The Trouble with Tradition

Native title and cultural change

By: Simon Young

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Hardcover | 16 January 2008 | Edition Number 1

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Hardcover
528 Pages

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This book is the most fundamental analysis of native title in the common law world since McNeil’s Common Law Aboriginal Title in 1989. Through a broad and detailed examination of the jurisprudence across Australia, USA, New Zealand and Canada, it argues that the Australian preoccupation with ‘tradition’ is a deeply flawed approach. Dr Young points to many technical problems and a raft of unfortunate consequences for Indigenous people. He contends for a fundamental rethink. “Dr. Young’s book fills a huge gap in the legal understanding of Indigenous land rights… While his focus is on Australia, the book’s comparative approach extends its relevance to all common law jurisdictions that are inhabited by Indigenous peoples. Everyone who is concerned with Indigenous rights – Indigenous leaders, judges, lawyers, land-claims negotiators, policy makers – will benefit enormously from reading it.” - Professor Kent McNeil “Dr Young has undertaken a comprehensive analysis of the ‘traditional laws and customs’ focus that dominates the recognition of native title in Australian law – but the importance of his work extends far beyond the legal sphere. In showing how the ‘tradition’ approach is not supported by the weight of legal principle and is out of step with overseas precedent, he opens the way for a reconsideration of how Indigenous rights to land are, and should be, recognised.” - Ambelin Kwaymullina

Industry Reviews

Young explores native title jurisprudence and politics in Australia, New Zealand, Canada and the US. His primary thesis is that in contrast to these other jurisdictions, in Australia native title is difficult to prove and the courts and legislatures have failed to recognize that the relationship between Indigenous people and their land can, and does, change. Young outlines the means by which Australian jurisprudence could adopt a more broadly conceived right to native title. ... Young is not without answers to the Australian problem. He proposes a 'three point plan' for reform of native title ... [which] would bring Australia into line with international thinking and jurisprudence. No bad thing. - Law Society of Tasmania, Law Letter, Autumn 2010

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