Sinclair, Monica --- "Book Review - Aboriginal Dispute Resolution" [1996] AboriginalLawB 77; (1996) 3(85) Aboriginal Law Bulletin 35

• Book Review-Aboriginal Dispute Resolution

---

Book Review - Aboriginal Dispute Resolution

by Larissa Behrendt

Federation Press

Reviewed by Moana Sinclair

Larissa Behrendt's book, Aboriginal Dispute Resolution, is refreshing in a sea of legal texts and literature that continue to be silent or deny the existence of Indigenous People's rights to their lands, resources and structures. Her work dearly articulates the fierce racism that is inherent in the transplanted legal system imposed by the white settler invasion in Australia from 1788. Her discussion of the legal fiction, terra nullius, demonstrates how the invading western law created a legal lie in order to dispossess and make invisible Aboriginal peoples on their ancestral lands.

She writes an easy-to-absorb analysis of how western notions of modem alternative dispute, resolution, arbitration and mediation fail to recognise the power imbalance between Aboriginal communities and non-Aboriginal individuals or companies. (On this point, see Power and Cultural Difference in Native Title Mediation' by M Dodson, Vol 3, 84 Aboriginal Law Bulletin 8.) This lack of recognition of the power imbalance, she says, further exacerbates injustice. One example she gives of two litigating parties entering the courts or into negotiations-a mining company, and an impoverished and dispossessed Aboriginal community-is very common in Australia. She explains that by virtue of the economic and skill resources available to a mining company, and the nature of an inherently racist legal system, one can easily predict the likely outcome.

What Behrendt illuminates in her book is the western obsession with the legal protection of individual property rights, and how this narrow concept continues to oppress and suppress Aboriginal values, law and philosophy. These, like those of many Indigenous peoples from around the world, have a communal-rights focus which is inextricable linked to the land. Behrendt therefore concludes that the western form of dispute resolution offers no meaningful or durable solutions. Instead, she strongly argues not just for law reform, but for self- determination and autonomy as demonstrated in the United States of America, between the Federal administration and First Nations peoples. She argues Aboriginal peoples must have jurisdiction over communities in regard to dispute resolution matters. This, she says, would include jurisdiction over any incoming external entity, individual or company onto their ancestral lands.

She argues that this is not controversial nor radical, not would it alter the lives of mainstream non-Aboriginal Australia, but simply that accommodation for Aboriginal jurisdiction in their own communities is essential, and this would be empowering. The book concludes that only Aboriginal dispute resolution which is reflective of traditional Aboriginal culture, values, law and philosophy will balance out the soda-economic inequality between the parties, especially parties such as wealthy mining companies.

Aboriginal Dispute Resolution is essential reading for all who wish to work for a society that has principles of equity and natural justice as its fundamentals.