In New Zealand, the first signs of trouble in the recognition process flowed from a 1992 government decision whereby Māori, in relinquishing their claims to fishing rights as recognised under earlier fisheries legislation, received NZ$150 million of commercial fisheries assets and 20 per cent of all future fisheries allocations.^[7] In determining how these assets were to be distributed the Waitangi Fisheries Commission looked to iwi as the ‘natural’ recipients of these resources as it was thought that since the settlement was in exchange for fishing rights that had previously belonged to iwi then the settlement could only go to iwi (Barcham 2000: 145).

This determination was based around the generally held belief that traditionally Māori society had been organised along a framework of kin-based descent groups centred around three main units: whānau (immediate and extended family), hapū (clan), and iwi (confederation of hapū). When rangatira (chiefs) had signed the Treaty of Waitangi in 1840, they had signed in their capacity as leaders of hapū and iwi. The problem, in terms of the Fisheries settlement, flowed from the fact by the 1990s more than 80 per cent of Māori lived in urban areas and for many of these individuals iwi and hapū were no longer seen as being the sole focal point of their identity as Māori (Maaka, 1997: 7).^[8] Nonetheless Māori in the urban environment still continued to identify as Māori. Thus while the Fisheries Commission looked to iwi as the most ‘authentic’ recipients of this settlement the extent to which this ideal matched the empirical reality was suspect. And so given the iwi-centric focus of both many Māori and New Zealand government departments in the 1990s, while no-one argued that Māori living in an urban environment were not entitled to receive these entitlements, both the Waitangi Fisheries Commission and iwi themselves argued that urban Māori should receive these entitlements through iwi. However, groups representing urban Māori, such as the Manukau Urban Māori Authority (MUMA) and Te Whānau o Waipareira Trust, argued that all Māori possessed rights to this particular settlement and they should be entitled to claim them through whatever organisational structure they wished—be it iwi or a more modern structure such as MUMA.

The last years of the 1990s and first years of the new millennium were thus marked by a number of acrimonious court battles between representatives of iwi groups and representatives of urban Māori groups as they argued over who was entitled to a share of the cash and assets from the fisheries settlement. The underlying argument was whether or not an iwi could be identified as ‘a people’ or only as a specific ‘traditional’ organisational structure. The problem was, however, that even the modern iwi structures of the late 20th and early 21st centuries were themselves relatively recent neo-traditional corporate constructs which had emerged in response to the changing government policy environment of the last two decades of the 20th century.^[9] And so, although these iwi were seen by government as being the legitimate successors of the iwi of the nineteenth century they were not identical with those first iwi.

In these court battles we see how the justice brought about by the recognition of Māori claims was in turn leading to new and different forms of injustice. Māori were being denied access to settlements unless they chose to access those settlements through iwi structures. No recognition was made of the fact that historical circumstance had meant that many Māori no longer either saw iwi as their major source of identity or necessarily wanted to utilise these structures in their modern lives. And for some Māori in the urban environment the shift to the city (sometimes as much as four or five generations ago) meant that even if they had wanted to identify with an iwi they were no longer able to do so as they did not even know to which iwi their family belonged, although this did not in any way lessen their identity as Māori. The injustice therefore emerged from the inability of then current legal and policy frameworks to take seriously the changes that occurred in Māori society since the signing of the Treaty of Waitangi.

Similar problems have occurred in the Australian case. One of the key aspects of any determination of native title is the demonstration of an ongoing and unbroken normative existence of an Indigenous Australian community through the continued existence and practice of their lore and custom. For many groups this involves demonstrating that they reach a threshold of ‘cultural authenticity’ in terms of their continued normative existence as a group. While native title determinations for groups such as Martutjarra or the Spinifex People are relatively unproblematic in terms of passing this threshold of cultural authenticity, the Yorta Yorta case has shown that this is not the case for all Aboriginal communities.

In order to establish native title a claimant group has to fulfil three requirements. These conditions of recognition are that the claimant group: establish that they are the descendants from the original inhabitants of the territory in question; show their continued occupation of the land; and demonstrate the continued maintenance of their law and custom. In his original ruling on the Yorta Yorta case, Olney J argued that the Yorta Yorta people did not possess native title as:

In reaching this decision Olney J based his argument on his belief that ‘the tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance [by Yorta Yorta] of their traditional customs.’^[11]

A number of points are to be noted in regards to this judgement. First, in coming to this conclusion, Olney J placed much more weight on the written evidence of the pastoralist E. M. Curr than he did on the oral evidence of Yorta Yorta individuals.^[12] In doing this, apart from devaluing the importance of evidence from non-written sources, he explicitly argued that the cultural practices of the Yorta Yorta people of today (no matter how laudatory they were) did not match those of their ancestors as recorded in the Curr’s writings.^[13]

The key point to be noted here is that Olney was basing his decision on the belief that a group’s present-day customs and laws needed to match those practiced by their ancestors at the imposition of British sovereignty (or at the least be strongly aligned—if not identical—with those recorded in the earliest written records) if native title was to be retained. That is, given the evidential weight that Olney J gave to the writings of E. M. Curr over the oral testimony of the current day descendants of the Yorta Yorta people, if native title by a group such as Yorta Yorta is to be achieved it now appears ‘that contemporary observances [of their customs] must match the accounts we have of them in nineteenth century European documents’ (Buchan 2002: s.12).

Effectively Olney J has argued that legal recognition of native title is dependent on the existence of an authentic form of Aboriginal culture; that is, an Aboriginal culture unchanged by contact with the west. In simple terms, he has argued that cultural change for Aboriginal groups extinguishes their native title. On one reading of the law—indeed this is how Olney read the precedents set by the case and statue law in the matter of native title—this may actually be the case, although this would involve a very strict and limited reading of the law. As I will argue later this narrow reading of the law is problematic in a number of ways.

However, even with a charitable reading of the decision, one would be hard pressed to understand Olney’s claim in the Yorta Yorta case that ‘no group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it’^[14] except in reference to a romanticised image of how Aboriginal Australians ought to live. In making this claim Olney J has effectively argued that to change the content of a group’s law and customs is to change that group’s identity. While this may be true, this is not always necessarily the case. While Yorta Yorta no longer practice all the various customs practised by their ancestors it does not necessarily mean that they identify any less as Yorta Yorta. Indeed, the counter-factual argument would not necessarily hold given that even if colonisation had not occurred, an environmental disaster may have caused just as radical a change in Yorta Yorta customs and law.

In making his decision in the Yorta Yorta case Olney J has raised the evidential ‘bar’ such that the majority of Aboriginal groups of eastern and southern Australia may never be able to achieve native title.^[15] In the Yorta Yorta case the quest for native title for some Australian Aboriginal groups is now dependent upon them matching an impossible standard of authentic traditional culture.

What we see emerging as a result of the Yorta Yorta case (and subsequent appeals) is a similar dynamic to that observed in New Zealand where an initial act of recognition has led to some instances of injustice. The key point from which this injustice flows is the inability of legal and policy frameworks to adequately deal with cultural change over time. That is, recognition within these frameworks appears to be dependent upon the maintenance of a fixed identity. In the Australian case this injustice means that some Aboriginal groups (such as Yorta Yorta) are, through the denial of the recognition of their native title rights, in a sense being denied their existence as authentic Aboriginal groups. Indeed, a Yorta Yorta woman Monica Morgan has recently gone so far as to say that the Yorta Yorta decision represents a form of bureaucratic genocide of her people (Morgan 2002: 4).