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

J.R. (Jim) Miller is Canada Research Chair of History at the University
of Saskatchewan and the author of Reflections on Native-Newcomer
Relations: Selected Essays and Lethal Legacy: Current Native
Controversies in Canada.

When Australia’s High Court handed down its decision on the Mabo case in 1992, it revolutionized the country’s legal approach to indigenous territorial rights. Australia had consistently held to a doctrine of terra nullius: the view that the land had been vacant when Europeans pitched up in 1788, and that consequently the newcomers’ rights to the land were unchallenged and unchallengeable. In their 1992 decision the jurists overturned that racist view and recognized that Aborigines enjoyed some sort of rights to the lands.

In Recognizing Aboriginal Title, Peter H. Russell, formerly professor of political science at the University of Toronto and a respected scholar of Canada’s judicial system, provides the historical background, substance, and consequences of both the 1992 Australian verdict and the related Wik decision that followed from the High Court four years later. Not content to fulfill the ambitious agenda of describing and explaining such complicated issues, Russell situates the Australian case study in indigenous rights in an international comparative context. He examines the Mabo and Wik cases and their consequences alongside parallel processes in New Zealand, the United States, and Canada, weaving the complex pattern together with dazzling skill to provide a compelling, comprehensive, and comprehensible analysis that stretches from the late 18th to the early 21st century.

What is Russell’s conclusion? He argues that the Australian experience demonstrates again that courts are to some degree political bodies, influenced by public opinion of the society of which they are a part, and that there are decided limits to the scope of the bench’s ability to shape public policy on indigenous-immigrant matters. In general, he finds that Australia and the United States are the least responsive to Aboriginal claims to justice, New Zealand the most, and Canada significantly closer to the Kiwi state than the other two. His final word, an assertion he has made before, is that justice in native-newcomer matters is more likely to be achieved through political agreements than judicial decisions.

Recognizing Aboriginal Title, its deficient proofreading notwithstanding, is a dazzling achievement. Anyone interested in justice issues in Native-newcomer relations should read it.