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Williams, Kevin --- "Book Review - Emerging Justice: Essays on Indigenous Rights in Canada and Australia" [2002] IndigLawB 29; (2002) 5(16) Indigenous Law Bulletin 23

Book Review

Emerging Justice: Essays on Indigenous Rights in Canada and Australia

by Kent McNeil
Houghton Boston Printers 2001
532 p
RRP $45

reviewed by Kevin Williams

Emerging Justice: Essays on Indigenous Rights in Canada and Australia is an outstanding resource for those who seek to understand the legal issues that impact on Indigenous peoples in Australia and Canada. The book is divided into three parts. Part One examines the colonisation of Canada, and the Aboriginal rights and treaties that followed. McNeil challenges the colonial history of Canada, which disregarded the existence of the Aboriginal nations. He points out that the historical fiction of Columbus discovering America is clearly unacceptable today.

In the remaining pages of Part One, McNeil deals with earlier Canadian cases that reflect a eurocentric (if not outright racist) attitude towards Indigenous peoples. Within these cases there was never any recognition that they might have rights to land. The presence of Aboriginal people was irrelevant to European claims of sovereignty. Fortunately during the latter part of the 20th century the cases that McNeil alludes to show a more progressive understanding and recognition of the rights of first peoples. According to McNeil this development culminated in the 1997 Canadian Supreme Court decision Delgamuukw v British Columbia.[1] In this case the Canadian courts finally addressed the issue of the nature and content of native title (after several centuries of colonisation), which set the framework for dealing with issues of Aboriginal title in Canada today.

Part Two deals with Indigenous self government and its recognition in the Canadian Constitution. This section reflects the changing attitude towards Aboriginal peoples. In 1982 s 35(1) of the Canadian Constitution was amended to recognise and affirm the existing rights of Aboriginal peoples. Despite intensive lobbying since then, the issue of Aboriginal self governance has never been recognised constitutionally. However there is recognition in the Constitution that the government has obligations to Aboriginal peoples as well as authority over them. The courts have interpreted this recognition as fiduciary in nature, and hence it is legally enforceable.

Australia did not recognise the property rights of Indigenous Australians until 1992 with the handing down of the Mabo v Queensland (No 2) (‘Mabo’) decision.[2] Therefore there is a lot less jurisprudence for McNeil to deal with in Part Three, which looks at Australia’s recognition of Indigenous rights, than in the two previous Canadian focused sections.

McNeil looks at the relevance of the Racial Discrimination Act 1975 (Cth) and its impact on the Australian legal landscape. He looks at its influence on Mabo, and the further development and recognition of native title that came with the Wik v Queensland[3] decision. He also looks at the case of Yorta Yorta v Victoria[4] and the relevance of traditional laws and customs in interpreting native title.

The most salient point made by McNeil is the difficulty of Australian Indigenous groups to prove native title given that theirs is an oral history. There is an additional burden in so far as they have to show that they had rights under their own legal systems by providing the detailed content of their traditional laws and customs to the court. On this basis few native title claims are likely to succeed for evidential, not legal, reasons. The author contends that this is manifestly unjust.

For any person who wishes to gain an in-depth understanding of the situation of the first nations peoples of Australia and Canada and their struggle to gain legal recognition and regain their rights to land, this is definitely recommended reading.

Kevin Williams is an Indigenous lawyer from the Waker Waker people. He recently completed his Masters in Laws by thesis.


[1] [1997] 3 SCR.

[2] [1992] HCA 23; (1992) 175 CLR 1.

[3] (1996) 141 ALR 129.

[4] [2001] FCA 45.


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