The Trouble with Tradition

The Trouble with Tradition is a broad and detailed examination of the native title jurisprudence across four countries--the US, Canada, New Zealand and Australia--with a specific focus on the handling of Indigenous community change in each country. The book demonstrates that there is a notable receptivity to Indigenous change. It argues that the prevailing Australian methodology, however, suffers from many technical problems and will have grievous consequences for Indigenous Australians. The Australian courts, in their preoccupation with Indigenous tradition, have gradually cultivated two related excesses: over-specificity in the definition of the aboriginal interest and over-particularity in the search for cultural constancy and continuity. These digressions threaten to entrench an unjustifiable attenuation of the native title interest and an inherent intolerance of Indigenous change.

This book is a broad and detailed examination of the 'native title' jurisprudence accross four countries: Australia, USA, New Zealand and Canada. It contends that while this jurisprudence has largely converged, the Australian courts have gone badly awry showing an undue preoccupation with 'tradition', the accidental effect of which is to debar indigenous change. Dr Young argues for a reconceptualisation: a clear recognition of the natural distinctions between 'rights' and 'title' and between 'communal' and 'inter se' Indigenous interests. This he claims, would avoid the many technical problems and unfortunate consequences thrown up by current case law.