Laws, Customs, and Practices in Australian Native Title

The way lawyers and anthropologists perceive the efficacy of data gathered during anthropological research for the purposes of proving Native Title under the Native Title Act, Commonwealth of Australia (1993), is at the heart of this article.¹ I note at the outset that only a small proportion of the ethnographic data referred to here was gathered at first hand by the author. The bulk is part of a larger body of research collected by anthropologists working for Native Title Services Victoria within southeastern Australia over more than a decade. Apart from a brief period in the field, my sustained involvement with the research began after I was asked to write several chapters of a Native Title report for the consideration of senior counsel.² It was during this process that I became familiar with the body of research and began thinking about how the many field notes, interview recordings, and verbatim transcripts might be understood in terms of section 223 of the Native Title Act. For anthropologists working on issues related to Native Title in Australia, section 223 is a seminal passage in that it dictates that the rights and interests of Australian Aboriginal people to country may only be recognized by the state where a continuing connection to “country” through adherence to traditional laws and customs can be demonstrated. While some leeway has been allowed by the state in relation to the forms in which these laws and customs may currently exist (as adaptations of those recorded in the past), section 223 seeks evidence that the identity of Native Title claim group members is founded on adherence to traditional knowledge and practice.

It was also during this process that a number of things struck me. One was that while many of the more “classical” (Sutton 2003: 4– 15) indicators of what are now considered as “traditional laws and customs” were absent, the wealth of data concerning hunting and fishing practices and the ways in which they were passed down through the generations spoke loudly to the traditional laws and customs upon which they were based.³ Within the context of Native Title law in Australia, the ability to describe contemporary expressions of traditional laws and customs, commonly referred to as “continuity,” is crucial to proving the existence of Native Title in the federal court, particularly where litigation is involved. Accordingly, in the absence of a documented continuous ceremonial cycle and evidence of a spirituality substantially consistent with that expressed in the ethno- historic literature, these practices became a vital element in discussing the links between past and present cultural practice that constitute the term “continuity” in Native Title law. Consequently, I decided to present the practices noted in the body of research material in a way that made explicit their subaltern relationship to an underlying system of normative laws and customs.

Advice given by senior counsel concerning the utility of the material presented in my report, however, indicated that in the opinion of senior counsel, a nuanced anthropological perspective such as I had provided did not constitute evidence of a connection between the precolonial Aboriginal society found in the ethno- historic record and that of their modern day descendants, as required in Native Title law. To illustrate this point better, I briefly outline some of these practices as they were described in the report. It should be noted at the outset that the level of detail I can provide here is limited by privacy concerns and ethical and legal responsibilities to individual informants, claimant groups, and the Native Title legal process. Hence I have included neither the names of the groups or informants from whom the research data was gathered nor the title of the report. The restricted nature of the ethnographic material amassed in Native Title research also prevents direct quotations. However, summarizing the ethno- historical material considered to illuminate “traditional” practice ensures the recounting of a discussion grounded in contemporary practices embedded in the past. My observation of these, and my discussions with native title claimants, will become evident throughout.

Hunting and Fishing Practices

Owing to the rich...