What is required in New Zealand and Australia given the new forms of injustice that appear to be emerging from processes designed explicitly to bring about justice and right historical injustices, is that the process of change needs to be taken seriously. The problem is that the concept of change is a particularly difficult issue to accommodate in any legislative or policy framework as it necessarily entails a degree of uncertainty—and uncertainty is something of which bureaucratic and legal modes of organisation are not too fond. However, just because particular frameworks do not easily adapt to change (the irony of this is clear) this does not mean that they cannot adapt. The Ward decision is a case in point of how change can be accommodated within a juridical framework.^[20]

In their decision the Justices argued that in order to be traditional (as required under s. 223(1)(a) of the Native Title Act) the body of customs and law currently observed must originate and be given their content from the body of law and customs observed by the ancestors of the claimants. Now in making this claim the Justices acknowledged that some change or adaptation of law and custom over time would not necessarily be fatal to a native title claim. The problem, however, lay in assessing the degree and extent of change necessary for this change to be fatal to a native title claim. And so, as I noted above, the problem is not so much one of kind as it is one of degree.

To some extent then the issues I have discussed in this chapter are still to be overcome. However, precedents like the Ward case (in Australia at least) have opened up the space of possibility for a more serious engagement with issues of cultural change. The problem is not insurmountable, but overcoming it requires the realisation, by the legal fraternity at least, that issues of syncretism and authenticity are not inversely related. Early cases like the original Yorta Yorta case have unfortunately set a precedent in Australia where syncretism and adaptation are identified with assimilation—where, as has been shown above, this is not necessarily the case. Adaptation and assimilation are not necessarily linked. In New Zealand this link is not as strong as it is in Australia although it is still present. The process of recognition has thus still created an environment in New Zealand where non-traditional forms of Māori organisational form are devalued in the eyes of the courts at least.^[21]

In many respects the problem is that people have been following the letter but not the spirit of the law in these processes of recognition.^[22] Those involved in these processes of recognition in Australia and New Zealand need to remember why these processes were initially created. They were created to overcome injustice. Given this, one cannot fall back on positivistic arguments as to the separation of moral and legal arguments. The statues under which these processes were established were created for precisely moral reasons and so one must approach one’s deliberation of these issues with at least a certain degree of openness in their ethical sensibility rather than allowing one’s judgement to be clouded by outmoded and outdated ‘folk’ conceptions of what constitutes cultural change.

Where these processes become most problematic is where people’s identity is shaped not by their own desires and will but instead by legislative and juridical processes. Indeed, this is where the worst injustices are being committed. The content of peoples’ identities changes over time although this does not necessarily change one’s identity. What I mean here, using the Yorta Yorta case as an example, is that while the present day Yorta Yorta people identify as Yorta Yorta they (I would imagine) would readily admit that the various customs and lore which shape and structure their lives as Yorta Yorta are not identical to those which shaped the lives of their Yorta Yorta ancestors yet they nonetheless still see themselves as being Yorta Yorta. Instead it merely changes the way through which their identity is constituted and/or performed. Problems have occurred when this process has been ignored or devalued. This is particularly unfortunate as current legislative frameworks are, as the Ward case as shown, able to deal with processes of change. And, perhaps most sadly, not doing so is leading to injustice for the indigenous peoples of these two countries—the exact thing that these processes of recognition were created to overcome. What we need to do then is approach these cases with an openness to the idea of the legitimacy of change.