LeBrun, Marlene --- "Book Review -- Aboriginal Legal Issues" [1992] AboriginalLawB 8; (1992) 1(54) Aboriginal Law Bulletin 16

• Book Review – Aboriginal Legal Issues

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Book Review –

Aboriginal Legal Issues

by Heather McRae, Garth Nettheim and Laura Beacroft

Law Book Co., Sydney, 1991. 338 pp.

Reviewed by Marlene LeBrun

The proliferation and success of Aborigines and the Law courses in law schools in Australia can be traced directly to the work, enthusiasm and generosity of Heather McRae and Garth Nettheim. The first course in Aborigines and the Law was offered at the University of NSW thirteen years ago. Two years later, in 1981, the Aboriginal Law Centre was established at the UNSW. One of its functions was "to encourage the development of curricula and teaching materials in the field of Aboriginal peoples and the law for use in the University of New South Wales and ,elsewhere" (Preface, v).

This laudable aim is being fulfilled. In 1991, for eg., academic staff at the Northern Territory University and at the University of Adelaide were able to offer elective courses in Aborigines and the Law and profit from the considerable work and assistance of McRae and Nettheim, who made the drafts of their text available for student and staff use. The final product, Aboriginal Legal Issues: Commentary and Materials, is based on the teaching of Nettheim and McRae and the contribution of Laura Beacroft whose work went beyond her initial role of researcher. The book was written at the request of the Law Book Company with some financial assistance from the Law Foundation of NSW. Royalties from its sale have been donated to the Aboriginal Law Centre.

The authors state that the text has been written primarily for law students, although interested laypersons and students in other disciplines might find the text informative. As a result McRae, Nettheim and Beacroft have attempted to marry the interests of the lawyer and non-lawyer alike. It is perhaps this aim which contributes to the appeal of the book, as course evaluations of the law students enrolled in the Aborigines and the Law course at the University of Adelaide have indicated for the past two years during which the course has been offered. Aboriginal Legal Issues more than successfully manages to minimise the aridity of many law texts and yet retain the scholarly appeal of an academic publication. One of the greatest strengths of the text for those interested in interdisciplinary study is its incorporation of anthropological, historical and sociological insights into discussions of Aboriginal land rights, the recognition of Aboriginal law, Aboriginal dispute management, and issues of criminal justice which directly affect Aboriginal peoples.

The book is a composite of materials. It includes extracts from original sources, case selections and commentaries, questions for student attention as well as references for further reading. The text includes relevant statistical information and is accompanied by appropriate illustrations and cartoons, some of which poignantly reflect AboriginalAustralian attitudes and tensions. The excerpts are taken from an array of resources, which is understandable given the vast amount of literature available on Aboriginal legal issues. For the reader seeking a developed argument or a book which addresses all the major legal issues affecting Aborigines, the text of the book may appear somewhat disjointed. This effect is possibly exacerbated by a superfluous system of numbered headings and sub-headings within chapters as well as some inconsistency in format amongst the chapters. Any minor distraction, however, is easily overlooked when one considers, first, the enormity of the challenge of compiling a text which spans the divisions of traditional legal classification, and secondly, when one is aware of the difficulties faced in the marketplace for law books on Aboriginal issues.

As noted in the Preface, the original teaching materials which were developed by Nettheim and McRae far exceeded the publishers suggested word limit. Faced with deleting entire topics or over- simplification, the authors opted for more in depth coverage of the topics which were chosen for inclusion. Sadly, draft chapters on federalism, international law and the recognition of indigenous rights, equality and antidiscrimination law, family and child welfare law and a comprehensive discussion of a treaty or reconciliation have been sacrificed to market demands, while the chapters on land rights offer only an overview of the most significant issues. Nevertheless, the text does attempt to address some of the most pressing legal issues for Aboriginal communities, such as how the invaders acquired sovereignty over Australia and whether Aboriginal law can survive the dominant legal order.

Chapter 1 provides a background to the study of Aboriginal legal issues which are addressed in greater detail in Chapters 2 through to 8. The history of first contact and conciliation through displacement, conflict and exterminations is outlined. The policies of protection, segregation, assimilation and integration are summarised and foundations for the future in terms of self-determination are introduced. To provide greater appreciation of the impact of white settlement on Aboriginal populations, demographic reports are included in addition to socioeconomic indicators which reflect the position of Aboriginal peoples in Australia.

Chapter 2 offers an introduction to land law - a system of law in its own right - and describes the unique relationship that Aborigines have with the land. Chapter 3, 'Colonisation, Sovereignty and the Law', adopts a more jurisprudential approach in addressing basic issues of legal doctrine which support the juridical basis of Australia. Questions of the acquisition of territory and sovereignty are raised, and the status of Aboriginal law is discussed as well as the power of the imposed or general law over Aboriginal subjects.

Chapters 4 and 5, 'Land Rights at Common Law' and 'Land Rights Legislation' go hand in glove . In the first the authors argue that "the present Australian stance is legally and ethically indefensible" (p.103) as they examine the doctrine of Aboriginal title to land by reference to the American and Canadian positions which have been more supportive of the rights of indigenous populations to land. The chapter also offers alternative avenues of approach to the attainment of rights to land under the common law. In Chapter 5 current :and rights legislation is described and evaluated and the ability to control mining on Aboriginal land considered. The chapter concludes with a brief discussion of the extent to which land rights issues can exist with claims for self determination by Aboriginal communities.

'The Recognition of Aboriginal Law and Dispute Management' is a particularly popular chapter with law students. The extracts of dispute management procedures from traditionally-oriented communities are especially informative and hold much human interest. In addition to summarising the concept of 'law' in Aboriginal societies, the chapter focuses on the white response to black law in its discussion of the Australian Law Reform Commission Report on the recognition of customary law. Chapter 6 finishes with a brief treatment of special justice mechanisms by outlining local and overseas models which offer some scope for change.

The Royal Commission into Aboriginal Deaths in Custody concludes Chapter 7, 'Criminal Justice Issues'. This sobering chapter canvasses the issue of Aboriginal over-representation in the criminal justice system. It provides concrete 'band-aid variety' advice on how lawyers and individuals can improve and reform the system, even though the authors acknowledge that "no fundamental change is possible until the societal discrimination against Aborigines, which the criminal justice system mirrors, is eradicated." (p.240)

Aboriginal Legal Issues concludes with 'Towards Resolution' in which the authors consider the use of resolutions, litigation, legislation, constitutional amendments, treaty and international action as possible techniques for achieving significant change. But McRae, Nettheim and Beacroft are not overly optimistic. They acknowledge that Aboriginal concerns are many and varied and that action to address them will be primarily political. Nevertheless they emphasise that the 'law has a role to play in addressing those issues many of which the law helped to create or perpetuate." (p328) The study of the law as it relates to Aboriginal people provides an insight into society which is instructive and provocative. As one student expressed in an anonymous course evaluation, "[t]his course [Aborigines and the Law] involved themes which should be made known to all students." Now with the publication of Aboriginal Legal Issues: Commentary and Materials there is no excuse for the absence of Aboriginal issues in mainstream law curricula.