Translation is a key element of the native title process. As Mantziaris and Martin note, ‘native title involves a process of translation from indigenous “relations” defined by traditional law and custom to native title rights and interests enforceable within the Australian legal system. This process of translation becomes difficult, or impossible, when the terms of the translation are incommensurable’ (2000: 29; see also Morphy, Chapter 2).

The linked issues of translation and incommensurability are deeply imbricated in the effects of native title. Whilst such incommensurability is neither inevitable nor uncircumventable, several of the papers in this collection suggest that translation and incommensurability do present problems in the context of native title processes, and that these problems are compounded by the force and authority brought to bear by the native title system, to the benefit of some parties and the detriment of others. Povinelli (2001) draws attention to the issue of power relations in determining ‘linguistic distortion (commensurability and incommensurability)’, citing Asad’s comment that insofar as ‘the languages of the Third World societies … are “weaker” in relation to Western languages … they are more likely to submit to forcible transformation in the translation process than the other way round’ (Asad 1986: 157–8, cited in Povinelli 2001: 324). In the native title context, it is Indigenous terms and social forms that are required to submit to transformation, in a process that Morphy (Chapter 2) terms ‘enforced commensurability’. The Yolngu ‘insistence on difference’ can be seen as a form of rhetorical resistance to this process.

Lahn’s case study (Chapter 7) provides a clear example of forcible transformation. The English-based Torres Strait Creole terms ‘neitiv’ and ‘porena’ both reference types of indigeneity acknowledged by Torres Strait Islanders, but ‘this situation is a difficult one to render in English, which lacks adequate means to characterise such a contrast in a way that still affirms an embracing state of indigeneity’. English’s problem is turned back onto the Warraberan native title applicants, who had previously pursued a successful land claim under the TSILA under a collective representation, the Gau clan, which stressed patrilineal descent from porena ancestors. In their native title case, in the context of a regime which ‘marginalised and potentially stigmatised’ porena indigeneity, the applicants were forced to adopt an alternative form of collective representation as Warraberalgal ‘people belonging to Warraber’ who traced descent primarily through neitiv female ancestors.

Another example of the problems of ‘translation’ in the context of native title is provided by Morphy (Chapter 2) in her analysis of the workings of the court in the Blue Mud Bay Native Title claim. In the Blue Mud Bay case, the court’s hearing of evidence relied partly on ‘witness statements’, prepared statements that are intended to assist the court by reducing the amount of time taken up by hearing evidence, ensuring the applicants’ case is well-articulated and allowing other parties time to consider their response. Morphy—who acted as an expert assisting the court in this case—discusses her concerns that the written form of such statements potentially disadvantaged Aboriginal witnesses. The perceived disadvantage lay with potential problems of understanding and translation. In the Blue Mud Bay case, Selway J was not inclined to take such claims into consideration, noting the ‘intelligence and relative sophistication [with regard to the workings of European society]’ demonstrated by most of the Yolngu witnesses. Nonetheless he did note ‘potential issues arising from translation between Yolngu language and English’.

Morphy argues that, rather than simply ‘translation’, the preparation of witness statements involves a complex process in which a Yolngu concept, which may have no direct equivalent in English, is presented in the context of an English statement. This statement is later glossed by Land Council lawyers (in the form of an affidavit), replacing the terms in Yolngu-matha with what are taken to be commensurate terms in English. This affidavit is, in turn, presented back to the witness, often with a translator present, and sworn as his or her own statement. Unfortunately two key presumptions in this process—that there are simple equivalents for words/concepts drawn from one language in another language, and that the words use to gloss Yolngu terms have the same meaning for the witness and for the court—do not hold. Rather, the process of replacing a term in Yolngu-matha with an English term obscures the particular meaning of the Yolngu term within its own cultural context. Further, the use of number English terms in the legal context (e.g. ‘permission’) in witness statements commit the Yolngu witness to legal claims whose particular meanings are invisible to the witness and potentially at variance with the claims they were trying to make in their original statement. This can present particular problems when witnesses are cross-examined on the contents of ‘their’ statements, which can lead to apparent differences or contradictions between the witness’s response and ‘their’ earlier statement, potentially undermining their case. Alternatively, the potential disjuncture between the language of a witness statement and the witness’s oral evidence can also be used to cast doubt on the provenance of the written statement, and its admissibility as evidence in the proceedings.

Markell argues that a politics of recognition—including one based on notions of difference—may lead to the continuation or extension of deep-seated relations of inequality and power (2003: 4-5). In situations of cultural difference, the inequalities effected by ‘recognition’ may include forms of misrecognition that although superficially cognisant of (or based on) difference, in fact manifest ethnocentric and transformative engagements with disempowered groups. It could be argued that the source of this misrecognition in Australian native title is the insistence on translatability through a process of enforced commensurability. Several of the papers in this collection suggest that misrecognition of this kind is, indeed, common in the native title context, a suggestion likely to cause some discomfort for those anthropologists—among others—who have seen involvement in native title claims as a means to further social justice in relation to Indigenous Australians.

In Chapter 3, Glaskin examines the transformative impacts of native title, drawing on her research with Bardi and Jawi people in the northwest Kimberley. For Glaskin, native title does not simply recognise, but rather codifies Aboriginal property rights. Indeed, the native title process demands that claimants themselves articulate and objectify aspects of their property relations. These include aspects of Aboriginal cultural practice that are normatively implicit, and Glaskin argues that the discursive reification of these aspects of cultural practice, and the ensuing ‘dialectics of articulation’, will likely have considerable impact on the social lives of Bardi and Jawi claimants.

Following Wagner (1981[1975]), Glaskin suggests that any ‘self-conscious’ articulation of ‘culture’ will be constrained by the strictures of identity. In the case of native title claims, self-conscious definitions may well ‘feed back’ into the identities of native title holders in the manner identified by Hirsch (2001) as the ‘looping effect of human kinds’, which occurs ‘especially where such objectification becomes reified or codified in some form’. Whilst Bardi and Jawi people have long reified aspects of their law and culture—in particular in ritual or religious knowledge and practice—the forms of reification involved in native title claims are likely to have very different effects to these indigenous practices of reification. Detached from the field of the ‘inner workings’ of Bardi and Jawi society, the intercultural or ‘conjunctural’ field of native title demands forms of reification alien to local practices of cultural production. In particular, the composition of a prescribed body corporate, a necessity following a successful native title claim, meant that Bardi and Jawi people found themselves attempting to objectify their traditional cultural principles or ‘rules’ to shape the workings of the new corporation. Glaskin notes that the codification of principles and processes within portions of the draft constitution represented a transition from the previously informal and negotiative enactment of the local Aboriginal jural public. The native title process is leading to an explicit formulation of the principles of customary law. This textual codification seems likely to ‘transform ‘social values and practices’ by freezing these at a given point in time and thereby ‘encouraging stasis in the system’, with the system itself likely to ‘dialectically evolve with reference to these representations’ (Glaskin, Chapter 3, citing Mantziaris and Martin 2000: 43; see also Smith 2003b). Moreover, this process of textualisation may potentially lead the resolution of questions of interpretation of local laws and customs—questions whose articulation lies at the heart of the enactment of Aboriginal ‘law’—to be taken over to a greater or lesser extent by outside experts, including lawyers and anthropologists.

Glaskin suggests that the articulation of textualised reifications of Aboriginal law and custom may also lead to increased conflict between Aboriginal groups or factions. Similarly, Barcham (Chapter 11) suggests that the ‘neo-traditional corporate constructs’ that emerged in response to recent policies regarding Māori property and resource rights led to a number of acrimonious court battles between iwi (‘tribal’) groups and representatives of urban Māori. Like Glaskin, Barcham suggests that the articulation between ‘frozen’ or reified versions of Indigenous society and the ongoing iterations of local Indigenous practice may become increasingly problematic.