Sovereignty, law, and difference in Australia: After the Mabo case

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Volumn 21, Issue 2, 1996, Pages 149-170

  Patton, Paul ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

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EID: 21344447737     PISSN: 03043754     EISSN: None     Source Type: Journal    
DOI: 10.1177/030437549602100201     Document Type: Article

References (67)

1. (1992) 175 CLR 1; 66 ALJR 408; 107 ALR 1. The case has also been published on disk and in paperback form: all future references are to The Mabo Decision, commentary by Richard H. Bartlett with full text of the decision (Sydney: Butterworths, 1993).
2. For commentary, see M. A. Stephenson and Suri Ratnapala, eds., Mabo: A Judicial Revolution (St. Lucia: University of Queensland Press, 1993).
3. A special issue of The Sydney Law Review, 15, no. 2, June 1993,
4. was subsequently published as Essays on the Mabo Decision (Sydney: Law Book Company Ltd, 1993).
5. See also, Frank Brennan S.J., One Land, One Nation (St. Lucia: University of Queensland Press, 1995);
6. Bain Attwood, ed., In the Age of Mabo: History, Aborigines and Australia (Sydney: Allen & Unwin, 1996).
7. Noel Pearson, "204 Years of Invisible Title," in Stephenson and Ratnapala, note 1, p. 87. Pearson is currently director of the Cape York Land Council in far north Queensland and an influential spokesman on Aboriginal affairs.
8. With regard to international law, see the comments on the International Court's Advisory Opinion on Western Sahara below. With regard to Australian history, see especially Henry Reynolds, The Other Side of the Frontier (Ringwood, Vic.: Penguin, 1983)
9. and The Law of the Land (Ringwood, Vic.: Penguin, 1987);
10. Attwood, note 1.
11. Mabo Decision, note 1, pp. 50, 82;
12. Council for Aboriginal Reconciliation, Making Things Right: Reconciliation After the High Court's Decision on Native Title, Canberra: A.J. Law, Commonwealth Government Printer, 1993, p. 7.
13. 1919 AC 211, pp. 233-234. Cited in Mabo Decision, note 1, pp. 26-27.
14. Mabo Decision, p. 27.
15. Mabo Decision, pp. 16, 27. See Attorney-General v. Brown (1847) 1 Legge 312. Other cases in this series include Cooper v. Stuart (1889) 14 App Cas 286; Williams v. Attorney-General (NSW) (1913) 16 CLR 404; Randwick Corp v. Rutledge (1959) 102 CLR 54; New South Wales v. Commonwealth (1975) 135 CLR 337.
16. Mabo Decision, p. 18.
17. Mabo Decision, p. 41.
18. Mabo Decision, pp. 31, 34.
19. Mabo Decision, p. 34.
20. Mabo Decision, p. 33.
21. Tim Rowse, After Mabo: Interpreting Indigenous Traditions (Melbourne: Melbourne University Press, 1993), p. 129.
22. Noel Pearson, "Mabo: Towards Respecting Equality and Difference," Voices from the Land - 1993 Boyer Lectures (Sydney: ABC Books, 1994), p. 91.
23. Milirrpum v. Nabalco (1971) 17 FLR 141.
24. Mabo Decision, p. 65.
25. Mabo Decision, p. 144.
26. Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399. The judgment in Amodu Tijani referred to Canadian cases that recognized a native title to traditional homelands on the part of Indian tribes, including St. Catherine's Milling and Lumber Co. v. R. (1888) 14 App Cas 46; Attorney-General for Quebec v. Attorney-General for Canada (1921) 1 AC 401. The approach adopted in this case was subsequently endorsed in Adeyinka Oyekan v. Musendiku Adele (1957) 1 WLR at 880; (1957) 2 All ER, at 788.
27. Mabo Decision, pp. 35, 62, 152.
28. 8 Wheat 543 (1823). Other US Supreme Court cases in which the concept of native title was affirmed include Cherokee Nation v. State of Georgia (1831) 5 Pet 1; Worcester v. Georgia, 6 Pet 515 (1832); United States v. Cook, 86 US 591 (1873); Cramer v. United States, 261 US 219 (1922).
29. Cited in R. H. Bartlett, "Mabo: Another Triumph for the Common Law," The Sydney Law Review, 15 no. 2, June 1993, p. 182.
30. Mabo Decision, p. 51.
31. Mabo Decision, p. 42.
32. Bartlett, note 21, p. 178.
33. Bartlett, note 21, p. 179.
34. Mabo Decision, pp. 18, 29.
35. Dietrich v. The Queen (1992) cited in F. Brennan, "Mabo and the Racial Discrimination Act," Sydney Law Review, 15, no. 2, 1993, p. 221.
36. In this respect, the common law is not unlike the kind of differential body that Deleuze and Guattari call a multiplicity or rhizome. However, while the common law is primarily a reactive body, Deleuzian multiplicities are active bodies that seek out occasions of metamorphosis and change. Rhizomatic multiplicities are "defined by the outside; by the abstract line, the line of flight or deterritorialization according to which they change in nature and connect with other multiplicities," Gilles Deleuze and Felix Guattari, A Thousand Plateaus, translated by Brian Massumi (Minneapolis: University of Minnesota Press, 1987), p. 9;
37. cf. Paul Patton, "Mabo, Difference and the Body of the Law," in Thinking Through the Body of the Law, Pheng Cheah, David Fraser, Judy Grbich, eds. (Sydney: Allen & Unwin), 1996.
38. Mabo Decision, p. 30.
39. Mabo Decision, pp. 33-34, 46.
40. In this sense, colonization is an event that effects what Deleuze and Guattari call an "incorporeal transformation" in the character of the physical elements involved and their relations to one another. See A Thousand Plateaus, pp. 80-87.
41. Mabo Decision, p. 98.
42. Mabo Decision, pp. 109-111.
43. Mabo Decision, p. 41.
44. These include The Case of Tanistry (1608)
45. and Witrong and Blaney (1674),
46. as well as many nineteenth- and twentieth-century cases before the Privy Council. See Mabo Decision, pp. 34-35, 38-42.
47. Mabo Decision, pp. 41, 65.
48. M. J. Detmold, "Law and Difference: Reflections on Mabo's Case," Sydney Law Review 15, no. 2, June 1993, p. 166.
49. See Reynolds, The Law of the Land, note 3, pp. 7-29;
50. N.L. Wallace-Bruce, "Two Hundred Years On: A Reexamination of the Acquisition of Australia," Georgia Journal of International and Comparative Law 19, no. 1, 1989, pp. 90, 110.
51. See Reynolds, Law of the Land, note 3;
52. and Wallace-Bruce, note 38.
53. Dianne Otto, "A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia," Syracuse Journal of International Law and Commerce 21, Spring 1995, pp. 66, 74-75.
54. For an extensive account of discussions at the UN Working Group on Indigenous Peoples and an analysis of the manner in which the principle of state sovereignty serves to prevent self-determination for indigenous peoples, see Catherine J. Iorns, "Indigenous Peoples and Self-determination: Challenging State Sovereignty," Case Western Reserve Journal of International Law 24, no. 2, Spring 1992.
55. See Wheat, note 20.
56. Coe v. The Commonwealth (1979) 53 ALJR 403.
57. Garth Nettheim, "The Consent of the Natives": Mabo and Indigenous Political Rights," Sydney Law Review 15, no. 2, 1993, p. 231.
58. Coe v. The Commonwealth (1993-1994) 118 ALR, p. 200.
59. Mabo Decision, pp. 51, 58.
60. Advisory Opinion on Western Sahara (1975) 1 ICJR 12.
61. Mabo Decision, p. 28.
62. Michael Mansell, "The Court Gives An Inch But Takes Another Mile," Aboriginal Law Bulletin 2, no. 57, August 1992;
63. Nettheim, note 43.
64. Brennan, note 1, p. 215.
65. See Australian Capital Television Pty Ltd v. Commonwealth of Australia (1992) 108 ALR 577; Theophanous v. Herald and Weekly Times (1994) 68 ALJR 713.
66. Brennan, note 1, p. 128.
67. Marcia Langton, "Indigenous Self-Government and Self-Determination: Overlapping Jurisdictions at Cape York," in Christine Fletcher, ed., Aboriginal Self-Determination in Australia (Canberra: Aboriginal Studies Press, 1994), p. 131.