Is Native Title Law Destroying Native Title?

Abstract

This seminar is a reflection on legal practice in native title. It considers whether the common law, the Native Title Act, and the way lawyers and anthropologists practise together covertly assimilate or give the appearance of assimilating indigenous people to the dominant culture, thus destroying the basis on which native title is established. Traditional owners are the 'other' within the dominant culture. Eddie Mabo used the common law to achieve his ends, without necessarily internalising the dominant culture. However the development of the law since Mabo (No 2) has altered the relationship between the law and claimants. The courts have conceived of native title as sui generis, often denying it the benefits of the common law, or else they are obsessed with putting a common law label on native title rights and interests. This means that native title, which is defined by common law as customary law, fails to measure up to our own common law standards. Where it does, it becomes part of the dominant system and the values and (legal) culture of the dominant group is impliedly internalised by traditional owners as part of recognition. The Native Title Act now squeezes Eddie Mabo's use of common law into a process driven administrative/judicial hybrid - it requires adherence to the dominant, and the dominant recognises the participants as of the dominant culture - there is no other place for them (eg alongside). Lawyers, as part of the dominant system, use peoples' stories, knowledge etc as evidence, taking it out of traditional owners’ framework and into the common law. If lawyers don't allow their clients’ voice to be heard (as to identity, whether they accept and adhere to the dominant paradigm) then are lawyers complicit in creating an understanding of traditional owners as having internalised the dominant value system? The common law’s perception of traditional owners has dismantled culture to demonstrate the ongoing integrity of traditional law and custom (required to prove native title). In this process the common law takes ownership thus destroying what it apparently sought to protect.