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Contesting Laws: Culture, Colonialism, and Land


The native title has a long history that dates back even before the year 1788 where some sixty thousand Aboriginals inhabited Australia and had their own traditions and laws. However during the latter mentioned year, British colonizers established themselves in Australia, and after101 years in this land, they decided that a doctrine of terra nullius would be applied – this meant that since the area was not occupied by civilized persons, then the issue of a native title could be ignored. However, roughly one hundred years from this declaration The Australian High Court nullified the terra nullius such that Australia’s common law would recognize the native title and this paved the way for the Native Title Act of 1993 among other legislations.

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Given the latter background, one wonders what factors could have led to this recognition and whether formal recognition actually translates to the practical social and economic lives of the Aboriginals. In response to this query, the paper shall look at both the negative and positive dimensions of three critical areas in relation to the Australian Aboriginal native title i.e. anthropology, archaeology, and history.

Analysis of the role of anthropology in relation to Aboriginal native title

A study carried out by Redmond (2004) aimed at finding out the social dynamics that affected both Aboriginals and inhabitants of Euro Australian descent when claimants decided to make use of their Aboriginal native titles. This research was a case study that dwelt on residents of northern Kimberley; however, its findings were important in understanding how anthropological dynamics affect the country’s natives.

Upon analysis of the latter assertions, one can see that there may be potential for several conflicts of interests between Aboriginal native title claimants and their Euro Australian counterparts. In certain circumstances, these conflicts may be manifested in the form of mutual antagonism or sometimes violence. However, choosing to pursue such paths would impede common goals between such communities. It is, therefore, necessary for these two parties to submerge such issues in their day-to-day interactions in order to survive.. According to the author, there is a desire between these two types of communities to co-exist in order to achieve economic and social goals.

Nonetheless, Redmond (2004) has brought to bear some of the injustices and power imbalances between Indigenous persons as well as Australians of European descent. Yet despite these negativities, there is still mutual respect between them as they have both accepted the fact that they need to live together in the same country. Given the latter research, it can be said that anthropological studies have bought out the importance of mutual respect between adversarial communities during the process of pursuing the native title.

Martin (2006) looks at anthropological studies in Aboriginal native title and discusses some of the common approaches used. In most of them, the matter is approached from a legal standpoint rather than from a social standpoint. In this regard, it can be said that anthropology has brought about negative repercussions because it has not looked into the native title as a legitimate social aspect. Instead, it has chosen to treat it as a legal creation amongst the Aboriginals. One must therefore recognize that anthropology has failed to acknowledge the fact that the native title affects social relations among the aboriginals themselves and aboriginals and other groups. Besides this, anthropology has not focused on the institutions and practices of native Australians in relation to the native title.

Anthropology has been counterproductive in this sense because it has taken up the responsibility of advocacy by dealing with consent determination. Instead of taking up such roles, it would have been better for anthropologists to discuss the divide that exists within society concerning claimants’ assertions of the native title as part of their day-to-day experiences. (Committee Review of Aboriginal employment, 2003)

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One can also argue that anthropology has played a negative role with regard to the Aboriginal native title because more often than not, members of this fraternity often claim to be the owners of knowledge. Anthropologists regard themselves as experts and only incorporate the views of Indigenous communities if those views will serve to support their pre-existing notions. In fact, it is often difficult for these anthropologists to think of natives as being knowledge custodians because the latter group has been persecuted for over two hundred years i.e. since colonization. More often than not, anthropologists tend to dismiss the fact that there are certain power structures ingrained in the land councils of the Aboriginals that testify to the fact that indeed their knowledge is legitimate.

Anthropological analyses related to the native title have had some positive repercussions on the Aboriginal people especially with regard to their culture. This is because, during the process of making claims, indigenous groups have had to become conscious about their respective culture thus bringing out the elements that make them related to their country. It can therefore be argued that through anthropology, most natives have sharpened their articulation skills and therefore substantiated their property relations in what can be termed as a claim culture.

In line with this argument is the fact that anthropology has brought out the other side of the coin when it comes to the experiences of the Aboriginals during the process of making claims or in fighting for their land. Consequently, anthropological research has brought out another perspective on the native title process that aids the Aboriginal cause.

For instance, a study carried out by David Clauide (2005) that focused on the Kaanju People inhabiting the Cape York Peninsula of Northern Australia found that the native title process actually contravenes Aboriginal culture. This is because Aboriginals possess their own systems of land management and governance systems. More often than not, these tenures are centered on meeting the economic as well as homeland development needs of the natives. Consequently, the native title process has impeded the achievement of these needs owing to its differential processes.

In the latter mentioned anthropological study, the author discusses a case that had been going on for claims of over two hundred thousand hectares of land by the Kaanju people. In this study, claimants asserted that they were frustrated with the native title process that had been propagated by the native Title Tribunal of 1997. They were particularly exhausted with the fact that they had to validate their ownership of land which they claim had been assumed to belong to the government.

One can therefore argue that through anthropology there have been many issues that have been brought to the fore with regard to the challenges that these people are facing. First of all, observers and other external parties are now able to understand that state interests tend to take precedence over traditional owners’ interests in native title processes. Besides that, such processes usually restrict native arguments that are linked to their tribal identity instead of an all-encompassing identity. Aboriginals also tend to be frustrated with the native title process because the Native Title Act has not properly recognized the resource or land management abilities of traditional landowners to develop or use their land. On top of this, the native title process has not tackled the issue of compensation to traditional owners. This is because their sovereignty was thrown aside during the process of colonization as they lost their land to others. These revelations have all indicated that there are several challenges that the native title process has brought onto Aboriginals and that for efficiency those problems must be addressed. The public would not have been aware of these challenges were it not for the role played by external stakeholders like anthropological experts who have dealt with particular case studies. (Reynolds, 2001).

Analysis of the role of history in relation to Australian Aboriginal native title

Historical events have in their small ways contributed to the current recognition of the Aboriginals as having rights to their land. In this regard, such events have had a positive effect on the native status title.

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Starting as far back as 1946 where aboriginal workers throughout Western Australia organised a strike that lasted for three years. They were largely interested in getting fair compensation for their labour by receiving cash rather than material goods. While the latter strike may seem unrelated to the native title, upon deeper analysis, it can be seen that this was one of the first steps carried out by natives to spearhead the fight against injustices brought on by the colonialism regime including land related injustices.

Shortly after in 1963, another seemingly insignificant event came to be recognised as an important milestone in the Aboriginal land rights movement. In 1963, the government wanted to create a bauxite mine in a remote area inhabited by the Yolngu. The latter group were removed from White Australia and therefore had close connections to their customs, culture as well as their land. The group decides to send a petition to Parliament and marked one of the earliest forms of struggle for land rights within Australia.

In 1966, there was yet another strike organised by the Gurindji workers who wanted equal compensation to their white counterparts for their work. While the latter was initially designed as a fair wage demonstration, it continued for nine years and eventually evolved into a struggle for their general rights which largely included their claims to land. In the end, these claims were successful as Gurindji lands were eventually returned. (Bird, 2004)

Another historical event that contributed tremendously to the native title cause was the Gove land rights case. After the Yolngu petition, Aboriginals felt that their grievances had not been properly addressed by their leaders. Consequently, they chose to engage the judicial system in this respect. This was done in 1971 through the Millirrpum vs Nabalco Ltd case. While the latter case was not settled in favour of Aboriginals since Australia was largely governed by the terra nullius principle, it was crucial in acknowledging the fact that natives do posses their own laws governing both the economic as well as social use of their land.

In 1973, a Woodward Inquiry was set up to look into the issues surrounding Aboriginal land. The Inquiry dwelt on Northern territory land and its work eventually led to the creation of a commission for Aboriginal land rights. Two years on, the Gurindji strike that had been discussed earlier led to the handing back of their land to this group. In this regard, white Australian land owners stepped aside to let the Gurindji people inhabit their land. (Poynton, 1994)

In the year 1976, one of the most significant historical events occurred with regard to recognition of the Aboriginal native title and this was through the enactment of the Aboriginal Land rights Act. This event saw the creation of land councils acknowledged by Australian law. The Act stated that Aboriginals could now posses a legal foundation for making land claims on the basis of traditional occupation. However, the catch was that natives had to show that they were traditionally associated to their land by provision of evidence. In close association to the latter Act was the Pitjantjatjara Act of 1981. The latter piece of legislation was designed to deal with the natives inhabiting South Australia as the Aboriginal Lands Act largely focused on the Northern territory. This Act was specifically restricted to the Pitjantjatjara because the latter tribe were unique; they had maintained very close connections to their land and were in a position of ensuring very effective circumstances that were to emanate from the process.

In 1985, courts handled the Gerhardy vs Brown case in which it was held that natives have a right to occupy land based on their traditions. This case was regarded as one of the landmark cases in pushing the native title agenda. Shortly after, the Mabo vs Queensland case of 1988 took centre stage. In the year 1992, the judge presiding over this case ruled that the Torres Strait Islanders should be granted the Murray Island. In so doing, he asserted that the native title is legitimised by the traditional laws of the native people of the latter territory. This victory marked the beginning of the acknowledgement of the native title which was seen through the passing of the Native Title Act in the subsequent year i.e. 1993. At that time, the concept of native title was brought into effect where it was stated that land could be claimed, protected and recognised among traditional landholders through legal channels.

However, despite the passing of the latter Act, there were still some issues that were yet to be addressed among the natives especially with regard to the rights of pastoralists. Such an issue necessitated the creation of pastoral leases. These leases were granted by the government to pastoral communities that were then subject to statutory regulation. The leases were such that they allowed pastoralists to graze their livestock in about forty four percent of semi arid or arid regions. However, this occupation was supposed to be done only after payment of an annual fee. (Productivity Commission, 2002)

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However, these pastoral leases seemed to contradict the native title act especially when the Mabo decision had been made. Therefore, the Australian High Court decided in the case of the Wik People v Queensland of 1996 that all pastoral leaseholders had exclusive right to use land and that the native title was immediately excluded if they had been granted exclusive possession. On the other hand, if this was not the case, then the native title was not completely eradicated. Therefore this case indicated that there was a possibility for coexistence of the native title alongside pastoral leases and hence the Amendment of the Native Title Act during the year 1998.

Shortly after the Federal Court passed the Noongar decision in 2006 during the case of Bennell v State of Western Australia; here, it was held that native title claims had greater precedence over the European settlements within the Perth area. This was one of the most significant cases in native title history because it acknowledged the importance of the native title irrespective of the fact that the area under consideration was a City. In the next year of 2007, some amendments were made to the Native Title Act in order to boost their efficiency.

The latter sections have looked at how history has contributed towards the growth of the aboriginal native title movement. In other words, this is an examination of the positive aspects of a number of historical events. However, upon deeper analysis, one can see that there were historical injustices from the beginning of the colonisation process to date. For instance, prior to European occupation of Australia, the Aboriginals had their own laws governing the issue of land. (Cuneen & Libesman, 1999) Colonialists failed to acknowledge these laws because it would imply recognition of sovereignty and they would have to offer compensation to Aboriginals. In order to avoid this, they chose to declare a doctrine of terra nullius which was in fact based on a false assumption.

Historical events have also undermined the native title process owing to the fact that after enactment of legislations such as the native title Act, the emphasis has shifted from a political struggle to a legal one. One would automatically assume that this is an improvement to the lives of Aboriginals. Nonetheless, numerous reports have shown that the problems of the Aboriginals have now worsened since they have to deal with the expensively priced barristers and legal representatives. These natives have therefore been placed at the mercy of a title that has been defined by people who inherited colonial power. As if that is not enough, political or activist led movement carried out between the thirties and eighties had more productive effects for native land rights than did the legally determined decisions after the nineties. One can argue that this has been brought on by the obscurity of the legal world. The aboriginals have therefore been denied justice because of being bogged down by the legal processes associated with the native title process.

The role of archaeology in relation to the Australian Aboriginal native title

In some ways, archaeology has contributed positively towards the Native title process as it has brought to the fore some of the ways in which aboriginal culture has been continuous. Through archaeology, rock art studies have been studied among several aboriginal communities. Consequently, this has provided a crucial link between natives and the places that they inhabit- a fundamental process in proving native title.

Regional rock art can be an instrumental issue in indicating continuity among.

Aboriginals but in certain circumstances, this can be an impediment especially because there have been rapid changes among Aboriginal cultures over the past decades. This is mostly because European settlements have altered their ways of lives tremendously. Consequently, interpretation of these changes has often proved difficult for archaeologists. In fact, the object of controversy has arisen in trying to determine the economical, technological and cultural transformations that exist after European contact. (Ross, 2004)

One can also argue that sometimes archaeology has impeded the Aboriginal native title process because of a lack of objectivity among archaeologists. Archaeological interpretation has been instrumental in bringing out certain elements of Aboriginal history. In fact, in the case of the Yorpta Yorpta people of south eastern Australia, the court ruled in favour of the state. Many analysts have asserted that this could be as a result of failure to incorporate some of the archaeological and documentary pieces of data that could have demonstrated the diversity of the Aboriginal people. In other words, in this case and in other cases where aboriginals have lost, the use of archaeology as a tool to bring together pieces of history that fit in conveniently with preconceived notions has impeded administration of justice. Archaeology is well equipped to handle all of the issues surrounding occupation of land, its uses and the social organisation surrounding it especially because of the issue of continuity. (Alistai, 2002)

It should also be noted that the discipline of archaeology may be regarded negatively by indigenous communities as the latter group may think of archaeological investigations as being intrusive. More often than not, this may come in the way of the effectiveness of these archaeological findings in Native title claims


Anthropology has contributed positively to the native title process especially because it has brought out challenges of aboriginals in native title. Besides that, it has contributed towards cultural consciousness thus enhancing the uniqueness of the aboriginals. On the other hand, it has impeded the native title process because it dwells mostly on legal aspects rather than on the social dynamics. Also, anthropological experts tend to assume that they are holders of knowledge instead of indigenous communities.

Archaeology has boosted the native title process through highlighting the continuity of culture among the aboriginals. On the other hand it has impeded this process through lack of objectivity among archaeologists who disregard indigenous roles. On top of that archaeology is intrusive to indigenous cultures and this has impeded their overall results.

History had contributed positively to the native title process through a series of events that have all fostered political as well as legal changes for Aboriginals. On the hand, it can be argued that the movement from political to legal realms in addressing land matters may have impeded the effectiveness of the native title process.


Redmond, A. (2004). “Some social effects of pursuing and achieving native title in the northern Kimberley.” School of Archaeology and Anthropology Australian National University Report.

Martin, D. (2006). “Effecting change in Aboriginal lives.” Centre for Aboriginal Economic Policy Research Paper.

Claudie, D. (2005). “We are tired from talking – when are we getting our land back?” Chuulangun Aboriginal corporation paper.

Alistai, P. (2002). Native title and the transformation of archaeology. Sydney: Oceania Publishers.

Poynton, P. (1994). Now you see it now you don’t. Journal of race and class. 35 (4): 28

Cuneen, C. & Libesman, T. (1999). Indigenous people and the law in Australia. Sydney: Butterworths.

Bird, G. (2004). The law process in Australia. Sydney: Butterworths.

Reynolds, H. (2001). The law of the land. Ringwood: Penguin Publishers.

Productivity Commission. (2002). “Non pastoral land use and pastoral leases.” Research Paper.

Ross, A. (2004). “The Archaeology of recent native past in Australia.” Archaeology in Oceania. 39 (2): 106.

Committee Review of Aboriginal employment (2003). “Employment and training programs for Aboriginal.” Report of the Committee of Review.

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