Thesis (M.Geo.Sc.)--University of Melbourne, Dept. of Geomatics, 2001. / Typescript (photocopy). Includes bibliographical references (leaves 131-135).

Thesis (Ph.D.)--Murdoch University, 2006. / Thesis submitted to the Division of Arts. Bibliography: p. 437-452.

The recognition of native title changed the foundations on which the Australian law of real property rested. However, the phrase

This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis. Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process. As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it. The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.

Indigenous cultural possessions constitute a diverse global issue. This issue includes some culturally important, intangible tribal objects. This is evident in the Australian copyright cases viewed in this study, which provide examples of disputes over traditional Indigenous visual art. A proposal for the legal recognition of Indigenous cultural possessions in Australia is also reviewed, in terms of a new category of law. When such cultural objects are in an artistic form they constitute the tribe's self-presentation and its mechanism of cultural continuity. Philosophical arguments for the legal recognition of Indigenous intellectual `property' tend to assume that the value of Indigenous intellectual property is determinable on external criteria.

This thesis argues that native title rights are fundamental to Indigenous citizenship in Australia. It does this by developing a normative conception of citizenship in connection with a model of constitutionalism. Here, citizenship is more than a legal status. It refers to the norms of individual rights coupled with democratic responsibility that are attached to the person in a liberal-democracy. Constitutionalism provides the framework for understanding the manner in which Australian society realizes these norms. This thesis focuses on a society attempting to grapple with issues of postcolonialism. A fundamental question faced in these societies is the legitimacy of group rights based in pre-colonization norms. This thesis argues that these rights can be legitimized when constitutionalism is understood as originating in the deliberations connecting civil society with the state; which deliberations reconcile individual rights with group rights in such a way as to resolve the issue of their competing claims to legitimacy. Civil society is the social space in which politico-legal norms collide with action. The argument constructed here is that native title is built on norms that have the potential (it is a counterfactual argument) to contribute to a postcolonial civil society. This is one in which colonizer and colonized coordinate their action in a mutual search for acceptable solutions to the question 'how do we live together?'. The optimistic analysis is tempered by a consideration of the development of native title law. The jurisprudence of the High Court after the Wik's Case has undermined the potential of native title to play a transformative role. It has undermined Indigenous Australians' place in civil society, and their status as equal individuals and responsible citizens. In seeking to explain this, the thesis turns from jurisprudence to political sociology, and argues that an alternative model of constitutionalism and civil society has supplanted the postcolonial; viz., the neoliberal.

Doctor of Philosophy (PhD) / The official version of law in Australia is that the state has a monopoly over sovereignty: there is only one Australian law whose meaning is determined by the courts. However, the courts have implied that there is another law, the law of Indigenous peoples which exists as a social fact. It can be recognised by the state for particular purposes, such as the protection of the ‘native title’ of Aboriginal peoples and Torres Strait Islanders to their traditional countries. Native title is characterised as the translation of a primarily spiritual connection to land into proprietary rights and interests, requiring proof of the connection that a particular Indigenous society has under traditional laws and customs continuously acknowledged since Britain claimed sovereignty. Given the special nature of native title, the preference is to recognise title by negotiated agreement. This thesis undertakes a study of some of the assumptions and inconsistencies on which the recognition of native title – and this ‘not quite’ legal pluralism – rests. It questions law’s relation to fact, time, space, identity, language and practice as these are deployed in calibrating Indigenous peoples’ claims, and so reaches across disciplines to History (questioning the knowable past), Philosophy (the notion of recognition), Legal Theory (the concept of law as rules and the separation between law and fact), Anthropology and Literary Studies (the possibility of translation), Aesthetics (the rationality of proof), and Geography (the alternative space of negotiation). In looking closely at the practical and discursive process of making a claim, an account of native title can be given that refuses the cogency of the monopoly of sovereignty, and envisages instead a multi-faceted phenomenon that is the ‘unofficial’ law of native title. Native title is a set of practices which stimulate new articulations of Indigenous law and settler law and put them in relation with one another: the process of recognition is also a creative process of transformation.

Thesis (Ph.D.) - Simon Fraser University, 2005. / Theses (Dept. of Political Science) / Simon Fraser University. Also issued in digital format and available on the World Wide Web.

This thesis argues that native title rights are fundamental to Indigenous citizenship in Australia. It does this by developing a normative conception of citizenship in connection with a model of constitutionalism. Here, citizenship is more than a legal status. It refers to the norms of individual rights coupled with democratic responsibility that are attached to the person in a liberal-democracy. Constitutionalism provides the framework for understanding the manner in which Australian society realizes these norms. This thesis focuses on a society attempting to grapple with issues of postcolonialism. A fundamental question faced in these societies is the legitimacy of group rights based in pre-colonization norms. This thesis argues that these rights can be legitimized when constitutionalism is understood as originating in the deliberations connecting civil society with the state; which deliberations reconcile individual rights with group rights in such a way as to resolve the issue of their competing claims to legitimacy. Civil society is the social space in which politico-legal norms collide with action. The argument constructed here is that native title is built on norms that have the potential (it is a counterfactual argument) to contribute to a postcolonial civil society. This is one in which colonizer and colonized coordinate their action in a mutual search for acceptable solutions to the question 'how do we live together?'. The optimistic analysis is tempered by a consideration of the development of native title law. The jurisprudence of the High Court after the Wik's Case has undermined the potential of native title to play a transformative role. It has undermined Indigenous Australians' place in civil society, and their status as equal individuals and responsible citizens. In seeking to explain this, the thesis turns from jurisprudence to political sociology, and argues that an alternative model of constitutionalism and civil society has supplanted the postcolonial; viz., the neoliberal.

Thesis (Ph.D.)--Murdoch University, 2007. / Thesis submitted to the Faculty of Sustainability, Environmental and Life Sciences. Title of CD-ROM: Uniting the voices : decision making to negotiate for Native Title in South Australia. Includes bibliographical references.