Next time someone tells you native title has not lived up to expectations, tell them about its 'foster’ family

Abstract

Native title has been called many names, but High Court Justice Ian Callinan has found the perfect metaphor for it: the badly treated, culturally misunderstood, 'foster child’. Like his mainly brother judges, Justice Callinan couldn't possibly admit that the High Court fathered native title in 1992 and has been intermittently co-parenting it since, along with the federal Parliament. The idea that judges produce new law is always potentially illegitimate in a democracy, although the 'common' (judge-made) legal tradition is our English inheritance. In decisions from Mabo to Yorta Yorta, the judges insist on the fiction that native title was born in 1788 - all the Court did in 1992 was 'recognise' it by 'protecting' the Aboriginal traditions defining it. This makes native title, like history's 'half-caste' children, the progeny of Aboriginal society and law - not the offspring of Anglo-Australian law, whose only role lies in its salvation. The salvation offered is like that extended to ‘stolen’ children: sometimes it’s better than what they had before, but it’s always much less than you’d give your own. The fiction that native title has always existed, like much inadequate parenting, allows the Court the luxury of controlling native title if it feels like doing so, while avoiding being blamed for its significant behavioural problems. If things get rough, the Court can say the other parent, the child - or both - is responsible. The federal Parliament is easy to blame: everyone knows Parliament has discriminated against native title by allowing other people to walk all over it and use it up. Geoff Clark can be relied on to get out the axe labelled 'Howard's 10-point plan' whenever a court makes a bad native title decision, even if the 1998 Native Title Act amendments played no role in it. They played no role in Yorta Yorta.