Rights and Redemption: History, law and Indigenous people.

Gray, Geoffrey

Rights and Redemption: History, law and Indigenous people

Ann Curthoys, Ann Genovese and Alex Reilly 2008

UNSW Press, Coogee, NSW, xvi+278pp, ISBN 9780868408071 (pbk)

[ILLUSTRATION OMITTED]

The authors end Rights and Redemption by declaring it was not the book they originally planned: 'five years ago we set out to write an exploration of history, as a field of study, in interaction with the law. In the end we actually researched and wrote a history of our own.' It is, notwithstanding their declaration, in my view, a legal commentary and critique of the law from the perspective of academic historians. It covers the period from the early 1990s to the mid2000s of the engagement between law, history and Indigenous litigants. The bulk of the book--chapters 2 to 4--focuses on Native Title and the work of historians and responses of the courts to their attempts to be recognised as experts. Other chapters discuss the question of genocide, Stolen Generations, Hindmarsh Island and identity.

In most Native Title cases (and the Hindmarsh Island Royal Commission, in particular) history is contested with anthropology as a court-recognised discipline with expertise in matters to do with Indigenous peoples. The part played by Indigenous people is largely that of observer (rather than recognised as expert about their own history and sociality), although many of the matters have been brought to the court in their name. Nevertheless, Indigenous people have attempted to use the law to obtain redress for past wrongs or to assert their rights vis-a-vis the state, such as in the Gove case. But their deep knowledge about their culture and history of interactions with invaders and settlers is undermined by the court's insistence that such knowledge can only be conveyed by court-appointed and recognised experts, especially anthropologists.

Lawyers are of a view that historians are of limited value in assisting the court: ferreting out documents, making a chronology so that the lawyer and judge can make any needed interpretation. One judge interviewed by the authors declared that he doubted whether historians giving evidence as experts are of any assistance to the court. In the opinion of the judge, 'there is nothing conceptually difficult about the issues the historian is expressing'. As one judge stated, 'the court makes findings of fact; it does not find the facts'. It is, in my opinion, an arrogance on the part of lawyers and judges to adopt this view about historical method and analysis. But a peculiar understanding of history is on their side. Curthoys et al. illustrate the problem by taking the reader on a short instructive course about legal history. In short, historians don't stand a chance.

This brings us back to my initial query: why anthropologists are preferred as expert witnesses by the court. Doubtless it has to do with the way, in Australia, anthropology made itself the dominant descriptor of Aboriginal people, a discipline able to understand the ways of Indigenous people. It makes claim on knowing Aboriginal /Indigenous people in ways that are denied other members of the academy and the public. Anthropologists, in matters to do with Indigenous people in Native Title and heritage cases, are recognised as possessing specialised knowledge pertaining to the customs, social organisation, religious life and the everyday lives of Indigenous peoples. They are enabled to use historical documents such a field notes, publications by earlier researchers, explorers' accounts and such like as part of their expert evidence; unlike historians, the court recognises anthropologists as being able to interpret these documents.

I am reminded of a conference dinner where I sat next to a prominent barrister who conducted Native Title cases. Our conversation turned to the use of history and historians in Native Title cases; he was not overly enthusiastic about the use of historians in Native Title cases. He had, however, a solution--a consultant anthropologist who he liked to use. This person, he assured me, could do it all: anthropology, linguistics, history, whatever was required, even to the extent of providing an archaeological report.

The anthropologist who is called as an expert witness need not have conducted original research with the people who are lodging a claim or making a heritage case or whatever. Generally this is no matter for concern by anthropologists who often speak for the 'universal native'. Ron Brunton, a consultant anthropologist who has never done fieldwork in Australia (his fieldwork being confined to Vanuatu in the 1970s), argued that anthropologists, if properly trained, can advise courts on Indigenous peoples anywhere in the world (ABC Radio National, Big ideas, 13 July 2003). Likewise for the anthropologist in the Jango case: he stated that he had 'learned enough [through library searches and some fieldwork] to enable [him] to reach conclusions set out in the report' (Jango vs Northern Territory (2006) 152 FCR 150, 316). He also presented a history of the Western Desert bloc and the people's contact with the invaders and settlers since sovereignty. The judge challenged the expertise of the anthropologist with regard to the 'traditional laws and customs of the Western desert region' (Jango, 316, 317), claiming it was outside his area of knowledge and expertise.

The main thrust of the book is on the redemptive qualities of history in pursuit of redeeming past wrongs. History, rather than anthropology, can engage in the restoration of Indigenous rights; it alone, the authors seem to say, can offer redemption for the past wrongs of colonialism. While the 'promise', their word, of Native Title has remained unfulfilled, other matters pertaining to colonialism, especially legal recognition and compensation for genocidal acts and policies, remain at the heart of a redemptive history as articulated by the authors. It is both a political and legal act: can the law perform these redemptive actions? This requires further investigation.

There is one other matter that is not discussed: is there developing in history, as there is in anthropology, a divergence between anthropologists who work for Native Title and those who pursue a non-applied (academic) anthropology? A transformation of the discipline brought about by the requirements of both lawyers and courts?

Notwithstanding my reservations, Rights and Redemption is a valuable contribution to a debate in Australia about the role of history in redressing past wrongs and establishing and maintaining rights of Indigenous people through the courts.

Reviewed by Geoffrey Gray, AIATSIS <geoff.gray@aiatsis. gov.au>