Mediating conflict in the age of Native Title
Abstract: Mediators have played roles in managing conflict in Aboriginal societies for a long time. This paper discusses some of the similarities and differences between older customary mediator roles and those of the modern Native Title process.
Today, just as in the past, there are significant regional variations in the way Aboriginal people handle disputes and conduct encounters between parties in conflict. One need only compare the traditional Yanarumi or Tendi institution of the Lower Murray River in the nineteenth century with the way conflict is handled in Western Desert communities of recent times to see a stark contrast between at least some of the old traditions (Berndt, R and Berndt, C 1993:58-73; Myers 1986:159-79). Admittedly, these are from the most extreme points on the spectrum, and the Berndts' ethnography in the Lower Murray case was a record of memory culture rather than observations of the Yanarumi in operation. To that extent their description may have been an idealised model of how it should have worked. Most Aboriginal people have moved significantly away from their own past traditions of conflict management, although a good many have retained at least the principles of classical practice, and sometimes more.
When native title claims do not run smoothly, dissent between competing Indigenous claimants can be one of the reasons. Efforts to resolve disputes between Aboriginal parties to a claim are often carried on at the same time as efforts to resolve disputes between claimants and non-Aboriginal respondents. Cross-cutting tensions can be complex. The burden of the mediator in these situations can be demanding in the extreme.
The role of the mediator is nothing new to Aboriginal Australians. Go-betweens have long played a part in customary ways of negotiating collisions of interest. But a line between internal and customary Aboriginal means of settling disputes on the one hand, and recourse to the external legal and mediatory machinery of the modern Australian state on the other, is no longer easily drawn and in principle may now have become impossible in most cases. For Aboriginal Australians in many places, evolving customary processes now include defining and debating what can or cannot legitimately be the business of the local Indigenous police aides, the non-local police, council members, land council employees, legal aid lawyers and so on. Gauging how these roles are to be acceptably played is more than merely the business of the immediate disputants. The role of the mediator itself may be subject to disputation. In the native title process it is a matter of law. It is also a traditional role. (1)
Traditional ways of handling disputes do not always consist of engaging in conflict, applying sanctions or making restitution, as Nancy Williams has shown in her study with Yolngu people (Williams 1987:96-106). Voluntary physical separation was one of the most common ways of ending a period of confrontation. It was a method well suited to the semi-nomadic economy of the past, but one pursued with far greater difficulty in an era of fixed settlements....
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