Identifying the Relevant Level of a Society in Australian Native Title Claims

Many of the outstanding native title claims across Australia were originally conceptualised in terms of the level at which rights and interests in land were exercised by groupings of claimants at a range of scales, rather than the level at which the body of law and custom legitimating those rights and interests was held and reproduced. Claimants, Native Title Representative Bodies (NTRBs) and respondent parties have continued to struggle with reconciling the various levels at which Aboriginal groups coalesce and become differentiated from one another. Since the Yorta Yorta High Court decision in 2002, Indigenous Australians claiming native title under the Native Title Act 1993 (Cth) have had to demonstrate that their current ‘society’ is the same society as that which existed at the time of colonisation. Since the rights and interests in land and waters that can be recognised under the Native Title Act are said to stem from the ‘laws and customs’ of the society that was in existence at sovereignty, much hinges on how ‘society’ is understood. What emerges strongly from the ethnographic record is that traditional Aboriginal societies contracted and expanded in different contexts. In this paper, I argue that defining native title societies in a way that adequately acknowledges this fact does not seem to be precluded by the Native Title Act or by subsequent case law judgments on this question.¹