The 1992 decision of the High Court of Australia to uphold the claim of the Meriam people was welcomed as beginning a new era where the unique status of Aboriginal and Torres Strait Islander peoples would gain recognition. Intense debate and activity ensued with federal parliament adopting a legislative framework to recognise native title and the Council for Aboriginal Reconciliation considering its broader constitutional implications. Fourteen years on though much of the promise of Mabo lies unfulfilled. This thesis draws upon the work of Canadian philosopher James Tully. He writes of contemporary constitutionalism in Western society and its inability to give more than superficial recognition to cultural difference. He locates the problem as lying with the dominant language of modern constitutionalism. This language provides for two main forms of recognition: the equality of self-governing nation states and the equality of individual citizens. Tully locates a way forward through the presence of another constitutional language. Common constitutionalism has enabled an accommodation of cultural differences guided by its three conventions of mutual recognition, continuity, and consent. Moreover, it is beneficial to analysing other studies about the ability of common law to recognise the claims of Indigenous people. Tully’s contribution is applied to an examination of the Mabo events in a way that takes account of Australia’s constitutional traditions. The aim is to clarify the languages employed by the representatives of Australia’s institutions of governance and whether this places obstacles in the way of recognising Aboriginal and Torres Strait Islander peoples. The inquiry considers the events prior to the High Court’s decision, the Keating government’s response, and the Howard Government’s native title changes. Other chapters examine the constitutional language used by Aboriginal and Torres Strait Islander peoples and the significance of the Council of Aboriginal Reconciliation. The central argument of this study is that once it is accepted that the claims of Indigenous people in Australia are constitutional, it becomes possible to appreciate that these were largely voiced through the language of human rights and common constitutionalism. In contrast, when the claims were considered by the High Court and federal parliament significant aspects were articulated through the modern constitutional language. Another thread running through the events was a desire to confront and overcome the influence of the language of White Australia. The thesis concludes by considering the significance of the findings for a settlement between Aboriginal and Torres Strait Islander peoples and other Australians.

The High Court decision in Mabo v Queensland (No 2) was interpreted by some as bringing to an end a history of discrimination and dispossession of indigenous peoples' lands. In this respect it was located within the new history movement in Australia - a movement which has raised awareness of the impact that colonisation has had on indigenous peoples in Australia. ln this thesis the extent to which Mabo was in fact a product of the new history movement in Australia is examined. An analysis of the results in the more recent High Court cases on native title such as Western Australia v Ward and Members of the Members of the Yorta Yorta Aboriginal Community v Victoria reveals that the promises that came with native title recognition in Mabo have not been fulfilled. ln Ward the native title claim was partially accepted; in Yorta Yorta lhe claim was completely rejected. But as the analysis further reveals the shortcomings of the native title regime as demonstrated by these cases can be partly located in the Mabo decision itself. One of the contributions that some new historians have made to the writing of Australian history has been to reveal how the perceived differences between indigenous peoples and the colonists resulted in the perception of indigenous peoples as inferior beings. In turn, such perceptions worked to legitimise their dispossession in the native title context, indigenous peoples are no longer to be perceived as inferior (the rejection of the terra nullius doctrine in Mabo was an acknowledgement that indigenous peoples did have their own laws and social organisation) However the perception that they are different remains in the way that laws for them are constructed: native title may be recognised by the common law, but it is not part of the common law. As it is argued in this thesis the perceived differences in the origins of native title and the Australian common law has resulted in the inferior r treatment of native title. Potential solutions are canvassed in the thesis. Included among them is the need to give recognition to Aboriginal sovereignty However, it is concluded that if any change is to take place it must involve changing perceptions of indigenous peoples so that the protection of their interests may be more broadly construed as being in the interests of Australia.

Masters Research - Master of Philosophy (Law) / In Yorta Yorta, it was expressly found that native title law could not support a ‘frozen in time’ approach. It was held that the rights making up native title could not be considered static and archaic instruments, but must be given reign to adapt. However the question must be asked whether, in its examination of the requirements of native title, Yorta Yorta has in the same breath re-introduced the ‘frozen in time’ approach, albeit in a different form. Specifically, it is a question of whether the continuity of connection requirement means that the evolution of rights is frozen and claimants are burdened with the task of proving they relate to land in exactly the same manner as their ancestors did, over 200 years ago. That is the question which this thesis attempts to answer. It will do so by examining in detail not only the requirement of continuity of connection as espoused in Yorta Yorta, but the evidentiary analysis which was performed under that requirement. It is the nature of this analysis in which the effect of continuity of connection on the nature of native title rights is revealed. This thesis will also examine the effect of Yorta Yorta on subsequent cases, particularly how subsequent Courts have interpreted the continuity of connection requirement and how it has affected the questions of proof they felt the claimants were required to answer. Particularly highlighted will be the cases of Larrakia and Single Noongar, two cases which have brought about starkly different outcomes for the claimants. The approach taken will be to discuss whether the requirements of native title in Yorta Yorta have produced a native title system which equitably and in justice recognises traditional owners’ rights to land in modern times, or whether they consign native title to being an historical relic, of little utility in reflecting the modern-day relationships of traditional owners to their land. In other words, was Yorta Yorta ‘the great re-freezing’?

Masters Research - Master of Philosophy (Law) / In Yorta Yorta, it was expressly found that native title law could not support a ‘frozen in time’ approach. It was held that the rights making up native title could not be considered static and archaic instruments, but must be given reign to adapt. However the question must be asked whether, in its examination of the requirements of native title, Yorta Yorta has in the same breath re-introduced the ‘frozen in time’ approach, albeit in a different form. Specifically, it is a question of whether the continuity of connection requirement means that the evolution of rights is frozen and claimants are burdened with the task of proving they relate to land in exactly the same manner as their ancestors did, over 200 years ago. That is the question which this thesis attempts to answer. It will do so by examining in detail not only the requirement of continuity of connection as espoused in Yorta Yorta, but the evidentiary analysis which was performed under that requirement. It is the nature of this analysis in which the effect of continuity of connection on the nature of native title rights is revealed. This thesis will also examine the effect of Yorta Yorta on subsequent cases, particularly how subsequent Courts have interpreted the continuity of connection requirement and how it has affected the questions of proof they felt the claimants were required to answer. Particularly highlighted will be the cases of Larrakia and Single Noongar, two cases which have brought about starkly different outcomes for the claimants. The approach taken will be to discuss whether the requirements of native title in Yorta Yorta have produced a native title system which equitably and in justice recognises traditional owners’ rights to land in modern times, or whether they consign native title to being an historical relic, of little utility in reflecting the modern-day relationships of traditional owners to their land. In other words, was Yorta Yorta ‘the great re-freezing’?

This study is a focus on a small minority group within Australian society. This study attempts to explore and expose the inherent injustices experienced by this Aboriginal group since colonization. Its major focus is the loss of their land and their human rights and dignity subsequent to this invasion/ colonization. It also attempts, subsequent to the High Court decision in favour of Aboriginal land ownership, to also theologically support that stance. This study exposes the heretical nature of the traditional theology and religious practices of the dominant white population. It also tries to show the correlation with the experience of the Maori people in New Zealand and how they lost their land to the British Monarch. It then attempts some directives for reconciliation between these peoples and what could be done to restore the damage done since 1788. / Theology / M.Th. (Systematic Theology)

Thesis (Ph.D.)--University of Melbourne, Dept. of Political Science, 2000. / Includes bibliographical references (leaves 289-319)

This study is a focus on a small minority group within Australian society. This study attempts to explore and expose the inherent injustices experienced by this Aboriginal group since colonization. Its major focus is the loss of their land and their human rights and dignity subsequent to this invasion/ colonization. It also attempts, subsequent to the High Court decision in favour of Aboriginal land ownership, to also theologically support that stance. This study exposes the heretical nature of the traditional theology and religious practices of the dominant white population. It also tries to show the correlation with the experience of the Maori people in New Zealand and how they lost their land to the British Monarch. It then attempts some directives for reconciliation between these peoples and what could be done to restore the damage done since 1788. / Theology / M.Th. (Systematic Theology)

This thesis is a work of Christian theology. Its purpose is twofold: firstly to develop an adequate understanding of reconciliation at the level of peoples and nations; and secondly to make a practical contribution to resolving the problems in Australia for the welfare of all the peoples, and of the land itself. The history of the relationships between the Indigenous and non-Indigenous peoples in Australia has left many problems, and no matter what the non-Indigenous people try to do, the Indigenous peoples of Australia continue to experience themselves as being in a state of siege. Trying to understand what is happening, and what can be done to resolve the problems for the peoples of Australia and the land, have been the implicit drivers for the theological development in this thesis. This thesis argues that the present generation in any trans-generational dispute is likely to continue to sin in ways that are shaped by the sins of the past, which explains why Indigenous peoples in Australia find themselves in a stage of siege, even when the non-Indigenous peoples are trying to pursue policies which they believe are for the welfare of all. The only way to resolve this is for the peoples of Australia to seek reconciliation. In particular, the non-Indigenous peoples need to repent, both of their own sins, and the sins of their forebears. Reconciliation processes have become part of the international political landscape. However, there are real concerns about the justice of pursuing reconciliation. An important part of the theological development of this thesis is therefore to show that pursuing reconciliation establishes justice. It is shown that the nature of justice, and of repentance, can only be established by pursuing reconciliation. Reconciliation is possible because God has made it possible, and is working in the world to bring reconciliation. Because land is an essential part of Indigenous identity in Australia, the history of land in court cases and legislation in Australia over the past half century forms an important case study in this work. It is shown that, although there was significant repentance within the non-Indigenous legal system in Australia, the degree of repentance available through that legal system is inherently limited, and so a more radical approach is needed in order to seek reconciliation in Australia. A final chapter considers what the non-Indigenous people of Australia need to do in order to repent.