The most concerted discussion of recognition in the context of native title stems from Noel Pearson’s (1997) model of the recognition space, which presents legal recognition as being constituted in an overlap between distinct fields of Aboriginal law and Australian law.^[2] Martin (2004: 68) rightly emphasises the particular character of the process of recognition represented by this model, arguing that it involves a fundamentally transformative mode of translation that is brought to bear on those aspects of Aboriginal law that are ‘recognised’. This forceful translation is made possible by the dominance of the categories of Australian property law within the recognition space. But Martin also notes that the native title recognition space is ‘only one dimension of the complex zone of social, cultural, political and economic interaction between Indigenous and non-Indigenous societies’ (Martin 2004: 68).

Patton is similarly critical of the operation of recognition enabled by the Native Title Act, describing it as ‘a secondary reterritorialisation [of “recognised” customary law] by legislative means’ (Patton 2000: 126). The term ‘reterritorialisation’ used by Patton suggests both that customary law is taken over or ‘captured’ by Australian law, and also that it becomes a mere object of the categories of the NTA and of Western legislative practice more generally.^[3] But despite this, Patton is more equivocal than Martin in his account of the forms of translation that occur in the process of recognition:

Like Martin, Patton’s analysis is suggestive of the kinds of translation that occur in any act of recognition.^[4] In the native title process, recognition means that the character of Aboriginal law is at least partly transformed as a result of its acquiring the jurisprudential limits of the common law’s articulation of native title. But Patton also suggests that the process of transformation operates in both directions. The common law ‘becomes indigenous’ in its extension of protection, through recognition, to proprietary interests previously articulated only within the domain of Aboriginal law. On this basis, Patton suggests that the recognition of native title also involves ‘a partial deterritorialisation of the legal apparatus of capture by means of refusal of its primary stage: the establishment of a uniform space of comparison and appropriation’ (Patton 2000: 129). Rather than mere capture and objectification, then, the native title process might allow Aboriginal law to exert a transformative effect on the Australian legal apparatus. By maintaining substantial aspects of Aboriginal law in the space of ‘mainstream’ legal practice, this would radically undermine the uniform space of Australian law, ‘opening’ it through the introduction of cultural difference within that space.^[5]

Of course, Patton was writing at a time in which the radical potential of native title seemed greater than has actually proved to be the case. The 1998 amendments to the NTA and the developing trajectory of native title case law have served to limit any deterritorialisation of Australian law. In retrospect it seems that Patton was being overly optimistic in his suggestion that Aboriginal law and custom would be able to avoid capture within a uniform space of comparison and appropriation in native title claims. Rather, history has supported Merlan’s (1998: 175) suggestion that the NTA would assimilate customary rights and interests into ‘the existing class of property rights at common law’ only so far as such rights and interests can be dealt with by Australia’s legal system.^[6]

The formal outcomes of native title claims have increasingly tended towards the radical translation of limited aspects of Aboriginal Law within the recognition space. Nonetheless, the wider social fields within which native title is enacted may yet bear out Patton’s hope for the development of heterogeneous spaces of interaction between Aboriginal and non-indigenous life-worlds. What is lost in the formal aspects of determination may persist in other aspects of the complex zone of interaction between Aborigines and settlers. But rather than existing as a result of forms of ‘social, cultural, political and economic interaction between Indigenous and non-Indigenous societies’ (Martin 2004: 68, emphasis added), in central Cape York Peninsula such heterogeneity seems to be situated within shared social fields.

Indeed, despite its formal, legalistic emphasis, native title may yet prove to have contributed to meaningful coexistence by further intensifying social relationships between Aborigines and settlers in places like the central Peninsula.