Fox, Kyle --- "Grave Barriers or Tolerable Burdens? to What Extent Do Disheartening Barriers Presented by S 223(1) of the Native Title Act 1993 (Cth) Warrant the Need for Implementing Recommendations Provided by the Australian Law Reform Commission in the 'Connection to Country: Review of the Native Title Act 1993 (Cth)' Report" [2024] UNSWLawJlStuS 6; (2024) UNSWLJ Student Series No 24-6

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GRAVE BARRIERS OR TOLERABLE BURDENS?

TO WHAT EXTENT DO DISHEARTENING BARRIERS PRESENTED BY S 223(1) OF THE NATIVE TITLE ACT 1993 (CTH) WARRANT THE NEED FOR IMPLEMENTING RECOMMENDATIONS PROVIDED BY THE AUSTRALIAN LAW REFORM COMMISSION IN THE ‘CONNECTION TO COUNTRY: REVIEW OF THE NATIVE TITLE ACT 1993 (CTH)’ REPORT

KYLE FOX

Ⅰ INTRODUCTION

Following the landmark decision in Mabo (No 2),^[1] native title has emerged as a highly complex and interesting area of law. In order to succeed in a native title determination, claimants must satisfy s 223(1) of the Native Title Act 1993 (Cth) (‘NTA’). This essay takes the position that certain barriers presented by s 223(1) require the implementation of recommendations provided by the Australian Law Reform Commission (‘ALRC’), whereas others do not. It proceeds as follows.

Part A focuses on the implied normative society requirement. The ALRC recommends the NTA to clarify that it is not necessary ‘to establish that a society united in and by its acknowledgment and observance of traditional laws and customs has continued in existence since prior to sovereignty’.^[2] While it appears that claimant groups are forced to fit into a unitary Western understanding of the word ‘society’, courts have demonstrated a recent willingness to accept inevitable differences and cultural diversity in a single society. It is argued that this promising trend emerging in native title determinations renders the ALRC’s recommendation unnecessary.

Part B explores the requirement that the traditional laws and customs must have pre-British sovereignty origins. It is argued that recommending the NTA to clarify that ‘traditional laws and customs may adapt, evolve or otherwise develop’ is highly necessary for two reasons.^[3] First, the current test incorrectly assumes that Indigenous laws and customs remain static, fixed and frozen in time. Secondly, the current test remains insensitive to the adaptations in laws and customs that may occur as a result of colonial processes and dispossession. Implementing the ALRC’s recommendation alleviates these issues as it would help facilitate, promote and strengthen the modern expression of Indigenous law and custom.

This essay therefore argues that implementing certain recommendations proposed by the ALRC is key to bringing the NTA closer to reflecting the reality of the Indigenous culture and supporting the protection of native title rights and interests in Australia.

Ⅱ PART A: THE SINGLE SOCIETY REQUIREMENT

A The Current Test

To succeed in a native title determination, proving the existence of a single society which acknowledged and observed traditional laws and customs prior to British sovereignty being asserted, and remains united today, must be established.^[4] Notably, the word ‘society’ is not mentioned in s 223(1) of the NTA. However, the judgment in Yorta^[5] confirms that it is an implied requirement that must be satisfied. This is because the High Court observed that traditional laws and customs cannot ‘exist in a vacuum’; they must operate, apply in and ‘arise out of’ something, particularly a normative society or group.^[6] Similarly, the rights and interests that are protected under those laws and customs must ordinarily belong to a body of persons, otherwise they cannot be enjoyed or enforced.^[7] Hence, before considering those particular laws and customs, determining whether they have been acknowledged and observed by a society forms an initial inquiry.

B Is the Current Society Test Premised upon a Misconception of Indigenous Culture?

To require proof in all cases that a single society was united by an acknowledgment of laws and customs prior to sovereignty being asserted, and remains united today, may inadequately reflect the nuances of the Indigenous culture. By implication, section 223(1) requires claimant groups to fit into a ‘unitary’ mold created for them by non-Indigenous actors.^[8] Indeed, according to non-Indigenous members of the High Court judiciary, it appears that an ‘authentic’ Indigenous society must be one who is united by the acknowledgment of shared laws and customs.^[9] As noted by Redmond, however, an emphasis on the unitary aspect of a society appears to be at odds with anthropological evidence indicating that Indigenous societies remain incredibly diverse and multifaceted.^[10]

When reaching the conclusion that the NTA contains an implied society requirement, the High Court in Yorta placed no attention on what a society means and looks like from an Indigenous perspective. Instead, academic literature, particularly Professor Honoré and Paton’s work on the composition of a Western society, guided the High Court to reach its conclusion.^[11] Drawing on this work to conclude that laws and customs are “socially derivative” may be a fair and reasonable observation to make.^[12] However, this material was not geared towards understanding and explaining Indigenous societies and how the unique laws and customs may relate to such societies. It is argued that the acceptance and generalisation of a Western society, in circumstances where the NTA specifically relates to Aboriginal and Torres Strait Islander rights and interests, remains a fundamental flaw of the Court’s reasoning process. Had the perspectives of Indigenous peoples been considered, the diverse and multi-layered nature of Indigenous societies would have likely been revealed. This diversity is explored in further detail below.

C Layers, Diversity and Difference

As observed by Asche and Trigger, the phenomenon of a society is ‘hardly a straightforward matter’ for Indigenous peoples.^[13] Within one society, ‘distinctive local levels of cultural identity’, language and law can emerge, sub-groups who observe those localised laws may be geographically separated from one another and obligations to land and kin may differ depending on age and gender.^[14] How these customs and legal obligations are understood, taught and carried out may also differ within the same society.^[15] Furthermore, even if diversity of the single society prior to sovereignty being asserted was not of issue, differences between the current claimant group and that society are likely to emerge.^[16] While it was not fatal to the claim, this was notably seen in Far West Coast, ^[17] where Mansfield J appreciated that the society prior to sovereignty featured three distinct language groups (Mirning, Kokatha and Wirangu) who each occupied different territorial boundaries. All three groups in the current society, however, had merged by way of intermarriage.^[18] As a result, despite the commonality of laws which governed membership and descent rules in both societies, differences between them were readily apparent.^[19]

By forensically highlighting these internal differences, as respondents in native title determinations often do, an Indigenous society is presented as less singular and therefore invalid.^[20] This attitude was plainly reflected in arguments presented by the Commonwealth and Queensland government in Akiba,^[21] where both respondents took aim at the claimant’s ‘one society’ case by arguing that laws and customs were not ‘wholly uniform’ or understood in the same way.^[22] Furthermore, both respondents insisted that the claim ought to fail since there was ‘no common traditional language’ uniting the society.^[23] These arguments were ultimately rejected, however, they serve to illustrate the forensic approach taken by respondents in native title litigation proceedings, increasing the need for implementing the ALRC’s recommendation. An analysis on this recommendation takes place below.

D Recommendation: It Is Not Necessary to Establish that a Society United in and by Its Acknowledgement and Observance of Traditional Laws and Customs Has Continued in Existence since Prior to Sovereignty

Against this backdrop, the ALRC’s recommendation seems necessary and effective. By no longer making it a requirement that a society must be bound together by the acknowledgment of traditional laws and customs, the recommendation brings NTA closer to reflecting the reality and nuances of the Indigenous culture. Furthermore, implementing the recommendation is likely to ease the decision-making processes of how a claimant group elects to present themselves in evidence when seeking native title determinations.^[24] As Smith observes, the meticulous planning, preparation and decision-making that occurs within the claimant group before they commence litigation or enter into any agreement making must be appreciated.^[25] A relevant consideration during this process, and one that is apt to generate enormous pressure within the group, is how commonality between the current claim group’s society and the pre-sovereignty society is found and expressed.

In maximising this commonality, the claim group might be unduly motivated or tempted to rule out any perceived differences or outliers in their society. Arguably, this might mean that sub-groups within the society who observe a more localised level of law and custom, or who occupy completely different territorial boundaries, may be excluded from the claim in question. Similarly, exclusion could arise in relation to certain families or groups asserting greater ‘dominance’ and displaying an unwillingness to negotiate and find requisite commonality.^[26] Clearly, if these temptations are acted upon, the risk of ongoing internal disputes that undermine ‘the cohesion of longstanding communities’ is likely to increase, causing irreversible division over time.^[27] Implementing the recommendation, however, seeks to alleviate these burdens as it reduces the emphasis on societal unity and singularity.

E An Unnecessary Implementation: The Court’s Growing Acceptance of Societal Diversity

An increased focus on implementing the ALRC’s recommendation overlooks a promising trend emerging from the judiciary in native title matters. Rather than approaching native title cases with an unwavering and strict emphasis on societal unity, as the recommendation seems to suggest, courts have since applied the reasoning in Yorta with greater flexibility.^[28] More specifically, courts have demonstrated a recent willingness to accept inevitable differences and cultural diversity regarding the adherence to laws and customs in a society, as opposed to disqualifying claims by dissecting and highlighting nuances as they appear in those societies.^[29]

The more realistic and practical approach taken by the courts following the decision in Yorta regarding the definition of a single society has been seen in two main respects. First, as clarified in Sampi and De Rose,^[30] a relevant single society will exist even if it comprises multiple sub-groups to which members of the claimant group identify as part of, rather than identifying themselves by reference to the larger society in question.^[31] This is significant as it demonstrates the movement away from relying on highly technical and Western jurisprudential understandings of the word ‘society’. Instead, it showcases the court’s realisation that Indigenous societies remain multi-layered and culturally diverse. As a result, this finding challenges the notion that respondents will succeed when employing forensically fierce tactics to separate the one society claim.^[32] Furthermore, without underestimating the complexities associated with the internal decision-making processes prior to litigation or consent determinations, it is argued that this approach reduces the temptation to exclude sub-groups or perceived outliers from the claim in question.

Secondly, as noted by Finn J in Akiba, a requisite society for the purposes of s 223(1) will be made out even if there exists a ‘differential application’ of localised laws and customs.^[33] This was particularly significant in that case where the society in question comprised separate islands who each had localised differences in the application and content of laws and custom.^[34] These differences, however, did not invalidate the claim since a ‘close and extensive relationship’ existed between them by virtue of there still being shared laws and customs relating to kinship, marriage as well as adoption and territorial control.^[35]

These principles and cases suggest that the current implied society test does not require claimants to unjustly conform to a homogeneous group. Instead it indicates that courts are attempting to assess these issues with greater flexibility, cultural sensitivity and understanding. This is an important observation as it decreases the need for implementing the ALRC’s recommendation. That being said, the same level of judicial tolerance to differences and changes in the society has not been extended to the actual traditional laws and customs themselves. This undesirable rigidity, which commands the implementation of another ALRC recommendation, is analysed in the part below.

Ⅲ PART B: TRADITIONAL LAWS AND CUSTOMS

A The Meaning of ‘Traditional’

The meaning of laws and customs that are ‘traditional’, as it appears in s 223(1), must be appreciated. As explained in Yorta, ‘traditional’ in this context does not merely mean the passing down of customary rituals by way of ‘word of mouth from generation to generation’.^[36] The threshold is much higher. Indeed, it requires claimants to demonstrate that the current laws and customs they acknowledge and observe have pre-sovereignty origins.^[37] As noted by Keenan, an impermissible change or modification of the laws and customs that have occurred from pre-sovereignty periods to current date will invalidate the claim.^[38] It is argued that this test presents significant barriers for claimant groups, chief of which relates to its inflexible and unduly strict nature.

B Why the Recommendation Appears Unnecessary: An Acceptance of ‘Some’ Change

Before analysing the need and effectiveness of implementing the ALRC’s recommendation, it should be noted that claimants are not required to establish that the traditional laws and customs have remained exactly the same since British sovereignty was asserted. In the land-mark decision in Mabo (No 2), Brennan J noted that ‘of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too’.^[39] The High Court in Yorta also considered this issue, and recognised that ‘some’ degree of change or adaptation of traditional laws and customs will ‘not necessarily be fatal to a native title claim’.^[40]

Two points could be raised here. First, deliberately using the word ‘some’ as opposed to formulating a bright line standard might seem suitable in order for the scope of change to be assessed more generously on a unique case-by-case basis. Yet, the word ‘some’ is of a vague, broad and open-ended character. Rather unhelpfully, it was not defined, narrowed or elaborated upon in the judgment, nor were any attempts made to illustrate it by way of examples. For this reason, it is argued that the level of change of traditional laws and customs which will invalidate a native title claim has not been articulated with sufficient clarity. Secondly, and more fundamentally, merely allowing ‘some’ change or adaptation to occur is a highly problematic and insensitive view taken by the courts. This is because it assumes and expects that most Indigenous laws and customs will remain static, fixed and frozen in pre-sovereignty time.^[41] The issues that are associated with this undesirable rigidity are explored in detail below.

C Unrealistically Strict And Insensitive

The requirement that traditional laws and customs be acknowledged by a current society poorly reflects the reality that Indigenous customary laws are ‘complex, subtle, intricate and diverse’.^[42] In certain ways, the judiciary has demonstrated a realisation of this. A change in the location of initiation rituals and descent rules from ‘patrilineal to cognatic’, for example, have been treated as acceptable adaptations.^[43] Furthermore, in Yanner,^[44] the High Court permitted adaptations to hunting practices and tools, which included the use of a non-traditional motorboat to hunt in that case.^[45] While these qualifications are important to note, the adaptations that can occur to traditional laws and customs often extend beyond the change of mere decent rules, the location of sacred sites and hunting instruments.

Macdonald asserts that the Wiradjuri people of the Murray-Darling Basin, for example, have drastically changed and ‘secularised’ throughout history.^[46] For instance, while the content of Dreaming and creation stories remain stable,^[47] Wiradjuri people are no longer governed by a cosmological belief system which previously formed part of Wiradjuri law.^[48] Similarly, Burbidge has also noted changes to the laws and customs that have occurred for the Bogan River Wiradjuri people.^[49] This includes the ‘younger’ Wiradjuri people no longer maintaining customary visits and connections to the Bulgandramine Mission site.^[50] Furthermore, the spiritual importance of totems, and previous laws and customs which prohibited the hunting and killing of totems, no longer seem to be universally enforced. Indeed, while ‘older’ Wiradjuri people remain deeply connected to totems as a source of their identity, Burbidge found that ‘younger’ Wiradjuri people often perceive totems as ‘something you have or can hold’.^[51]

The strict approach adopted by the courts is inconsistent with anthropological evidence insisting that the evolution of any society and the laws and customs therein is inevitable. As argued by Cockayne, courts treat the Indigenous culture as something that can only be preserved in its pre-sovereignty form, ‘inherently and ontologically opposed to modernity’.^[52] This plainly overlooks the reality that over time, different perspectives, attitudes, expectations and values are highly likely to emerge, ultimately influencing the extent to which certain laws and customs are adopted or modified in any society.^[53] As Burbidge indicated, though once a sacred meeting site that older Wiradjuri people frequently visited to learn and connect with ancestral beings, the Bulgandramine Mission site is simply of less spiritual value and appreciation to the younger generations, viewing it as a ‘party’ location.^[54]

Rather hypocritically, a change in societal values, attitudes and beliefs and the influence this has on the development of new laws has been recognised in non-Indigenous societies. For example, what was previously considered a forbidden, offensive and unaccepted practice,^[55] same-sex marriage has now been legalised in Australia, largely because of a fresh reinstatement of community views and attitudes valuing the importance of equality and anti-discrimination.^[56] Overlooking the role that similar societal values, views and attitudes may play in Indigenous societies, however, speaks to the unrealistic and strict nature of the current test.

D Colonial Forces

Furthermore, it is crucial to appreciate the role that colonisation plays in respect to the existence of traditional laws and customs for Indigenous peoples.^[57] As observed by Watson, egregious and repeated attempts have been made by colonial systems and actors to target, dispossess and eradicate the Indigenous culture.^[58] While many examples can be used to demonstrate such injustice, it undoubtedly includes historic massacres, acts of violence as well as the ‘state-orchestrated forced removal’ of Aboriginal children from communities into white households from 1910–1970s.^[59]

Grewcock notes that the forced removal of Aboriginal children, for example, was initially justified as a protective measure; removing Aboriginal children was thought to facilitate greater access to education and support networks.^[60] However, once forcibly removed, ultimate control was exerted over Aboriginal peoples ‘in an attempt to ‘merge’ or to ‘breed out’ Aboriginality through a process of assimilation into white society’.^[61] Aboriginal children were prohibited from connecting with and learning from ancestors, the relationships with respected elders who would have otherwise taught and communicated cultural law and custom were broken down and sacred ties to the land were severed.^[62]

The presence and abuse of power exercised by white settlers denying the cultural legitimacy of Indigenous peoples has resulted in societies losing, compromising or masking their traditional identities, laws and customs.^[63] This impact was notably illustrated in Bennell, ^[64] where Wilcox J at trial noted that ‘the descent rules are undoubtedly of great importance ... however, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices’.^[65] In reiterating the impact that European settlement can have in respect of traditional laws and customs, Wilcox J further noted that ‘Aborigines were forced off their home areas’ as ‘white settlers took over and fenced the land’.^[66] While these findings clearly speak to the gross consequences of ongoing dispossession and control exerted over Indigenous peoples, leading to a loss or at least a drastic adaptation of traditional law and custom, Wilcox’s J findings were overturned by the Full Federal Court. The Court held that rather than assessing whether the ‘laws and customs in relation to land continued from sovereignty through to the present’, Wilcox J was incorrectly ‘asking whether the community survived’.^[67] Furthermore, even if Wilcox J was asking the correct question of law in that case, it was held that the reasons for change or adaptations are ‘irrelevant’.^[68]

The failure to sufficiently account for these colonial factors, in circumstances where a change in law and custom may have occurred outside of a society's group control or deliberate choice, further illuminates the unduly strict and insensitive nature of the current test.^[69] This leads to arguments increasing the need and effectiveness of implementing the ALRC’s recommendation, which is discussed below.

E Recommendation: Clarifying that Traditional Laws And Customs May Adapt, Evolve or Otherwise Develop

The ALRC’s recommendation seeks to alleviate these current barriers by serving at least two benefits. First, whilst the recommendation does not specifically mention or account for changes in laws and customs that have occurred due to colonial processes, such adaptations in response to colonial forces are more likely to be captured, so long as pre-sovereignty origins can be identified. Secondly, as noted by the Australian Institute of Aboriginal and Torres Strait Islander Studies, it would no longer deprive Indigenous peoples of the right to re-express and ‘re-interpret the meaning and content’ of their laws and customs.^[70] Instead, the implementation of the recommendation would help facilitate, promote and strengthen the modern expression of Indigenous law and custom.

Admittedly, one could argue the degree to which courts will permit an adaptation or otherwise development of laws and customs appears ambiguous if the recommendation was implemented. This is because each word - adapt, evolve and develop - is capable of sitting on a wide continuum. Over time, this could result in claimants being tempted to stretch the scope by arguing that unfamiliar customs have merely ‘developed’ or ‘evolved’ in new ways. For this reason, dangers may be associated with affording claimants greater flexibility. This argument, however, remains unpersuasive, largely because the link to pre-sovereignty laws and customs must still exist as part of the recommendation. Indeed, so much was noted by the ALRC who acknowledged that as part of the recommendation, ‘linking between the pre-sovereign laws and customs and their modern counterpart is necessary’; completely new and unfamiliar customs will fall outside the scope.^[71] The recommendation is therefore necessary and highly desirable as it challenges the colonial assumption that Indigenous laws and customs are primitive and frozen in time, as well as brings the NTA closer to better reflecting the reality and nuances of Indigenous culture.

Ⅳ CONCLUSION

In order for the Australian legal system to best support and protect Indigenous native title rights and interests, barriers that currently exist in relation to seeking that recognition must be identified and alleviated. Section 223(1), one of the most fundamental provisions that must be satisfied in seeking a native title determination, presents at least two barriers. The first concerns the implied society requirement, and the second relates to the requirement that traditional laws and customs must have pre-British sovereignty origins.

While conforming to a Western notion of a ‘society’ may present itself as a barrier, it is not substantial enough to warrant the ALRC’s recommendation for the NTA to be clarified that a society does not need to be united in and by its acknowledgment of traditional laws and customs since sovereignty. This is because it would overlook a promising trend emerging from the judiciary demonstrating a greater tolerance and acceptance of cultural diversity and difference within a single society. Such tolerance, however, does not extend to the traditional laws and customs themselves; these must retain their origins from pre-British-sovereignty periods. This incorrectly assumes that all Indigenous laws and customs are static, opposed to modernity and incapable of change. The strict approach also fails to take into account changes of laws and customs that may have occurred due to colonial factors outside of the control of Indigenous societies. Both of these issues warrant the ALRC’s recommendation for the NTA to clarify that traditional laws and customs may adapt, evolve or otherwise develop. Implementing this particular recommendation is key to bringing the NTA closer to reflecting the reality of the Indigenous culture and supporting the protection of native title rights and interests in Australia. ^[72]

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^[1] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (‘Mabo (No 2)’).

^[2] Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) (Final Report No 126, April 2015) 29 (‘ALRC Report’).

^[3] Ibid.

^[4] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422, [49] (Gleeson CJ, Gummow and Hayne JJ) (‘Yorta’).

^[5] Yorta (n 5).

^[6] Ibid [49].

^[7] Ibid [50].

^[8] Terry Moore ‘Misadventures with Aboriginalism’ (2011) 17(3) Social Identities 423, 423.

^[9] Stewart Muir, ‘Real People: Authenticity and Aboriginality in the Australian Holistic Milieu’ (2014) 79(4) Ethnos 473, 492.

^[10] Anthony Redmond, ‘Identifying the Relevant Level of a Society in Australian Native Title Claims’ (2011) 21(3) Anthropological Forum 287, 289; See also Coleman on behalf of the Wagiman and Jawoyn Bolmo, Matjba and Wurrkbarbar Groups v Northern Territory of Australia [2019] FCA 477, [18] (White J) (‘Coleman’).

^[11] Yorta (n 6) [49].

^[12] Ibid.

^[13] Wendy Asche and David Trigger, ‘Native Title Research in Australian Anthropology’ (2011) 21(3) Anthropological Forum 219, 226–7.

^[14] Ibid 227; Christopher D. Berk, ‘Palawa Kani and the Value of Language in Aboriginal Tasmania’ (2017) 87(1) Oceania 2, 10; Simon J Walsh et al, ‘A Comprehensive Analysis of Microsatellite Diversity in Aboriginal Australians’ (2007) 52(9) Journal of Human Genetics 712, 712; Chontel Gibson, Pat Dudgeon and Judith Crockett, ‘Listen, Look & Learn: Exploring Cultural Obligations of Elders and Older Aboriginal People’ (2020) 27(2) Journal of Occupational Science 193, 202.

^[15] Lauren Tynan, ‘What is Relationality? Indigenous Knowledges, Practices and Responsibilities with Kin’ (2021) 28(4) Cultural Geographies 597, 603.

^[16] John Morton, ‘“Mother’s Blood, Father’s Land”: Native Title and Comparative Land Tenure Modelling for Claims in “Settled” Australia’ (2017) 87(1) Oceania 58, 59.

^[17] Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (Mansfield J).

^[18] Ibid [45].

^[19] Ibid.

^[20] Muir (n 10) 492.

^[21] Akiba and Another v Queensland and Others (No 3) [2010] FCA 643 (Finn J) (‘Akiba’).

^[22] Ibid [441]–[442].

^[23] Ibid.

^[24] Toni Bauman et al, ‘Traditional Owner Agreement-Making in Victoria: The Right People for Country Program’ (2014) 18(1) Australian Indigenous Law Review 78, 78.

^[25] Kevin Smith, ‘Native Title: The Fusion of Law and Politics’ (Speech, National Native Title Conference, 5 June 2017) 8 (‘Smith Native Title Conference Speech’).

^[26] Tim Pilbrow, ‘The Integrative Value of Conflict and Dispute: Implications for Defining Community in the Native Title Context’ (2020) 31(1) The Australian Journal of Anthropology 37, 39.

^[27] Smith Native Title Conference Speech (n 26) 8.

^[28] Sean Brennan et al, Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? (Federation Press, 2015) 32.

^[29] See for example Dodd v State of South Australia [2012] FCA 519, [36] (Finn J); Sampi (on behalf of the Bardi and Jawi People) v Western Australia and Others [2010] FCAFC 26, [69]–[70] (North and Mansfield JJ) (‘Sampi Appeal’); Coleman (n 11) [19].

^[30] De Rose v South Australia (No 2) [2005] FCAFC 110 (Wilcox, Sackville and Merkel JJ) (‘De Rose’).

^[31] Sampi Appeal (n 30) [69]; De Rose (n 31) [31].

^[32] Indeed, the Northern Territory respondents in Coleman accepted this: see Coleman (n 11) [19].

^[33] Akiba (n 22) [456].

^[34] Ibid [441].

^[35] Ibid [485].

^[36] Yorta (n 6) [79].

^[37] Ibid. See also summary in Starkey and Others v South Australia and Others [2018] FCAFC 36, [46] (Reeves, Jagot and White JJ).

^[38] Sarah Keenan, ‘Moments of Decolonization: Indigenous Australia in the Here and Now’ (2014) 29(2) Canadian Journal of Law and Society 163, 171.

^[39] Mabo (No 2) (n 2) [68].

^[40] Yorta (n 6) [83].

^[41] David Trigger and Richard J. Martin, ‘Place, Indigeneity, and Identity in Australia’s Gulf Country’ (2016) 118(4) American Anthropologist 824, 833.

^[42] Anna Kenny, ‘The “Society” at Bora Ceremonies: A Manifestation of a Body of Traditional Law and Custom in Aboriginal Australia Relevant to Native Title Case Law’ (2012) 82(2) Oceania 129, 130; Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (4^th ed, 2003) 82.

^[43] Dempsey v Queensland (No 2) [2014] FCA 528, [693]–[694] (Mortimer J); Griffiths v Northern Territory (2006) 165 FCR 300, [501] (Weinberg J).

^[44] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351.

^[45] Ibid 382 (Gummow J).

^[46] Gaynor Macdonald, ‘The Secularisation of Riverine Law in South-East Australia’ (2011) 21(3) Anthropological Forum 307, 308 (‘MacDonald Wiradjuri Article’).

^[47] Gaynor Macdonald, ‘Autonomous Selves in a Bureaucratised World: Challenges for Mardu and Wiradjuri’ (2013) 23(4) Anthropological Forum 399, 401.

^[48] MacDonald Wiradjuri Article (n 47) 307.

^[49] Belinda Burbidge, ‘“We Are Kangaroo, We Have the Owl”: Linguistic and Emotional Clues of the Meanings of the Bush in Changing Wiradjuri Being and Relatedness’ (2015) 26(3) The Australian Journal of Anthropology 414, 415.

^[50] Ibid 422.

^[51] Ibid 424.

^[52] James Cockayne, ‘Members of the Yorta Yorta Aboriginal Community v Victoria: Indigenous and Colonial Traditions in Native Title’ [2001] MelbULawRw 25; (2001) 25(3) Melbourne University Law Review 786, 801.

^[53] Dan Priel, ‘Conceptions of Authority and the Anglo-American Common Law Divide’ (2017) 65(3) The American Journal of Comparative Law 609, 629.

^[54] Burbidge (n 50) 422.

^[55] Jessica Leigh Sloane and Laurance Madeleine Robillard, ‘Factors Affecting Heterosexual Attitudes to Same-Sex Marriage in Australia’ (2018) 15(3) Sexuality Research & Social Policy 290, 291.

^[56] Archie Thomas, Hannah McCann and Geraldine Fela, ‘“In this House We Believe in Fairness and Kindness”: Post-Liberation Politics in Australia’s Same-Sex Marriage Postal Survey’ (2020) 23(4) Sexualities 475, 490; Marriage Act 1961 (Cth) s 5.

^[57] Annika Reynolds, ‘A Coloniser’s View: On Healing and Native Title Reform’ (2022) 47(4) Alternative Law Journal 291, 291.

^[58] Irene Watson, ‘Aboriginal Laws and Colonial Foundation’ (2017) 26(4) Griffith Law Review 469, 469.

^[59] Michael Grewcock, ‘Settler-Colonial Violence, Primitive Accumulation and Australia’s Genocide’ (2018) 7(2) State Crime 222, 223.

^[60] Ibid.

^[61] Leticia Funston and Sigrid Herring, ‘When Will the Stolen Generations End? A Qualitative Critical Exploration of Contemporary “Child Protection” Practices in Aboriginal and Torres Strait Islander Communities’ (2016) 7(1) Sexual Abuse in Australia and New Zealand 51, 52.

^[62] Matthew Bailey, ‘“You Betray Your Country”: Remembering and Forgetting the Stolen Generations in the Metropolitan Press’ (2020) 44(1) Journal of Australian Sstudies 114, 116.

^[63] Cockayne (n 53) 801.

^[64] Bennell v Western Australia (2006) 153 FCR 120.

^[65] Ibid [777] (Wilcox J).

^[66] Ibid [785].

^[67] Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84, [80] (Finn, Sunberg and Mansfield JJ).

^[68] Ibid [81].

^[69] Myrna Tonkinson and Robert Tonkinson, ‘The Cultural Dynamics of Adaptation in Remote Aboriginal Communities: Policy, Values and the State’s Unmet Expectations’ (2010) 52(1) Anthropologica 67, 67.

^[70] ALRC Report (n 3) 140.

^[71] Ibid 25.

^[72] For the purposes of this paper, the word ‘Indigenous’ is intended to mean Aboriginal and Torres Strait Islander peoples.