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Tradition bound

By Katie Glaskin

28 March 2004 - Last December in the New South Wales Parliament, a politician from a right-wing party offered his opinion on Australian Aboriginal culture: "Aboriginal civilization, if it could be referred to as that, is Stone Age." But in many parts of Australia, you could equally hear this view: Unless Aboriginal Australians are prepared to go back to living the way they had prior to the arrival of white men, then they have no claim to land rights based on their prior ownership.

These are the paradoxical prejudices that Aboriginal people typically face: They are either cast as too "traditional" to be fully part of Australian society, or too "modern" to claim their traditional rights. This notion of "tradition" has become critical in the legal recognition of native title claims.

The door to native title claims was opened in 1992, when the country's High Court recognized it as a unique form of title. Legislation then created a system for judging claims, but between 1993 and 1998, only five claims were granted in some form. In 1998, following a High Court ruling that produced vocal lobbying by the pastoral and mining industries, which saw Aboriginal land claims as a threat to their economic viability, the legislation was amended to further protect non-indigenous interests in land.

Recent rulings have continued this negative trend. In 2002 the High Court found that native title was not necessarily a right to land, but a "bundle of rights and interests," meaning sticks from the bundle could be removed, one by one.

The same year, the justices ruled that the law could recognize only native title rights flowing from "traditional laws and customs" that Aboriginal people had practiced before European colonization. The Yorta Yorta people, they found, could not demonstrate a sufficient cultural continuity with the pre-contact traditional "laws and customs" at the time the Crown acquired sovereignty. They were found to have no native title.

The result is that 12 years after the principle was accepted in law, it has become very difficult for Aboriginal people in settled regions of Australia to gain recognition of native title. In less settled areas, where Aboriginal people remain on their land and continue to practice many of their pre-colonial traditions, native title has been limited largely to rights that are "traditional" in nature: rights to hunt, fish or forage for subsistence, to camp, to protect sites of significance, and to hold ritual and ceremony.

In addition, although we know that Aboriginal people had extensive trading networks with each other (and in northern Australia, with Macassans) prior to Australia's colonization and afterward, the court's definition of tradition has meant that Aboriginal people cannot successfully claim commercial rights to the resources in which they traded, such as timber, certain minerals, and pearlshell, among others.

Reflecting much of Australian public opinion, Prime Minister John Howard has said in debates over native title that "the pendulum has swung too far in favor of the Aboriginal people," and has condemned what he calls "the black armband view of history" that draws attention to the injustices they have suffered. This goes along with a common view that if Aboriginal people want land they should go out and buy property and work for it, like "ordinary Australians," a phrase Howard is fond of using.

When native title was first recognized, it hovered over the Australian public like the sword of Damocles. Besides the economic fears of the mining, agricultural and other industries, there was talk of Aboriginal people claiming suburban backyards, although this was never possible within the law.

In contrast, the High Court's decisions in 2002, which limited native title, generated little negative response, save from Aboriginal people themselves. Still , a good many Australians continue to see land rights as fundamental to achieving reconciliation with Aboriginal people and coming to terms with Australia's history of injustice against them. In 2000, more than a million people participated in bridge walks in support of reconciliation.

Aboriginal people suffered extensively under colonial authority. Many were forcibly removed from their lands (no territory was voluntarily ceded) and placed into missions and reserves to be Christianized and "civilized." Children of mixed Aboriginal and non-Aboriginal descent were removed from their parents and are now known as the Stolen Generation. Yet to be granted even limited native title rights, Aboriginal Australians are expected to pretend that this history never happened.

The broader Australian society continues to change, with the arrival of new technology and social shifts such as more divorces and single-person households. Laws and customs evolve, as we expect they will. But Aboriginal Australians must prove continuity with their ancestors' laws and customs at the time of colonization. As though they are responsible for the changes in their lives that this has wrought.

Katie Glaskin is a postdoctoral research fellow in anthropology and sociology at the University of Western Australia.

Source:Newsday

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