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Recognizing Aboriginal Title

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

Copyright Date: 2005
Pages: 450
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  • Book Info
    Recognizing Aboriginal Title
    Book Description:

    Recognizing Aboriginal Titleis a work of enormous importance by a legal and constitutional scholar of international renown, written with a passion worthy of its subject - a man who fought hard for his people and won.

    eISBN: 978-1-4426-5719-9
    Subjects: Law, Sociology

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-14)

    The genesis of this book occurred on a visit to the Australian National University in 1994. More precisely, it occurred in the press-clippings room maintained by the political science program in ANU’s Research School of Social Sciences.

    Since the mid-1980s I had been visiting Australia researching various aspects of Australia’s Constitution and efforts to reform the Constitution. My aim was to add a comparative dimension to my inquiry into the politics of constitutional change.¹ On these visits, like many other foreign scholars, I found the newspaper files at the ANU of enormous help in bringing me up to date on...

  5. Part One: Setting the Stage

    • CHAPTER 1 Preparation of an Indigenous Challenger
      (pp. 17-29)

      This book focuses on a man and a law case: Edward Koiki Mabo and the decision of the High Court of Australia, rendered in 1992, known asMabo v. Queensland (No. 2). It also describes the broad historical process to which Mabo and his legal action made their distinctive contribution: the colonization and decolonization that began when European states sponsored voyages of discovery to the ‘New World,’ five hundred years ago. This process, in turn, committed human beings to membership in a global political community.

      Eddie Mabo and his case make their distinctive mark on this process as it reaches...

    • CHAPTER 2 Western Imperialism and Its Legal Magic
      (pp. 30-50)

      A half-millennium ago, when Europeans set out on the voyages of discovery that launched the modern age of imperialism, they knew nothing about the human societies they would encounter in this New World. Their total ignorance, however, did not prevent them from holding fast to what they regarded as a moral truth about the relative worth of these societies: that these peoples, to the extent they were fundamentally different from the Europeans, were inferior. Although the European empires had their economic and military rationales, Edward Said provides a compelling perspective when he writes that ‘over and above profit,’ the ‘commitment...

    • CHAPTER 3 Eddie Mabo’s Project and Its Obstacles
      (pp. 51-66)

      By the 1970s the rights and status of Indigenous peoples had become important issues in Australian politics. Even though Aborigines and Torres Strait Islanders at this time constituted little more than 1 per cent of Australia’s population, the issues they raised were becoming as prominent in Australia’s politics as those of Afro-Americans in U.S. politics. And, as with the American response to black political issues, the Australian debate about the position of Indigenous peoples tended to be conceptualized in terms of race relations. Much more than in Canada, New Zealand, or the United States, the other three countries dominated by...

  6. Part Two: Indigenous Colonization and Its Contestation

    • CHAPTER 4 The Distinctive Foundations of Australian Colonialism
      (pp. 69-119)

      When Captain James Cook set out in 1768 on the voyage of discovery that led to the first official British contact with Aboriginal people in Australia, his instructions, as we saw in chapter 2, contemplated that if he encountered local ‘Natives,’ he was to obtain their consent to take possession of ‘Convenient Situations, in the King’s name.’ Natives Cook certainly did encounter. In April 1770, when he attempted to land at Botany Bay, native warriors shied stones at his longboat to resist the invasion. Though Cook’s fleeting encounters with Aborigines in Botany Bay did not result in any coherent connection...

    • CHAPTER 5 Colonialism Contested and the Winds of Change
      (pp. 120-152)

      On 1 January 1901, the Commonwealth of Australia was born. The federal union of the six colonies to form the Australian state was an act of exceptional statecraft and popular participation. The Constitution of Australia that the British Parliament formally enacted into law was the product of a decade of intense political discussion and debate among the Australian colonists.¹ Beginning in 1891, political leaders from the different colonies, including at first New Zealand, met in a series of conventions to identify shared principles and find a way of accommodating their interests in a common scheme of government.

      For their time,...

  7. Part Three: Build-Up to the Mabo Case

    • CHAPTER 6 The Land Rights Movement
      (pp. 155-195)

      The quest for recognition of land rights is at the centre of the modern Indigenous peoples’ movement. The denial by occupying states of Indigenous peoples’ ownership of the lands and waters that supported them for generations is the root cause of the injustice these peoples have suffered. Endeavouring to overcome this injustice is what distinguishes the political movement of Indigenous peoples from that of any other group or minority within the world’s nation-states. For Indigenous peoples, land rights subsume their right to self-determination. The collective self whose future they wish to determine derives its identity from a historical relationship with...

    • CHAPTER 7 Ten Long Years of Litigation
      (pp. 196-244)

      For Aboriginal peoples everywhere, seeking justice in the ‘white fella’s courts’ is a problem. It is not simply that the judges are white fellas – men and women of the dominant setter society – but that, as judges, they have a limited mandate. Judges hear the Aboriginal claim for justice not as plenipotentiaries invested with full authority to fashion a response that satisfies their own sense of what is fair and politic, but as adjudicators bound to give due consideration to the legal process, precedents, and rules of the dominant society. The judges who have received their commissions from the settler state...

  8. Part Four:: The Mabo Case and Its Consequences

    • CHAPTER 8 The High Court’s Decision
      (pp. 247-278)

      On 3 June 1992, the High Court of Australia released its decision inMabo and Others v. the State of Queensland (No. 2). It was, without a doubt, a victory for the plaintiffs. Six of the court’s seven judges found that the Meriam people, subject to a few exceptions and some important qualifications, were the traditional owners of the Murray Islands. The key words in the majority’s declaration were these: ‘That the Meriam people are entitled as against the whole world to possession, occupation use and enjoyment of the island of Mer.’¹ That proposition would surely have gratified Eddie Mabo...

    • CHAPTER 9 Consequences I: Legislating Native Title
      (pp. 279-314)

      The High Court’s decision inMabo (No. 2)was undoubtedly a judicial revolution, but would it produce a real revolution in aboriginal relations in Australia? The answer to that question depends on the consequences of the decision – not simply the legal consequences but the broader political and societal consequences as well. As William Bogart has demonstrated, identifying the consequences of a change in the law is an extremely complex process.¹ That is certainly true of the change effected in Australian law by the High Court’s decision in theMabocase. Responses to the decision in the short term are readily...

    • CHAPTER 10 Consequences II: Wik and a Country Deeply Divided
      (pp. 315-334)

      In the federal election held on 2 March 1996, the Keating Labor government was soundly defeated by the Liberal National Coalition. In his victory speech, John Howard, the new prime minister, emphasized national unity. ‘I will focus on those things that bind us together,’ he proclaimed.¹ Contrary to that undertaking, his first term would produce an Australia more divided than ever before in its history on the rights of Indigenous peoples.

      The imminence of such division was not apparent at the time of the election. A year earlier, when the High Court rendered its decision rejecting Western Australia’s challenge to...

    • CHAPTER 11 International Dimensions and Reconciliation
      (pp. 335-365)

      By the 1990s the struggle for Indigenous self-determination had become a major international human rights movement. Recognition as political societies (rather than cultural or ethnic minorities) with freedom to determine their political status was the common political aspiration of Indigenous peoples around the world. Such recognition is fundamental to the principle of self-determination enshrined in Article 3 of theUnited Nations Draft Declaration of the Rights of Indigenous Peoplesthat, by 1994, was formally before the UN’s Human Rights Committee. Article 3 states: ‘Indigenous peoples have the right of self-determination. This means that they can choose their political status and...

    • CHAPTER 12 The Limits of Judicial Power
      (pp. 366-382)

      The long-term importance of Eddie Mabo’s judicial triumph depends much more on its broad political effect in helping to build a climate of opinion more conducive to respectful and just relations with Indigenous peoples than its usefulness as a legal basis for recoveringterra nullius. In chapters 9–11 we saw that, while theMabocase was undoubtedly a catalyst in moving Australia in that direction, there is still a very long way to go. This concluding chapter will look more closely at the tangible payoffs of the case in terms of Indigenous Australians regaining control and ownership of land....

  9. Notes
    (pp. 383-424)
  10. Bibliography
    (pp. 425-450)
  11. Index
    (pp. 451-470)