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Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism

By Peter Russell

Review By Arthur Ray

November 4, 2013

BC Studies no. 154 Summer 2007  | p. 137-9

Australia is one of the few countries of the world where academics and politicians often debate interpretations of their country’s history in the national media. They focus on the story of Aborigine-settler relations. Even the country’s prime minister, John Howard, has waded in. He has objected to what he calls “black armband history,” which is a revisionist approach that challenges the older nation-building mythologies that glorified colonial settlers as con querors of a largely vacant land. The revisionists who raise Howard’s ire focus on the Aborigines’ side of the frontier and tell the tale of shameful dispossession and racism. They also recount Aboriginal resistance. Indeed, it was the resistance of Aboriginal activists, such as Eddie Mabo from Mer Island north of Queensland, who were the catalysts for a rethinking of Australian history.Mabo played this role by pressing a title claim for ancestral family farming plots and fishing places.

After ten years of struggling against innumerable hurdles and concerted efforts to sidetrack his claim, Mabo saw it reach the Australian High Court, where it resulted in the landmark Mabo (1 and 2) rulings.[1] In Mabo, the High Court attempted to “cleanse the common” law of Australia by judicially recognizing for the first time that the continent and its offshore islands were not vacant when Europeans first arrived. In the eyes of the law, this meant acknowledging that Aborigines of the mainland and Murray Islanders[2] held “common law aboriginal titles” at contact. This came as a rude shock to many non-Aboriginal Australians, and they deeply feared it would have very adverse consequences for their economic interests. The Mabo decisions and others that followed soon afterward ignited a political firestorm; they prompted the federal government to draft legislation in the form of the Native Title Act (and subsequent amendments) that undid the “damage” the court had wrought; and they led the Court to beat a retreat from its bold attempt to reconcile Aborigines and settler interests by adopting a revisionist historical and legal perspective.

Canadian political scientist Peter Russell tells this fascinating story. He puts his story in a very broad context by opening with a comprehensive survey of changing Western perceptions of indigenous people and their rights, from the opening phase of the age of European global exploration to the Mabo and post- Mabo era at the end of the twentieth century. In his truly impressive survey, Russell pays particular attention to the role that the international civil rights movement of the post-Second World War era played in leading Australia to pass the federal Racial Discrimination Act, 1973, which had profound implications for Aborigines’ rights. He also carefully explores how political/legal developments in the United States (especially the Supreme Court Marshall decisions of the 1820s and 1830s[3] and Tee-Hit-Ton 1955[4]) and Canada (especially the Calder [1973] and Sparrow [1992] decisions) influenced the development of Aboriginal rights law in Australia.

Russell devotes considerable attention to the extraordinary efforts many white Australian lawyers and politicians made to resist Aborigines’ efforts to affirm their rights through the country’s courts. He recounts how these rights opponents tenaciously clung to the founding legal fiction that Australia began as a terra nullius colony based on the Eurocentric notion that Aborigines were too primitive to have developed any system of laws, particularly land ownership regimes. This part of Russell’s story should resonate strongly with the readers of BC Studies who are familiar with the rights struggles of First Nations in British Columbia. Indeed, Russell observes that, before Delgamuukw (1997),[5] British Columbia had been “Canada’s Australia.” Conversely, his discussion of the Australian political landscape makes it clear that successive governments of the states of Queensland and Western Australia have acted as Australia’s British Columbia in their steadfast resistance to any approaches to political/legal reconciliation that fail to give absolute priority to settlers’ interests in the land. What is striking is that the places where the boot of colonial oppression was felt most forcefully by indigenous peoples in Australia and Canada are the places that spawned the most far-reaching legal challenges.

At its core, Russell’s story about Mabo is a comprehensive discussion about the challenges that Aboriginal peoples’ quest for political justice poses for the liberal democracies created by English settler societies. Particularly troublesome are their demands for collective group rights, which liberal democracies are predisposed to regard as being incompatible with the notion that all citizens should have equal rights. Also problematic are their demands for some form of self-government, which raise issues about the limits of state sovereignty. Finally, Aboriginal peoples’ willingness to pursue legal remedies has served to highlight the blockages that stand in the way of the courts rendering them justice. Courts cannot openly challenge the legitimacy of the state that gives them their authority. Also, as Mabo made all too clear, they cannot render judgments that are too out of tune with public sentiments without being subject to attack and risking provoking legislation that negates the intended effect of their rulings. Russell is to be applauded for telling the crucial Mabo story so well and in a way that has resonance well beyond Australia.

[1] Mabo v. Queensland, 1988, 166 C.L.R., 186; and Mabo v. Queensland (No. 2), 1992, 175 C.L.R. 1.

[2] Mer Island is part of this island group. They are located in the Torres Strait.

[3] Johnson and Grahams’ Lessee v. Mackintosh, 1823; and Worcester v. the State of Georgia, 1832.

[4] Tee-Hit-Ton v. The United States, 1955.

[5] Delgamuukw v. British Columbia, 1997, 3 S.C.R. 1010.