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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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