The ‘Spirit’ of the Thing: The Boundaries of Aboriginal Economic Relations at Australian Common Law

Abstract

Aboriginal economic relations have been misconstrued as a type of primitive exchange in at least one native title case discussed in this paper. The pursuit by Aboriginal native title claimants of recognition at law of customary economic rights as inherent in, or an adjunct of, native title rights failed in Yarmirr and Others v. Northern Territory of Australia and Others (1998) 156 ALR 370 (the ‘Croker Island case’) for several reasons. The applicant's native title was found to be non‐exclusive of other interests, and a right to trade in resources of the sea was rejected. This case was argued in part by relying on historical material regarding Macassan trading arrangements. The profound alterity of Aboriginal relationships among persons and things, as the Croker Island evidence of property and trade relations demonstrates, have been re‐constituted in legal discourse as an absence of economic relations. In this paper, we argue that there is no sound basis for the distinction made between commercial and non‐commercial native title rights, whether in the Native Title Act 1993 (Commonwealth of Australia), or in recent judicial reasoning. We contend that native title rights and interests constitute a sui generis species of property relations that enable economic rights as conceived in Aboriginal tradition and custom to circulate in the modern market. Aboriginal customary economic relations of and between Aboriginal groupings are markedly distinct from, yet not incommensurable with, the normative conception of economic relations in the Australian market. We argue that a reformulation of the current Australian legal ideas about economic life is necessary for the recognition of Aboriginal economic institutions in native title claims and other economic arenas.