EJANZH: McGregor on Mabo

Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and its Impact on Australian Law . Edited by M.A. Stephenson and Suri Ratnapala. St Lucia: University of Queensland Press, 1993. xvii + 225. $29.95.

By Russell McGregor, James Cook University.

It is heartening to see how quickly a publishing house can get a book into print when the issues with which it deals are of immediate and pressing public concern. The Mabo judgement was handed down in June 1992; this book came out in March 1993. As commendable as such alacrity may be, Mabo: A Judicial Revolution does bear the marks of hurried preparation. A number of its chapters would have benefited from a more severe application of the editorial pen (or scissors), while others appear to have been truncated by the authors’ requirement to meet a deadline.

In Mabo v. Queensland (1992) , the High Court ruled, by a six to one majority, that the extension of British sovereignty over Australia did not automatically extinguish native title to the land. This book comprises eleven papers on the Mabo decision, each by a different author and each approaching the judgement from a different perspective. Attitudes of the authors range from disquiet over the judicial activism allegedly displayed by the High Court judges, to discontent with the supposed timidity of their judgement. The diversity of perspective which the editors have managed to include within a volume of little over two hundred pages is a matter for commendation. Less commendable is the uneven calibre of the various contributions.

In the first article, Professor R.D. Lumb discusses public law aspects of the Mabo case, expressing strong reservations about the potential implications of the judicial activism which, he claims, characterises the High Court decision. This is followed by a much more favourable assessment of the majority judgement, by prominent commentator on Aboriginal rights, Father Frank Brennan. According to Brennan, the High Court ‘has set the foundations for just land dealings in the future’, as henceforward, ‘developers, pastoralists and miners will have to deal with Aborigines on an equal footing’. These claims may be a little premature, for as Brennan himself acknowledges, ‘ Mabo raises just as many questions as it answers’; and the manner of resolution of those questions cannot at this stage be accurately foretold. With Gabriel Moens’ aptly titled paper, ‘Mabo and Political Policy-Making by the High Court’, we return to a more critical view of the majority judgement. Like Professor Lumb, Moens expresses unease at the High Court’s ‘preference for a philosophy of judicial activism’, and suggests that issues of indigenous land rights should first be addressed by the legislature, not the judiciary.

Robin O’Hair’s contribution marks a change of style, from the academic weightiness of the previous three articles, to a more journalistic touch. He makes, nonetheless, a pertinent point: that the concept of native title, ‘in retaining restrictions on alienability and a requirement of continued adherence to native customs means that Australian law still continues to bifurcate society into black and white’. Moreover, he suggests that native title is merely ‘second rate title’, and that Aboriginal rights to land ‘should be founded on property concepts applicable to all, namely the fee simple’. Unfortunately, Dr O’Hair weakens his own argument by his over-fondness for sweeping generalisation.

The following article, by Cape York Land Council organiser Noel Pearson, suffers from the same defect. Pearson offers some cogent comments, pointing out, for example, the inconsistencies in the various judges’ statements on compensation. But he tends to conflate moral with legal issues, and to base his argument on the assumption that if the morality of white settlement can be called into question, then the propriety of the majority judgement is unassailable. Also worthy of comment is Pearson’s persistent use of the term ‘Legal Darwinism’, coined, apparently, on analogy with Social Darwinism. The latter term is problematic enough; ‘Legal Darwinism’ does nothing to illuminate, and a great deal to obfuscate, the assumptions on which the colonisation of Australia was based.

Margaret Stephenson begins her article with the clearest, most succinct, exposition of the Mabo judgement to be found in the book. If for no other reason, it would have been better placed first, rather then in the middle of the publication. Perhaps it was modesty on the part of Ms Stephenson, not to give herself premier billing – she is also one of the editors of this volume – but if so, it was false modesty. From her summary of the judgement, she goes on to suggest, along lines similar to Robin O’Hair, that the form of native title recognised in Mabo may offer Aborigines less security of tenure than the statutory titles already available under the Aboriginal Lands Acts of various states. Henry Reynolds follows with an article which poses the question: ‘Was the Aboriginal interest in the sprawling pastoral lands of Australia ever validly extinguished?’ He suggests an answer in the negative. While written with the lucidity and directness characteristic of the author, this article is not among Reynolds’ best. Indeed, he seems to have barely begun to get into the material, when the article abruptly concludes.

The next article suffers the opposite problem. Associate Professor Kamal Puri’s ‘Copyright Protection for Australian Aborigines …’ is the longest paper in the volume. It also offers the least substantial contribution to the Mabo debate. Puri contends that the Mabo judgement ‘can be broadened beyond the realm of real property rights and extended to intellectual property rights’. It is an interesting issue; but Puri’s argument is founded on the most banal of cultural and anthropological assumptions. He opens with the remarkable statement: ‘Out of the estimated 15,000 cultures remaining on earth today …’ – as if cultures are real, independently-existing entities which may be enumerated. The same paragraph includes the following sentence, resonant with the old ‘doomed race’ idea: ‘It appears that unless the Australian Government takes a responsible stance in safeguarding Aboriginal culture, in the near future, the chapter of the Aboriginal race could be closed for ever’. Throughout, Puri persists in reifying the concept of culture. Indeed, his argument is premised on the assumption that cultures are real things, which, like land, may somehow be circumscribed and bounded and ‘protected’ by the judicious exercise of centralised authority. K.E. Mulqueeny also examines the possibility of extending Mabo principles, to cover not merely land law but criminal law as well. His examination of this complex and contentious issue is a model of conciseness.

B.A. Keon-Cohen’s ‘Some Problems of Proof: The Admissibility of Traditional Evidence’ sits rather awkwardly with other articles in the volume, for it deals not with the implications of Mabo but with the difficulties faced by counsel in court. It may be, as the Introduction claims, that it provides ‘information valuable to prospective litigants who are considering pursuing a Mabo type native claim title’. But in the context of this book, it would have been better if Mr Keon-Cohen had drawn out the more general implications of his experiences.

The volume ends provocatively, with an article by Dr John Forbes on the ramifications of Mabo for the mining industry. Dr Forbes’ sardonic style – and his crusty conservatism – may not be to everyone’s taste; but by highlighting the elusiveness of the criteria on which the High Court based its decision regarding the continuation of native title, he makes a valuable contribution to the debate. He remarks of the judgement that ‘it is difficult to believe that so loose-textured a statement of common law was really expected to be suitable for normal judicial processes’, adding, with a note of hopefulness, that the ‘current debate may yet be overtaken by political events’. Since Dr Forbes wrote those words, attempts have been made to resolve, politically, the legal issues raised by the High Court. So far, none of those attempts show any sign of succeeding.

With the Mabo judgement bearing all indications of remaining a matter of public, political, academic and legal disputation for years to come, this book should continue to hold widespread interest. As the first book in the field, it does suffer from some unevenness of presentation, but this is compensated by the diversity of opinion and argument which it contains. One point, however, cannot pass without mention: At $29.95 for 225 pages of very ordinary-quality paper, it makes a contribution not only to the land-rights debate but also to the steadily rising costs faced by the book-buying public.

Russell McGregor

Dr McGregor is a lecturer in History and Politics at the James Cook University. He has written extensively on Aboriginal history, racialism and the history of anthropology in Australia.