading process.)
Garth Nettheim was Dean and Head of School of the Law Faculty and founding Director of the Indigenous Law Centre, UNSW. He is currently an Honorary Visiting Profesor teaching Indigenous legal issues at the Law Faculty, UNSW.
 Peter H Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (2005) 4.
  HCA 23; (1992) 175 CLR 1.
 Russell, above n 1, 70.
 Ibid 121.
 (1971) 17 FLR 141.
  HCA 27; (1982) 153 CLR 168.
 (1988) 166 CLR 186.
 Office of the High Commissioner for Human Rights, <http://22.214.171.124/html/menu3/b/62.htm> at 13 June 2006.
  HCA 24; (1996) 121 ALR 129.
 Russell, above n 1, 306.
 Ibid 366.