Buti, Antonio --- "Review of Havemann, Indigenous Peoples' Rights in Australia, Canada & New Zealand (Melbourne: Oxford University Press, 1999)" [2000] MurdochUeJlLaw 28; (2000) 7(3) Murdoch University Electronic Journal of Law

Review of Havemann, Indigenous Peoples' Rights in Australia, Canada & New Zealand (Melbourne: Oxford University Press, 1999)

Author:	Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons) (ANU) Senior Lecturer, Murdoch University School of Law
Issue:	Volume 7, Number 3 (September 2000)

Notes

1. The issue of indigenous rights, particularly in relation to land rights, sovereignty and 'justice' has become increasingly important on the political agenda and legal landscape in Australia, Canada and New Zealand. In addition to seminal aboriginal or native title cases such as Mabo v The State of Queensland (No. 2)[1] Delgamuukw v British Columbia[2] and Te Weehi v Regional Fisheries Officer[3] there have been three relatively recent reports on indigenous - non-indigenous relationships in the three jurisdictions: the 1996 Australian Commonwealth Human Rights Commission's report Bringing them Home;[4] the 1996 Final Report of the Canadian Royal Commission on Aboriginal Peoples (RCAP);[5] and the 1996 New Zealand Waitangi Tribunal Taranki Report.[6] Thus Indigenous Peoples' Rights in Australia, Canada & New Zealand (hereinafter Indigenous Peoples' Rights),[7] is very timely.[8]

2. The use of the words 'indigenous peoples rights' in the title of the book itself raises some interesting questions. The Canadian scholar Taiaiake Alfred holds the position that indigenous rights are not the path to self-determination or sovereignty but only reflect 'the benefits accrued by indigenous peoples who have agreed to abandon their autonomy in order to enter the legal and political framework of the state.'[9] This begs the question as to whether the protection of indigenous rights through the common law, statute law and international law is compatible with indigenous cultures and laws? Are the Eurocentric ideas about law and property incompatible with indigenous culture? Are the human rights 'values' codified in convention, covenants and declarations, universal and therefore consistent with indigenous 'values' or are they Eurocentric and inconsistent (or may be still consistent) with Indigenous ideas and 'values'. Indigenous Peoples' Rights doesn't, to any significant extent, tackle these very difficult conceptual and jurisprudential issues. However the book does successfully achieve its aim of asking

   what roles the legal and political institutions and processes imposed upon indigenous peoples play in a continuing process of colonial domination, as well as to ask what contribution, if any, they make to the progressive emancipation of indigenous peoples in the settler 'dominions' of the contemporary Anglo-Commonwealth.[10]

3. The editor, Paul Havemann, in the introduction to the book, provides general information on the purpose and structure of the book. We are told that the book's structure is intended to facilitate a thematic coherence across the jurisdictions. The introduction also provides useful geographical information on the countries in question and the legal rights of their indigenous populations. Havemann then moves on in the next three chapters to provide excellent chronologies. The chronologies deal respectively with Euro-American law of nations and indigenous peoples from 1492 to 1921, public international law and indigenous peoples from 1920 to 1998 and indigenous rights in the three countries from pre-1860 to post 1990. The reader's understanding of the final chronology is facilitated by a tabulated version at the end of the chapter. Havemann also provides a useful introduction to each of the six parts of the book. These introductions summarise the contents of the chapters making up each part and give the reader the conceptual and thematic paradigm of each part of the book. Havemann also provides a succinct conclusion to the book and a selective bibliography which should be helpful to the reader.

4. In Part One of Indigenous Peoples' Rights, the issues of sovereignty, self-determination and coexistence are discussed from the viewpoints of three prominent indigenous scholars. The three chapters in Part One are not overly legal in nature. They however are very thought provoking and insightful. The chapter by Ranginui Walker, which looks at Maori sovereignty and governance argues that it is the non-indigenous population of New Zealand which is driving the agenda on indigenous rights and indigenous-non-indigenous relations. This argument is supported in the chapter by Marcia Langton which emphasizes the need for 'mainstream' to be educated on indigenous knowledge and the chapter by Paul Chartrand's (by interview) on justice, marginalisation and indigenous aspirations such as self-determination and self-government.

5. Part Two 'traces the history of the shaping of the settler state.'[11] The histories of indigenous peoples in Australia, Canada, and the New Zealand are separate events. Local personalities, trends, and events have shaped and informed the nature of indigenous experience in those nations. That being the case however there are also many areas of experience and effects that are eerily replicated in the three different nations. Perhaps the most obvious common trait in indigenous-non-indigenous relations across the three nations is also the most general. In the broad sweep of their histories, indigenous-non-indigenous affairs have been marked by policies and practices aimed at non-indigenous control over the indigenous population. The manner in which this control has been attempted differs between Australia, Canada and New Zealand but there are also many similarities. Further, the aim to control has not been static across time as different eras have produced different policies and desires. The three authors of Part Two, Henry Reynolds, Ken Coates and M.P.K. Sorrenson provide useful accounts of this history in the three nations. Reynolds' account of the impact of terra nullius on indigenous-non-indigenous relations in Australia is particularly interesting.

6. The two chapters in Part Three provide comparative analyses on 'Aboriginal rights and national ethno-politics' and 'Aboriginal rights and international human rights jurisprudence.' Augie Flera examines the political and ideological dynamics of indigenous-State relations in the three nations. He argues that the elevation of 'indigeneity' in the ethno-political process has resulted from an increase 'indigenous voice'; a more vocal advocacy of moral, political and legal rights. The assertion of 'indigenous rights' also has an international law component or perspective. Catherine J. Irons tackles the international law dimension in the other chapter in Part Three. Irons provides an overview of international law developments in relation to indigenous rights. However as the chapter develops it is clear that domestic politics determines whether the international law protection of indigenous rights has any utility:

   Within our positivist legal and political frameworks, states will continue to resist the incorporation of indigenous rights; it will thus take strong domestic pressures-even if they are channeled through internationally focused tactics, such as the politics of international embarrassment-to effect domestic change in these three countries.[12]

7. Whether one is looking at Australia, Canada or New Zealand, the picture is similar; there is a gross over-representation of indigenous peoples in the criminal justice systems. Part Four, investigates the criminal justice system. This investigations provides a vehicle to examine the effect of colonisation on indigenous people; particularly many of the negative effects which see their manifestations in many guises, such as contact with the criminal justice system. The chapter by David MacDonald examines the much discussed Australian Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the chapter by Scott Clark and John J. Cove discusses and reflects on three Canadian inquiries - the Nova Scotia Royal Commission on the Donald Marshall Jr. Prosecution, 1987-89, the Aboriginal Justice Inquiry of Manitoba, 1988-91, and the Canadian Royal Commission on Aboriginal Peoples, 1991-96. Both chapters provide commendable descriptions on the reports and inquiries and some useful comments on the utility of the reports and inquiries. It is obvious that indigenous peoples in the two nations remain disproportionately over-represented in the criminal justice system and for most indigenous peoples the system remains vast and inaccessible. However, MacDonald does argue that the RCIADIC, if nothing else, has placed the issue of indigenous people and the criminal justice system on the political landscape. While Clark and Cove present a negative view on the utility of the said inquiries, they argue this is the fault not of the inquiries but rather governments. New Zealand has not experienced similar inquiries since the late 1980s. So John Pratt contextualises and analyses the Maori contact with the criminal justice system and the interplay of the criminal justice system with the child welfare system. Pratt reports that New Zealand decided to 'indigenise' the criminal justice system, one of the most significant reforms being the Children, Young Persons and their Families Act 1989. However the issue remains as to 'the extent to which Maori are to be given control over their own destinies, thereby allowing them to resolve such matters in ways they think appropriate.'[13]

8. Part Five focuses 'on the evolving character of the settler states' approaches to the management of "native" affairs.' As commented above, although there are localized differences, Australia, Canada and New Zealand share a history of non-indigenous institutional control over indigenous peoples. Christine Fletcher in her examination of Australia, looks inter alia, at past 'injustices', assimilation, and that 'strange' bureaucratic institution, the Aboriginal and Torres Strait Islander Commission (ATSIC), with its dual and contradictory roles as a vehicle for 'self-determination' (it would be more accurate to say self-management) and being accountable to government for expenditure of public funds. It is disappointing that Fletcher fails to examine the contradictory roles in any detail or for that matter, how effective ATSIC has been. Hamar Foster provides a chronology of non-indigenous relationships with the indigenous people of Canada, which have been sign posted by treaty negotiations, legislative control of the indigenous population and constitutional reform which 'protects' certain indigenous rights. In a book with its focus on comparative analyses, Harmar concludes his chapter in a most appropriate way, by informing Canadians they 'are being watched by participants engaged in a similar process and debate in Australia and New Zealand ...'[14] Alan Ward and Janine Hayward trace the development of Maori affairs and Maori-State relationships from 1840 to the present. The authors note that the seminal point and/or source of Maori-State relationships is the Treaty of Waitangi. The treaty provides the Maori with a sense of ongoing ranatiratanga (autonomy or sovereignty).

9. Part Six, which looks at constitutionalising indigenous rights, focuses on the period spanning the 1970s to the late 1990s. It is the most 'legal' part of the book. Richard Bartlett's focuses on the native title issue in Australia, for which he is well qualified to discuss. He 'analyses and demystifies the jurisprudential and political meaning of the Aboriginal rights era in Australia.'[15] Obviously, Bartlett examines the Australian High Court's role in the development of a legal recognition of native title and the legislative 'regulation' of native title (Native Title Act 1993). Bartlett goes on to discuss the workability of the Act and the National Native Title Tribunal. He contends the tribunal,

   far from being sympathetic to the rights of native title holders, has, in its first decisions, developed a philosophy of decision-making that favours certainty and development, and that is in the interests of non-Aboriginal parties.[16]

10. Michael Asch analyses Canadian law regarding Aboriginal rights. He focuses on the Calder judgment and era from 1973-1996, which concluded with the Van der Peet judgment. Asch acknowledges that Aboriginal rights have greater recognition since Calder but '[d]espite many opportunities since 1973, the fundamental political relationship between indigenous peoples and the State remains unchanged.[17] That is that assimilation still dominates the relationship and that Canadians 'must disregard "ancient concepts" that defined indigenous peoples as "in effect a subhuman species."[18] P.G. McHugh provides a discussion and critique of political rights discourse and sovereignty claims in New Zealand. McHugh examines whether the political rights discourse and sovereignty talks were part of a constitutionalising of Maori rights or an incremental development of 'indigenising' of the dominant order legal system.

11. Comparative analysis is difficult. It requires familiarity across different terminologies, histories, political systems and legal orders. Even though this was made easier in this book because of the many commonalities between Australia, Canada and New Zealand, Havemann nevertheless undertook an ambitious task. Although the book failed to tackle the difficult issue of, if or how the protection of indigenous rights by the dominant legal order (non-indigenous order) is compatible with self-determination or cultural integrity, I highly commend Indigenous Peoples' Rights. It will be useful to readers and students of law, politics and history.

---

Notes

[1] [1992] HCA 23; (1992) 175 CLR 1.

[2] [1998] 1 C.N.L.R. 14.

[3] [1986] 1 NZLR 682.

[4] Human Rights and Equal Opportunity Commission, Bringing them Home, report of the National Inquiry into the separation of Aboriginal and Torres Strait Islander Children from their Families, AGPS, Canberra, 1996.

[5] RCAP, Report, 5 vols, CCGP, Ottawa, 1996.

[6] Waitangi Tribunal, The Taranki Report: Kaupapa Tuatahi (Wai 143), GP Publications, 1996.

[7] Paul Havemann, ed., Indigenous Peoples' Rights in Australia, Canada & New Zealand, Oxford University Press, Auckland, 1999

[8] It should be noted that the essays in this book were submitted to the editor in 1996-1997. However on pp. 61-2 there is an overview of events in 1998.

[9] T. Alfred, Peace, Power, and Righteousness: An Indigenous Manifesto, Oxford University Press, Don Mills, Ontario, 1999, at p140.

[10] Above n 7, at p 2.

[11] Id, at p 125.

[12] Id, at p265.

[13] Id, at p 326.

[14] Id, at p 369.

[15] Id, at p 403.

[16] Id, at 425.

[17] Id, at 442.

[18] Id, at 443.