Passive Resistance in Native Title Claims Debbie Fletcher

1. Passive Resistance in Native Title ClaimsDebbie Fletcher Passive Resistance in Native Title Claims

2. Passive Resistance in Native Title Claims • Bennellnative title trial in context of previous Federal Court decisions • Justice Wilcox found: • evidence of the “continuing importance attached to land” • all witnesses “identified their own country and explained the basis of their claim to it”

3. Passive Resistance in Native Title Claims • Importantly, “despite the factors favouring fragmentation, members of families continued to remain in contact with each other, and with members of other Aboriginal families, especially those from their traditional areas.” • Emerging themes from trial and decision: • connection to land • connection to family

4. Passive Resistance in Native Title Claims • Background • Noongar region highly settled • Body of literature suggesting Noongar people experienced: • Dispossession; • Displacement; • Cultural loss; and • Severing of family ties

5. Passive Resistance in Native Title Claims • Reconciliation of court finding and traditional history • Host – application of extinction /continuity theses • Berndt scholars – examining Noongar culture from pre-conceived notion of extinction

6. Passive Resistance in Native Title Claims • Late 1980s saw change as scholars identified aspects of continuity in Noongar culture • Haebich (1985) • Baines (1987) • Birdsall (1990) • Toussaint (1987) • Hodson (1989)

7. Passive Resistance in Native Title Claims • Key findings: • Strength of kinship ties • Distinct Noongar identity • Employment patterns • Land associations – ‘runs’ • However, dispossession remained a strong theme, particularly from land

8. Passive Resistance in Native Title Claims • Revisionist scholars, often politically motivated, contributed to body of literature which emphasised dispossession • Federal Court judgement (at first instance) which suggested that Noongar people retained a connection to their traditional lands sufficient for the purposes of native title • How?

9. Passive Resistance in Native Title Claims • Re-reading of the literature required • Application of the methodological framework of James C. Scott’s theory of passive resistance – ‘weapons of the weak’

10. Passive Resistance in Native Title Claims • Examples of passive resistance • Sabotage • Foot-dragging • Feigned ignorance • Dissimulation • Absconding • False compliance • Pilfering • Slander

11. Passive Resistance in Native Title Claims • Who undertakes passive resistance? • Minority groups with little power • Geographically isolated groups • Groups without unified political structure • Peasants and slaves • Australian Aboriginal people

12. Passive Resistance in Native Title Claims • Some reference in Australian literature • Veracini (2001) • Choo (2001) • Resonance with accommodation/resistance paradigm • Key issue is intent or motivation

13. Passive Resistance in Native Title Claims • Indications of passive resistance among Noongar people • Overt compliance with covert resistance • Names – public/private • Absconding from settlements • Hiding from authorities • Rejection of institutionalisation • Hiding Aboriginality

14. Passive Resistance in Native Title Claims • Indications of passive resistance among Noongar people (2) • Language • Law and custom • Ignoring official directives • Fringedwelling • Practice of casual employment • Rejection of rations

15. Passive Resistance in Native Title Claims • Indications of passive resistance among Noongar people (3) • Marrying or having children with people other than those agreed to by officials • Continuing to mix with other Aboriginal people • Anti-social behaviour • Continued use of bush tucker

16. Passive Resistance in Native Title Claims • Indications of passive resistance among Noongar people (4) • Returning home when possible • Rejection of assimilation • Sustained rejection of official policies and legislation • The development of collective political action which ultimately led to legislative changes

17. Passive Resistance in Native Title Claims • Identifying passive resistance • Close reading of literature and archives • Be alert to motivation and intent • Identify signs of frustration among officials • Identify why policy change occurs • Identify actions which contradict statements • Identify objective of author

18. Passive Resistance in Native Title Claims • Take a subtle approach and be aware of alternative arguments • Recognise that there is a group and individual gradation of accommodation/resistance • Aim is to build a coherent and defensible argument of alternative history

19. Passive Resistance in Native Title Claims • What are some important records? • Birth, death and marriage records • Departmental archives • Oral histories • School records • Employment records • Family histories

20. Passive Resistance in Native Title Claims • Be alert to • Incidental recordings such as burial information, place of residence rather than just the event being recorded • Registration districts • Patterns of movement • Relationships between families • Living and camping arrangements • Persistent behaviours

21. Passive Resistance in Native Title Claims • Passive Resistance and Native Title • Will not ‘prove native title’ • Does not address other more complex requirements • Can assist in building an argument of continuity • Illustrates the complexities of examining Aboriginal/European relationships and the impact of settlement

22. Passive Resistance in Native Title Claims • Summary • Passive resistance theory offers an alternative to conventional history of the impact of settlement on Aboriginal people • Identifies silences in the records and exposes the concept of subtle responses • Empowers claimants • Assists in the argument of continuity rather than extinction