The Trouble with Tradition: Native Title and Cultural Change.

• Author: Anthony, Thalia
• Position: Book review

Simon Young, The Trouble With Tradition: Native Title and Cultural Change (The Federation Press, 2008, ISBN 9781862876477, AU$125, 528 pages).

This book transforms research on Australian native title jurisprudence. It positions the jurisprudence in an international context and within interdisciplinary debates. Young thoughtfully analogises native title developments in the comparative jurisdictions of Australia, the United States, Canada and New Zealand. It is through his comparative approach that Simon Young is able to reveal the distinctly limited approach of the Australian courts in assessing the 'traditional laws and customs'. Young suggests that courts have gone badly awry showing an undue preoccupation with 'tradition' that has prevented proof of Indigenous change.

However, the book is much more than a detailed examination of native tide jurisprudence internationally. It draws on socio-legal research on Indigenous culture and land relationships to argue that Australia relies on an over-specific, Westernised notion of 'traditional laws and customs'. This reliance limits claimants' proof of continuity in land connection to specific instances and affords successful claimants cultural, rather than also commercial, rights.

In his preface, Young claims that his native title research 'smacked of algebraic difficulty lurking quietly in the middle of a legal field dominated by noisy socio-political dilemmas' (1). However, through the course of his book Young unpacks beautifully these dilemmas and points to not only the flaws of native title jurisprudence, but also potential avenues, gained through an understanding of international native title developments.

In his chapter 'The Excesses in the Australian Case Law', Young raises the problems that arise in the 'proof and 'content' of Australian native title. This is borne out in his study of Western Australia v Ward (2002) 213 CLR 1 ('Ward') and Yorta Yorta v Victoria (2002) 214 CLR 242 ('Yorta Yorta'). For Young, Ward gave jurisprudential 'shape' to a requirement of tradition in the content of native title rights. (2) Native title rights were limited to 'traditional' rights to possess, occupy, use and enjoy the land, or maintain and protect places of importance under traditional laws, customs and practices. It did not extend, according to Callinan J, to rights to 'seek or use subterranean materials or minerals ... or a right to inhibit, dictate or...