|
|
|
BOOK REVIEW
| Ann Curthoys, Ann Genovese & Alexander Reilly, Rights and Redemption: History, Law and Indigenous People, University of New South Wales Press, Sydney, 2008. pp. xvi + 304. $49.95 paper.
|
| This is a book that grows on you. |
1
|
|
Reactions on early readings were that it was a fairly basic handbook for historians or postgraduate students. Chapter one presents a summary of landmark cases from overseas such as the famous US school segregation trial Brown v Board of Education, the use of history by the War Crimes Tribunal at Nuremburg and a number of important native title cases from the United States, Canada and New Zealand which drew on historical and anthropological sources. |
2
|
|
Chapter two then focuses on Australia's Mabo case, the ensuing legal debates over the validity of the High Court decision and the influence of historical work on individual judges' findings. This is followed logically by discussion of the High Court's Wik decision. Despite the courts' refusal to consider historical documents in the Wik appeals, the authors point out that the Wik decision was acclaimed by Henry Reynolds for its alignment of legal history and historiography: the erosion of Aboriginal rights was piecemeal rather than 'apocalyptic' or instantaneous in 1788. This is a useful segue into a brief overview of the history battle over the term 'terra nullius' during the Howard years but the authors also touch on long standing methodological debates in history about instrumentalist uses of history (Reynolds' political advocacy) versus its subjectivity and presentist values (Attwood's critique of Law of the Land.) |
3
|
|
Up to this point the text was a good summary of some well known and much covered cases. The next two chapters consider specific uses of historical expertise in Australian native title cases and are much more engaging for the historian. Here the methodological problems are thrown into sharp relief by the courts' application of the rules of evidence and the divergent views of judges and historians over silence and absence in the documents. Judges' desire for certainty and historians' insistence on emphasising the many possible interpretations of the historical evidence seem to leave the two fields without any common ground. |
4
|
|
A number of judges and expert witnesses, who made the disconnections between the two approaches even clearer, were interviewed for the project. Particularly disturbing for both Indigenous activists and historians was the ready assumption of many judges that they were capable of interpreting the primary source material and that the main contribution of historical experts should be to identify and assess the source material for the court to interpret as if historians were over-credentialed archivists. |
5
|
|
Having established this antagonistic working relationship it was refreshing then to explore the numerous ways in which the historical record and historical experts have nonetheless contributed to both renowned and less well known Australian cases on genocide, the stolen generations, and Aboriginal identity. |
6
|
|
Given the failure of the Aboriginal litigants in many of these cases and the law's repeated retreat to self-referential 'internal' legal history, the authors posit 'redemptive constitutionalism' as an alternative means of uniting History, Law and Indigenous Australians; by that they mean a Commonwealth tribunal along the lines of South Africa's Truth and Reconciliation Commission to hear and redress the myriad injustices of the colonisation experience. |
7
|
|
Surely such a commission would be warmly embraced by Indigenous Australians but in the absence of any such initiative, the Indigenous movement, sympathetic lawyers and historians continue to gnaw away at the gaps and inconsistencies of that 'internal' legal history. In August 2009 Indigenous Queenslanders who suffered from 'stolen wages' – unpaid or underpaid wages retained by the Queensland Government up to 1975 – announced they were commencing litigation. At a recent Australian and New Zealand Law and History conference in Hobart Henry Reynolds and one of the barristers engaged in the original Mabo trial presented papers arguing that the issue of Indigenous sovereignty could yet be won in the Australian courts if the right test case were pursued. Perhaps the failure of the Northern Territory Intervention to deliver housing and health services could yet prove how tenuous governmental authority remains in geographically remote parts of Australia. |
8
|
|
The exploration of how these three divergent fields have at times overcome their cultural differences to agree on a common interpretation of the colonial past, and ongoing attempts to redress the many injustices of this past, make this book a stimulating and important contribution for Australian legal and history scholars. |
9
|
| | | | |
| University of Southern Queensland |
LIBBY CONNORS | |
|
Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.
|