Larrakia lose native title claim on Darwin

The Larrakia native title claim on Darwin and surrounds was dismissed in a judgment handed down today in the Federal Court. Justice Mansfield said:

The evidence shows that a combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. The settlement of Darwin from 1869, the influx of other Aboriginal groups into the claim area, the attempted assimilation of Aboriginal people into the European community and the consequences of the implementation of those attempts and other government policies (however one might judge their correctness), led to the reduction of the Larrakia population, the dispersal of many Larrakia people from the claim area, and to a significant breakdown in Larrakia people’s observance and acknowledgement of traditional laws and customs.    

  Justice Mansfield continued:

I have found that the effect of those circumstances is that the current Larrakia society, with its laws and customs, has not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existence and vitality since sovereignty. Some of the evidence reveals a correspondence between current and traditional laws and customs. But the oral evidence also reveals significant inconsistencies between members of the present applicants about what their laws and customs are, and the extent to which they are practiced. It reveals in many instances the adoption of knowledge of traditional laws and customs from those learned during the hearing of the Kenbi land claim concerning the Cox Peninsula and then later from other research, as well as by direct inquiry of elderly Larrakia and non-Larrakia people. The oral evidence discloses a level of generality of knowledge which is not consistent with the acquisition of knowledge in accordance with the traditional laws and customs of the Larrakia people. Ultimately, I have concluded that during much of the 20th century, the evidence does not show the passing on of knowledge of the traditional laws and customs from generation to generation in accordance with those laws and customs.   I have therefore reached the conclusion that the present society comprising the Larrakia people does not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are ‘traditional’ in the sense required by s 223(1) and as explained by the High Court in Yorta Yorta.   The present laws and customs of the Larrakia people reflect a sincere and intense desire to re-establish those traditional laws and customs adapted to the modern context. They are the consequence of significant efforts on the part of many to achieve that result. It is an entirely proper objective. It is apparent that the process is enriching the lives of the Larrakia people, and of the Darwin community. That, however, is not a sufficient factual foundation for making a determination of native title rights and interests in this proceeding.

That this sort of result would occur in most native title claims in and around urban Australia was foreshadowed as long ago as 1992 in Justice Brennan’s seminal judgment in Mabo:

When the tide of history has washed away any acknowledgement of traditional law and any real observance of traditional custom, the foundation for native title has disappeared.

It was even more strongly foreshadowed by the High Court in the the majority judgment of Gleeson CJ, Gummow and Hayne JJ in the Yorta Yorta case in 2002:

Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title. …   When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.

And today’s Larrakia result was even more strongly (if much less authoritatively) foreshadowed in my own post on Yorta Yorta (yes, I really have been blogging for almost 4 years – no wonder I’m completely mad):

Many Aboriginal groups in Australia’s south-east (not to mention Darwin’s Larrakia people, who also largely ceased to practice their traditional laws and customs long ago) have been busily trying to reconstruct a strange, half-baked, ersatz version of a traditional culture over the last few years, in the hope that this will enable them to win native title claims. They have been wasting their time. I recently sat through significant parts of the “traditional” evidence in the Larrakia native title claim. I don’t know what the judge will make of it, but I must say I found most of it totally unconvincing. Even I knew more about Aboriginal culture, law and tradition than most of the Larrakia “traditional” witnesses, and they had presumably been chosen as the most knowledgeable of the Larrakia! It would have been laughable if it wasn’t so sad. I didn’t sit through the Yorta Yorta claim, of course, nor have I undertaken a detailed review of the evidence, but I suspect it must have been even more deficient than the Larrakia evidence. …   However politically incorrect it may be to say so, a collectivist, animist, hunter-gatherer culture is drastically ill-adapted to survival in the 21st century. It is impossible to look at the appalling state of the remaining somewhat traditional Aboriginal societies across northern Australia without reaching that conclusion. That is why Noel Pearson insists that Aboriginal people must reject welfare dependency and embrace education, training, employment and the creation of productive enterprises: in other words, join the 21st century capitalist economy. There is no other viable choice, and members of the dominant culture do Aboriginal people no favours at all by pretending otherwise, or by encouraging non-traditional Aboriginal people to imagine that it would be a great idea to re-embrace the collectivist hunter-gatherer culture.   The main objectionable feature of the “assimilationist” policies of the early 20th century was that they sought to impose assimilation with the dominant western liberal democratic capitalist culture by force. That was itself a serious breach of liberal democratic principles. However, the failure of forced assimilation says nothing at all about whether maintenance of a minority collectivist hunter gatherer culture in the 21st century is any more viable than trying to eliminate it by force. The choices can only be made by Aboriginal people themselves, but the sensible choices are pretty obvious (albeit difficult to achieve), and we should stop pretending otherwise.   Update – Wogblog blogs on Yorta Yorta. He [actually she, as I subsequently discovered] makes an important point:  

Losing this case as profoundly as they did, does not make the claimants any less Yorta Yorta people. The claim for entitlement to the land fails. The decision does not even try to take away Yorta Yorta Aboriginal memory. It does not even attempt to sully memory. It simply says, you Yorta Yorta folks now ain’t what your folks used to be. Well, g’uh. I ain ‘t what my folks used to be either. Thanks be to my good Roman Catholic God.  

Yorta Yorta (and Aboriginal people generally) need to maintain their identity and pride in Aboriginal heritage (as all people do). Somehow there is a need to develop a consciousness that says: “We had a rugged, complex culture that allowed our people to survive in an incredibly harsh environment for 40,000 years (and not destroy it)”. At the same time, that consciousness needs to recognise that the traditional culture now works against survival in the new and alien environment the whitefella has created. It’s no easy thing.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Rob
Rob
15 years ago

“There is no other viable choice, and members of the dominant culture do Aboriginal people no favours at all by pretending otherwise, or by encouraging non-traditional Aboriginal people to imagine that it would be a great idea to re-embrace the collectivist hunter-gatherer culture.”

I think that is exactly right. It’s not an easy conclusion to come to and it’s very hard to leave behind the idealism of the Nugget Coombs vision. But the unhappy fact is that it condemned tens of thousands of Aborigines to lives of povery, squalor and violence in the remote, ‘self-determining’ communities, without the means to escape from them. In effect, it imprisoned them.

As Helen Hughes said recently, ‘It’s hard to remember that it was all brought about with good intentions. Such good intentions’.

Tiberius
Tiberius
15 years ago

I agree with all you say except the following:
“We had a rugged, complex culture that allowed our people to survive in an incredibly harsh environment for 40,000 years (and not destroy it)”