Native Title Claims Research Articles

Mapping critical minerals projects and their intersection with Indigenous peoples' land rights in Australia

Vastly increased quantities of minerals and metals are needed to scale up renewable energy technologies. Indigenous peoples globally are voicing concerns about how this will affect the speed and scale of mining and renewable energy development on their lands and territories. In this paper, we delineate areas of Australia where Indigenous peoples' interests in land are formally recognised under legislation. These areas are overlayed with critical minerals project information to calculate intersections across 14 commodities. Our results show that 57.8 % of critical minerals projects are located where Indigenous peoples have a right to negotiate. Including native title claims, these rights are available for 79.2 % of critical minerals projects. We argue that critical minerals policies must consider Indigenous peoples' rights and interests in land upfront – not as an afterthought. To date, Indigenous peoples have not shared equitably in the wealth generated by mining Australia's mineral endowment. Inequitable outcomes will continue without major policy reform.

Trusting the copies? Historical photographs and native title claims

ABSTRACT Cultural institutions have long employed a range of copying technologies to safeguard and improve access to archival materials. This paper moves discussion beyond debates about institutional copying focused on a specific technology and raises questions about the trustworthiness of copies of archival photographs. This study uses differences between a source photograph and four copies to show that copying practices shape how copies of archival photographs can be used. It is situated within the Australian legal context of native title to sharpen the interrogation of the trustworthiness of copies; and, to demonstrate one implication of how copying shapes the evidential value of photographs. It considers how a witness may respond if asked to testify that one or all of these copies are trustworthy or to outline their shortcomings as evidence. It explains that while standards for microfilm copying documents valued creating trustworthy copies, the transition to digital copying was a missed opportunity to re-establish those standards for creating digital surrogates of photographs. While questions raised have yet to be tested in legal native title procedures, this paper argues that the promise of photographs for native title outcomes will come to rest with the trustworthiness of institutionally created copies.

The sovereign citizen superconspiracy: Contemporary issues in native title anthropology

AbstractThe Australian Native Title Act 1993 (Cth) provides for the recognition of rights and interests which arise from the traditional laws and customs of Australian First Nation peoples. Processing applications for a determination of native title can take many years and involves numerous stakeholders, presentation of evidence of ongoing connection with the land and sea within a claim area, negotiations with other parties including from industry and government, as well as negotiations between Indigenous groups. The process can be long, arduous, and often outcomes fail to satisfy the expectations of native title claimants. In this paper we investigate how individuals who either disagree with the premise underlying native title, or who have suffered negative impacts through the course of native title claims, may be either targeted by, or swept up in, Australian sovereign citizen rhetoric. We aim to contextualise presentations of sovereign citizen ideas in native title claim processes by providing an overview of the history of sovereign citizen thought, and examples of its contemporary expression in some Australian online forums. In doing this we aim to provide a broad foundation for future research into the issue. The dialogue in sovereign citizen online communities exposes people to extremism and superconspiracies. This article will provide a theoretical framework and historical context to the Australian sovereign citizen phenomena and describe online amplification of disinformation in Australia that has the potential to cause harm. We illustrate how stakeholders who are drawn to relatively moderate online content (such as opposing native title) may be radicalised through gradual exposure to extremist anti‐government sentiment and hate speech. This article highlights the need for further research into sovereign citizenry in Australia, and strategies for native title practitioners to engage claimants who subscribe to and disseminate sovereign citizen disinformation in native title processes.

Beyond Narratives of Aboriginal Self-deliverance: Land Rights and Anthropological Visibility in the Australian Public Domain

ABSTRACT The central role that anthropologists play in Aboriginal land and native title claims is becoming less visible. In some ways, this is not surprising since minorities that need the help of others, if they are seeking recognition of their rights, are often uncomfortable being the beneficiaries of assistance, and the narratives they come to cherish are those of self-deliverance. However, the public discourses in which anthropology is involved also contribute to this decreasing visibility, particularly because the most important of them is the technical discourse that comes with being an expert witness in land and native title claims, where the contribution of lawyers and the law have a higher profile. A third factor is that for those people Emma Kowal (2015) calls white anti-racist, a category into which many anthropologists might be thought to fall, self-effacement is a foundational value, so that any contribution to improving Aboriginal circumstances should be obscured. But is that how anthropologists and the beneficiaries of this assistance think?

Native Title as Displaced Mediator

This article considers how native title is a legal manifestation of settler colonialism that operates as a displaced mediator. Using native title cases from Australia and elsewhere, this article argues that native title displaces Indigenous laws, customs, and practices in constructing native title holders as ‘traditional’ to mediate their integration into the so-called ‘modern’ nation. Legal processes construct native title and then retroactively posit that these legal constructions pre-exist the Crown’s acquisition of sovereignty. This provides legal support for the Crown’s acquisition of sovereignty and Aboriginal and Torres Strait Islander peoples who assert native title claims become subjects who aver and reproduce the myth that the Crown acquired sovereignty over them. Native title displaces more unsettling, decolonising practices but produces the appearance of justice through the production of existential and material benefits for its subjects. Northern Territory v Griffiths (2019) 364 ALR 208 (‘Timber Creek’) demonstrates this.

Mabo: Landmark and paradox

MaboLandmark and paradox Rhonda Evans Geoff Rodoreda and Eva Bischoff, eds. Mabo's Cultural Legacy. Melbourne: Anthem Press, 2021. 210 pp. A$125. ISBN: 9781785274294 "Mabo." The word conveys multiple meanings. It identifies a man, Eddie Koiki Mabo; it is shorthand for the High Court decision, Mabo and Others v Queensland (No 2) (1992) 175 CLR 1, that rejected the legal doctrine of terra nullius upon which Australia was colonized; and it marks a torturous turning point in relations between Australia's Indigenous peoples and its settler society. This edited volume by Geoff Rodoreda and Eva Bischoff collects papers presented at a 2017 workshop held in Stuttgart, Germany, that considered the complex cultural legacies of Mabo the man, Mabo the judicial decision, and Mabo the catalyst for change. It addresses profound questions about sovereignty as that concept applies to Indigenous land rights, Indigenous storytelling, and the authoritative definition of Indigenous identity. Because I come to the book as a lawyer and political scientist, my engagement with these subjects has been primarily from those disciplinary perspectives. I found the volume an insightful and accessible account of Mabo's cultural impact and implications. The introductory and closing chapters are especially strong. The volume's editors, Rodoreda and Bischoff, cogently yet concisely articulate the book's recurring themes. Mabo, they explain, embodies a cruel paradox. While the decision jettisons terra nullius from Australia's law books and recognizes Native Title, it simultaneously denies Indigenous sovereignty and sanctifies the dispossession of Indigenous land rights (2). Mabo's cultural significance, Rodoreda and Bischoff contend, derives from its "focus on territory, its specific intervention in historical narrative and its being spoken as law" (3). Because the authors refrain from rehearsing the content of the chapters that follow, Rodoreda and Bischoff's introduction works well as a stand-alone piece. The remainder of the volume is divided into five main sections, focusing on history, politics, film, literature, and memoir. A pair of historical chapters provide greater context for both Mabo the man and Mabo the judicial decision. Focusing on the Australian state of Victoria, Russell and Standfield recount decades-long efforts by Aboriginal activists for land and political rights, including freedom from the oppressive laws that from the mid-nineteenth century through the 1930s purported to "protect" them. Their contribution positions Mabo the man and Mabo the decision within the longer and broader struggles of Australia's Indigenous peoples. [End Page 291] Turnbull, by contrast, offers a more personal account of Eddie and Bonita Mabo's work in the Townsville community, especially with respect to providing educational opportunities for Indigenous peoples. His attention to Bonita's role corrects a general tendency to overlook her own considerable contributions. Turnbull's chapter also offers an interesting, firsthand perspective on the vibrant intellectual life of James Cook University in the 1980s, populated by the likes of Professor Henry Reynolds and Oodgeroo Noonuccal. This was the milieu in which Eddie Mabo formulated his own ideas about the world and his place in it. The legislative regime created to determine Native Title claims constitutes a key legacy of the Mabo decision. Two chapters examine the politics and practice of central elements of that regime. From anthropological and linguistic perspectives, respectively, Wergin and Ringel illustrate the important ways in which the regime's legal rules interact with Indigenous identities, shape those identities as well as the accompanying claims to land, and engender conflict among Indigenous peoples. Together, the chapters showcase the continuing centrality of the Australian state's sovereign role in defining and determining rights to land. They also illustrate the ways in which the regime empowers and privileges anthropologists and linguists in the Native Title process. A trio of chapters address issues concerning Mabo and film. Collectively, they highlight the importance of Indigenous peoples obtaining the requisite resources to tell their stories from their perspectives, or in other words, to exercise storytelling sovereignty. Chapters by Moreton and Davis and Kilroy do an excellent job of describing the development of both institutional capacity and film-production practices at Screen Australia and within the private sector that facilitate Aboriginal and Torres Strait Islander storytelling for both television and film. These developments, Moreton and...

Chasing The Dream – Self-Determination on a Non-territorial Basis for the Noongar Traditional Owners in the South West of Australia

Abstract Self-determination for Aboriginal people in Australia has been a long sought after yet difficult objective to reach. The recently concluded Noongar Settlement in the state of Western Australia opens new opportunities and could potentially set a new benchmark for non-territorial autonomy and self-government for an Aboriginal community. The Noongar Settlement exceeds the more traditional settlements of a native title claim since it provides elaborate institutions for self-government albeit by way of private bodies corporate. The bodies corporate for the Noongar people would enable them to make and administer decisions; offer services; undertake management of public conservation areas; and advocate for the best interests of their community. This privatised form of self-government may not only provide new impetus to other land claim processes in Australia, it may also address the often-heard demands from Aboriginal people for a treaty to be entered into between themselves and the government of Australia.

Native Title—A New Wave of Dispossession

Abstract In 2003, anthropologist Professor Peter Sutton wrote, “To demand of a kin-based society that it produce simple, stable and definitive lists of rights and rights-holders in land and waters is ethnocentric,” and “codification, at least for many such groups, is itself contrary to their own laws and customs.” However, despite warnings by Sutton and others, the structuring of native title and related claims and determinations have continued just as warned against. It is argued here that this phenomenon is the result of attempts to accommodate the demands of non-Indigenous political, legal, and economic structures to have simply defined groups and consequent corporate identities that are recognizable to, and controllable by, dominant non-Indigenous structures. The consequent corporate identities, the Prescribed Bodies Corporate (PBC), are a modern version of the system of king plates of old and more needs to be done to ensure recognition of complex traditional law systems.

The People of K’Gari/Fraser Island: Working through 250 Years of Racial Double Coding

Genealogy is important to Aboriginal societies in Australia because it lets us know who has a right to speak for country. Our genealogy binds us to our traditional country as sovereign nations—clans with distinct languages, ceremony, laws, rights and responsibilities. Since the Native Title Act 1993 was passed by the Keating government, hundreds of Native Title claims have been lodged. The first Native Title claim to be lodged on Badtjala/Butchulla country was in 1996 by my great aunty, Olga Miller, followed by the Butchulla People #2 and the Butchulla People (Land & Sea Claim #2). Consent determination was awarded for K’gari (Fraser Island) in 2014 and for the mainland claim in 2019. As a sovereign nation, we have undergone many decades of deprivational longing—physically separated from our island, but in plain view. This article is written from a Badtjala lens, mapping generations of my Wondunna clan family through the eyes of an artist-academic who has created work since 1986 invested in cultural responsibility. With the accompanying film, Out of the Sea Like Cloud, I recenter the Badtjala history from a personal and local perspective, that incorporates national and international histories.

Distinguished lecture: Native title—Implications for Australian senses of place and belonging

AbstractCan native title, across remote, rural and urban settings, complement and overlap with current and future Australian senses of belonging? This is to explore a form of cultural coexistence that is potentially in tension with a sharp and mutually exclusive categorical distinction between those who embrace Indigenous identity and others. Can such cultural coexistence reinforce legal and economic achievements of land justice for the Indigenous minority yet also contribute to rich senses of place and belonging across the broader Australian society? While anthropology as a social science has a substantial and important practical research role in negotiations for, and outcomes of, particular native title claims, a further challenge is understanding the extent to which post‐claim coexisting identities and interests might enrich Australia's trajectory in resolving legacies of colonialism.

The integrative value of conflict and dispute: Implications for defining community in the native title context

AbstractClaimants and industry professionals frequently view conflict that arises in the course of a native title claim as a detriment to timely claims resolution. I argue instead that disputation itself may constitute an integrative social process through which participants define, delimit and reproduce community. I show also how ethnographic analysis of disputation can provide useful insights into broader social and cultural practices and normative value systems. Drawing on theoretical and methodological concerns with human agency and the integrative and constitutive role of conflict that challenges consensus models of community, I develop a practice‐centred approach that is attentive to the ways that participants in a dispute articulate and contest the definition of community. The possibility of viewing 'culture' and group cohesion as contingent and emergent through disputation should assist anthropologists working in the native title field to incorporate conflict as a productive aspect of social and cultural practice.

Privatised Autonomy for the Noongar People of Australia – a sui generis Model for Indigenous Non-territorial Self-government

The Noongar people of the federal state of Western Australia have recently entered into what can be described as the most comprehensive settlement of a native title claim that spans an area of 200 000 square kilometres. The Settlement lays the foundation of a sui generis model for indigenous and minority self-determination in Australia and beyond. The Settlement sits between the spheres of public law and private law and provides for a form of non-territorial autonomy that is unique not only to Australia. The Noongar people are acknowledged as the traditional owners of the entire area, albeit that major other towns and cities are located in the area and the Noongar people only constitute very small minority. Whereas the topic of non-territorial self-government has been mainly explored in theory and in practice in the European domain, the Noongar Settlement shows how the principles that embody non-territorial autonomy may find root in other parts of the world. The potential relevance of the Noongar Settlement for non-territorial self-government of Aboriginal people or other minorities lies in four essential elements: firstly, creating for the Noongar people legal Corporations by statute for purposes of their self-government; secondly, decentralising powers and functions to the Corporations to enable them to perform the functions of a community government to its members; thirdly, to enable the elected Corporations to develop policies, make decisions and deliver pubic services on a personal rather than a geographical basis to the members of the community; and fourthly, to allow the Corporations to cooperate with and engage other levels of government within the system of intergovernmental relations in Australia. The Noongar Corporations, in effect, have the hallmarks of a fourth level government and represent a potential sui generis model for indigenous and minority non-territorial self-government.

Administration of the Aurukun archives held at the Australian Institute of Aboriginal and Torres Strait Islander Studies

ABSTRACTThe Aurukun archives held at the Australian Institute of Aboriginal and Torres Strait Islander Studies were initially developed in accordance with a ‘before it is too late’ model. In response to national controversy over proposed bauxite mining on Wik land, the Institute reorientated its documentation strategy towards collaborating with the Aurukun community. Wik people were not so much the subjects of the archive, but collaborators in its production. The outcome was an extensive multimedia archive which underpinned the Wik native title claim in 1993. Since then the collaborative relationship between the Institute and the Wik people has lapsed. Intermittent attempts to repatriate parts of the Aurukun archives were not successful in the long term. While revising controls over key Aurukun record groups, current Institute staff became aware of the extent and some of the strengths of the Aurukun archives. The staff have been attempting to revive the community’s awareness of their archives and their interest in them. Although the community’s interests presently have a different focus, revived collaboration between the Institute and the Aurukun community could result in some form of distributed custody and control of the Aurukun archives which may be of value to Wik society.

Native title and the politics of rejection: beyond the post‐political binary of consensus and dissensus in urban Aboriginal activism

AbstractThis paper uses a settler colonial lens to highlight the limits of the post‐political while interrogating aspects of Indigenous politics and assertions of sovereignty in Perth, Western Australia. One of the ways in which Indigenous rights to urban space are being practiced in cities is through native title claims and negotiated settlements. In the south‐west of Western Australia, including in the capital city of Perth, native title negotiations have been characterised by protracted and acrimonious divisions between the Nyoongar custodians of the area and the State. Among members of the Indigenous population, highly publicised oppositional politics have also been constructed in the mainstream media between the South West Aboriginal Land and Sea Council and the Nyoongar Tent Embassy. In this paper, we analyse how they have been represented in media discourse and consider how both groups seek to articulate a politics of rejection of the settler colonial logic of elimination. We highlight the dangers that arise if and when researchers are seduced into adjudication on which group is properly political. Our aim is to demonstrate how the current native title regime disavows Indigenous sovereignty, which leads us to advance certain ways in which to understand the spatial effects of this politics of rejection and opposition to assertions of Indigenous sovereignty.

The Returns of Recognition: Ngarinyin Experiences of Native Title, Encounter and Indeterminacy in the Kimberley Region of Northern Australia

ABSTRACTThis article explores a contemporary politics of recognition as it relates to Ngarinyin Aboriginal people of the Northern Kimberley region of Western Australia. I focus on the reflections and experiences of a Ngarinyin man, ‘the Alchemist’, who was involved in a native title claim across the region during the 2000s. Through ethnographic examples drawn from along the Gibb River Road, I show that time on country is animated by unexpected encounters imbued with interpersonal recognition and indeterminacy. These encounters involve non‐Aboriginal people (including tourists) and non‐human animals: allies who are co‐opted at a time when people's intimate knowledge of country is becoming further attenuated. This article contributes to a growing literature on Aboriginal people's perceptions of and experiences in country in post‐native title contexts.

The Truth in Painting: Cultural Artefacts as Proof of Native Title

This article unpacks the significance of tendering a painted canvas as proof in a native title claim in Australia. The painting is a collaboration of around 50 artists, all members of the Walmajarri, Wangkajunga, Mangala and Juwaliny peoples. The painting works in three ways: as proof of laws about country required under the criteria for native title (law), as establishing the credibility of the claimants (truth) and as a map. I disassemble the painting’s function along these three axes, and argue that in each case it targets a particular orthodoxy in the common law and pushies towards a realisation of the transformative and plural character of evidentiary practices in native title. Part 2 takes up the claim that the Ngurrara Canvas is evidence of Indigenous law. Although subordinated to the category of ‘fact’, the painting must be taken on its own terms in order for it to be meaningful as proof, including a very different person-place relation as the basis for entitlement and the point that, for the claimants, the painting embodies the law. In Part 3, I argue that the painting makes a claim to credibility that confronts conventional legal understandings of truth because it operates aesthetically, rhetorically and therefore a-rationally. Lastly, to read the painting as a map entails a challenge to the European valuation of land, the way it is thought and depicted. Where maps have historically colluded with property law in order to communicate a particular mode of entitlement, the canvas insists on disrupting the universality of this vision. In all three instances, there is a strong normative aspect to the canvas which is missed in a conventional reading of it as something purely factual, purely aesthetic or purely cartographic. I will show that it is this much larger challenge which must be met if Australia is, as was claimed for the recognition of native title in Mabo (1992), to reject terra nullius.

Where Fanny Balbuk Walked: Re-imagining Perth’s Wetlands

Where Fanny Balbuk Walked: Re-imagining Perth’s Wetlands

Unsettling planning's paradigms: towards a just accommodation of Indigenous rights and interests in Australian urban planning?

ABSTRACTCities and urban settlements in Australia exist on lands that are the traditional lands of Australia's Aboriginal peoples (The focus of this article is on Aboriginal land claims in our capital cities and regional centres on mainland Australia rather than the Torres Strait, and consequently the term Aboriginal is used throughout except where the context makes it necessary to refer to Aboriginal and Torres Strait Islander or Indigenous.). Yet the fact of continued Aboriginal presence, ownership and stewardship of Australian territory remains unrecognized in Australian planning. As a result, the profession is yet to grapple in a just and meaningful way with the fact of Aboriginality in Australian cities. Indeed, planning persistently renders Aboriginal people invisible, and perpetuates colonial dispossession. In this paper, we argue that planning in Australia must urgently shift to appreciate these issues, and begin to make amends. This involves understanding how Australian cities and towns can be understood as Aboriginal places, and the contemporary ways in which Aboriginal people are seeking recognition of their rights in cities and towns through processes like native title claims and determinations. We analyse urban native title applications as a key example of the challenges of recognition and the responsibility this lays down to planning and we make some suggestions for how the planning profession, practitioners, scholars and educators might proceed.

Spinifex People as Cold War Moderns

Aboriginal Australian contemporary artists create works that express indigenous traditions as well as the unprecedented conditions of global modernity. This is especially true for the founders of the Spinifex Arts Project, a collective established in 1997 to create so-called “government paintings”: the large-scale canvases produced as documents of land tenure used in negotiations with the government of Western Australia to reclaim expropriated desert homelands. British and Australian nuclear testing in the 1950s displaced the Anangu juta pila nguru, now known to us as the Spinifex people, from their nomadic lifeworld. Exodus and the subsequent struggle to regain lost homelands through paintings created as corroborating evidence for native title claims make Spinifex canvases not simply expressions of Tjukurpa, or “Dreamings,” but also artifacts of the atomic age and its impact on a culture seemingly far from the front lines of cold war conflict.

Legal Strategies to Expand Indigenous Governance in Climate Change Adaptation: Opportunities and Barriers

Indigenous governance has evolved through avenues such as self-determination, Indigenous rights (including treaty, native title and other claims to land, natural resources and genetic resources), human rights, ownership and management of terrestrial and marine protected areas and natural resources, traditional knowledge systems, customary law recognition, biodiversity conservation, sustainable livelihoods and community based environmental management. The agenda and resources of Indigenous nations, communities and organisations is overloaded and often unable to leverage effective participation and empowerment in so many forums. The work of the UN Permanent Forum on Indigenous Issues has highlighted the potential impacts of climate change on Indigenous peoples and their communities. This paper critically discusses the concept of adaptation relating to climate variability and climate change in order to explore the implications for the role of Indigenous Peoples in sustainability governance. In many respects the current unresolved problems of sustainable development reflect the failures in the older “Right to Development” debate at the international level. However, significant developments have occurred in the areas of human rights and Indigenous rights that should be integrated in the design and implementation of climate change adaptation measures. These themes will primarily be explored through a critical analysis of international Indigenous rights-based approaches and the implications for future governance approaches to climate change adaptation strategies such as REDD (reducing emissions from deforestation, degradation and enhanced conservation of forests in developing countries).