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Foster, Robert --- "Turning Back the Tide: The Use of History in the Native Title Process" [1999] IndigLawB 58; (1999) 4(22) Indigenous Law Bulletin 17


Turning Back the Tide:
The Use of History in the Native Title Process

Conference 10-11 May, AIATSIS, Canberra

by Robert Foster

This workshop was sponsored by the Native Title Research Unit of AIATSIS. The delegates included Indigenous people involved in the native title process, historians working for representative bodies and State governments, and others.

In the opening paper, David Ritter (a lawyer from Dwyer Durack in Perth) argued that history is central to the native title process, given the requirement that historical continuity must be proved. Historians, with their deep knowledge of the sources and their historiographical[1] awareness, must be involved in this process.

A major theme was the issue of cultural continuity, and this inevitably led to discussions about the use of history in Olney J's Yorta Yorta judgment.[2] It was suggested that this decision was built on an unrealistically restrictive model of cultural change; rather than beginning with the claimant community and tracing a line of cultural continuity back to the ancestral community, it began with the ancestral community and traced cultural discontinuities through to the present. On a related theme, anthropologist Deborah Bird Rose spoke of the way early ethnographic writings were used as evidence, indeed as witnesses, without fully exploring the biases of the texts and the intentions of the authors. The writings of ‘Victorian gentlemen scholars’, she noted, were given more credibility than the evidence of the community itself.

Jan Muir and Monica Morgan, members of the Yorta Yorta community, spoke of their experience during the native title claim and stressed that it was essential that the Aboriginal community should be in charge of this process. They expressed their disappointment at the way the community’s oral historical evidence was discounted in the judgement. Both speakers pointed out how traumatic giving evidence could be for claimants, and said it was important that witnesses were properly debriefed. Lynn Holton and a number of other Indigenous speakers pointed out the irony of Indigenous people having to prove their existence in an alien court. Morgan made the salutary point that Aboriginal claimants had lives outside native title and that they saw possibilities for further action beyond the limits imposed by the native title process.

Many speakers stressed the need for a united, interdisciplinary effort, for historians to work closely with anthropologists, lawyers, archaeologists, linguists and other specialists to achieve recognition of Aboriginal people's native title rights. Native title historian Mandy Paul noted that historians do far more than just collect documents, and that unless barristers are properly briefed, with the historical evidence put into context, important issues could be overlooked. She also observed that the best evidence came from applicants in the witness box.

South Australian historian Steve Hemming raised the importance of the perspectives and methodologies developed by historians working with indigenous people in south-eastern Australia. He argued for an interpretive framework within which evidence by indigenous people in so-called ‘settled’ areas would be accorded the status of authentic ‘cultural’ tradition. The simplistic use of the term ‘oral histories’ had contributed to the treatment of indigenous traditions in south-eastern Australia as un-authentic.

As David Ritter remarked earlier, the danger, (especially for communities in the so-called ‘settled south’), was that native title would be washed away not by the tide of history, but the tide of historiography.

Papers from the workshop are to be published by the AIATSIS Native Title Research Unit. Contact Lisa Strelein. Ph (02) 62496111. Email: ntru@aiatsis.gov.au.

Robert Foster is a Lecturer in History at the University of Adelaide.


[1] Historiography is ‘the writing of history, especially as based on the critical examination and evaluation of material taken form primary sources’ (Macquarie Dictionary 3rd Edition 1987).

[2] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] 1606 FCA (Federal Court 18 December 1998).


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