Asymmetry of Recognition: Law, Society, and Customary Land Tenure in Australia

Abstract

In Australia, the Native Title Act 1993 (Cth) provided the legislative means to resolve native title claims. Successive judgments in the High Court have refined apparently ambiguous areas within the legislation. The High Court's decision in the Yorta Yorta native title case (2002) was particularly consequential for native title claims throughout Australia. The Yorta Yorta precedent established a link between the laws and customs that give rise to native title rights and interests, and the society that acknowledges these laws and customs. It thus drew a direct link between the notion of a 'society' and its 'laws' (and the continuity of both) that has been applied to subsequent native title cases. In this paper, we examine the question of the relationship between a 'society' and its 'laws' as a requirement of native title recognition. In doing so, we wish to problematise the equivalence that is seemingly drawn between a 'society' and its laws, and to question what recognition really means in this context. We argue that recognition here is the consequence of 're-cognising' Indigenous forms of customary tenure as framed by what are already 'acceptable' social forms. Recognition is in this context grounded on two problematic aspects. Firstly, it is reframing the real world into pre-existing models. Secondly but simultaneously, the concept of recognition is itself based on a 'necessarily' unequal power relationship between those who recognise and those who are recognised.

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