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.

Thesis (Ph. D.)--University of Sydney, 2007. / Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Law, University of Sydney. Degree awarded 2007. Includes bibliographical references. Also available in print form.

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.

This thesis engages in a critique of the concept of Australian native title law as a 'recognition space'. It doing so, it treats native title law as a form of identity politics, the courts a forum in which claims for the recognition of identity are made. An overview of multicultural theories of recognition exposes what is signified by the use of recognition discourse and situates this rhetoric in political and theoretical context. A critique of native title recognition discourse is then developed by reference to the insights of sociolegal scholarship, critical theory, critical anthropology and legal pluralism. These critiques suggest that legal recognition is affective and effective. This thesis highlights native title law's false assumptions as to cultural coherence and subject stasis by exploring law's demands and indigenous claimant engagement with these demands. In this analysis, law's constitutive effect is emphasized. However, a radical constructivist approach is eschewed, subject engagement explored and agency located in the limits of law's constitutive power. The effects of legal recognition discourse, its productive and enabling aspects, are considered best understood by reference to Butler's notion of provisional 'performativity'. Ultimately, claimant 'victories' of resistance and subversion are considered not insignificant, but are defined as temporary and symbolic by virtue of the structural context in which they occur.

Thesis (MA (AborStud))--University of South Australia, 1994

No description available.

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’?

The importance currently placed on sustainable development recognises the fundamental role of land administration and the management of land based resources. This acknowledgement of the pivotal role of land administration and tenure security reinforces the need to recognise all interest and responsibilities in land, particularly those of a customary and traditional nature. The United Nations Draft Declaration on the Rights of Indigenous Peoples (Pritchard 1998) respects the unique relationship between indigenous people(s) and the land, recognising the need to protect these traditions and cultures. A number of countries (specifically the United States of America, Canada and New Zealand) have implemented legal and institutional mechanisms for the recognition of this unique relationship and connection to land. In doing so it provided the precedent for the recognition of interests in land as held by indigenous peoples of Australia. / In Australia the legal recognition of indigenous interests in land occurred in 1992, with the passing of the High Court’s decision concerning Mabo and others v the State of Queensland (no.2) (1992) 175 CLR 1 and the subsequent development and implementation of the Native Title Act 1993 (Cth). This federal act provides for the recognition and protection of native title within the framework of the Australian legal system . Its (native title interests) origins and foundations are those of traditional laws, connecting indigenous Australians with land and waters (S223 NTA 1993). (For complete abstract open document)

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’?

Thesis (M. Geomatics Sc.) -- Dept. Geomatics, Univ. of Melb.