Different groups’ cultures have adapted and changed (and continue to do so) dependent upon the environment within which they operate.^[16] Groups in the south east of Australia have had to accommodate higher degrees of contextual change than those groups who, for instance, live in the Western Desert. Contact with Europe and the wider world has meant that all indigenous groups in Australia and New Zealand (and elsewhere too one would imagine) have had to change the way in which they relate not only to the world but also to one another. This change in content does not, however, necessarily lead to a change in identity.^[17] And so, while the customs and laws of 21st century English men and women do not match the customs of their 19th century predecessors this change in no way lessens the ‘authenticity’ of 21st century English men and women’s identity as English.

However, in the Australian case this issue seems to stem, in part at least, from a particular approach to the issue of native title by some sections of the legal establishment. As discussed briefly above Olney’s approach to the recognition of native title was dependent upon the existence of an authentic form of aboriginal culture—an argument which can be seen to flow from the original Mabo ruling which argued that ‘native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.’^[18] However, this original argument in no way negates the possibility that cultures, and so too a society’s lore, norms and traditions, can change over time. Olney’s reading of the law was thus only one possible reading, a reading that focused on the equivalence of the customs of the present day descendants of the original native title holders with the customs of these original native title holders. In the Yorta Yorta case Olney J thus based his decision on the belief that ‘the traditions and customs observed by Curr were said to constitute the title that burdened the Crown and it seems that only through continued observance of these particular customs would the title survive’ (Strelein nd: 2). However, as Lisa Strelein has argued ‘the radical title of the Crown at the time of the acquisition of sovereignty was burdened not by the native title rights and interests then existing, but was burdened by the fact of the existence of native title’ (Strelein 2005: 69). And so, in the Australian case at least, problems associated with the inability of the native title process to adequately deal with questions of change stem not from the law itself but rather from its interpretation.

The New Zealand Māori case is slightly more complicated in that the identity in question—that of Māori (as opposed to descent groups such as hapū and iwi) is itself an artefact of contact between Māori and early European explorers.^[19] However, as I have noted elsewhere, many influential Māori leaders see no necessary contradiction between the fact that while the Treaty of Waitangi may have been signed with the representatives of hapū and iwi it is urban Māori authorities that should receive some of the benefits of Treaty settlements (Barcham 1998: 308). In some respects the signing of the Treaty of Waitangi froze Māori society (at least in terms of the territorial bounds of hapū and iwi) at 1840. If the Treaty had been signed 10 years earlier or later then the Treaty settlement process would look considerably different as those 20 years saw the fortunes of a number of hapū and iwi wax and wane quite considerably. However, despite this freezing process Māori society has continued to alter and change—the problem is that legislative frameworks have sometimes not taken this change into account.