RIGHTS AND REDEMPTION
History, Law and Indigenous People
By Anne Curthoys, Ann Genovese and Alexander Reilly,
UNSW Press, 277pp
Reviewed: 5 July 2008

This is a scholarly but very readable examination of the ways in which Australia’s legal system has adjudicated the claims of Indigenous individuals and communities. Most of such claims are rejected because they can not be framed or supported, strongly enough, in terms that satisfy court evidentiary standards of admissibility and relevance.

Ann Curthoys, Manning Clark Professor of History at the ANU, has written widely both on Australian historical topics and on the theory and practice of history itself. Alexander Reilly teaches and researches in public law and Indigenous legal issues in Adelaide, and Ann Genovese is an academic in law, history and politics in Melbourne.

The book draws upon interviews with participants in key legal processes. Unusually, this includes members of the judiciary and the legal professions, sometimes anonymously.

A clash of cultures limits legal process. Common law emphasises material proof and strict documentation. It devalues oral tradition, on which Indigenous claimants may rely to establish their case. Claimants and those opposing their claims may each enlist historians, anthropologists or other professionals to provide facts and interpretations to bolster their cases.

This book is not about the merits of claims or the justice of outcomes, but about the problems of method and purpose that divide lawyers, historians, and anthropologists in the processing of Indigenous claims and grievances.

The historian’s commitment to a broad and contextual understanding of events can be at cross purposes with a lawyer’s brief to accept information only in so far as it advances one side of a case. Historians may infer broad truths from scant hard evidence but a rich context, where lawyers may select evidence for the limited purpose of a specific argument before the court. Judges have been reluctant to accept historians’interpretations of events or documents, believing that to be the judge’s own responsibility.

The Mabo case showed that even a supposedly activist High Court, willing to interpret law as “justly” as possible, could not rule on an assessment of fairness alone. Justice Brennan noted that while colonial dispossession may have been unjust, “the Court is not free to adopt rules that accord with contemporary notions of justice if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency”. The Law is more method than morals, and the figure of Justice is traditionally depicted as blind, not all-seeing.

Colonial dispossessions in Australia took place when conquest was considered normal, not illegal. The terra nullius doctrine, explicitly rejected by the High Court in Mabo, did not exist when Australia was colonized, but was a later invention applied by the British Colonial Office. Its relevance to colonial occupation of Australia is still debated.

Historians, anthropologists and lawyers have supported Indigenous groups seeking first Land Rights (from 1967), then Native Title (following Mabo and Wik determinations). We read why most cases have failed.

Sir Ronald Wilson’s 1997 Bringing them Home HREOC report introduced the term “Stolen Generations” into Australian politics and said actions taken by Australian governments in the separation of Indigenous Australians from their families constituted “genocide” as described by a 1946 UN Resolution. Courts have generally rejected individual compensation claims based on the Stolen Generations premise. One case held the State of South Australia responsible for permitting its officers to breach terms of state law in the way they implemented the separation laws, but did not find that the laws or procedures themselves were illegal.

The Hindmarsh Island bridge case turned on the role of anthropologists as expert witnesses, with relevant Courts unsatisfied by conflicting and unproven accounts of cultural practice and belief.

Aboriginal identity itself can be hard to prove. A group of Tasmanian Aboriginal representatives sought to disqualify the claims of another group seeking to register as voters for, and potential beneficiaries of, ATSIC. Persons identifying themselves as Aboriginal in Tasmania rose from 671 in the 1971 census to 13,000 in the mid-1990s. Courts concluded that many Tasmanians may have been discouraged by social and community prejudice from identifying themselves as Aboriginal for up to several generations, but retained some knowledge of that identity and were willing to reassert it in a different social climate.

There is inter-disciplinary rivalry between expert advisers to the law. Historians (holding the pen) come off best in these narratives. Anthropologists appear most likely to be unreliable because their methodology lacks the contextualizing value of good history. The authors propose that lawyers could generally benefit from paying more attention to historians when trying to apply justice to issues of historical origin.

Legislated rights do not deliver much without more clarity on how Courts are to evaluate claims and counter-claims. Redemption is never really discussed as applicable within the framework of law and legal process. Redemption seems limited to the public politics of reconciliation, and to the continued pursuit of truthful history.

This is a fine reference survey for professionals, fully indexed and annotated. It is an important book for any Australian wanting to understand the limits of the law as a vehicle for justice.