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Ben Golder[*]
They cannot represent themselves; they must be represented.
- Karl Marx
The Eighteenth Brumaire of Louis Bonaparte
It is now more than a decade since the High Court handed down its decision in Mabo v Queensland [No 2][1] and whereas the urban backyards of White Australia have predictably emerged unscathed from the epoch of unbridled ‘judicial activism’ that that decision supposedly inaugurated,[2] the tangible results for the Indigenous owners of this country have been unsurprisingly scarce.[3] The end of the post-Mabo decade has provoked many assessments of the success (or otherwise) of Australian native title law as a mechanism for achieving Indigenous land justice.[4] Whether they be agonised retrospectives, rueful narratives of opportunities lost and compromises made, or sanguine recommendations for future legislative action, these contributions to the debate on Australian native title law have all concerned themselves (either explicitly or implicitly) with the central, yet tantalisingly elusive, question of just ‘what is native title?’. Indeed, as Lisa Strelein observes, it is fundamentally important to come to terms with these sorts of conceptual questions.[5] Answers to basic conceptual questions such as ‘what is native title?’ will inform the ways in which we engage with the complex sedimentation of statute, common law, political expediency and racial prejudice that Australian native title law has become. In this article I want to suggest a slightly different answer to the conceptual question of ‘what is native title?’
One of the more popular understandings of Australian native title law is that it is an example of a Western legal system (late twentieth-century Australian property law, to be more precise) recognising an Indigenous form of land tenure, or relation to country.[6] Building on this idea, Noel Pearson has argued that the product of this exercise in cross-cultural legal interaction is in fact a ‘recognition space’.[7] According to this view, the concept of Australian native title law is neither wholly Indigenous nor wholly Anglo-Australian, rather, it exists within the space between these two systems – a product of the latter’s munificent, if somewhat belated,[8] recognition of the former. Implicit within the very dynamic of ‘recognition’, however, is the concept that one legal system (the Anglo-Australian legal system) exercises the power to select, represent and order whichever aspects of the other legal system it chooses.[9] In contemporary Australia, this practice of ‘recognition’ takes place within a postcolonial dynamic of ongoing material oppression and epistemic violence.
It is almost trite to observe that this process of recognition, out of which Australian native title law supposedly arises, takes place within a colonial framework of differential power relations. Indeed, the cultural and epistemological problems which occur when Western legal systems, in Australia and elsewhere, seek to incorporate or accommodate Indigenous forms of knowledge, are extensively documented.[10] Yet there are still some commentators, such as Pearson, who retain a belief in the ability of this skewed colonial process to achieve some measure of Indigenous land justice for the original custodians of this country.[11] There is still a belief, regardless of the limitations of cultural translation or the stuffy imperviousness of the common law to alternative forms of knowledge, that Australian native title law continues to represent a valuable medium for addressing in the postcolonial present the ‘legacy of unutterable shame’ that is undoubtedly our national historical heritage.[12]
But framing the question in this way – colonialism as history, legal reconciliation as present – elides the work that Australian native title law has done, and continues to do, since its inception in Mabo. I want to argue here that the legal apparatus of Australian native title law is not simply an attempt, however misguided or dysfunctional, to recognise, accommodate or translate Indigenous experience of country as a means to effect historical redress or to deliver land justice. I contend that contemporary Australian native title law can actually be read as an Orientalist legal discourse which continues to colonise and oppress Indigenous Australians to this day through representational practises which constitute them as other and inferior, as barbaric and traditional, as invisible and vestigial. In the purported act of recognition, Australian native title law practises an epistemic erasure of the Indigenous subject. This article is a reading of contemporary Australian native title law through the lens of colonial discourse theory. In the discussion that follows, I hope to demonstrate how Australian native title law functions as an Orientalist discourse through a close reading of the textual politics inherent in the Yorta Yorta litigation – in Olney J’s rejection of the claim at first instance;[13] in the Full Federal Court’s dismissal of the appeal;[14] and, finally, in the High Court’s rendering of ‘tradition’.[15] In this article I necessarily focus upon issues of tradition and maintenance of connection to country, but the broader theoretical issues I canvass are apt to describe other facets of Australian native title law. Before commencing a close reading of the three decisions in Yorta Yorta, however, it is necessary to sketch an outline of the concept of Orientalism itself, and to illustrate how it can be of use in theorising Australian native title law.
The study of Orientalism, as a critical tool for delineating the various ways in which postcolonial knowledge and modes of representation are determined by racial and power inequalities, is most comprehensively and eloquently expressed in Edward Said’s 1978 text, Orientalism.[16] As Bill Ashcroft and Pal Ahluwahlia observe, the book ‘made such an impact on thinking about colonial discourse that for two decades it has continued to be the site of controversy, adulation and criticism from both the metropolitan academy and the non-Western ‘periphery’’.[17] Indeed, there is more than a hint of irony in the fact that a work initially conceived as a trenchant critique of colonialist epistemology and a rallying call for ‘non-dominative and non-coercive’[18] forms of knowledge and self-representation, has become so firmly entrenched in the Western critical canon. However, regardless of Orientalism’s acquired academic pedigree, Said’s text still retains its original dissident potential several decades after its first publication. It is this critical potential, and its methodical analysis of the way colonial discourses (re)produce their colonised subjects, that makes Orientalism particularly useful for a reading of contemporary Australian native title law.
As the subtitle of Said’s book indicates (‘Western Conceptions of the Orient’), Orientalism is primarily concerned with the way in which the Orient (here, specifically, the Middle East) is represented in Western literature. Drawing upon Antonio Gramsci’s concept of hegemony[19] and Michel Foucault’s understanding of discourse,[20] a supposedly illicit critical (con)fusion for which he has often been criticised,[21] Said defines Orientalism as an academic discipline, a mode of thought, a corporate institution for dealing with the Orient but, above all, as a Western means of representing, knowing and (ultimately) exercising power over, the Orient. In this, Said openly acknowledges his conceptual debt to Foucault’s discourse theory:
My contention is that without acknowledging Orientalism as a discourse one cannot possibly understand the enormously systematic discipline by which European culture was able to manage – and even produce – the Orient politically, sociologically, militarily, ideologically, scientifically, and imaginatively during the post-Enlightenment period.[22]
For Said, then, the Orientalism of the nineteenth century represented a discourse – a collection of texts, a complex arrangement of statements and images, an ensemble of disciplinary, institutional and colonial practices – which delimited and authorised certain representations of the Orient. In this sense, according to Said, it could be said that Occidental representations ‘produced’ the very idea of the Orient. Said’s argument in Orientalism is not, of course, that there was no pre or extra-discursive Orient, simply that because of the material and discursive power of Orientalism, which conditioned one’s understanding of the Orient, it was not possible to know the Orient other than through the medium of this discourse.[23] It was thus not possible to know ‘the Oriental’ as other than primitive, exotic, wily, inscrutable, fundamentalist, traditional, incorrigible, impervious to reason, unchanging, and so forth. These were the only discursively validated statements, the only correct mode of knowing the Other. Post-‘9-11’, the same tropes are deployed with increasing fervour in contemporary Australian geopolitical discourse. Such are the constitutive limitations of Western representational politics that we are precluded from knowing Muslims other than refracted through the lens of global terrorism and Islamic fundamentalism, we are precluded from knowing Iraqi and Afghani asylum seekers other than as ‘queue jumpers’, ‘boat people’, a threat to national security, and so forth. Then, as now, the complexity and nuance of the Orient never intrudes as self-representation. The Orient is always an object of knowledge, never a subject; always represented by others, never narrating itself. The Orient is constructed as a timeless and homogenous essence – a fixed and discrete set of knowledge for the Occidental imagination.
Obviously, the Foucaultian nexus between power and knowledge (‘power/knowledge’) is central to Said’s argument in Orientalism.[24] Not only, in an instrumentalist sense, are we able to exercise power if we have knowledge (‘military intelligence’ springs to mind as the chilling, metaphoric example) but, more fundamentally, knowledge proceeds from power. Said’s argument is an eloquent statement of the situatedness of knowledge and the inherently political nature of representation – there is no such thing as disinterested, objective, absolute, knowledge. All forms of knowledge are always already powerful in the sense that they are linked to regimes of power – all knowledge proceeds from somewhere. In Said’s model of Orientalism as discourse, then, the knowledge of the Orient – which passed itself off as aperspectival, value-free observation – was in fact a function of imperial dominance. It was the material dominance of the imperial forces, their exploitation and rapacious colonialism, which placed them in a position from which they could objectify and represent the Orient for itself, from which they could constitute ‘the Oriental’ as an object of knowledge.
Said’s model for understanding the representational politics of colonial race relations was conceived specifically as a tool for describing the way in which the nineteenth-century British and French colonialists represented the Middle East. Yet Said himself has prefigured its use in other contexts.[25] Indeed, as an abstract paradigm for delineating the ways in which the powerful represent the powerless it is a very portable critical tool. In the discussion that follows I want to use Said’s insights to explain how the representational politics of Australian native title law function in a very similar way to the discourse of Orientalism. Specifically, I want to show how the legal requirements of tradition and connection, central to the proof of native title, operate to situate Indigenous Australians as objects of knowledge, as ‘authentic’ and timeless specimens of a primitive culture – yet, paradoxically, as invisible and mute testaments of their own destruction.
The Yorta Yorta litigation was significant for a number of different legal, factual and historical reasons. To start with, it was the first claim lodged under the Native Title Act 1993 (Cth) (‘the Act’) to come on for hearing.[26] In February 1994, an application was made to the Registrar of the National Native Title Tribunal (‘the Tribunal’) for a determination of native title. The Tribunal subsequently referred the application to the Federal Court in May 1995. The trial, which as the majority judges in the Full Federal Court were later to point out in deference to one of their number, was a lengthy and involved process. All in all, the court sat for 114 days during the period October 1996-November 1998. Olney J heard evidence from 201 witnesses and the transcript of proceedings was in excess of 11,000 pages. His Honour delivered judgment on 18 December 1998.
The Yorta Yorta claim, as several commentators have observed, was also significant in that it was a claim made over an area of land in the more ‘settled’ South.[27] Given the legal requirements, as Richard Bartlett noted, ‘[p]roof of native title in those regions was always likely to be difficult’.[28] Yorta Yorta has now confirmed for us just how difficult the task was. Indeed, ‘in contrast to cases which have failed on a legal issue concerning extinguishment of native title, Yorta Yorta was the first case which has failed on the strength of its claim’.[29]
The claim, in its final form, was for a ‘determination that communal native title exists in relation to the whole of the claimed land and waters except those parts thereof where native title has been extinguished by a previous exclusive possession act (the determination area) and all waters and natural resources located, from time to time, therein’.[30] The nature and extent of the native title claimed by the Yorta Yorta people was, as per Mabo, a right to ‘possession, occupation, use and enjoyment’ of the determination area, its waters and natural resources.[31] The determination area covered lands and waters in northern Victoria and southern New South Wales. The area was bisected from East to West by the Murray River and included the towns of Shepparton, Echuca, Mooroopna, Mathoura, Yarrawonga and Wangaratta.[32] Initially there were over 500 non-claimant parties to the proceedings, although some subsequently obtained leave to withdraw whilst other parties were joined. Not all respondents took an active part in the litigation, although the States of Victoria and New South Wales were ‘actively involved at all stages’.[33]
Olney J identified four separate elements central to the proof of native title: first, the members of the claimant group must prove that they are descended from the Indigenous people who occupied the area in the relevant sense prior to the assertion of Crown sovereignty in 1788; secondly, the nature and content of the traditional laws acknowledged, and the traditional customs observed, by the Indigenous people in relation to the land must be established; thirdly, the claimants must prove that the traditional connection with the ancestral land of the claimant group has been substantially maintained since Crown sovereignty; and, finally, the claimed rights and interests must be recognised by the common law of Australia.[34]
In terms of satisfying Olney J’s first requirement of biological descent, the Yorta Yorta identified 18 ‘known ancestors’, who occupied the determination area in the mid to late nineteenth century and from whom they claimed descent.[35] Whilst there was no direct evidence of Indigenous occupation of the determination area at the time of the acquisition of Crown sovereignty, Olney J was prepared to infer on the basis of the records of early explorers and the existence of burial sites, oven mounds and shell middens, that Indigenous people did in fact occupy the determination area at, and prior to, 1788.[36] However, his Honour held that of the 18 ‘known ancestors’ through whom the Yorta Yorta claimed an entitlement to their lands, only two, Edward Walker and Kitty Atkinson/Cooper, were descended from the original inhabitants of the determination area. Thus, only those present-day Yorta Yorta claimants who could trace their descent through these two ‘known ancestors’ were entitled to a determination in their favour.[37]
In the end result, however, even the ‘significant number’ of the 4,500 Yorta Yorta claimants who could surmount this biological hurdle were refused a determination of native title over their ancestral lands.[38] This was because Olney J determined that by 1881 the Yorta Yorta had irrevocably lost any connection to their land. His Honour stated that:
those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time.[39]
As a result of what Olney J euphemistically termed ‘the disturbance of the way of life of the Aboriginal people’[40] – a familiar social process we can more accurately identify as forced missionisation, appropriation of land for pastoral use, the suppression of traditional languages and customs, and the spread of European diseases – the Yorta Yorta people ceased to occupy their lands in the requisite traditional way. While canvassing the contemporary practices of the Yorta Yorta on country, such as the preservation of sacred sites (oven mounds, shell middens and scarred trees); the conservation of food resources; reburial rites; and, the conservation of timber and water resources,[41] Olney J found that these practices, although ‘genuine’ and indeed ‘commendable’,[42] could not work a revival of their native title rights. Invoking the oft-quoted authority of Brennan J in Mabo,[43] Olney J concluded with a metaphorical flourish:
The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.[44]
Brennan J’s ‘tide of history’ metaphor, and the stylised relationship between law and history that it represents, provides an apt entry point for a discussion of Australian native title law as Orientalist discourse. That this metaphor was seized upon so avidly by Olney J in Yorta Yorta – his Honour quoted it a total of three times[45] – demonstrates just how central it is to the Orientalist historiography of native title law. Valerie Kerruish and Colin Perrin make the point clearly:
The metaphor of the tide of history conveys the legal meaning of the colonisation of Australia. Colonisation is in the past: a natural and inevitable force. The law of native title, on the other hand, is in a present that, while absolved from any responsibility for that which has been washed away, acknowledges the possibility of survival.[46]
In impeccably legalist fashion, Olney J abjured the roles of historian (‘I am conscious of the need to avoid assuming the role of historian’)[47] and social engineer (‘Nor is there any warrant ... for the Court to play the role of social engineer, righting the wrongs of past centuries and dispensing justice according to contemporary notions of political correctness’).[48] By deftly distinguishing the role of judge from the roles of historian and social engineer, Olney J sought to quarantine Australian native title law from the narrativity of history and the stigma of colonialism. Colonialism was a thing of the past, while Australian native title law – a creature of the reconciled present – was established to recognise, according to the neutral application of legal principles, surviving Indigenous connections to country. Yet in his Honour’s application of the law, indeed in the very conceptual requirements of the law itself, he reveals how Australian native title law itself ‘subjects Australia’s indigenous people to a neo-colonialist tradition’.[49]
After refusing to succumb to the temptation of writing history, a temptation his Honour managed to refuse for a further four lines of text, Olney J reluctantly launched into an extensive historical narrative of the determination area, beginning in the 1820s when the first colonial explorers visited the area. It is almost exclusively upon this colonial history of the determination area – drawn largely from the contemporary writings of Edward Curr, a European pastoralist – that Olney J formed his conclusion that by the end of the nineteenth century the Yorta Yorta had lost their connection to country.
Olney J’s forensic model of history – which is broadly analogous to Keith Windschuttle’s textualist approach to frontier historiography[50] – has been quite widely, and properly, criticised.[51] Simply put, Olney J accorded very little weight to the Indigenous oral testimony of tradition, preferring to place his faith in European historical texts. To this end, Olney J stated baldly that the most ‘credible source of information concerning the traditional laws and customs of the area from which Edward Walker’s and Kitty Atkinson/Cooper’s early forebears came’ was not to be found in the testimony of the Indigenous claimants themselves, but rather ‘in Curr’s writings’ – a colonial outsider.[52] Where his Honour did accept oral evidence, he measured its cogency against the extant historical record,[53] a source of evidence he accepted without any critical analysis.[54] Thus, the self-assertions of the contemporary Indigenous claimants, their assertions of a continuing vitality of culture and tradition, were measured against hundred-year-old colonial representations of their ancestors. The former was unsurprisingly accorded epistemological primacy in the courtroom, for in the Orientalist discourse of Australian native title law, Indigenous claimants’ knowledge of their country and knowledge of themselves cannot be permitted to contradict the written record and representational supremacy of the coloniser.
It scarcely needs stating that, besides erecting almost insuperable barriers of proof in native title litigation,[55] such a historiographical model practises a complete erasure of Indigenous voices from the historical and legal record. It is little wonder that Wayne Atkinson, a Yorta Yorta claimant, described the experience of the Yorta Yorta litigation as entailing ‘the subjugation of our voices to those of outsiders’.[56] Such little respect did Olney J accord the oral testimony of the Indigenous claimants that his Honour actually stated that in spite of the accounts of some fifty Yorta Yorta witnesses, ‘the evidence is silent concerning the continued observance in [Daniel] Matthew’s time [the 1860s] of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr’.[57]
If Indigenous voices were effectively silenced by Olney J’s historiographical technique of prioritising the specious neutrality of the written word over the tendentious malleability of the oral, and Indigenous self-representation was subordinated to the colonialist representations of the colonised, then only in Curr’s historical narrative does the full Orientalism of the native title legal apparatus become manifest. It is not my intention to deconstruct Curr’s narrative here. Others have impugned, at some length, his motivations, authority, historical accuracy, gendered assumptions and methodology.[58] It suffices to say that Curr’s historical narrative of his time spent in the Yorta Yorta determination area, Recollections of Squatting in Victoria (‘Recollections’) represents as perfect an example of crude racist stereotyping as it is possible to find among early colonial accounts of Indigenous people. Thus, Curr’s view of the Yorta Yorta’s social organisation was that ‘there was not, as far as could be observed, anything resembling government;[59] his opinion of their gender relations within the family unit was that the Yorta Yorta male was ‘despotic in his own mia-mia or hut’;[60] and, finally, his view of the Yorta Yorta’s use of food resources was that, in consuming all the food they had gathered without a ‘view to the wants of tomorrow’ they were ‘like the beasts of the forest’.[61] It was upon this ‘colonial caricature’[62] of the Yorta Yorta as ungoverned despotic beasts that a twentieth-century judge of the Federal Court denied contemporary Indigenous claimants native title to their land. Olney J accepted at face value the ‘facts’ contained in a colonial narrative, a nostalgic imperial fantasy of noble savages written ‘for a British readership avid for exotic news of their far flung empire’.[63]
Unsurprisingly, Olney J deemed that the social organisation of the contemporary Yorta Yorta claimants was discontinuous with the ‘authentic’, valid and traditional social practices which Curr had described in the nineteenth century. The traditional laws and customs now observed by the Yorta Yorta were not cultural adaptations or developments, but rather illicit attempts at resuscitation of former practices which had died over a hundred years ago and which could not be revived for the purposes of a native title claim under the Act.[64] As Kerruish and Perrin observe, ‘[w]hat is implicit here is the benchmark of an authenticity according to which the Yorta Yorta are found to be the product of revival, rather than survival.’[65] Rather than concede that the Yorta Yorta had survived the onset of colonialism, Olney J preferred to view the Yorta Yorta as a radically different people from their ancestors (the ultimate textual refusal of Indigenous self-determination). Thus was cultural stagnation installed simultaneously as the index of Yorta Yorta society and as a legal prerequisite for attaining land justice.
We must refuse to read Yorta Yorta as simply a mistaken reliance on colonial history and antiquated methodologies long discredited in other disciplines.[66] Rather, the point I want to make here is that Australian native title law actively perpetuates colonialism in contemporary Australia through constituting native title claimants as other and inferior, as barbaric and traditional, as invisible and vestigial. Australian native title law is not removed from the history of colonialism – it is fundamentally a part of the contemporary presence of colonialism. Said’s insights about the politics of representation help us to analyse how Indigenous self-representation is erased in Yorta Yorta; how only the coloniser can legitimately represent the colonised; and, finally, how the Yorta Yorta are constructed as demeaningly ‘authentic’ and homogenous, a ‘timeless and fixed essence of indigenous society’ that can never be allowed to develop or adapt.[67] The Yorta Yorta are ultimately caught in the Orientalist Catch-22 of Australian native title law (if they are still here to speak then they are not who they claim to be; in order for them to be who they claim to be, they must be mute and absent). As Kerruish and Perrin note, the silent Yorta Yorta are ‘admitted only to evidence their historical demise, and so to present their lack of authenticity’.[68]
In a stunning demonstration of interpretive perversity, the single occasion on which Olney J allowed the Yorta Yorta’s voices to be heard was (predictably) when they were mediated through a written text. The text is a petition supposedly written by 42 Indigenous occupants of the determination area in 1881 – the conclusive date arrived at by Olney J for the cessation of connection – to the Governor of New South Wales, appealing for a grant of land to cultivate and raise stock. In the text, the Yorta Yorta’s ancestors assert that ‘all the land within our tribal boundaries has been taken possession of by the Government and white settlers’ and that ‘we ... feel ... our old way of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families’.[69] This text, a petition clearly formulated by the missionary Daniel Matthews, a man Olney J described as ‘the architect of further disruption of traditional life’,[70] delivered the coup de grace to the Yorta Yorta claim. That the petition may never have in fact been written by the Yorta Yorta was not canvassed by his Honour, that it may have been written to appeal to its intended recipient was not suggested,[71] that it may have been written (or could be read) subversively was likewise discounted – Olney J simply adopted a straight textualist analysis, coopting the already coopted voices of the Yorta Yorta in aid of their own dispossession.
The Yorta Yorta subsequently appealed to the Full Federal Court, where they argued that Olney J had misdirected himself as to the requirements of establishing native title. Principally, they argued that his Honour had adopted a ‘frozen in time’ approach[72] and that he had ‘wrongly equated the existence of native title with the existence of a ‘traditional society’ or a ‘traditional lifestyle’’.[73] Alternatively, they submitted that even if his Honour had not adopted a ‘frozen in time’ approach then he had at any rate adopted too restrictive a meaning of ‘tradition’, denying the ability of traditional Indigenous laws and customs to adapt and change with time. In a procedural sense, they submitted that by commencing his inquiry into connection at the date of acquisition of Crown sovereignty, and tracing the evolution of traditional laws and customs forward to the present day, Olney J had been led into error. Such a method was itself likely to lead to the adoption of a ‘frozen in time’ approach and meant that no consideration was given to the vital and relevant evidence of contemporary Yorta Yorta people about their present-day practices. The proper question to ask was whether the presently observed traditional laws and customs of the Yorta Yorta were continuous with those adopted by the former inhabitants of the determination area, given the capacity of traditional laws and customs to adapt and change in the circumstances. Thus, the proper method to adopt was to start with contemporary practices and to trace backwards. The respondents argued that Olney J had not adopted a ‘frozen in time’ approach and that, at any rate, his determinative conclusion as to the expiry of native title by 1881 was open on the facts and had not been shown to be incorrect.
The majority of the Full Federal Court (Branson and Katz JJ) dismissed the Yorta Yorta’s appeal, while Black CJ would have allowed the appeal. Black CJ’s dissenting judgment is, as Atkinson observes, an ‘illuminating’ contribution in an otherwise dismal decision.[74] In a sensitive discussion of the ability of Indigenous traditional laws and customs to adapt and change over time, and the incumbence upon the common law as a system supposedly based upon ‘rationality’ to recognise this fact,[75] Black CJ stressed that the very concept of tradition ‘implies recognition of the possibility of change’.[76] This informed his Honour’s interpretation of the tradition requirement in the definition of native title in s 223(1) of the Act. The Chief Justice stressed that the definition of native title in s 223(1) directs attention to the present not the past and that the task of claimants is to demonstrate that laws and customs presently observed must be shown to be traditional in the sense that they ‘still reflect a continuity of tradition and are rooted in the laws and customs [existing at the time of acquisition of Crown sovereignty]’.[77] Relying on the consensus position in the Full Federal Court in Western Australia v Ward (at least as regards connection),[78] his Honour held that claimants could still perform this forensic task regardless of whether they had been substantially affected by colonisation, physically dispossessed, and no longer maintained a pre-contact lifestyle.[79]
Black CJ observed that a strict ‘frozen in time’ approach would preclude the possibility of any modifications or developments in traditional laws and customs such that the laws and customs presently observed would have to be virtually the same as those observed by the ancestors of the claimant group.[80] His Honour held that the appellants had failed to prove that Olney J had adopted such a strict approach.[81] However, Black CJ upheld the appeal on the ‘broader argument’ that Olney J did not accord ‘appropriate recognition to the extent to which ‘traditional’ laws and customs can adapt and evolve and still have the character of ‘traditional laws and customs’’.[82]
The most valuable aspect of Black CJ’s judgment, however, is not his statement of legal principle concerning tradition as continuity, but rather the correct procedural approach to take in ascertaining whether presently observed laws and customs are traditional in the relevant sense. His Honour stated that the proper approach was to begin with the customs presently observed by the native title claimants and then trace backwards.[83] To give full effect to the idea that Indigenous laws and customs can develop, one had to avoid ‘the historical snapshot of adventitious content’ and look at the Indigenous laws and customs over ‘a very substantial time frame’.[84] In determining that at one point in time (1881) the Yorta Yorta had lost their connection with the land, a conclusion with which Black CJ disagreed as relying on a restrictive interpretation of tradition, Olney J had clearly failed to conduct the requisite wide historical inquiry.
For their part, Branson and Katz JJ held that ‘tradition’ as it appeared in the s 223(1) definition of native title meant that the relevant laws and customs had to represent a ‘maintenance of the ways of the past in changed circumstances’,[85] the test of which had to be primarily objective in that the court must assess whether the tradition had ‘in substance been handed down from generation to generation’.[86] On this reading, traditional laws and customs are still permitted room to ‘evolve and change over time’.[87] However, the epistemological and historiographical consequences of their Honours’ formulation are quite different to those of Black CJ’s reading of ‘tradition’. Ultimately, Branson and Katz JJ held that Olney J did not adopt the illicit ‘frozen in time’ approach as contended by the appellants but that in any event his determination that the Yorta Yorta peoples’ connection with the land had been irrevocably severed by 1881 was open on the facts, was not vitiated by procedural error and should consequently remain undisturbed on appeal.[88] Their Honours were evidently not troubled, as was Black CJ, by Olney J’s patently Anglocentric approach to oral evidence and the political ramifications of his forensic historiography.
It is possible to read the two judgments on appeal in Yorta Yorta as simply disclosing differences in the level of caution that appellate courts should observe before disturbing primary findings of fact made by trial judges.[89] Similarly, it is possible to identify a consensus in the interpretation of the ‘tradition’ requirement in s 223(1) of the Act, namely that Indigenous laws and customs are permitted to adapt and evolve over time and that a ‘frozen in time’ approach is to be eschewed.[90] However, there are quite pertinent epistemological differences between Black CJ’s reading of ‘tradition’ and the majority’s reading of the same concept. It is at this level that the Orientalism of Australian native title law again becomes clear. On Black CJ’s reading, tradition as continuity, tradition is dynamic and implies the possibility of change and adaptation. It contains within itself the condition of renewal. On the majority reading of tradition, tradition as maintenance, tradition is stagnant and tied to the past. Tradition must represent a maintaining of past ways in the present, not a development, improvement or changing of prior custom. As James Cockayne has noted, ‘[w]hile the majority focused on the unchanging, ritual aspects of tradition, Black CJ focused on its dynamic aspects’.[91] The Orientalist critical manoeuvre of the majority in again constructing Indigeneity as a timeless and ‘authentic’ essence is also played out in their formulation of the objective (read: Anglocentric) test of tradition. Their Honours observed:
We are, however, unable to accept the submission ... that the test of whether a law or custom is traditional is a subjective test. That is, that the crucial question is whether those who currently acknowledge a law or observe a custom regard their practice of so doing as traditional. The adoption of a purely subjective test for the identification of traditional laws and customs would, it seems to us, leave considerable scope for the rewriting, perhaps unintentionally, of history.[92]
Again, perhaps unintentionally, at the very moment where the neutrality and objectivity of the law is being emphasised, the metaphor of history (this time as narrative) intrudes into the judicial text. Branson and Katz JJ’s historiographical paradigm is barely less suffocating than that of Olney J. In a familiar denial of Indigenous self-representation entirely consistent with a reading of Australian native title law as Orientalist discourse, Branson and Katz JJ seek to deny the Yorta Yorta and other claimant groups the right to narrate their own story, the right to challenge the normative meta-narrative of colonisation as extinction. Under cover of the spectre of fictitious claims – a horrific fantasy of specious Aborigines parading their manufactured tradition before the courtroom – the majority judgment seeks to deny the Yorta Yorta the tools to represent themselves and to challenge history. To paraphrase a well-known contemporary Orientalist, the Anglo-Australian Federal Court will decide who is traditional, and the circumstances in which they claim to be so.[93]
Writing before the Yorta Yorta appeal to the High Court, James Cockayne observed that:
At the deepest level, the question of ‘tradition’ is a recasting of the question of sovereignty. As Webber notes, native title recognises the continuing ability, and right, of indigenous communities to regulate their own social relations through their fundamental connection to the land. It raises questions both of government and self-government.[94]
In the High Court the Yorta Yorta’s appeal was dismissed by a majority of five judges (Gaudron and Kirby JJ dissenting). In the lead majority judgment, written by Gleeson CJ, Gummow and Hayne JJ, the notion of sovereignty was critical to the interpretation of ‘tradition’ in s 223(1)(a) of the Act, and, ultimately, to the disposition of the appeal. Their Honours commenced with the proposition, stated in Fejo v Northern Territory,[95] that native title originates from an intersection between traditional laws and customs and the common law.[96] The intersection of the two normative systems – Indigenous traditional laws and customs and the common law of Australia – gives rise to native title. But as their Honours pointed out, it is ‘critically important to identify what exactly it is that intersects with the common law’.[97] Gleeson CJ, Gummow and Hayne JJ ultimately held that it must be the pre-sovereignty set of traditional laws and customs that intersects with the common law of Australia. This was because after the acquisition of Crown sovereignty, an act of State that could not be challenged in the municipal courts,[98] ‘the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests’.[99] Continuing their use of spatial metaphors, Gleeson CJ, Gummow and Hayne JJ asserted that:
Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.[100]
Armed with this legal corollary of sovereignty and with the jurisprudential insight that laws and customs and the society from which they derive are inextricably linked,[101] the majority interpreted the ‘tradition’ requirement in s 223(1)(a) of the Act to mean that only pre-sovereignty laws and customs (or those deriving from them) could be traditional in the requisite sense and, furthermore, that these laws and customs must be observed by a society that ‘has had a continuous existence and vitality since sovereignty’.[102] According to the majority, the first requirement ‘necessarily follow[ed] as a consequence of the assertion of sovereignty’;[103] the second from the jurisprudential insight that laws and customs are ‘socially derivative and non-autonomous’.[104] Thus, if the Indigenous society itself ‘ceases to exist as a group which acknowledges and observes those [pre-sovereignty] laws and customs, those laws and customs cease to have continued existence and vitality’.[105] On the question of whether traditional laws and customs were allowed scope to adapt and change, the majority at one point intimated cryptically that developments ‘of a kind contemplated by that traditional law and custom’ would be acceptable,[106] and then later reframed the question in an unhelpfully circular manner as being one of whether ‘the law and custom can still be seen to be traditional’.[107]
Having reached these conclusions on the principles to be applied in interpreting the Act, their Honours refused to disturb Olney J’s finding that ‘the society which had once observed traditional laws and customs had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang’.[108] McHugh J wrote a judgment agreeing with the conclusions reached by the majority except for their construction of s 223(1)(c) of the Act.[109] Callinan J agreed with the majority judgment, and emphasised the need for a physical connection with the land.[110]
Gaudron and Kirby JJ differed substantially from the majority in holding that in order for laws and customs to be traditional they had to have their origins in the past and, to the extent that the present practices differed from past practices, the differences ‘should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs’.[111] In addition, adopting a more nuanced understanding of social organisation and the physical effects of colonialism,[112] their Honours postulated that communities (which on the majority reading would have had their continuous acknowledgment irrevocably severed) ‘may disperse and regroup’ and, upon regrouping, continue to acknowledge traditional laws and customs.[113] The question of whether a community had ceased to exist was not to be answered ‘solely by reference to external indicia or the observations of those who are not or were not members of that community’ but rather was to be answered by inquiring whether Indigenous people identified themselves and others as members of a community.[114]
Again, we see the tension in the Full Federal Court’s decision, between the more sophisticated understanding of Black CJ and the Orientalist colonialism of Branson and Katz JJ, reproduced in the juxtaposition of the majority and minority judgments. Again, unsurprisingly, this internal tension is resolved in favour of the Orientalist majority. The same deployment of history as featured in the Federal Court and the Full Federal Court is evident in the High Court’s reasoning. Callinan J, for example, stressed that the claimants had suffered ‘past exploitation’ and ‘past dispossession’.[115] He also reproduced Olney J’s understanding of Curr as someone who had witnessed ‘Aboriginal society before it disintegrated’.[116] Similarly, in their short excursion into historical events, the majority couched their discussion of the colonial policies of ‘absorption, segregation, integration’ in the past tense.[117] In addition, by framing their discussion of what was essentially legal colonialism in depoliticised spatial terms (intersection), Gleeson CJ, Gummow and Hayne JJ sought not only to insulate the present Australian native title legal apparatus from the charge of colonialism but to absolve the common law of the past for the same actions.
What distinguishes the particular brand of Orientalism deployed by the High Court majority in Yorta Yorta from the courts below is their unabashed recourse to notions of sovereignty and self-determination. To paraphrase Cockayne,[118] by casting the question of tradition as a question of (conveniently non-justiciable) sovereignty, the High Court essentially foreclosed debate. What had up until this point taken place on the terrain of statutory interpretation henceforth must take place on the more rarefied conceptual ground of sovereignty and its necessary implications. On one level this makes it much more difficult to engage with the question of tradition, for the addition of sovereignty to the tradition equation puts beyond the scope of legal argument much of what claimant groups seek to contest. On a political level, however, it makes the question of tradition somewhat easier to engage with. Political considerations that had previously been submerged in semantic discussions about ‘tradition as continuity’ and ‘tradition as maintenance’ become much more clearly articulated on this plane. Essentially, the High Court majority’s message in Yorta Yorta is that the ability of Indigenous groups to regulate their own affairs and to determine their own laws, customs and norms vanished upon the assertion of Crown sovereignty in 1788. Thenceforth Indigenous groups were incapable of self-determination and self-government; their culture atrophied; their capacity for regeneration and development stagnated. Framed in this political terminology the legal question of tradition takes on a more stark colonialist character. The link between the textual, discursive implications of Australian native title law and the material reality of colonialism becomes abundantly clear in the High Court. The discursive work that contemporary native title law performs in this context is evident. In order for Indigenous claimants to attain land justice and fulfil the High Court’s test of authentic stagnation and cultural atrophy they must ‘play the native’. They must once again conform to the representations of the coloniser. As Lisa Strelein observes, ‘[n]ative title claimants must rely on the ability of a non-Indigenous judiciary to conceive the contemporary expressions of Indigenous identity, culture and law as consistent with the idea of a pre-sovereign normative system’.[119]
At the beginning of this article I posed the question: ‘what is native title?’. The answer I have developed here, and it is one possible answer among many, is that Australian native title law is an Orientalist discourse. Far from representing a vehicle for the attainment of land justice or the righting of past wrongs, Australian native title law is actually perpetuating colonialism in the present. We can see from a close reading of Yorta Yorta how the legal requirements of tradition and connection have been (and are being) deployed as discursive mechanisms for suppressing the development of Indigenous culture and denying Indigenous self-representation. The representational politics of Australian native title law function to elide Indigenous voices, to erase their subjectivity and to constitute them as objects of Anglo-Australian knowledge.
Alex Reilly writes that Australian native title law was founded upon regret and that there is a need to transform the backward looking impetus of regret into a ‘sustainable and equitable doctrine for the future’.[120] As the foregoing discussion illustrates, the conceptual building blocks for such an enterprise cannot be found in the current apparatus of Australian native title law. Not only does Australian native title law currently fail on a practical level to deliver results to claimant groups but, on a theoretical and discursive level, it continues to perpetrate epistemic violence on those it purports to recognise and whose interests it purports to accommodate.
[*] Part-Time Lecturer, Faculty of Law, University of New South Wales; Research Assistant, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales. The author would like to thank Sean Brennan and the anonymous reviewer for their helpful comments.
[1] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).
[2] For a typically conservative reading of Mabo as ‘judicial legislation’, see Justice J D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110, 127. As Maureen Tehan, ‘A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ [2003] MelbULawRw 19; (2003) 27 Melbourne University Law Review 523, 526, notes, ‘Judicial activism was the theme of much critical legal commentary [on Mabo]’.
[3] Wayne Atkinson, ‘‘Not one Iota’ of Land Justice: Reflections on the Yorta Yorta Native Title Claim 1994-2001’ [2000] IndigLawB 49; (2001) 5 Indigenous Law Bulletin 19, 20, describes the amount of land returned to Indigenous people under the native title regime as ‘miniscule’. For a summary of the results of native title determinations up to 13 May 2002, see 10 Years of Native Title Information Kit (2002) National Native Title Tribunal <http://www.nntt.gov.au/media/data/files/10_years_of_Native_Title.pdf> at 19 June 2004.
[4] For example, see Tehan, above n 2; Sean Brennan, ‘Native Title in the High Court a Decade after Mabo’ (2003) 14 Public Law Review 209.
[5] Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 97.
[6] Ibid 95 (‘Native title was recognised within the common law of Australia’); Tehan, above n 2, 532 (‘Mabo’s leap was in declaring that the common law recognised and protected indigenous rights in land’); Richard H Bartlett, Native Title in Australia (2000) 3 (‘Native title consists of the rights of indigenous people to their traditional land and waters recognised at common law’).
[7] For example, see Noel Pearson, ‘The Concept of Native Title at Common Law’ in G Yunupingu (ed), Our Land is Our Life: Land Rights – Past, Present and Future (1997) 150, 154.
[8] In finally recognising a form of native title at common law, Australia was preceded by the United States (Johnson v McIntosh [1823] USSC 22; 8 Wheat 543; 5 L Ed 681 (1823)), New Zealand (R v Symonds (1847) NZPCC 387 (SC(NZ))), and Canada (Calder v A-G (British Columbia) (1973) 34 DLR (3d) 145 (SC(Can)).
[9] See Strelein, above n 5, 115.
[10] For a good overview of the general theoretical issues, see Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002) 257-94.
[11] Although he seems to be becoming noticeably less sanguine. See Noel Pearson, ‘The High Court’s Abandonment of ‘The Time-Honoured Methodology of the Common Law’ in its Interpretation of Native Title in Mirriuwung Gajerong and Yorta Yorta’ [2003] AUIndigLawRpr 15; (2003) 8(2) Australian Indigenous Law Reporter 1.
[12] Mabo [1992] HCA 23; (1992) 175 CLR 1, 104 (Deane and Gaudron JJ).
[13] Members of the Yorta Yorta Aboriginal Community v The State of Victoria and Ors [1998] FCA 1606, BC9806799 (‘Yorta Yorta (T)’)
[14] Members of the Yorta Yorta Aboriginal Community v The State of Victoria and Ors [2001] FCA 45; (2001) 110 FCR 244 (‘Yorta Yorta (A)’).
[15] Members of the Yorta Yorta Aboriginal Community v The State of Victoria and Ors [2002] HCA 58; (2003) 194 ALR 538 (‘Yorta Yorta (HC)’)
[16] Edward Said, Orientalism (1995).
[17] Bill Ashcroft and Pal Aluwahlia, Edward Said: The Paradox of Identity (1999) 57.
[18] Edward Said, ‘Orientalism Reconsidered’, in F Barker et. al. (eds), Europe and its Others: Proceedings of the Essex Conference on the Sociology of Literature, vol 2 (1984) 14, 15.
[19] The Marxist theorist Gramsci used the term ‘hegemony’ to denote the dominance of one social class over another and the ideological processes whereby this dominance came to be willingly accepted by the subordinate class. For Gramsci, hegemony was always in flux and contested (due to the disjunction between ideology and the material experience of the subordinate class). See Antonio Gramsci, Selections from the Prison Notebooks (Quintin Hoare and Geoffrey Nowell Smith trans, 1971 ed).
[20] As Sara Mills, Discourse (1997) 1, observes, the term discourse ‘has perhaps the widest range of possible significations of any term in literary and cultural theory’. The sense in which I use the term in this article is largely synonymous with the concept as developed by Foucault. For an early, and useful, explication of this concept, see Michel Foucault, ‘Orders of Discourse’ (1971) 10 Social Science Information 7. In short, as will be evident from my discussion of Said’s use of the term, I take discourse to mean a discrete body of knowledge, composed of texts, practices, institutions, and so forth, which validates certain statements and which invalidates others. In this sense discourse is at once both productive of representation and restrictive of it – hence my use of the phrase constitutive limitations in connection with the power of discourse.
[21] For example, see Dennis Porter, ‘Orientalism and its Problems’ in F Barker et al (eds), The Politics of Theory, (1983) 179, 180.
[22] Said, above n 16, 3.
[23] For a good explication of this point, see Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (Moore, Winston and Cammack trans, 1985 ed) 108.
[24] See Michel Foucault, ‘Two Lectures’ in Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (Colin Gordon, Leo Marshall, John Mepham, Kate Soper trans, 1980 ed).
[25] Said, above n 18, 23.
[26] James Cockayne, ‘Members of the Yorta Yorta Aboriginal Community v Victoria: Indigenous and Colonial Traditions in Native Title’ [2001] MelbULawRw 25; (2001) 25 Melbourne University Law Review 786, 787.
[27] For example, see Sarah Clarkson, ‘Yorta Yorta: The Effect of Changes in Traditional Laws and Customs in Native Title Determinations’ [2001] UQLawJl 9; (2001) 21 University of Queensland Law Journal 235, 239; Valerie Kerruish and Colin Perrin, ‘Awash in Colonialism’ [1999] AltLawJl 1; (1999) 24 Alternative Law Journal 3, 3.
[28] Richard Bartlett, ‘An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta’ [2003] UWALawRw 3; (2003) 31 University of Western Australia Law Review 35, 35.
[29] Clarkson, above n 27, 235.
[30] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [11].
[31] Ibid.
[32] Ibid [10].
[33] Ibid [8].
[34] Ibid [4].
[35] Ibid [51].
[36] Ibid [25].
[37] Ibid [104].
[38] Ibid [104].
[39] Ibid [121].
[40] Ibid [117].
[41] Ibid [122]-[125].
[42] Ibid [121], [123].
[43] Mabo [1992] HCA 23; (1992) 175 CLR 1, 60 (Brennan J).
[44] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [129].
[45] Ibid [3], [126].
[46] Kerruish and Perrin, above n 27, 4.
[47] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [26].
[48] Ibid [17].
[49] Cockayne, above n 26, 807.
[50] See Lyndall Ryan, ‘Waterloo Creek, Northern New South Wales, 1838’ in Bain Attwood and S G Foster (eds), Frontier Conflict: The Australia Experience (2003).
[51] See Alexander Reilly, ‘History Always Repeats: Members of the Yorta Yorta Aboriginal Community v State of Victoria’ (2001) 5 Indigenous Law Bulletin 25; Alexander Reilly, ‘The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title’ (2000) 28 Federal Law Review 453, 462-5; Roderic Pitty, ‘A Poverty of Evidence: Abusing Law and History in Yorta Yorta v Victoria’ (2000) 6 Australian Journal of Legal History 41, 46-52; John Litchfield, Mabo and Yorta Yorta: Two Approaches to History and Some Implications for the Mediation of Native Title Issues, National Native Title Tribunal Issues Paper No 3 (2001), <http://www.nntt.gov.au/metacard/files/Mabo_yorta_yorta/mabo_yorta_yorta.pdf> , 10-1.
[52] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [105].
[53] Ibid [22].
[54] Reilly, ‘The Ghost of Truganini’, above n 51, 460.
[55] Olney J did not think so. ‘The difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated, but great as they obviously are, they are not insuperable’: Yorta Yorta (T) [1998] FCA 1606, BC9806799, [24].
[56] Atkinson, above n 3, 20.
[57] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [118] (emphasis added).
[58] See Pitty, above n 51; Clare Land, ‘Representations of Gender in E M Curr’s Recollections of Squatting in Victoria: Implications for Land Justice Through the Native Title Process’ (2002) 5 Indigenous Law Bulletin 6.
[59] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [112].
[60] Ibid [114].
[61] Ibid [115].
[62] Pitty, above n 51, 54.
[63] Patricia Grimshaw and Andrew May, ‘Inducements to the Strong to be Cruel to the Weak: Authoritative White Colonial Male Voices and the Construction of Gender in Koori Society’ in Ailsa Burns and Norma Grieve (eds), Australian Women: Contemporary Feminist Thought (1994), quoted in Land, above n 58, 6.
[64] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [122]-[129].
[65] Kerruish and Perrin, above n 27, 4.
[66] Melissa Castan and Sue Kee, ‘The Jurisprudence of Denial’ (2003) 28 Alternative Law Journal 83, 85.
[67] Natasha Case, ‘Tide of History or Tsunami? The Members of the Yorta Yorta Aboriginal Community v The State of Victoria and Ors’ (1998/1999) [1997] IndigLawB 34; 4 Indigenous Law Bulletin 17, 18.
[68] Kerruish and Perrin, above n 27, 4.
[69] Yorta Yorta (T) [1998] FCA 1606, BC9806799, [119].
[70] Ibid [117].
[71] See Kerruish and Perrin, above n 27, 6.
[72] Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 502 (Lee J).
[73] Yorta Yorta (A) [2001] FCA 45; (2001) 110 FCR 244, 249 (Black CJ).
[74] Atkinson, above n 3, 19.
[75] Yorta Yorta (A) [2001] FCA 45; (2001) 110 FCR 244, 254.
[76] Ibid 256.
[77] Ibid 256.
[78] Western Australian v Ward [2000] FCAFC 191; (2000) 99 FCR 316, 381-2 (Beaumont and von Doussa JJ).
[79] Yorta Yorta (A) [2001] FCA 45; (2001) 110 FCR 244, 258-60.
[80] Ibid 264.
[81] Ibid 264-5.
[82] Ibid 265.
[83] Ibid 260.
[84] Ibid 263.
[85] Ibid 278.
[86] Ibid 279.
[87] Ibid 283.
[88] Ibid 283-95.
[89] See Simon Young, ‘The Trouble with ‘Tradition’: Native Title and the Yorta Yorta Decision’ [2001] UWALawRw 2; (2001) 30 University of Western Australia Law Review 28, 29.
[90] See Cockayne, above n 26, 790.
[91] Ibid 794.
[92] Yorta Yorta (A) [2001] FCA 45; (2001) 110 FCR 244, 279 (emphasis added)
[93] The reference is to the Hon John Howard, MP, ‘Transcript of the Prime Minister’ (Speech delivered at the Federal Liberal Party Campaign Launch, Sydney, 28 October 2001)
<http://www.pm.gov.au/news/speeches/2001/speech1311.htm> (‘But we will decide who comes to this country and the circumstances in which they come’). There are clear parallels between the treatment, and representation, of asylum seekers and Indigenous people in contemporary Australian political discourse but these are regrettably outside the scope of this article.
[94] Cockayne, above n 26, 808.
[95] [1998] HCA 58; (1998) 195 CLR 96, 128 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[96] By ‘common law’, their Honours must be taken to mean the common law of Australia (including both statute and equity), for in Yorta Yorta (HC) [2002] HCA 58; (2003) 194 ALR 538, 542, 548, 549, 558, 560 (Gleeson CJ, Gummow and Hayne JJ), the majority was at some pains to point out that a determination of native title was made pursuant to the Act and not the common law.
[97] Yorta Yorta (HC) [2002] HCA 58; (2003) 194 ALR 538, 549.
[98] Ibid 550.
[99] Ibid 552.
[100] Ibid 552.
[101] Ibid 553-5.
[102] Ibid 553.
[103] Ibid 555.
[104] Julius Stone, The Province and Function of Law (1946) 649, quoted in Ibid 553.
[105] Yorta Yorta (HC) [2002] HCA 58; (2003) 194 ALR 538, 554.
[106] Ibid 552.
[107] Ibid 562.
[108] Ibid 564.
[109] Ibid 572-3.
[110] ‘It follows that in order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination’: Ibid 591.
[111] Ibid 569.
[112] For an interesting discussion, see James F Weiner, ‘Diaspora, Materialism, Tradition: Anthropological Issues in the Recent High Court Appeal of the Yorta Yorta’ (2002) 2:18 Land, Rights, Laws: Issues of Native Title, <http://www.aiatsis.gov.au/rsrch/ntru/ntpapers/IPv2n18.pdf> .
[113] Yorta Yorta (HC) [2002] HCA 58; (2003) 194 ALR 538, 570.
[114] Ibid.
[115] Ibid 575.
[116] Ibid 580.
[117] Ibid 544.
[118] Cockayne, above n 26, 808.
[119] Lisa Strelein, ‘Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002) – Comment’ (2003) 2:21 Land, Rights, Laws: Issues of Native Title,
<http://www.aiatsis.gov.au/rsrch/ntru/ntpapers/ip21v2.pdf> .
[120] Alex Reilly, ‘From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward’ (2002) 9(4) E Law – Murdoch University Electronic Journal of Law [4] <http://www.murdoch.edu.au/elaw/issues/v9n4/reilly94.html> at 19 June 2004.
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