Rights and Redemption: History, Law and Indigenous People

293 Pages·2008·4.083 MB·English

by  Ann Curthoys

Rights and
Redemption
Ann Curthoys is Manning Clark Professor of History at the Australian
National University and an ARC Professorial Fellow. She has written
on many aspects of Australian history. Her recent books include Freedom
Ride: A Freedom Rider Remembers (Allen & Unwin, 2002, winner of the
2002 Stanner Prize for the best work in Indigenous Studies) and, with
John Docker, Is History Fiction? (UNSW Press, 2005).
Ann Genovese is senior lecturer and ARC postdoctoral fellow in law
at the University of Melbourne. Her PhD in history focussed on the
theoretical and methodological relationship between law and history
and its impacts upon Australian law reform. Ann has also worked at the
Justice Research Centre, NSW. She researches in the areas of Australian
law and history, feminist legal theory, and family law.
Alexander Reilly is an associate professor in the School of Law at the
University of Adelaide, and was formerly a senior lecturer at Macquarie
University. He works and publishes in the areas of law and government,
Indigenous legal issues, legal theory and constitutional law.
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Rights and
History,
Law and
Redemption
Indigenous
People
Ann Curthoys Ann Genovese Aleander Reilly
UNSW
PRESS
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A UNSW Press book
Published by
University of New South Wales Press Ltd
University of New South Wales
Sydney NSW 2052
AUSTRALIA
www.unswpress.com.au
© Ann Curthoys, Ann Genovese and Alexander Reilly 2008
First published 2008
This book is copyright. Apart from any fair dealing for the purpose
of private study, research, criticism or review, as permitted under the
Copyright Act, no part may be reproduced by any process without
written permission. Inquiries should be addressed to the publisher.
National Library of Australia
Cataloguing-in-Publication entry
Curthoys, Ann, 1945– .
Rights and redemption: history, law and indigenous people.
Bibliography.
Includes index.
ISBN 978 086840 807 1 (pbk.).
1. Law and anthropology. 2. Anthropology - Australia -
History. 3. Aboriginal Australians - Land tenure - History.
I. Genovese, Ann. II. Reilly, Alexander. III. Title.
346.940432
Design Di Quick
Printer Ligare
This book is printed on chlorine-free paper.
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Contents
Acknowledgments vii
Foreword by Larissa Behrendt ix
Introduction 1
1 Historians in the courtroom: a history 15
2 Mabo and history 37
3 Native title: proof and historical evidence 60
4 Historians, expertise and the native title process 81
5 Judicial historiography and the question of genocide 108
6 Mourning the stolen generations: the role of redemptive
history 134
7 From Kumurangk to Hindmarsh Island: law’s anthropology
167
8 Contested identities and histories: Shaw v Wolf 191
Conclusion 219
Notes 231
Bibliography 256
Index 272
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Acknowledgments
We have many people to acknowledge and thank. First, we would like
to acknowledge the Australian Research Council, for the grant which
supported the research undertaken for this project. We also thank
our respective universities for their support at the time of research,
and writing: the Australian National University, the University of
Melbourne, Macquarie University (which provided subsidies to support
the book’s publication), and the University of Adelaide. Ann Curthoys
wishes also to thank the Centre for Research in Arts, Social Sciences
and Humanities at the University of Cambridge, and the Research
School for Social Sciences at the Australian National University, both
of which provided visiting fellowships which enabled her to focus on
the project. Ann Genovese also wishes to thank the Jumbunna House
of Indigenous Learning, University of Technology, Sydney, for their
generosity to her during her year as honorary staff member, working
on this project. Alexander Reilly wishes to thank the Gilbert and Tobin
Centre of Public Law at the University of New South Wales where he
worked on the project as a visiting fellow.
We thank Larissa Behrendt for her assistance in developing the project
and in many other ways, and for writing the Foreword.
We offer sincere thanks to the Federal Court of Australia, which
assisted us in navigating the research process. In particular, we wish to
thank Louise Anderson and Andrew Gilbert, whose unfailing intellectual
Acknowledgments vii
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commitment to the interdisciplinary aims of the project and practical
advice were invaluable.
We thank all those – judges, lawyers, historians, and litigants – who
responded to our requests for interview, in person, by email, or by phone.
This project would not have been possible without them.
We also wish to thank Ted Wright for his assistance in the early stages
of the project, and Linda Leung for her patience and skill in helping us
develop our database. Jason Field, Christine Choo, Jess Wilde, Jessie
Mitchell, Anna Garretson and Tanya Hosch we also thank for their
excellent research assistance.
We thank the many colleagues who hosted us when giving papers
outlining our work in progress, and the audiences at those papers who
provided valuable feedback and commentary.
It is important to also thank the friends who engaged generously with
the ideas in this book over the long term: Ann McGrath, Julie Evans,
Patrick Wolfe and Lawrence McNamara.
We thank Phillipa McGuinness for being a supportive commissioning
editor, the production team at UNSW Press, especially Heather Cam
and Ella Roby, James Drown for copy-editing, and Catherine Page for
the index.
Finally, we thank John Docker, Paul Ronfeldt and Sarah Kelly for
assisting and supporting this project in so many ways from the beginning.
It is a measure of how long this project has taken that four children were
born since it was fi rst conceived, and we thank Joseph and Samuel, and
Asha and Oliver, for their love and patience.
viii Rights and Redemption
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Foreword
Larissa Behrendt
What history means, how we interpret it, and the role it plays in shaping
our national identity have been central and controversial debates during
the past decade. The ‘history wars’ or ‘culture wars’ have been hardest
fought over the telling of Aboriginal history.
While debates raged over how many Aboriginal people were killed
on the frontier and whether the terms ‘genocide’ and ‘stolen’ could be
properly used to describe the impact of the policy of removing Aboriginal
children from their parents, the arguments were not so much about
Aboriginal history as they were about the competing stories that they told
about Australia’s past, particularly its colonisation of Aboriginal people
and their land. This was also not a debate that affected Aboriginal and
Torres Strait Islander perspectives of our history: they have remained
unchanged by the discourse that has pervaded the academy and spilled
over to the editorial pages of the broadsheets.
At its heart, it was an ideological battleground that was created
during John Howard’s prime ministership and was supported by the
conservatism that pervaded his time in power. Howard had a personal
and strongly held view about his image of Australia. His was an Australia
that embraced a white Australian nationalism and a psychological terra
nullius, playing into ‘settlement’ myths of Australia being tamed by brave
men who struggled to make a living off the land. He would often evoke
this imagery in his speeches:
Foreword i
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Australia’s farmers, of course, have always occupied a very special
place in our heart. They often endure the heartbreak of drought, the
disappointment of bad international prices after a hard-worked season
and quite frankly I find it impossible to imagine the Australia I love,
without a strong and vibrant farming sector.1
Howard also understood that the stakes in this ideological war were
high. He not only encouraged the attacks on what became known as
the ‘black armband’ view of history, he made sure that his vision of
the kind of Australia he wanted was entrenched by the appointment
of those sympathetic to his viewpoint to our key institutions. From the
High Court of Australia to the National Museum of Australia to the
Australian Broadcasting Corporation, Howard ensured the legacy of his
vision by ensuring the faithful would be there to continue his work long
after he left the national stage.
Where his ideological views most strongly translated into practice
were in his government’s attitudes towards native title. Howard came to
power in 1996 on the wave of a campaign that had, in differentiating his
vision from that of Paul Keating, sought to harness the anti-Aboriginal
sentiment that had resurfaced with the political rise of Pauline Hanson.
With the High Court decision in the Wik case showing openness to
balancing the rights of Aboriginal people with those of other landholders,
Howard made his promise to claw back native title rights one of the
key platforms of his 1996 election campaign. He stated ‘we have clung
tenaciously to the principle that no group in the Australian community
should have rights that are not enjoyed by another group’.2 He also
referred to the ‘politics of guilt’: ‘Australians of this generation should
not be required to accept the guilt and blame for the past actions and
policies over which they had no control’.3
Howard’s lack of, or denial of, historical context – massacres,
dispossession, government policies of assimilation and removal of
children – enabled him to view the recognition of native title interests
in a vacuum. He dissociated native title from the historical events that
facilitated and compounded the continual failure of Australian legal
and political institutions to recognise it as a legitimate property right.
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He claimed that these wrongs were historic and should be treated as
such; dispossession was claimed to be ‘in the past’ and therefore not
the responsibility of Australians today. With this rhetoric, the Howard
Government enacted the Native Title Amendment Act 1998 (Cth), whose
passing into law meant that in New South Wales, for example, the Native
Title Tribunal had to dismiss 80 of the 115 claims before it at the time.
Howard’s changes to the native title regime were just one front on
which he clawed back the political gains made by Aboriginal and Torres
Strait Islander people under the Whitlam, Fraser and Hawke/Keating
governments. And as he sought to limit the rights of Aboriginal people
to native title, he also facilitated the undermining of Aboriginal people’s
confidence not only in government but in the ability of the court system
to deliver them social justice.
There is no doubt that a high watermark moment for the relationship
between Aboriginal and Torres Strait Islander people and the
Australian legal system was the moment the decision in the Mabo case
was handed down by the High Court. Many of us remember where
we were the moment we found out that the doctrine of terra nullius had
been overturned, and Indigenous communities continue to celebrate the
anniversary of the decision.
The notion of terra nullius had always been deeply offensive to
Indigenous people. The symbolic overturning of the doctrine was an
important legal, political and psychological achievement. However, the
Mabo case replaced the legal fiction of terra nullius with another legal
fiction that Australia was ‘settled’, a legal narrative that also conflicts
with the dominant Indigenous perspectives of Australian colonial
history. Against this backdrop the semantic academic debates about the
meaning of terra nullius seemed indulgent to Aboriginal and Torres Strait
Islander people, who understood the impact of that legal fiction from
their own experiences.
The Mabo decision that gave rise to recognition of native title also
raised expectations amongst Aboriginal and Torres Strait Islander
people that it would be a vehicle for achieving land justice for Aboriginal
people. But the euphoria has dulled over time and the promise of land
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