Passive Resistance in Native Title
Claims
Passive Resistance in
Native Title Claims
Debbie Fletcher
Passive Resistance in Native Title
Claims
•Bennell native 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”
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
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
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
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)
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
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?
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’
Passive Resistance in Native Title
Claims
Examples of passive resistance
•Sabotage
•Foot-dragging
•Feigned ignorance
•Dissimulation
•Absconding
•False compliance
•Pilfering
•Slander
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
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
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
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
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
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
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
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
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
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
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
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

Passive Resistance in Native Title Claims