Reilly, Alex --- "Native title as a cultural phenomenon" [2009] ALRCRefJl 13; (2009) 93 Australian Law Reform Commission Reform Journal 41

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Native title as a cultural phenomenon

By Alex Reilly*

The description of native title first articulated in Mabo v Queensland (No 2)¹ and reproduced in the Native Title Act 1993 (Cth) (NTA) required a translation of Aboriginal laws and customs practiced on traditional lands into rights and interests over that land that are capable of recognition by the Australian legal system.

One wonders whether the High Court of Australia could have foreseen just how difficult this translation would prove to be in practice, and what an enormous body of cultural information would be generated in the attempt to perform the translation. In this article, I discuss some of the difficulties that have been faced in performing this cultural translation, and also some of the important and perhaps unexpected benefits for Aboriginal communities from participating in the native title claim process regardless of the success of their claims.

Native title has been described as a ‘recognition space’.² The recognition space is a way of bridging the gap between Indigenous relationships to land, and common law rights and interests in land. The law starts from the premise that the common law is capable of recognising Indigenous relationships to land, and works out ways to attach legal rights to these relationships through the concept of native title. Through native title, the common law can recognise Indigenous relationships to land even though the common law might not understand the nature of the relationships underpinning those rights.

The task of translating Aboriginal traditional practices into rights recognised under law requires several steps. First, Aboriginal cultural practices need to be presented in a form and in a language that is understandable within a Western cultural framework. Second, having made this translation, the courts convert cultural connections to land into discrete rights and interests in the land. The first of these translations is performed by Aboriginal claimants themselves presenting oral evidence of their connections to land, including the presentation of ceremonies and dreaming stories, demonstration of hunting and cooking practices, revelation of spots on the land which are sacred, and what makes them so, and so on. This evidence is corroborated by evidence of anthropologists, linguists, archaeologists, genealogists, cartographers and historians who are called as expert witnesses to assist the court in the process of translation.

One example of the difficult process of translation can be seen in the determination of claim boundaries. To be accepted for registration, claimants must demarcate the area of land under claim in such a way that the boundaries of the application can be identified.³ There is a further and separate requirement that the claim contain ‘a map showing the boundaries of the area’ covered by the application.⁴ Since the advent of native title, there has been an ongoing debate among anthropologists and geographers over the possibility of recording the boundaries of Aboriginal lands; a debate from which Aboriginal voices have been largely absent.⁵

Boundaries are a legal necessity in native title, regardless of their role in Aboriginal law and custom. For example, a river might form a boundary to a native title claim, and as such present a clear delineation of what is in the claim area and what is outside it. According to Aboriginal tradition, the river may perform, on the other hand, a completely different function which disturbs the clarity of this boundary. A river might, for example, be considered important due to its role as a shared resource, or a place at which a Dreaming transfers from one Country to the next, or due to its status as a link between people.

The law is open to receiving evidence of traditional laws and customs if it assists in the task of determining native title rights and interests, such as boundaries. Hence, there is great power in marking holiday-time walking tracks on a map, or places of special significance. But what of traditions that do not mark the land? What of relationships or connections that are not experienced spatially or territorially, or if they are experienced in this way, are not capable of being represented on particular territory, even metaphorically? Perhaps not surprisingly, faced with these difficulties, claimants have insisted that courts go out to their traditional lands, to experience the lands through their eyes. There is a hope that the country will reveal itself to judges in a way that does not rely on cartographic representations of claimants’ relationship to country. On occasions, judges have expressed how these visits to country to hear evidence have profoundly affected their understanding of claimants’ cultural connections to land. Nevertheless, for most claims, boundaries have been transposed on existing topographical maps with the assistance of mapping agencies. They commonly follow existing land tenure boundaries, thus avoiding the need to address the difficult cultural questions about the possibility of constructing boundaries to traditional lands.

Claimants face a difficult decision of just how much of their culture they are prepared to share in order to establish their connection to land. The more information that claimants share, the greater the chance of convincing the court that the claimants have retained a traditional connection to land.

On occasions, when information is culturally sensitive, or indeed restricted, claimants have asked the courts to receive the information according to particular protocols. For example, where cultural information is gender restricted, claimants have asked that only persons of that gender (including respondents, their lawyers and court staff such as the judge) be present when this information is shared. Faced with such requests, courts have had to make rulings on the reception of evidence which balance the requirements of cultural sensitivity with the right of respondents to know the basis of the claim, in order to put their case in response.

It is a measure of the law’s confidence that it believed native title rights and interests could be derived from an interrogation of Aboriginal laws and customs across more than 200 years of Indigenous occupation of land in Australia. The law has not shied away from the task at hand. It has employed the full range of resources known to it. It has modified rules of evidence to accommodate the particular needs of Aboriginal oral testimony, it has employed a full range of relevant experts, and has visited country.

In relation to expert evidence, academics working in the field of Aboriginal studies have been funded through the claims process to conduct detailed research into specific claim areas. Lawyers have assisted claimants to gather cultural information, and clarify dreaming and other stories. These stories have often been written down for the first time as a result of the claims process. Communities have generated art exhibitions which reflect cultural information that has been used in the claims process. For some communities, participation in the claims process itself has been a source of cultural pride and rejuvenation.

Native title judgments are an important historiography of claim areas, and summarise the particular research findings of expert anthropologists, archaeologists, linguists and genealogists. Court files are an extensive source of cultural information, and stand as a testament to the richness of Aboriginal cultures in Australia. They also present an archive for communities to preserve their cultural knowledge, and a resource for future academic study, subject to access rights.

Because of the stringent requirements of continuity of tradition in the proof of native title, on occasions, this wealth of cultural information has not been sufficient to establish a native title claim.⁶ On occasions, although the court has accepted that the claimant group are the present Aboriginal owners of claim area, this has not translated into a finding that they have the requisite traditional connection to the claim area to the time of the assertion of sovereignty. The rejection of native title claims has been a difficult blow for some communities, and the subject of much critical academic and political commentary.⁷ This rejection has been particularly difficult when a community has exposed itself through the sharing of sensitive cultural information with the court as part of the claims process. It has been important to distinguish between the strength of a community’s on-going cultural practices and relationships to land and the possibility of translating evidence of these practices and relationships into particular native title rights.

From a different perspective, native title has required the non-Indigenous legal system to extend its own cultural boundaries. Native title has seen the extension of property concepts and theory in Australia. For example, in Wik Peoples v State of Queensland, the High Court recognised the possibility of the coexistence property rights (native title and other interests) in the same land.⁸ In Yanner v Eaton, the Court recognised that the State of NSW could not have exclusive property rights to native fauna, allowing for continued traditional hunting practices on State land.⁹

More generally, the recognition of the existence of native title has meant that the Australian legal system has acknowledged a strong degree of legal pluralism in Australia. Aboriginal law can be the foundation of mainstream legal rights. Despite the many limits that have been placed on the practical expression of this recognition, it has profound implications for who we are as a community in Australia.

*Alex Reilly is an Associate Professor at the University of Adelaide Law School, where he teaches and researches in public law. He has a particular interest in Indigenous legal issues.

He is a project partner in the Gilbert and Tobin Public Law Centre Indigenous rights, land and governance project and has been a researcher and collaborator on two Australian Research Council projects; one considering the use of Australian colonial history in Indigenous claims to land and compensation, and another developing a legal framework for regional governance for Aboriginal and Torres Strait Islander communities in Australia.

Endnotes

1 Mabo v Queensland (No 2) (1992) 175 CLR. 1.

2 See, among others who have used this concept to explain native title: N 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); C Mantziaris and D Martin, Native Title Corporations, A Legal and Anthropological Analysis (2000), 9; L Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95.

3 Native Title Act 1993 (Cth) s 62(2)(a).

4 Ibid, s 62 (2)(b).

5 See for example, P Sutton, Country: Aboriginal Boundaries and Land Ownership in Australia, Aboriginal History Monograph 3, Aboriginal History Inc, Canberra, 1995.

6 For example, Yorta Yorta Peoples v Victoria [1998] FCA 1606.

7 See in particular, commentary surrounding the failure of the Yorta Yorta claim.

8 Wik Peoples v State of Queensland (1996) 187 CLR 1.

9 Yanner v Eaton (1999) 201 CLR 351.