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The Social Effects of Native Title

The Social Effects of Native Title: Recognition, Translation, Coexistence

Benjamin R. Smith
Frances Morphy
Volume: 27
Copyright Date: 2007
Published by: ANU Press
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  • Book Info
    The Social Effects of Native Title
    Book Description:

    The papers in this collection reflect on the various social effects of native title. In particular, the authors consider the ways in which the implementation of the Native Title Act 1993 (Cwlth), and the native title process for which this Act legislates, allow for the recognition and translation of Aboriginal law and custom, and facilitate particular kinds of coexistence between Aboriginal title holders and other Australians. In so doing, the authors seek to extend the debate on native title beyond questions of practice and towards an improved understanding of the effects of native title on the social lives of Indigenous Australians and on Australian society more generally. These attempts to grapple with the effects of native title have, in part, been impelled by Indigenous people's complaints about the Act and the native title process. Since the Act was passed, many Indigenous Australians have become increasingly unhappy with both the strength and forms of recognition afforded to traditional law and custom under the Act, as well as the with socially disruptive effects of the native title process. In particular, as several of the papers in this collection demonstrate, there is widespread discomfort with the transformative effects of recognition within the native title process, effects which can then affect other aspects of Indigenous lives.  

    eISBN: 978-1-921313-52-3
    Subjects: History, Law

Table of Contents

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  1. Front Matter
    (pp. i-ii)
  2. Table of Contents
    (pp. iii-vi)
  3. Notes on contributors
    (pp. vii-x)
  4. Abbreviations and acronyms
    (pp. xi-xii)
  5. 1. The social effects of native title: recognition, translation, coexistence
    (pp. 1-30)
    Benjamin R. Smith and Frances Morphy

    Native title has had a profound social impact in Australia. Its effects have been felt from the local level through to the national level ever since the success of the Mabo No.2 case in the Federal Court. But despite the involvement of large numbers of anthropologists in the field of native title practice (alongside lawyers, historians, archaeologists and others trained in the social sciences and humanities) there has been surprisingly little reflection on the social effects of native title. Native title law and native title claims, negotiation of Indigenous Land Use Agreements (ILUAs) and other processes associated with the Native...

  6. 2. Performing law: The Yolngu of Blue Mud Bay meet the native title process
    (pp. 31-58)
    Frances Morphy

    The native title process is an arena in which, among other things, the sovereignty of a colonising society over its colonised subjects is enacted. As Julie Lahn (Chapter 7) points out, native title is based on a ‘radical assumption of sovereignty’ and the legislation and the growing body of native title case law ‘can be said to continue to exercise the power that defines sovereignty...[a]nd in this sense, it is certainly possible to contend that native title is as implicated in ongoing processes of colonisation, as providing a remedy to aspects of it’.

    The Yolngu response to the native title...

  7. 3. Claim, culture and effect: property relations and the native title process
    (pp. 59-78)
    Katie Glaskin

    Since the advent of the Native Title Act 1993 (Cwlth) (NTA), Indigenous Australians have been able to make claims to their traditional lands. Patton (2000: 28) describes Aboriginal or native title as representing ‘an attempt to translate indigenous peoples’ spiritual and economic relation to their land into a form of property right recognisable by the common law’. One could argue that native title represents more a codification of some Aboriginal property rights than it does an attempted translation, given that native title is limited to only certain rights in lands and waters, and has not thus far included the recognition...

  8. 4. Some initial effects of pursuing and achieving native title recognition in the northern Kimberley
    (pp. 79-90)
    Anthony Redmond

    This paper is an exploration of some shifts in regional socio-political dynamics brought about by native title litigation between Ngarinyin people and European pastoralist families in the northern Kimberley. Many of the visible signs of violence, mutual antagonism and clear conflicts of interest between the Indigenous and non-Indigenous groups who have co-existed on pastoral leases in the region have often been submerged in the course of everyday interactions between them which seek to highlight shared interests (Redmond 2005; Smith 2002, 2003). The inevitably adversarial process of pursuing native title, however, laid bare many of these conflicts of interest by presenting...

  9. 5. ‘We’re tired from talking’: The native title process from the perspective of Kaanju People living on homelands, Wenlock and Pascoe Rivers, Cape York Peninsula
    (pp. 91-116)
    David Claudie

    This paper investigates the native title process from the perspective of Kaanju families living on our traditional homelands at Chuulangun on the upper Wenlock River in central Cape York Peninsula, Northern Australia. Our experiences reinforce our view that the native title process and the structures it upholds are at odds with Indigenous land tenure and governance systems, that they create and maintain obstacles for the carrying out of on-ground Indigenous land and resource management aspirations and obligations, and that they work against the homelands development and economic development aspirations of Kaanju Traditional Owners living on homelands. This paper draws particularly...

  10. 6. Towards an uncertain community? The social effects of native title in central Cape York Peninsula
    (pp. 117-134)
    Benjamin R. Smith

    Aborigines in central Cape York Peninsula have lived alongside non-Indigenous pastoralists from the late-nineteenth century onwards. Despite a fraught and violent history, strong social ties developed between Aborigines and settlers during this period of coexistence. But in recent years these ties have become strained following a decline in Aboriginal employment on stations, the arrival of a number of new station owners and the passing of Queensland’s Aboriginal Land Act 1991 and the Native Title Act 1993 (Cwlth). The success of the Wik and Wik Way People’s native title claim—which determined that native title could coexist with pastoralists’ rights on...

  11. 7. Native title and the Torres Strait: encompassment and recognition in the Central Islands
    (pp. 135-150)
    Julie Lahn

    It seems that contemporary perspectives on native title have shifted rather dramatically from the early optimism that saw the Mabo decision described as a ‘moral and historical statement of truth [that provides] the strongest justification yet for the claims of those dispossessed’, potentially even challenging (or at least problematising) settler sovereignty itself (Pearson 1993: 82). Former director of the Northern Land Council, Mick Dodson, has described native title as providing relatively few benefits for Aboriginal people, and as forming part of a process of ‘further dispossession’.¹ In a recent address he described the Native Title Act 1993 (Cwlth) (NTA) and...

  12. 8. ‘No vacancies at the Starlight Motel’: Larrakia identity and the native title claims process
    (pp. 151-166)
    Benedict Scambary

    Darwin, the capital of the Northern Territory is built on Larrakia country. When it comes to elections in the Northern Territory, winning the hearts and minds of residents in the northern suburbs is critical. Election campaigns based on the issue of land rights, and hence race, played a significant role in keeping the Country Liberal Party (CLP) in government for 23 years. Notably, the 1983 election was fought almost exclusively on the issue of the return of Uluru to the Mutitjulu Land Trust (Gibbins 1988: 41). More recent elections have focused on Indigenous law and order and the detrimental impact...

  13. 9. What has native title done to the urban Koori in New South Wales who is also a traditional custodian?
    (pp. 167-184)
    Dennis Foley

    The Wikipedia definition of native title seems straightforward; non-indigenous rights prevail and native title recognises Aboriginal ownership of land—or does it? What does native title mean to the urban Koori who is born, raised and educated on their customary lands now called Sydney? These same lands are now occupied by some 4.2 million people who are representative of settler society. The Sydney population also includes a large number of growing Indigenous groups who are not the descendants of traditional owners. Rather the majority of Indigenous Australians in the specific example of Sydney and its environs are themselves usurpers.


  14. 10. Beyond native title: the Murray Lower Darling Rivers Indigenous Nations
    (pp. 185-202)
    Jessica Weir and Steven Ross

    The recognition and development of native title law has focused attention on Indigenous peoples’ traditional identities. Indigenous peoples who collectively hold traditional laws and customs are now explicitly recognised as holding rights to their traditional country and implicitly recognised as forming political systems of self governance (Strelein 2001). Native title has been described as a ‘recognition space’ where traditional laws and customs intersect with the Australian legal system (Mantziaris and Martin 2000: 2). Native title is thus produced by a combination of traditional laws and the common law. However, this interaction of laws has been incredibly problematic, and is at...

  15. 11. The limits of recognition
    (pp. 203-214)
    Manuhuia Barcham

    The last 20 years have seen the indigenous peoples of Australia and New Zealand receive unprecedented levels of recognition. This process has involved the recognition of both their position as the indigenous peoples of these two countries and of the various historical injustices that had been visited upon them over the last 200 years. This recognition has in part been based on a desire to bring about justice for these indigenous peoples. This process has taken a number of different forms including the creation of the native title process in Australia and initiation of the Treaty settlement process in New...

  16. 12. History, oral history, and memoriation in native title
    (pp. 215-224)
    James F. Weiner

    In the realm of native title, the distinction between ‘traditional’ and ‘historical’ people is one that is given official acknowledgement both by the courts of Australia and by Aboriginal people themselves. In the current guidelines for the production of native title connection reports (at least as construed by the State of Queensland) the anthropologist is required to address him/herself to the contrastive histories of such traditional and historical peoples—those who can demonstrate a connection to country that predates settlement, and those whose connection was established afterwards.

    But the terminology here is anthropologically confusing. Would someone with a ‘traditional’ connection...

  17. Back Matter
    (pp. 225-226)