International Law and Aboriginal Rights

Reviewed by Graeme Neate

Barbara Hocking states at the outset that, alone among the nations of the world, the dominant white nation of Australia still refuses to admit that the past occupation of its territory by Aboriginal and Torres Strait Islander peoples has certain unavoidable moral, political and legal consequences. She sets the tone of the book by arguing that the acknowledgement by the Federal Parliament of that prior occupation and the conduct of negotiations towards a compact or agreement between black and white Australians will not be enough "without the legal recognition of surviving traditional land ownership and the right to self-management throughout the whole of Australia. It should have been done 200 years ago; we should not have to argue about the justice of it now." Most of the papers and comments edited to produce this book were delivered at a conference at the Australian National University, Canberra, late in 1983. Barbara Hocking has done an excellent job of interposing bracketed comments and facts to bring the material up-to-date and alert the reader to views contrary to those of the writers.

The book is divided broadly into two parts - International and Australia.

International
In the first part, Barbara Hocking discusses colonial laws and indigenous peoples, considering the legal aspects of the European occupation of Australia in the context of the recognition of the rights of indigenous native peoples in other British colonies. Rosalie Balkin covers some of the same ground in her chapter. She points to procedural and substantive obstacles to the resolution of issues about sovereignty in favour of Aborigines by Australian courts and the International Court of Justice. Indeed, she argues, little would be gained from mounting a challenge to Commonwealth sovereignty per se. A more useful question would be how the Commonwealth came to acquire that sovereignty - a challenge to the assumption that Australia was terra nullius in 1788. Professor James Crawford deals with the work of the Australian Law Reform Commission on the possible recognition by the Australian legal system of Aboriginal customary laws. He does so against the background of human rights standards which are articulated in various international instruments.

Professor Russel Barsh of the USA looks at the right to self-determination - what he describes as the "most dynamic issue in international law today". He argues that all other human rights are considered to flow from this one, because the protection of human rights against government abuses depends entirely on who governs. He cautions that, in seeking to "settle" its indigenous situation, Australia should be looking to the international norms likely to be in force a generation hence and not those which are now obsolete. Ms Marcia Langton reports on the United Nations Working Group on Indigenous Populations, concentrating on the "actual way in which particular victories are made on the ground", including the development of networks with other indigenous groups.

Australia
Part 2 of the book is devoted to more local concerns - though it commences with an international perspective in Professor Bush's comparison of indigenous policies in Australia and North America. Professor Bob Reece makes an historian's contribution, describing the early European colonisation of Western Australia and noting the physical conflicts of that era and the way in which the introduced legal system attempted to deal with them. That chapter is followed by statements concerning the laws of Aborigines contributed by Mr Pat Dodson, Ms Marcia Langton, Mr Paul Coe, the National Aboriginal and Islander Health Organisation (NAIHO), Mr Mick Miller and Mr Greg McIntyre. These deal with such matters as the ongoing practical operation of the law of Aborigines and Aboriginal claims to sovereignty.

Father Frank Brennan's contribution on Aboriginal aspirations to land rehearses the history of Aboriginal land rights in Australia. An experienced and well informed guide, he points out not only the salient differences in land rights laws around Australia but also how and why the needs of various groups of Aborigines differ. Consequently, he argues, no uniform legislative land rights model would be appropriate for all Aborigines. While Brennan's sympathies for Aboriginal people are clear, he is acutely aware of the problem which governments face in drawing up appropriate laws. He recognises that such things as the federal system and the "just terms" requirement of section 51(xxxi) of the Constitution can be used as obstacles by governments who are hesitant, reluctant or opposed to legislating in this area. He argues:

Our society is to be judged by whether or not the poorest have gained their rightful place in society. In doing so, it is to be hoped that they enjoy the support of the majority and that Federal-State relations are untroubled. But there can be no doubt about the priority which justice demands - a priority which cannot be reversed by opinion polls and the niceties of Federal-State relations.

The final chapter comes from Hon Clyde Holding MP, who was Federal Minister for Aboriginal Affairs from 1983-1987. He outlines the Federal Labor Government's "clear policies in relation to land rights" - policies based on "five basic principles which are an essential fabric for any land rights legislation". Mr Holding observed that the "difficulties which confront the Commonwealth Government in pursuit of its objective of uniform land rights throughout Australia are manifestly great". As recent history shows, that objective was not reached. Despite it's title the main focus of the book is on matters of essentially domestic concern. They are matters which can only be resolved by local action, informed by experience elsewhere and guided by the principles set out in international instruments. Much of the thinking and public debate about Aboriginal land rights and a compact with Aborigines is woolly and uninformed. Barbara Hocking and the other authors, and the Law Book Company, are to be congratulated on producing a stimulating and informative contribution to the debate.