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.

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