The 'Spirit' of the Thing: The Boundaries of Aboriginal Economic Relations at Australian Common Law

The Australian Journal of Anthropology (2006)

Posted: 30 Apr 2018

See all articles by Marcia Langton

Marcia Langton

University of Melbourne - Faculty of Arts

Odette Mazel

University of Melbourne - Faculty of Medicine, Dentistry and Health Sciences; University of Melbourne - Melbourne School of Population and Global Health; University of Melbourne, Law School, Students

Lisa Palmer

University of Melbourne - Faculty of Arts

Date Written: 2006

Abstract

Aboriginal economic relations have been misconstrued as a type of primitive exchange in at least one native title case discussed in this paper. The pursuit by Aboriginal native title claimants of recognition at law of customary economic rights as inherent in, or an adjunct of, native title rights failed in Yarmirr and Others v Northern Territory of Australia and Others (1998) 156 ALR 370 (the ‘Croker Island case’) for several reasons. The applicant’s native title was found to be non-exclusive of other interests, and a right to trade in resources of the sea was rejected. This case was argued in part by relying on historical material regarding Macassan trading arrangements. The profound alterity of Aboriginal relationships among persons and things, as the Croker Island evidence of property and trade relations demonstrates, have been re-constituted in legal discourse as an absence of economic relations. In this paper, we argue that there is no sound basis for the distinction made between commercial and non-commercial native title rights, whether in the Native Title Act 1993 (Cth), or in recent judicial reasoning. We contend that native title rights and interests constitute a sui generis species of property relations that enable economic rights as conceived in Aboriginal tradition and custom to circulate in the modern market. Aboriginal customary economic relations of and between Aboriginal groupings are markedly distinct from, yet not incommensurable with, the normative conception of economic relations in the Australian market. We argue that a reformulation of the current Australian legal ideas about economic life is necessary for the recognition of Aboriginal economic institutions in native title claims and other economic arenas.

Suggested Citation

Langton, Marcia and Mazel, Odette and Palmer, Lisa, The 'Spirit' of the Thing: The Boundaries of Aboriginal Economic Relations at Australian Common Law (2006). The Australian Journal of Anthropology (2006), Available at SSRN: https://ssrn.com/abstract=3160482

Marcia Langton

University of Melbourne - Faculty of Arts ( email )

Melbourne
Australia

Odette Mazel (Contact Author)

University of Melbourne - Faculty of Medicine, Dentistry and Health Sciences ( email )

Australia

University of Melbourne - Melbourne School of Population and Global Health ( email )

4/207 Bouverie Street
Parkville, Victoria
Australia

University of Melbourne, Law School, Students ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria
Australia

Lisa Palmer

University of Melbourne - Faculty of Arts ( email )

Melbourne
Australia

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