Identifying the Relevant Level of a Society in Australian Native Title Claims

Abstract

Many of the outstanding native title claims across Australia were originally conceptualised in terms of the level at which rights and interests in land were exercised by groupings of claimants at a range of scales, rather than the level at which the body of law and custom legitimating those rights and interests was held and reproduced. Claimants, Native Title Representative Bodies (NTRBs) and respondent parties have continued to struggle with reconciling the various levels at which Aboriginal groups coalesce and become differentiated from one another. Since the Yorta Yorta High Court decision in 2002, Indigenous Australians claiming native title under the Native Title Act 1993 (Cth) have had to demonstrate that their current ‘society’ is the same society as that which existed at the time of colonisation. Since the rights and interests in land and waters that can be recognised under the Native Title Act are said to stem from the ‘laws and customs’ of the society that was in existence at sovereignty, much hinges on how ‘society’ is understood. What emerges strongly from the ethnographic record is that traditional Aboriginal societies contracted and expanded in different contexts. In this paper, I argue that defining native title societies in a way that adequately acknowledges this fact does not seem to be precluded by the Native Title Act or by subsequent case law judgments on this question. ¹

Keywords:

• Native Title Act
• Society
• Traditional Aboriginal Land
• Law and Custom

Notes

I am indebted to Diana McCarthy for her considerable contributions in editing this paper.

Amongst the founding fathers of the social sciences who were also practicing lawyers, we can count Lewis Henry Morgan and Henry Maine. Max Weber was also fully qualified to practice law, although he chose to pursue other scholarly interests for most of his career.

Durkheim, for example, never provided a succinct definition of his key term ‘society’.

Normativity, in the native title context at least, is defined by a practice being rule-based and is not to be equated with ‘an invariable, mandatory or obligatory practice’ (Neowarra, paras. 269–70).

Durkheim (1965, 25) summed up this relationship between society and religion as follows: ‘Religious representations are collective representations which express collective realities; the rites are a manner of acting which take rise in the midst of assembled groups and which are destined to excite, maintain, or recreate certain mental states in these groups. So if the categories are of religious origin, they ought to participate in this nature common to all religious facts; they should be social affairs and the product of collective thought.’

This passage derives from the Full Federal Court judgment in Alyawarr (para.78), which found that the concept of society ‘does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes’.

In overturning the primary judge's findings on this matter, the appellate court found: ‘A particular point over which this debate was conducted in this proceeding concerned the question whether it was open to the primary judge to take account of the emic view. The Bardi and Jawi people said that the primary judge could not take the internal view into account whilst the Commonwealth, the State, and WAFIC argued that he should. The emic view is relevant to the determination whether the Bardi and Jawi people constituted a single society at sovereignty. However, contrary to the argument of the Commonwealth, the State, and WAFIC, the emic view in this matter does not show that the Bardi and Jawi people constituted two societies at sovereignty. As we have shown, the internal view of the Bardi and Jawi people was that they were united in the acknowledgement of one law. The internal view accepted that there were differences between the Bardi and Jawi people also. But, as we have explained, those differences did not mean that the Bardi and Jawi people failed to fulfil the requirements set out in Yorta Yorta for a people to constitute a single society’ (Sampi appeal, para.77).

In Sutton's (2003, 117) formulation, amongst the things that an underlying title protects and upholds are:

	• Its geographical limits and/or focal points as a unit of tenure or a district;
	• Its internal structure (e.g., drainage subsystem, ecological zone, etc.);
	• Its association with markers of a particular cultural identity (e.g., a particular language, a subsection couple, a focal residential centre (campsite, old mission, etc.);
	• Its characteristics as a form of property (e.g., not being available for treatment as an alienable commodity, the communal habits of its tenure); and
	• The acceptable norms by which claims as of right may be made over it by Aboriginal people (e.g., a certain kind of descent from former landholders, conception, modes of ceremonial incorporation, long residence combined with other preconditions, etc.).