Native Title Rights Research Articles

Native Title Rights to Take Resources

Native title rights to take resources for unconstrained or commercial purposes were first recognised almost a decade ago, but the significance and uptake of such rights in Australia is now heightened. Resource ownership and management are critical components of global sustainable development and Indigenous interest holders play a key role in that space. The gradual acceptance of resource use by traditional owners in a modern economy reflects more developed trends overseas such as in Canada. Reluctance to concede the commercial exercise of native title rights may be due not only to evidential thresholds (required by state governments to enter consensual determinations), but also concerns about the possible consequential legal impacts for those governments and other interest holders. This article considers potential consequences of recognising native title rights to take resources for any purpose in several developing areas of native title jurisprudence including: quantum of native title compensation, the regulation of native title under resource management legislation enacted since the Native Title Act 1993 (Cth), competing claims to resource ownership and use, and the risks for government where prior assumptions of resource ownership are displaced by determined native title.

Akiba on Behalf of the Torres Strait Regional Seas Claim Group v. Commonwealth of Australia and Others

389Sea — Native title — Native title rights in relation to waters including accessing and taking resources for any purpose — Native Title Act 1993 (Cth) — Whether successive legislation which prohibited taking fish and other aquatic life for commercial purposes without licence inconsistent with that right — ExtinguishmentSea — Territorial sea — Reciprocal access and use rights recognized in Islander society arising out of personal relationships — Whether reciprocal rights “native title rights and interests” — The law of Australia

The Regulation of Natural Resources Law in Australia for Indigenous People

Natural resources law in Australia seeks to regulate, protect and conserve natural resources, while providing consideration to the economic value of projects and permit activities to occur. The same environmental laws apply to indigenous peoples as well as other members of the public in Australia. However the recognition of native title rights and sacred sites through legislation can acknowledge the special relationship that indigenous people have with the environment through traditional laws and customs. Indigenous people have a special relationship with their environment that does not easily fall within categories of western values of the environment, and for this reason there is often tension between the common law legal system and indigenous people. While there has been significant process working towards a more harmonious regulatory system of natural resources, there is still work to be done. This paper will outline the structure of indigenous rights impacting natural resource regulation in Australia, focusing on the Northern Territory, and will examine the origins of environmental law and indigenous rights

Multi-landscape forest management of small islands in the Moluccas based on green economy

The exploitative and centralistic economic development of Indonesia has had a negative impact on the land, coastal areas and oceans causing poverty in communities. Effects of global warming and climate change require change in the paradigm towards a green economy to prevent a 20 C increase in earth’s temperature, which will damage the world and its living creatures. Spatial analysis and Geo Information System (GIS) analysis was used in this research. Operational analysis used the framework of the Integrated Management Model of Small Island Landscape which contains a conceptual, macro and micro framework. The research results require a change from an exploitative economy to a green economy as a basis for policy and renewal of regulations at a central and regional level, in accordance with the eco region’s diversity. The macro concept integrates the multi landscape of small islands i.e. the island cluster, the island and its short, narrow watershed, as the management foundation. Integration results show 12 island clusters consisting of 1,340 islands with 1600 water set in the Moluccas. While in North Moluccas there are 8 island clusters, 600 islands and more than 600 watershed. All land use and systems, forest functions, socio-cultural information, tenancy and native title rights have already been integrated into the watershed of the islands and island clusters. The micro concept details sustainable management of forests and other land use areas into management units based on the agroforestry landscape so each multi landscape unit achieves sustainability and community prosperity.

Recognising Indigenous Land: Analysing the Success of Native Title and Land Rights Campaigns

Historically, the Indigenous struggle for land rights has been contingent upon the interventions and negotiations of the government. However, the past displacement engendered by colonisation has made proving continuous connection to land difficult, thus rendering native title a frequently problematic avenue towards recognition. This essay argues that grassroots land rights campaigns have had more tangible successes, visible through the physical acquisition of land rather than symbolic ‘recognition’. KeywordsMabo decision; native title; land rights; activism

Recognition of Barkandji Water Rights in Australian Settler-Colonial Water Regimes

The passage of the Native Title Act 1993 (Cth) brought with it much anticipation—though in reality, quite limited means—for recognizing and protecting Aboriginal peoples’ rights to land and water across Australia. A further decade passed before national and State water policy acknowledged Aboriginal water rights and interests. In 2015, the native title rights of the Barkandji Aboriginal People in the Australian State of New South Wales (NSW) were recognized after an eighteen-year legal case. This legal recognition represents a significant outcome for the Barkandji People because water and, more specifically, the Darling River, or Barka, is central to their existence. However, the Barkandji confront ongoing struggles to have their common law rights recognized and accommodated within Australian water governance regimes. Informed by literature relating to the politics of recognition, we examine the outcomes of government attempts at Indigenous recognition through four Australian water regimes: national water policy; native title law; NSW water legislation; and NSW water allocation planning. Drawing from the Barkandji’s experiences in engaging with water regimes, we analyze and characterize the outcomes of these recognition attempts broadly as ‘misrecognition’ and ‘non-recognition’, and describe the associated implications for Aboriginal peoples. These manifestations of colonial power relations, whether intended or not, undermine the legitimacy of state water regimes because they fail to generate recognition of, and respect for, Aboriginal water rights and to redress historical legacies of exclusion and discrimination in access to water.

Native Title vs land rights: is change more effective when it is achieved through social and political activism or the courts?

This paper explores the effectiveness of social and political activism in achieving change compared with pursuing legal action through the courts, analysing campaigns to achieve Aboriginal land rights and the Mabo case.

Intrumentalizations of history and the Single Noongar claim

In 2003, 80 Aboriginal Noongar, represented by the South West Aboriginal Land and Sea Council (SWALSC), lodged the ‘Single Noongar Claim’ (WAG 6006 of 2003), an application for native title, on behalf of all Noongar people, over the South West of Western Australia, including the Perth metropolitan area.At the request of the State of Western Australia and the Commonwealth, the hearing over the Perth area commenced first in 2005 before Justice Wilcox, who handed down his judgement in 2006. He recognised the existence of a single Noongar community, governed by a normative system of laws and customs at the date of settlement in 1829, and confirmed the continuity of that community and normative system to the present day. He identified eight surviving native title rights that should be recognised, subject to extinguishment.The State and Commonwealth governments appealed this decision. In 2008, the full Federal Court confirmed the existence of a single Noongar society at sovereignty. However, the full Court overturned the positive determination and sent the case back to another court for reconsideration. In consultation with the Noongar, SWALSC decided to pursue the Single Noongar Claim through negotiations with the State government. These negotiations should soon be concluded.The concept of history and its interpretations, rather than culture, tradition or practice, played a central role in the prosecution of the separate proceeding and its subsequent appeal, and is still central t [...]

Expertss Perspectives on the Integration of Indigenous Knowledge and Science in Wet Tropics Natural Resource Management

Aboriginal inhabitants of the Wet Tropics (WT), Queensland, advocate for greater inclusion of their indigenous knowledge (IK) in natural resource management (NRM) to fulfil their customary obligations to country and to exert their Native Title rights. Despite a legal and institutional framework for inclusion of IK in NRM, IK has so far been applied only sporadically. A need for research has been identified to explore this issue, including how IK and science are perceived in NRM in the WT, the factors limiting their integration, and opportunities to further integration. This paper addresses these issues by examining perspectives of natural resource managers and researchers working in cross-cultural NRM. Our results show how IK and science are perceived in the WT; that integration is limited by weak indigenous internal and external governance; and for further integration of IK and science in the NRM of the area, stronger Aboriginal governance and more focussed engagement strategies are required. We discuss our findings in light of existing literature and outline future directions for further research.

Experts' Perspectives on the Integration of Indigenous Knowledge and Science in Wet Tropics Natural Resource Management

ABSTRACTAboriginal inhabitants of the Wet Tropics of Queensland advocate for greater inclusion of their Indigenous knowledge (IK) in natural resource management (NRM) to fulfil their customary obligations to country and to exert their Native Title rights. Despite a legal and institutional framework for inclusion of IK in NRM, IK has so far been applied only sporadically. We conducted an ethnographic case study to investigate perceptions on IK, science and how they affect integration of the two knowledge systems in the Wet Tropics. Our results show that IK and science are perceived as different concepts; that integration is limited by weak Indigenous internal and external governance; and that stronger Aboriginal governance and more focused engagement strategies are required to further the application of IK in local NRM. We conclude by arguing that NRM in the Wet Tropics needs to be reconceptualised to accommodate IK holistically, by considering its epistemology and the values and ethic that underpin it.

Native Title Tax Reforms: Bull's Eye or Wide of the Mark?

Twenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues. This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.

Native Title Tax Reforms: Bull's Eye or Wide of the Mark?

Twenty years on from Mabo v Queensland (No 2) (1992) 175 CLR 1, there is change afoot in the tax treatment of native title. On 25 June 2013, the federal Parliament passed reforms which render certain payments to, or for the benefit of, Indigenous persons exempt from income tax. To qualify, the payments must be made under native title agreements for acts affecting native title, or by way of compensation under the Native Title Act 1993 (Cth). While drafted in simple language, the reforms apply against a complex factual backdrop of native title agreements, trust structures and social policy issues. This paper argues that the reforms are likely to cause significant implementation difficulties for energy and resources proponents and Indigenous groups. They also raise potential hurdles for the government's objectives of reducing uncertainty in the tax treatment of native title rights and of improving economic and social outcomes for native title groups. The significance of these problems is highlighted by the scale of benefits under native title agreements over land access. The paper therefore questions whether an earlier option raised by the government, an Indigenous Community Fund model, deserves further consideration. It would more directly link tax exemption to outcomes, would improve the certainty of tax treatment and would also better support the intermediary Indigenous benefits management institutions which will play a critical role in achieving those outcomes.

Is Native Title Law Destroying Native Title?

This seminar is a reflection on legal practice in native title. It considers whether the common law, the Native Title Act, and the way lawyers and anthropologists practise together covertly assimilate or give the appearance of assimilating indigenous people to the dominant culture, thus destroying the basis on which native title is established. Traditional owners are the 'other' within the dominant culture. Eddie Mabo used the common law to achieve his ends, without necessarily internalising the dominant culture. However the development of the law since Mabo (No 2) has altered the relationship between the law and claimants. The courts have conceived of native title as sui generis, often denying it the benefits of the common law, or else they are obsessed with putting a common law label on native title rights and interests. This means that native title, which is defined by common law as customary law, fails to measure up to our own common law standards. Where it does, it becomes part of the dominant system and the values and (legal) culture of the dominant group is impliedly internalised by traditional owners as part of recognition. The Native Title Act now squeezes Eddie Mabo's use of common law into a process driven administrative/judicial hybrid - it requires adherence to the dominant, and the dominant recognises the participants as of the dominant culture - there is no other place for them (eg alongside). Lawyers, as part of the dominant system, use peoples' stories, knowledge etc as evidence, taking it out of traditional owners’ framework and into the common law. If lawyers don't allow their clients’ voice to be heard (as to identity, whether they accept and adhere to the dominant paradigm) then are lawyers complicit in creating an understanding of traditional owners as having internalised the dominant value system? The common law’s perception of traditional owners has dismantled culture to demonstrate the ongoing integrity of traditional law and custom (required to prove native title). In this process the common law takes ownership thus destroying what it apparently sought to protect.

A Blue Wristband View of History? The Death of Mulrunji Doomadgee and the Illusion of Postcolonial Australia

This article interrogates Australia’s “post-coloniality” in light of the death in custody of Mulrunji Doomadgee and its legal and political aftermath. While Prime Minister Rudd recently called for an end to the history wars, and while liberal reformist measures such as anti-discrimination laws and native title rights support the illusion that Australia has now reached a point in its history where it has meaningfully departed from its colonial past, the death of Mulrunji Doomadgee and the police reaction to it suggest that Australia today is still very much a colonial place. The article argues that what is emerging is a “blue wristband” view of history which denies the existence of colonial power relations today while actively reproducing them.

Roadworks: Automobility and belonging in Aboriginal art

Life is old there Older than the trees Younger than the mountains Growin' like a breeze Country Roads, take me home To the place I belong . . .* Introduction As a growing corpus of contemporary art reveals, automobility has a strong presence in Aboriginal cultural expression. The manner in which this theme is conveyed and what meanings these works communicate vary considerably across media, style and individual treatment. I would like to suggest that as a collective, these roadworks' might reveal as much about Aboriginal relations to 'Country'2 as any other Aboriginal art of place. For several decades the concept of Country has played a pivotal role in the public discourse of Australian Aboriginality. It is a term that succinctly communicates the vast network of relationships that binds many Aboriginal people to their ancestry, their kin, their languages and their land in all its sentient creative capacity. In the context of Australian art, Country has been a particularly useful term (along with 'Dreaming') for describing the dominant theme of Aboriginal visual culture. It effectively encompasses a plethora of visual devices, formal properties, modes of representation and material substances as well as the underlying structures, stories and meanings that so many Aboriginal artworks convey.3 In this essay, I intend to explore how Country is represented through Aboriginal arts of automobility via visual analysis of specific paintings by four Aboriginal artists from rural and urban Austraha. I begin by introducing a variety of works by Aboriginal artists that incorporate automobihty in different ways. I then focus on individual paintings by Christopher Pease (b. 1969), Lin Onus (1948-96) and Revel Cooper (c. 1934-83). Finally, through the work of the artist Ian Abdulla (1947- 201 1), I explore the art of automobihty as an artist's theme, considering the interrelated complexities of automobile subjectivity, Aboriginahty and Country his oeuvre evokes. Before entering into a discussion of the art of Aboriginal automobihty, it is useful to consider the role of Country in Aboriginal art and the experience of automobihty in Aboriginal Austrahan history. Mapping a Road to Country In the Austrahan context, country is a word that commonly denotes either rural living or the nation-state. In recent decades, the term Country has also emerged as a key concept in defining and describing Aboriginal relations to land and identity. In its Aboriginal usage, the word Country embraces places, ecologies, kin, Law, beliefs, ways of being, a world view and a system of meaning.4 Although difficult to define in this context,5 as a gloss word Country may stand in for Indigenous language terms that signify specific places, tracts of land and, by association, a vast network of traditions and relationships. In other words, in usage, Country may be both abstract and very particular. In both senses, Country is something to which people belong. Consequently, in a very real way, Country can nourish the individual as well as distinguish and bind collectives of people. In post-Mabo6 Austraha, Country can carry a particular resonance with regard to the recognition and exercise of native-title rights and obligations, and in this allusion to the nation-state the term enfolds aspirations and claims to Indigenous sovereignty. As an evocative and encompassing term, Country has been used across a variety of projects and programs implemented by individuals as well as public and private sector institutions, from local communities to government departments and universities. In the past decade alone, Country has been created, crossed, cruised, cared for, contested, pierced, painted and spoken.7 The creative arts industry in Australia has become a strong advocate for the use of the word Country as a structural framework for ordering the production, analysis, display and dissemination of contemporary Aboriginal art. …

Collaborating with the Pharmaceutical Industry: An Aboriginal Perspective

Firstly I would like to acknowledge the Traditional Owners whose land we are meeting on today. I acknowledge that I stand before you on the shoulders of Indigenous Peoples globally, past and present that have been marginalised, had their knowledge exploited, and generally had their inherent native title rights ripped off for the financial and health benefit of others.

Constant Resurrection: The Trihybrid Model and the Politicisation of Australian Archaeology

Most Australian archaeologists would say that Birdsell’s trihybrid model is defunct and no longer worth considering. Unfortunately, this is not the view of many in the Australian public. In his revisionist history of Australia, the conservative commentator Keith Windschuttle still refers to this model, and, potentially more seriously, writers with a particular political agenda to deny Aboriginal people legitimate Native Title rights have also adopted Birdsell’s model as ‘fact’. In this paper we analyse one such political text in detail: Pauline Hanson: The Truth. We demonstrate that in this, and other similar works, archaeological ‘data’ are used selectively to sustain sensational claims about Australia’s Aboriginal past. Although perhaps easily dismissed by professional archaeologists, such claims are still widely embraced by a surprisingly large number of people in the wider Australian public, and a debate needs to be held about how the archaeological community should challenge such ‘knowledge’.

The consultative process in planning for the Ma:Mu Canopy Walk in the Wooroonooran National Park – Wet Tropics World Heritage Area

The construction of the Ma:Mu Canopy Walk in the Wooroonooran National Park was completed in August 2008 in culmination of eight years of planning and negotiation with the private sector, the Ma:Mu Traditional Owners and protected area managers. This article examines the attempts to attract a private sector partner to contribute capital to the venture, the process of involving Traditional Owners in protecting cultural heritage places, and dealing with native title rights and interests. The Ma:Mu Canopy Walk diversifies the types of visitor experience opportunities in the Wet Tropics World Heritage Area. The project is the largest single capital works project undertaken by the Queensland Parks and Wildlife in its history.

A Blue Wristband View of History?

This article interrogates Australia’s “post-coloniality” in light of the death in custody of Mulrunji Doomadgee and its legal and political aftermath. While Prime Minister Rudd recently called for an end to the history wars, and while liberal reformist measures such as anti-discrimination laws and native title rights support the illusion that Australia has now reached a point in its history where it has meaningfully departed from its colonial past, the death of Mulrunji Doomadgee and the police reaction to it suggest that Australia today is still very much a colonial place. The article argues that what is emerging is a “blue wristband” view of history which denies the existence of colonial power relations today while actively reproducing them.

Collective voice and support for social protest among Indigenous and non-Indigenous Australians: Considering the role of procedural fairness in an intergroup conflict of interest

Although traditional procedural fairness research examines interpersonal conflicts within groups, there is a dearth of such research examining intergroup conflicts of interest. The current experiment sought to rectify this discrepancy by measuring Indigenous and non-Indigenous Australians' responses to a hypothetical scenario regarding discussions over Native Title rights. Each group's collective representation (“voice”), and the group membership of an arbitrating authority were independently manipulated. Members of both samples agreed that Indigenous voice only was fairer than non-Indigenous voice only. Moreover, Indigenous participants reported greater protest support following non-Indigenous voice only than Indigenous voice only, and the greatest acceptance of potential outcomes under conditions of Indigenous voice provided by an Indigenous authority. Non-Indigenous participants, however, reported the highest level of protest support following non-Indigenous voice provided by a non-Indigenous authority, and the lowest level of protest following Indigenous voice provided by the same non-Indigenous authority. Only some of these results are consistent with predictions, and thus highlight how analyses of procedural fairness must consider the broader historical and political context in which the procedures are unfolding.