ABSTRACT

The question of ‘tradition’ and continuity thereof, in relation to Australian native title, is troublesome. 1 The common law grounding of native title in ‘traditional law and custom’ 2 and ensuing requirement for demonstrable connection with land and waters claimed, as articulated in the Native Title Act 1993 (Cth), 3 while apparently respectful of the integrity of Indigenous relations to country, presents a complex, twofold problem: the definitional containment of such relations within a judicial interpretation of the terms ‘tradition’ and ‘connection’, particularly where the latter is construed as ‘continuing connection’, 4 and the failure to recognise more encompassing notions of indigeneity, which may include forms or expressions of ‘tradition’ that cannot be identified in or reconciled with (European) historical and archaeological accounts, as construed by anthropological (or other) experts. 5 Indeed, in the context of the legal recognition of Indigenous traditional knowledge, 160Fitzpatrick and Joyce advocate a recognition that is “dynamically generative and relational”, such that the recognition of one (traditional knowledge) need not be effected merely by its accommodation within the other (occidental law) but, rather, each may be constituted in its relation to the other. 6 In Bhabha’s postcolonial account of “[t]he social articulation of difference”, he suggests that the representation of such difference “must not be hastily read as the reflection of pre-given ethnic or cultural traits set in the fixed tablet of tradition” but, rather, “is a complex, on-going negotiation that seeks to authorize cultural hybridities”. 7 Such expansive representation, and its recognition, are not yet evidenced in Australian native title law which, on the contrary, is ever more ossified.