Brennan, Sean --- "Compromised Jurisprudence: Native Title Cases Since Mabo" [2007] IndigLawB 22; (2007) 6(26) Indigenous Law Bulletin 21

• Book Review
• Compromised Jurisprudence: Native Title Cases Since Mabo

Book Review

Compromised Jurisprudence: Native Title Cases Since Mabo

Lisa Strelein

Aboriginal Studies Press (2006) ISBN 0 855 75 533 4

Review by Sean Brennan

To discover the law on native title in Australia, a reader has to tackle cases of intimidating length and complexity. That is not to mention the staggering array of related statutes, common law principles and constitutional considerations. Lisa Strelein has done us a big favour.

The High Court’s judgment in Mabo v Queensland (No 2)^[1] (‘Mabo’) in 1992 marked a turning point in Australian law and society. Whatever its limitations, that decision required new responses on many fronts. To date we have lacked a book that methodically analysed how the courts have taken up their part of that challenge.

Lisa Strelein heads up the Native Title Research Unit at the Australian Institute of Aboriginal and Torres Strait Islander Studies, a role that has made her a major contributor to our understanding of native title developments in Australia. She has been instrumental in putting together the large and impressive National Native Title Conference^[2] – an annual focal point for consideration of the impact of native title on Indigenous communities, as well as developments in policy, practice and interdisciplinary knowledge. She has provided practical advice and assistance to a range of Indigenous and government bodies and has consistently produced timely, thoughtful and reasoned analysis of landmark cases. There are few people as well-placed, well-practised and well-informed as Dr Strelein to produce a book evaluating the Australian case law on native title in its first decade or so.

This book devotes separate chapters to 10 key native title judgments, commencing with Mabo. In each chapter, Strelein explains the genesis of the case (including, where relevant, the gist of the lower courts’ analysis), the reasoning adopted and its broader significance. The book finishes with a survey of native title doctrine and a dissection of its intellectual flaws and fundamentally unjust nature.^[3] The focus is mainly on the High Court’s contribution, though inevitably there are also references to trial and appellate decisions in the Federal Court.

This is a difficult body of law to remain dispassionate about, particularly when the commentator is familiar with its impact on Indigenous people and their aspirations. Strelein does, however, take a disciplined approach, spending the necessary time to explain the courts’ decisions on their own terms, allowing readers to see the way in which doctrine has been constructed over the last 12 years or so. It is mainly towards the end of each chapter and in the concluding two, more discursive chapters that she substantiates the criticism implicit in the book’s title.

Strelein makes numerous telling points about a body of judicial work that has, in recent years, managed to combine harshness with reasoning below the quality we are entitled to expect from our highest court. Despite their Honours’ preference for shifting as much responsibility for the injustice of native title law onto the legislature, it is the recent High Court that has done more to diminish the potential embedded in Mabo. It has done so with a less-than-linear development of doctrine, which puts Indigenous property rights at a decided disadvantage. Confidently stated but sometimes barely defended propositions of judge-made law have incrementally pegged back the capacity for native title to alleviate over two centuries of injustice.

The author’s analysis of the offshore case of Yarmirr,^[4] for example, is excellent.^[5] It offers just one example of how High Court judges have more recently diluted the legal principles established in Mabo. They have done so with apparently little sense of obligation to integrate their reasoning with pre-existing common law decisions, let alone principles of justice and non-discrimination.

The book takes on added force when the author adverts, from time to time, to the alternative paths the High Court might have taken on particular ‘test case’ questions.^[6] Likewise, she probes some of the legal possibilities that remain available to Indigenous people after the mean-spirited years of native title’s development since Wik.^[7] She refers on occasions to the lurking mystery in native title law: compensation for past, and indeed future, extinguishment. In the final chapter, Strelein returns to a long-term research interest of hers – and the most fundamental question concerning a nation’s legal system – sovereignty. Rightly so, because the acquisition of Crown sovereignty is central to the flawed logic of the High Court’s work in this area.

But the book’s main focus is the legal doctrine of native title as stated by the courts. As well as the detailed scrutiny of individual cases, there are important general observations in the book. For example, Strelein dwells on the key legal issues of traditional connection and extinguishment dealt with, respectively, in the two major test cases of 2002 – Yorta Yorta^[8] and Ward.^[9] The author makes the very good point that, as it turns out, Yorta Yorta, the more criticised decision at the time, contains a level of flexibility which subsequent Federal Court judges have tended to maximise, with some positive consequences for native title claimants. By contrast, so far there seems little that native title parties can do about the harsh rigidity of the extinguishment doctrine spelt out by the High Court in Ward.^[10]

The length and complexity of native title case law presents some tough choices for an author who knows that few of her readers will have time or opportunity to read the same primary material as she has. The writer might have chosen to appeal to a wide audience by dispensing with legal detail and depicting the law’s development in broad brushstrokes; or have grappled with the technical material in order to substantiate a critical analysis of doctrine for a more limited readership. To do both would be a challenge indeed – requiring, at least, regular pauses to render concepts and principles in plain language. It would also make for a much longer book.

Strelein has settled for an approach that will satisfy those well versed in the area. But there are many lawyers and others who share a nagging feeling that since Mabo or perhaps Wik, they have lost track of what has happened to native title law. While prepared to make an effort, they may wish to remedy that concern without having to plunge into a morass of judgments. This book is also for them.

Sean Brennan is a lecturer at the University of NSW Law School and a project director at the Gilbert + Tobin Centre of Public Law.

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^[1] [1992] HCA 23; (1992) 175 CLR 1.

^[2] See <http://ntru.aiatsis.gov.au/events/conference.html> .

^[3] There is also a useful annotated list of native title cases to the end of 2005, at the back of the book.

^[4] Commonwealth v Yarmirr (2001) 208 CLR 1.

^[5] Lisa Strelein, Compromised Jurisprudence: Native Title Cases Since Mabo (2006) 124-127.

^[6] See, eg, Strelein’s discussion of how the freehold extinguishment case of Fejo might have upheld fee simple interests in a way that was more respectful of both prior Aboriginal ownership and the Court’s own strictures in Wik: Ibid 46.

^[7] The Wik Peoples v Queensland (1996) 187 CLR 1.

^[8] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422.

^[9] Western Australia v Ward (2002) 213 CLR 1.

^[10] Strelein above n 5, 119.