Backjumps Special by editor Adrian Nabi

By editor Adrian Nabi

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In some regions women may be restricted to catching fish only by line, net or hand, and may be prohibited from spearing fish at all. In at least one region (Wik) women may spear fish so long as they do not employ a spearthrower at the same time. There may be times when a person’s temporary condition (for example, when menstruating, pregnant, recently bereaved, newly initiated) prohibits them from entering certain foraging places or from killing certain species even in their own country. The basic point here is that one can specify very generic kinds of rights as native title rights, adding that they may be trammelled and qualified in various ways according to local customary law, but one can never go on unravelling the nature of specific rights to some mythical point of ‘completeness’ where every right, and all conditions under which it might properly be exercised, can be exhaustively described and enshrined on paper.

But landholders acquire the foundations of such policing rights through affiliation to a collective property-holding and identity group or kin network, not through individual realisation alone. On the other hand, policing is a function of senior people. Individual abilities and structural positions, not only age and group membership or kin connections, underlie the attainment of this status. Evidence that claimants have physically exercised customary rights in country is useful in making concrete their claims before an outside audience.

Clearly many of these rights flow from certain others within the same list, and might therefore be distinguished as contingent rights, which flow from core rights. 28 The right to use someone else’s country is usually contingent, for example, on the nature and state of relationships with those other people. It is arguable also that even the right to make economic use of one’s own primary country flows from deeper rights to identify with and make proprietary claims over that country. 29 Rights which flow from others are often the kind of rights held over an area by non-claimants to that area in native title cases.

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