A new Closing the Gap target to increase the amount of land and sea recognised under the Native Title Act could be assisted by ‘economic anthropology’ which is increasingly being used to assist in native title and water right’s claims.
Dr Kim de Rijke from the University of Queensland’s Culture and Heritage Unit has been working with Warlangurru Indigenous claimants in the Kimberley region of Western Australia to understand how traditional law relates to the commercial use of land and water in Australia today.
“The emerging use of economic anthropology in the legal process is exciting because it sheds new light on the recognition of Indigenous Australian rights and interests,” Dr de Rijke said.
The work is part of a broader effort to resolve the legacy of colonial dispossession by researching Indigenous Australian’s traditional connections with claimed areas.
An important development in native title jurisprudence was The High Court’s 2013 decision in the Akiba case in the Torres Strait, which confirmed claimants had the right to take and use resources “for any purpose”.
Current claims now require courts to address the meaning of ‘trade’ and ceremonial gift ‘exchange’ on the Australian continent prior to colonisation.
Director of the Culture and Heritage Unit, Dr Richard Martin, says the challenge for Indigenous claimants lies in demonstrating that their traditional system of law and custom encompasses the right to use resources without restraint.
Dr Martin was cross-examined on this issue in the Federal Court in March 2020 in the Kurtijar people’s native title claim.
“State and Territory governments are contesting the recognition of Indigenous rights to take and use resources for any purpose all over Australia,” Dr Martin said.
“In the Kurtijar native title claim, the Queensland Government asserted that Kurtijar people’s use of resources was restricted to ‘domestic’ and ‘communal’ purposes.
“For the case, I was cross-examined about comments by Indigenous people which contrast the need to conserve natural resources, with what is depicted as Whitefellas’ ‘greedy’ exploitation of the land.
“The judge’s decision in the Kurtijar native title claim will contribute to the developing jurisprudence around this issue.”
Dr Martin said it was ironic that there was such a “robust challenge” from states and territories for the right to use resources, “at a time when there is such an emphasis on business development and entrepreneurialism and turning traditional rights and Native Title rights into tangible economic benefits for Aboriginal people.