Conflict in the Statutory Elicitation of Aboriginal Culture in Australia

Abstract

In order for Aboriginal rights and interests to be recognised under the Native Title Act (1993), such rights and interests must arise from laws and customs that can be shown to have continuity with the particular set of laws and customs that existed at the time of sovereignty, or, at least, at the time of first European contact. This interpretation of continuity has been applied in Australian native title cases since the High Court's Yorta Yorta decision (Yorta Yorta v the State of Victoria [2002] HCA 58). Yet today's Aboriginal native title claim groups are also required to participate in other statutory ventures outside of the native title domain. For example, ‘tribal’ representatives in north Queensland are obliged to represent their interests on the Wet Tropics Management Authority, and the Great Barrier Reef Marine Park Authority. In native title terms, however, the activity and time spent participating in these ventures do not ‘count’ as instantiations of traditionally based rights and interests. Furthermore, the powers and rights granted to Aboriginal groups under these statutory ventures are often in conflict with the strictures of current native title interpretations of ‘traditional law and custom and rights and interests’. The effect is to elicit versions of Aboriginal action that may contradict each other legally. In this paper, I discuss some examples of these institutional conflicts engendered by the statutory actions of state and federal government, and comment on the implications for the contemporary Aboriginal articulations of identity and tradition.

Keywords:

• Aboriginal
• Native Title
• Institutional Conflict

Notes

http://www.nntt.gov.au/Applications-And-Determinations/Search-Applications (accessed 19 July 2011).

Of course in regional systems, such as the one I have been working in recently in the Pilbara, a set of linked language groups have rights and responsibilities for segments of a single dreaming track relating to primary Creator Beings. Separately, their rights and responsibilities are partial in relationship to the whole, that is, the dreaming/creation story. Collectively, the regional system manages a far more ‘complete’ segment of that dreaming track. Local Aboriginal systems are therefore not, strictly-speaking, ‘global’ in every sense that Lévi-Strauss meant.

Indigenous rights to ‘sea country’ were first recognised in the Croker Island native title application (Yarmirr v Northern Territory 1998 FCA 1185) off the coast of the Northern Territory, which ultimately went to the High Court (Yarmirr v Northern Territory 2001 HCA 56). However, the extent of the sea boundary was much narrower than that encompassed by the Great Barrier Reef.

This is an example of what Tim Rowse (2002, 179) calls ‘organised instances of mobilisation’ of Indigenous people.

See Altman and Martin (2009) for other examples of benefits that Indigenous communities receive outside of native title, particularly in relation to resource agreements.

Different tenure is largely related to the pattern of European settlement. Generally those areas settled first and more densely, such as in southeast Australia, were handed over to Europeans as freehold title, while in those areas settled later, particularly in northern Australia, the Europeans tended to secure a weaker form of title such as a pastoral lease.