The key problem, as noted above, with the types of recognition of indigenous populations that have been achieved in Australia and New Zealand (and have formed the basis of the native title and Treaty settlement processes in these countries) is that these acts of recognition have been based on the maintenance of a prior identity by the group being recognised. This is problematic in a number of ways—most pressing being the inability for these strategies of recognition to adequately deal with the concept of change. As it stands the current frameworks mean that the content of the identity of the group being recognised must remain identical to that of the original group from which recognition flows if the current group’s identity is to be recognised. As the Yorta Yorta case shows, deviation from an ‘original’ content is seen as reducing the authenticity of that identity and so too is seen as reducing the authenticity and legitimacy of their claim to recognition based on that identity.

However, as has been briefly discussed above, this degree of the maintenance of a group’s identity is something that has not been achieved even by groups generally seen by many as being extremely ‘authentic’. Thus while modern iwi in New Zealand can, in many cases, be seen as the legitimate successors of the iwi of 19th century New Zealand, they are not identical with them. If anything, many of the modern corporate iwi structures in New Zealand more closely resemble a Western corporation than they do the descent groups of the past. Similarly the customs and lore followed by groups such as the Spinifex People who have achieved positive native title determinations are not identical to those of their ancestors. If this were the case then one would be hard pressed to understand the existence of particular lore and custom including cat dreaming (Cane 2002: 84). The problem thus appears not to lie in recognising change over time (for groups which have been recognised have indeed changed over time) but rather in terms of the extent of change undergone by the group in question.