Conflict in the Statutory Elicitation of Aboriginal Culture in Australia

Abstract

In order for Aboriginal rights and interests to be recognised under the Native Title Act (1993), such rights and interests must arise from laws and customs that can be shown to have continuity with the particular set of laws and customs that existed at the time of sovereignty, or, at least, at the time of first European contact. This interpretation of continuity has been applied in Australian native title cases since the High Court's Yorta Yorta decision (Yorta Yorta v the State of Victoria [2002] HCA 58). Yet today's Aboriginal native title claim groups are also required to participate in other statutory ventures outside of the native title domain. For example, 'tribal' representatives in north Queensland are obliged to represent their interests on the Wet Tropics Management Authority, and the Great Barrier Reef Marine Park Authority. In native title terms, however, the activity and time spent participating in these ventures do not 'count' as instantiations of traditionally based rights and interests. Furthermore, the powers and rights granted to Aboriginal groups under these statutory ventures are often in conflict with the strictures of current native title interpretations of 'traditional law and custom and rights and interests'. The effect is to elicit versions of Aboriginal action that may contradict each other legally. In this paper, I discuss some examples of these institutional conflicts engendered by the statutory actions of state and federal government, and comment on the implications for the contemporary Aboriginal articulations of identity and tradition.