Practising in native title: the lawyer as god, but what about country?

Galloway, Kate (2009) Practising in native title: the lawyer as god, but what about country? In: Presentations from the 64th Annual Australasian Law Teachers Association Conference. pp. 1-32. From: ALTA 2009 64th Annual Australasian Law Teachers Association Conference, 5-8 July 2009, Sydney, NSW, Australia. (Unpublished)

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The Native Title Act and Mabo speak in terms of justice for indigenous people of Australia. The assumption is that the law built around them will protect and preserve customary land title, however this understanding has been challenged by many authors. Golder for example, argues that Australian native title law constitutes Indigenous Australians as 'other' through functioning as an Orientalist legal discourse. He supports this argument through analysing 'otherness' in landmark decisions rejecting native title claims. Recently however the Federal Court has awarded native title to claimants. Building on Golder's argument, through an analysis of Bennell this paper suggests that regardless of the outcome of a native title claim, the 'otherness' of Indigenous claimants remains central to the native title process and outcome and is promoted by the claims process. Applicants’ otherness either disqualifies them from success (Yorta Yorta), or success is predicated on the applicants’ implicit assumption of dominant norms (Bennell). This paper focuses in particular on the nature of the adversarial model of legal practice where the lawyer is 'god', and how this reinforces a common law 'narrative of reality' of customary title – the deconstruction of 'country' in terms of the dominant paradigm.

Item ID: 1781
Item Type: Conference Item (Presentation)
Keywords: native title; legal practice; Mabo; social justice
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Date Deposited: 07 Aug 2012 04:49
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