Table of Contents
The last 20 years have seen the indigenous peoples of Australia and New Zealand receive unprecedented levels of recognition. This process has involved the recognition of both their position as the indigenous peoples of these two countries and of the various historical injustices that had been visited upon them over the last 200 years. This recognition has in part been based on a desire to bring about justice for these indigenous peoples. This process has taken a number of different forms including the creation of the native title process in Australia and initiation of the Treaty settlement process in New Zealand. However, while these processes have led to a number of positive outcomes they have also opened up the opportunity for the emergence of new kinds of injustice. This chapter explores this phenomenon through the lens of the original Yorta Yorta ruling in 1998 and the fisheries settlement in New Zealand. Focusing on these two cases the chapter demonstrates the current limits of recognition of these two processes—limits based upon an inability to deal adequately with the issue of cultural change over time. In order to overcome these new problems of injustice we need to approach the issue of cultural change over time more seriously, and not necessarily equate change with a loss of identity or authenticity.
In many respects the last 20 years has seen the issue of recognition become one of the pivotal concepts in social, political and legal theory in the Anglo-American world.[1] Indeed Nancy Fraser has gone so far as to claim that in the 1990s the politics of recognition replaced the politics of redistribution (Fraser 1995). Moreover, this shift in theoretical circles from a politics of redistribution to a politics of recognition was accompanied by a broader shift in public policy in a number of these Anglo-American countries. The 1990s were thus marked by a shift in New Zealand and Australia in their legislative and public policy frameworks towards the recognition of the special character of their indigenous peoples and towards the recognition that injustices had been committed against those peoples. In both countries these acts of recognition were explicitly linked to issues of justice.[2] More specifically these acts of recognition were concerned with overcoming issues of historical injustice and their ongoing negative consequences.
In New Zealand these processes were based on a growing recognition of the legitimacy of the Treaty of Waitangi while in Australia these processes flowed on from the recognition, in the Mabo case, that Australia was not terra nullius in 1788 at the imposition of British sovereignty. In New Zealand and Australia practical steps flowing on from this act of recognition led to, amongst other things, the creation of the Treaty settlement process and the native title process respectively. It is to an analysis of these two processes that we now turn.