Native title interacts in multiple ways with the arguments that the MLDRIN confederation makes about their traditional authority, and their identity as a confederation of Nations.
The 1992 High Court Mabo native title judgement has motivated traditional owners across Australia to assert a distinct traditional identity because native title recognises their collectively held traditional laws and customs. One of the ways traditional owners have asserted this identity and authority is to make native title claims over their country. A positive native title determination is a recognition of their traditional authority by the common law as it is developed in the Federal and High Courts. Another assertion of traditional authority that is responsive to the Mabo decision is the mobilisation and incorporation of traditional owner groups, and the formation of MLDRIN is an example of this.
However, the MLDRIN delegates emphasise a distinction between native title and their organisational basis as founded in traditional authority. Yorta Yorta woman Monica Morgan, who was a key figure in the establishment of MLDRIN, has spoken about how the MLDRIN alliance is founded in traditional authority and native title:
the development of MLDRIN isn’t something new, it is just with the advent of native title Indigenous peoples could then focus on their traditional selves, who they are, their makeup and regain their identity in making decisions that are around that … So there is a natural progression from old days to now, and so this is a modern concept and Yorta Yorta were the first ones to invite people from along the Murray River to regain our self-determining process within our traditional frameworks.[1]
While Monica explicitly states the influence of native title in the formation of MLDRIN, at the same time she asserts the continuance and revival of traditional authority. They are both important, but MLDRIN is described as an extension of the traditional decision making frameworks of the traditional owners, and not as an alliance of native title groups. Indeed, on its website and in its documents, traditional authority is asserted to the exclusion of native title, or at least traditional authority is not contingent on a positive native title outcome. While there is an issue of scale here, in that native title claims are made by traditional owner groups, and not by large multi-state regional alliances, there remains a marginalisation of native title issues in the delegates’ rhetoric and strategic planning. The changes being wrought to Australia’s land management landscape by native title are not a noticeable part of the agenda for MLDRIN. Indeed, MLDRIN is a model of representation and governance which specifically circumvents the native title system, relying instead on self-identification which is endorsed through the informal networks, kinships and histories held and known between the traditional owner groups.
Many of the delegates who are on MLDRIN talk about how being self-determining makes MLDRIN a different organisation to the Indigenous organisations which are created by government law and policy, such as the land councils in New South Wales or the cultural heritage cooperatives in Victoria. This self-determination is grasped as a continuation of traditional authority from pre-colonial times. As MLDRIN delegate and Mutti Mutti elder Mary Pappin has said: ‘We are still coming together, we are still enjoying a meal, we’re still talking about country and rivers. What we’re doing is tradition and that is the most important thing.’[2]
This repeated emphasis on traditional authority relates to the specific history of MLDRIN and the Yorta Yorta people, and the narrow ‘recognition space’ for claiming native title in the more densely settled south east of Australia. The Yorta Yorta people’s native title claim was seen by many as a test case for whether native title rights and interests would be recognised in the rural south east. Unfortunately, the Yorta Yorta were the first people in Australia to receive a Federal Court decision that their native title rights and interests had not been continuously maintained through the experience of colonisation, or, as described by Justice Olney’s gross euphemism, that their traditional laws and customs had been ‘washed away by the tide of history’.[3] Thus, the Yorta Yorta were the first traditional owners who had to explicitly assert their traditional authority as distinctly separate to native title, that is, external to any native title rights that may be recognised by government. For the Yorta Yorta, gathering traditional owners from along the rivers together to work co-operatively on water issues was part of the reassertion of their own identity, their ‘self-determining processes’, against that determined by native title at the common law.
Under the Native Title Act there are provisions for the extinguishment of native title rights and interests, and a judge can make a determination that native title is no longer held by a traditional owner group, but these decisions are not part of the traditional laws and customs of traditional owners (Strelein 1999). It is not possible under Indigenous law to sever the intimate relationship held between a group of traditional owners and their country in this way. However, after a judge makes a negative native title determination, the traditional owners will not have the rights and interests of native title holders, nor the procedural rights they held while registered as native title claimants. This is a considerable loss as native title rights and interests provide traditional owners with opportunities to exercise their traditional authority, including being consulted on development applications on native title lands. Thus, native title law has the power to undermine the capacity of traditional owners to exercise their traditional authority. Indeed, this is just one aspect of how traditional authority is increasingly enmeshed with native title law.
The native title loss for the Yorta Yorta people was felt strongly by their neighbouring traditional owners, not least because of the precedent it set for south east Australia: that native title would not be recognised, or at least would struggle to be recognised, given the narrow legal parameters of the common law. Within the MLDRIN confederation, half of the traditional owner groups—the Ngarrindjeri, Latji Latji, Wamba Wamba, Barapa Barapa and Wadi Wadi—have native title claims, and some parts of Wiradjuri country are also subject to native title claims. The Wergaia are the only delegates who have had native title rights recognised, as part of the Wotjobaluk determination in December 2005 in western Victoria.[4] For those traditional owner groups whose country overlaps State boundaries, they have limited their native title claim to within State borders. This procedure has reduced the complexity of the claims process and the number of opposing parties, however it reminds us that native title is in many ways a compromise for traditional owner aspirations and identity. Native title is not a comprehensive response to traditional owner aspirations across Australia. For many traditional owner groups, making a native title claim is not something they are planning to do.
The combination of the philosophical change wrought by the Mabo decision, and the failure of native title to then recognise the traditional authority of the Yorta Yorta people, did lead to the development of political will in government to respond positively to the aspirations of traditional owners. In fact, support for MLDRIN has come from the same government bureaucracies who had contested the native title claim, including the Murray–Darling Basin Commission and the Victorian, New South Wales, and South Australian governments. Government recognition of the Yorta Yorta as the traditional owners of country was formalised by the Victorian government in 2004 when the two parties signed off on the Yorta Yorta Cooperative Land Management Agreement for the Barmah-Millewah forest.[5]Thus, the behaviour of the Yorta Yorta as the traditional owners of country was understood by the Victorian government as a credible assertion of traditional identity. It is deeply ironic that the negative and traumatic experience of an unsuccessful native title claim was part of that validation process.
With a more mature government policy, the negative native title context in the south east is now changing. The trend is towards consent determinations, whereby native title claimants and government come to an agreed native title determination without resorting to litigation. However, the MLDRIN delegates continue to assert their confederation as a model that represents the traditional authority of traditional owners outside of the native title system. This MLDRIN model forms the basis of the following discussion.