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

In 1992 the Australian High Court made judicial and political history when it recognized the existence of Aboriginal native title for the first time. The Mabo decision, named for its plaintiff, Torres Strait Islander Eddie Koiki Mabo, overthrew the founding doctrine of Australian settler colonial society – that it was a terra nullius, no one's land – and made justice for indigenous peoples a defining issue of Australian political life.

In Recognizing Aboriginal Title, Peter Russell not only provides a comprehensive account of the case itself, but also situates the decision in the long history of settler/indigenous relations in Australia, New Zealand, Canada, and the United States (the four countries where English-speaking settlers became the dominant population). It is Russell's comparative approach that makes this book so valuable. His history of the laws and the ideological assumptions used by English colonists to define their relations with the peoples they dispossessed is necessary for understanding what distinguished Australian settler colonialism and therefore what made the Mabo decision so revolutionary. Only in Australia did the British conduct no treaties with indigenous groups and refuse to recognize any native rights to the land. Also, only in Australia did settler society define indigenous people solely in terms of race – although Russell does miss the point that this could be explained, at least partially, by the British refusal to recognize Aboriginal groups as sovereign or semi-sovereign entities. However, if unique in these respects, Russell shows that Australian policies aimed at the dispossession, segregation, and assimilation of Aboriginal peoples had much in common with those of the other settler colonial states he examines. As indigenous peoples claimed the right of self-determination in the context of the decolonization movements of the twentieth century, they organized against the colonial laws and policies of settler states. Russell explains how Mabo's fight for judicial recognition of his people's title to their island homeland was part of this larger history of indigenous resistance. Indigenous political activists and the international organizations they and their allies established, including the un Working Group on Indigenous Populations, influenced judicial and political thinking in all four settler states and were important in shaping the outcome of the Mabo case.

Russell thoughtfully defines the key political problems facing indigenous peoples as they struggle for self-determination today. First, in seeking legal recognition of their rights, indigenous peoples inevitably cede some legitimacy to the judicial and political institutions of the colonizing state. Second, in seeking recognition of their rights as specific groups, indigenous peoples come up against the 'dominant constitutional ideology of liberal democracies' which gives 'supreme value to the equal rights of individual citizens.' The solution, Russell shows, must be political. It requires settler descendants to recognize the history of colonization and the existence of native peoples as distinct communities and a mutual working out of new arrangements for living under the same state.

In Australia, the prospects for such a solution are currently dim. Although the Mabo decision was a major advance which raised awareness of Aboriginal affairs to unprecedented levels, it also provoked strong opposition to Aboriginal rights from powerful economic and political interests. In the native title legislation enacted under the government of Paul Keating, and then in the amendments to that legislation enacted by the far more conservative government of John Howard, Aboriginal people saw their native title rights significantly restricted. Subsequent High Court decisions diminished native title rights even further. Howard's insistence on a 'one nation' view of Australian history, and his persistent refusal to recognize Aboriginal peoples as distinct communities with specific rights, remain major obstacles to any kind of reconciliation between indigenous and non-indigenous Australians. Russell's comparison of the rights claimed and won by native peoples in Canada, New Zealand, and even the United States, makes it clear that Australia still has a long way to go.

This thoroughly researched book deserves reading by all interested...