Case, Natasha --- "The Long Road" [2007] IndigLawB 3; (2007) 6(24) Indigenous Law Bulletin 11

• The Long Road

The Long Road

by Natasha Case^[1]

Many new paths have been made in Indigenous legal issues since the inaugural issue of the Aboriginal Law Bulletin in August 1981 and many old paths continue to bear heavy traffic. The recent death in custody of Mulrunji and Federal Court jurisprudence under the Native Title Act 1993 (Cth), contrasted with past articles by Dr Mick Dodson and Noel Pearson, demonstrate how uncertain the direction of pathways of change often are.

In 1989, the Report of the Royal Commission into Aboriginal Deaths in Custody^[2] (‘RCIADIC Report’) documented the brutal reality of contemporary Indigenous relations with police throughout Australia. In a 2001 editorial commemorating the tenth anniversary of the RCIADIC Report,^[3]

Dr Michael Dodson expressed his distress at the governments’ response (or lack thereof) to its recommendations. He also noticed the piecemeal, community driven and community dependent initiatives it made possible, including night patrols, Aboriginal Justice Advisory Committees and, in the Northern Territory, an Aboriginal Interpreter Service.

The RCIADIC Report outlined the universal standards for the conditions of detention which applied to all people in custody as well as making recommendations specific to Indigenous people. The findings of the recent coronial inquest into the death of Mulrunji at the Palm Island lock up shows that police continue to fail to meet those standards. At the same time, the RCIADIC Report’s recommendation that all deaths in custody be the subject of such an inquest surely contributed to charges being laid against Senior Sergeant Hurley, the officer on whose watch Mulrunji died. No charges were laid as a result of the RCIADIC itself. We have reprinted the Dodson editorial in this edition by way of comparison with recent events in relation to the death of Mulrunji.

Mabo v Queensland (No 2)^[4] is the high point of common law recognition of native title in Australia, preceding the statutory regulation of native title by the Native Title Act 1992 (Cth). The pending appeal against the decision of Justice Wilcox of the Federal Court in Bennell v Western Australia^[5] may provide an opportunity for further development of jurisprudence about proof of native title under the Act. Although not the subject of appeal at the time of writing, the decision of Justice Lindgren in Harrington-Smith v Western Australia^[6] may provide an opportunity for the development of further jurisprudence about the communal nature of native title. Noel Pearson’s Statement of Principles of Native Title^[7]

highlights some common law doctrines and questions their place in the Australian statutory native title regime. We have included this statement by Pearson in this issue of the ILB.

Natasha Case is a lawyer at the Human Rights and Equal Opportunity Commission and was an editor of the Indigenous Law Bulletin from July 1998 – September 2001.

Articles reproduced following this reflection were:

Michael Dodson, ‘Introduction to the Tenth Anniversary of the Royal Commission into Aboriginal Deaths in Custody Special Issue’, (2001) Indigenous Law Bulletin 5(8), 4. This article can be accessed via <http://www.austlii.edu.au/au/journals/ILB/2001/28.html> .

Noel Pearson, ‘Principals of Communal Native Title’, (2000) Indigenous Law Bulletin 5(3), 4. This article can be accessed via <http:www.austlii.edu.au/au/journals/ILB/2000/19.html>.

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^[1] The views expressed in this article are those of the author and do not represent the views of the Human Rights and Equal Opportunity Commission (‘HREOC’).

^[2] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) <http://www.austlii.edu.au/au/special/rsjproject/rslibrary/rciadic/index.html> at 12 January 2007.

^[3] Dr Michael Dodson, Introduction to the 10th Anniversary of the Royal Commission into Aboriginal Deaths in Custody Special Issue (2001) 5(8) ILB 4.

^[4] [1992] HCA 23; (1992) 175 CLR 1.

^[5] (2006) 153 FCR 120.

^[6] (2007) (No 9) FCA 31.

^[7] Noel Pearson, Principles of Communal Native Title (2000) 5(3) ILB 4.