The Plank in the Common Law’s Eye: Dislodging Europocentric Barriers to a Just Definition of 'Native Title' in the Wake of Yorta Yorta
Bibliographic record
Abstract
This Note examines how two Australian trial courts weighed similar evidence that indigenous customs of inheritance had changed since the Crown first asserted sovereignty over the claimed native title lands. In Jango v. N. Territory of Austl. (2006) 152 F.C.R. 150 and in Griffiths v. N. Territory of Austl. (2006) F.C.A. 903, a question arose whether evidence of a shift from a patrilineal descent system to a cognatic one should be deemed to interrupt a native title group's connection in relation to land, or should simply be considered a permissible type of adaptation allowed under the Native Title Act s. 223 and the High Court of Australia's controversial ruling in Members of the Yorta Yorta Aboriginal Cmty. v. Victoria (2002) 214 C.L.R. 422. The trial judge in Jango felt that evidence of such a shift should extinguish a native title claim, whereas the judge in Griffiths declared that such transformations were legally permissible for native titleholders.This Note emphasizes a concern that the court in Jango gave too much weight to 19th century ethnographic accounts of western observers, and thereby allowed orientalist depictions of indigenous practices to trump the accounts of 21st century anthropologists and indigenous persons. (Post)modern changes in anthropological theory suggest that 19th century ethnographic depictions of indigenous practices should be read much more skeptically. Moreover, this Note promotes the court's approach to the evidence in Griffiths, which borrows a rule of evidence from 18th century English case law involving customary land rights of copyholders. In Griffiths, Weinberg J made an inference that the native title claimants in Australia were able to prove continuity in their traditional practices since time immemorial based on relatively recent evidence of customary practices. The nature of evidence in Australian native title claims urges that the balance of justice should favor the judicial approach found in Griffiths.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.015 | 0.027 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.014 | 0.045 |
| Scholarly communication | 0.013 | 0.010 |
| Open science | 0.002 | 0.009 |
| Research integrity | 0.007 | 0.016 |
| Insufficient payload (model declined to judge) | 0.003 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".