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The Trouble with Tradition

The Trouble with Tradition

Native title and cultural change

By Simon Young

CONTENTSREVIEWS

This book is the most fundamental analysis of native title in the common law world since McNeil’s Common Law Aboriginal Title in 1989. Through a broad and detailed examination of the jurisprudence across Australia, USA, New Zealand and Canada, it argues that the Australian preoccupation with ‘tradition’ is a deeply flawed approach. Dr Young points to many technical problems and a raft of unfortunate consequences for Indigenous people. He contends for a fundamental rethink.

“Dr. Young’s book fills a huge gap in the legal understanding of Indigenous land rights… While his focus is on Australia, the book’s comparative approach extends its relevance to all common law jurisdictions that are inhabited by Indigenous peoples. Everyone who is concerned with Indigenous rights – Indigenous leaders, judges, lawyers, land-claims negotiators, policy makers – will benefit enormously from reading it.” - Professor Kent McNeil

“Dr Young has undertaken a comprehensive analysis of the ‘traditional laws and customs’ focus that dominates the recognition of native title in Australian law – but the importance of his work extends far beyond the legal sphere. In showing how the ‘tradition’ approach is not supported by the weight of legal principle and is out of step with overseas precedent, he opens the way for a reconsideration of how Indigenous rights to land are, and should be, recognised.” - Ambelin Kwaymullina


CONTENTS

Introduction

Indigenous Change: A Legal Challenge
Overview of this Book
The Nature of the Analysis
Terminology
The Importance of the Issues

Part 1 – The Comparative Context

Native Title in Australia
A Snapshot of the Key Comparative Jurisdictions
A Defence of Comparative Analysis

Part 2 – The Conceptualisation of Native Title in the Key Comparative Jurisdictions

The United States
Canada
New Zealand
The Basic Tenets of the Comparative Doctrines

Part 3 – Mabo Re-visited

Pre-Mabo Precedent
Laws, Customs and ‘Tradition’ in the Original Mabo Decision

Part 4 – Post-Mabo: The Australian Anomaly

Statutory Intervention
Continuing Encouragement for the ‘Laws and Customs’ Focus
The Excesses in the Australian Case Law

Part 5 – A Reinterpretation of the Australian Native Title Doctrine

A Final Critique of the Stricter Australian Approach
Glimpses of a less ‘Tradition’-focused Methodology
Three-point Plan: A Way Forward for Native Title in Australia
Concluding Comments

REVIEWS

Young explores native title jurisprudence and politics in Australia, New Zealand, Canada and the US. His primary thesis is that in contrast to these other jurisdictions, in Australia native title is difficult to prove and the courts and legislatures have failed to recognize that the relationship between Indigenous people and their land can, and does, change. Young outlines the means by which Australian jurisprudence could adopt a more broadly conceived right to native title. ... Young is not without answers to the Australian problem. He proposes a 'three point plan' for reform of native title ... [which] would bring Australia into line with international thinking and jurisprudence. No bad thing.

Law Society of Tasmania, Law Letter, Autumn 2010

This book transforms research on Australian native title jurisprudence. It positions the jurisprudence in an international context and within interdisciplinary debates. Young thoughtfully analogises native title developments in the comparative jurisdictions of Australia, the United States, Canada and New Zealand. It is through his comparative approach that Simon Young is able to reveal the distinctly limited approach of the Australian courts in assessing the ‘traditional laws and customs’. Young suggests that courts have gone badly awry showing an undue preoccupation with ‘tradition’ that has prevented proof of Indigenous change.
However, the book is much more than a detailed examination of native title jurisprudence internationally. It draws on socio-legal research on Indigenous culture and land relationships to argue that Australia relies on an over-specific, Westernised notion of ‘traditional laws and customs’. This reliance limits claimants’ proof of continuity in land connection to specific instances and affords successful claimants cultural, rather than also commercial, rights. …
In the final section, Young reconceptualises native title. He provides a Three-Point Plan for doing justice to Indigenous proprietary interests. The first step is to distinguish title from rights (bundles of rights or exclusive specific rights). The second step is to distinguish communal interests from inter se interests for both rights and interests. Communal interests are afforded where there is proof of traditional laws and customs. Where there are contemporary laws and customs, inter se interests are provided. The third step is to establish the proof and content of these interests.
This is a wonderful contribution to native title jurisprudence. The Trouble with Tradition maps the native title landscape thoroughly and clearly. Young’s signposts for future directions in the growing field of native title case law are food for thought for any Federal or High Court judge adjudicating native title matters. They may also stimulate a rethink of the Native Title Act 1993 by the Federal Labor government. However, the book’s impact is broader than Australian native title law. It reveals the potential for comparative law to enlighten policy and case law and provide for informed and critical scholarship.

Australian Journal of International Law , 2008

AT last! A book that cuts to the heart of the problems surrounding native title law and the way Courts deal with them...[it] looks at the way the Australian jurisdiction handles such claims and compares it to other common law jurisdictions, to wit US, Canada and New Zealand.

Young covers pre-Mabo (No2) and Privy Council precedent seeking the origins of this restrictive approach, thoroughly and critically examines Mabo (No2) (17 pages) finding ambiguitites, inconsistencies and division of the critical issues, and a bias towards a restrictive approach. He looks at the Act, post-Mabo cases following the development and application of this methodology and criticises the Courts' approach and that of the parties involved... Nonetheless, Young sees light at the end of the tunnel...[and] suggests solutions to problems
I strongly recommend this book.

Ethos, Law Society of ACT, December 2008

...Dr Young offers an alternative understanding of tradition and culture for native title law...In offering his alternative view, Dr Young recharts well-explored precedent but with a novel narrow field of inquiry that presents new insights into native title legal scholarship.
The Trouble with Traditon is highly academic, extensively footnoted and densely analytical. It is the type of law book that is infrequently produced: one with a simple message on a particular but highly important aspect of a specific area of law...particularly relevant to researchers engaged in critical interpretation and analysis of native title law, students of native title and judges faced with native title claims.

Brad Jessup, Law Institute Journal of Victoria, September 2008

Dr Young has undertaken a comprehensive analysis of the ‘traditional laws and customs’ focus that dominates the recognition of native title in Australian law – but the importance of his work extends far beyond the legal sphere. In showing how the ‘tradition’ approach is not supported by the weight of legal principle and is out of step with overseas precedent, he opens the way for a reconsideration of how Indigenous rights to land are, and should be, recognised.

Ambelin Kwaymullina

Dr. Young’s book fills a huge gap in the legal understanding of Indigenous land rights. As he convincingly shows, muddled thinking and lack of precision in judicial decisions can have devastating effects for Indigenous peoples. [His] detailed comparative analysis … provides an indispensable resource for deepening understanding.
While his focus is on Australia, the book’s comparative approach extends its relevance to all common law jurisdictions that are inhabited by Indigenous peoples. Everyone who is concerned with Indigenous rights – Indigenous leaders, judges, lawyers, land-claims negotiators, policy makers – will benefit enormously from reading it.

Professor Kent McNeil

   

Published 16 January 2008
Publisher The Federation Press
Hardback/528pp
ISBN 9781862876477
Australian RRP $125.00
International Price $115.00
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Available


Law - Indigenous
Law - Property Law
Indigenous Studies


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