Can Law or History Redeem Indigenous Australians' Grievances?

Rights and Redemption

History, Law and Indigenous People

By Anne Curthoys, Ann Genovese and Alexander Reilly, UNSW Press, 277pp

Reviewed: 5 July 2008

This is a scholarly but very readable examination of the ways in which Australia’s legal system has adjudicated the claims of Indigenous individuals and communities. Most of such claims are rejected because they can not be framed or supported, strongly enough, in terms that satisfy court evidentiary standards of admissibility and relevance.

The book draws upon interviews with participants in key legal processes. Unusually, this includes members of the judiciary and the legal professions, sometimes anonymously.

A clash of cultures limits legal process. Common law emphasises material proof and strict documentation. It devalues oral tradition, on which Indigenous claimants may rely to establish their case. Claimants and those opposing their claims may each enlist historians, anthropologists or other professionals to provide facts and interpretations to bolster their cases.

This book is not about the merits of claims or the justice of outcomes, but about the problems of method and purpose that divide lawyers, historians, and anthropologists in the processing of Indigenous claims and grievances.

The historian’s commitment to a broad and contextual understanding of events can be at cross purposes with a lawyer’s brief to accept information only where it advances one side of a case. Historians infer broad truths from scant hard evidence but a rich context, whereas lawyers select evidence for the limited purpose of a specific argument before the court. Judges have been reluctant to accept historians’interpretations of events or documents, believing that to be the judge’s own responsibility.

There is inter-disciplinary rivalry between expert advisers to the law. Legislated rights do not deliver much without more clarity on how Courts are to evaluate claims and counter-claims.  Redemption seems limited to the public politics of reconciliation, and to the continued pursuit of truthful history.

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