Bridging the Gap or Crossing a Bridge? Indigenous Knowledge and the Language of Law and Policy

Yorta Yorta Aboriginal people of Northern Victoria and New South Wales against an earlier federal court determination that had decided against their claim for native title under the Native Title Act 1993. These Aboriginal peoples’ struggle for recognition of their enduring connections with their ancestral lands under Australia’s native title laws had, in this hearing, depended solely on the outcome of complex legal deliberations regarding notions of tradition and custom. The Yorta Yorta peoples’ claim had been dismissed by a 1998 federal court decision on the basis, the judges held, that the “tide of history had washed away” the peoples’ connection to lands and waters. The court’s argument was that the traditional laws acknowledged and customs observed by Yorta Yorta today were not the same as they had been in the period before Europeans arrived. Laws designed to provide for indigenous peoples’ rights and interests in land or native title, or for their participation in managing or protecting environment and biodiversity, incorporate terms and concepts intended to denote aspects of Aboriginal culture relevant to the particular law in question. Examples include tradition, traditional knowledge, and law and custom. Yet such terms are employed in legal texts in ways that present idealized, or fictive, notions of Aboriginal culture and society. They are derived not from indigenous ways of understanding and articulating the world but, rather, from Western intellectual worldviews and presuppositions. Chapter 8