In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ???native title??? had survived the acquisition of sovereignty over the Australian continent and is ???recognised??? by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ???recognition???. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law. Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ???law of the land???. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ???custom???. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation.

In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ???native title??? had survived the acquisition of sovereignty over the Australian continent and is ???recognised??? by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ???recognition???. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law. Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ???law of the land???. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ???custom???. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation.

The existing rights paradigm in Aboriginal law accepts Crown sovereignty claims grounded in ethnocentric conceptions of terra nullius and discovery, and views Aboriginal rights as arising out of prior occupation. The Supreme Court of Canada has shaken this paradigm by characterizing Crown sovereignty as merely de facto until reconciled with Aboriginal sovereignty and legitimated by a treaty, by developing the duty to consult, and by characterizing reconciliation as a process that is part of a generative constitutional order. The moves the Court toward a new paradigm rooted in the principle of the equality of peoples in which treaties provide a framework for sharing sovereignty. As part of the Canadian federation, Aboriginal sovereignty can strengthen Canadas territorial integrity and contribute to Canadas economic development.<p> In the past, courts allowed the act of state doctrine to shield Crown assertions of sovereignty from scrutiny. This doctrine protects Canadas territorial integrity, but does not shield the Crowns actions from legal and constitutional scrutiny. The fundamental constitutional principle of rule of law and the de facto doctrine will protect interests that relied on assumptions of Crown sovereignty that lacked constitutional legitimacy.<p> The transformation in the fundamental principles of Aboriginal law has parallels to Thomas Kuhns description of a paradigm shift in the natural sciences. The rights paradigm is in a crisis with moral and practical dimensions. It is incommensurable with the equality paradigm, and therefore the choice of paradigms will depend on normative criteria. Fundamental principles of the Canadian constitution, international standards of human rights and the perspectives of growing numbers of practitioners in the field that are of Aboriginal ancestry are all forces that will complete the shift to the equality paradigm.<p> An equality paradigm will result in the abandonment of some Aboriginal law doctrines, and the modification of others. Aboriginal title is inconsistent with an equality paradigm because it assumes the legitimacy of the Crowns claims to sovereignty, gives the Crown a superior title, and limits Aboriginal nations to a burden of only limited and subordinate rights. The fiduciary relationship rooted in the honour of the Crown will grow into a non-hierarchical relationship with reciprocal obligations.<p> Decisions of courts can play a supporting role, but only negotiations and treaties can build a genuine partnership, effective and equitable sharing of sovereignty and ultimately reconciliation between Aboriginal and non-Aboriginal peoples in Canada.

The existing rights paradigm in Aboriginal law accepts Crown sovereignty claims grounded in ethnocentric conceptions of terra nullius and discovery, and views Aboriginal rights as arising out of prior occupation. The Supreme Court of Canada has shaken this paradigm by characterizing Crown sovereignty as merely de facto until reconciled with Aboriginal sovereignty and legitimated by a treaty, by developing the duty to consult, and by characterizing reconciliation as a process that is part of a generative constitutional order. The moves the Court toward a new paradigm rooted in the principle of the equality of peoples in which treaties provide a framework for sharing sovereignty. As part of the Canadian federation, Aboriginal sovereignty can strengthen Canadas territorial integrity and contribute to Canadas economic development.<p> In the past, courts allowed the act of state doctrine to shield Crown assertions of sovereignty from scrutiny. This doctrine protects Canadas territorial integrity, but does not shield the Crowns actions from legal and constitutional scrutiny. The fundamental constitutional principle of rule of law and the de facto doctrine will protect interests that relied on assumptions of Crown sovereignty that lacked constitutional legitimacy.<p> The transformation in the fundamental principles of Aboriginal law has parallels to Thomas Kuhns description of a paradigm shift in the natural sciences. The rights paradigm is in a crisis with moral and practical dimensions. It is incommensurable with the equality paradigm, and therefore the choice of paradigms will depend on normative criteria. Fundamental principles of the Canadian constitution, international standards of human rights and the perspectives of growing numbers of practitioners in the field that are of Aboriginal ancestry are all forces that will complete the shift to the equality paradigm.<p> An equality paradigm will result in the abandonment of some Aboriginal law doctrines, and the modification of others. Aboriginal title is inconsistent with an equality paradigm because it assumes the legitimacy of the Crowns claims to sovereignty, gives the Crown a superior title, and limits Aboriginal nations to a burden of only limited and subordinate rights. The fiduciary relationship rooted in the honour of the Crown will grow into a non-hierarchical relationship with reciprocal obligations.<p> Decisions of courts can play a supporting role, but only negotiations and treaties can build a genuine partnership, effective and equitable sharing of sovereignty and ultimately reconciliation between Aboriginal and non-Aboriginal peoples in Canada.

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

Wik, Wik-Way and Kugu people (Wik people) in Aurukun Shire on Cape York Peninsula (CYP) are among the most socio-economically disadvantaged groups in Australia. While Wik people are presently reliant on government work for welfare programs for income, elders have a vision of economic independence and self-reliance. The large area of native Darwin stringybark (Eucalyptus tetrodonta) forest on traditional Wik land is a potential engine for economic development, which could provide meaningful employment, and contribute to other Wik socio-economic objectives, including facilitating population decentralisation and consolidation of cultural obligations to manage country through provision of on country employment, reducing welfare dependency and expenditure on timber purchases from outside CYP, and increasing income and skill levels in the community. A large proportion of the higher-quality timber resource on traditional Wik land is situated on bauxite mining leases and the current practice is to clear, windrow and burn this timber prior to commencement of mining. A Wik native forest timber industry could make use of this wasted high-quality timber resource. The objectives of this thesis were to: determine the property rights of Wik people to the timber resource on their traditional land; assess whether forestry operations in Darwin stringybark forests in the study area are likely to be financially viable; and generate a suite of optimal timber utilisation strategies for Wik people, subject to cultural, ecological and economic constraints. This required economic research in the areas of indigenous property rights, private and social costs and benefits of forestry, timber markets, and evaluation and application of economic analysis techniques for appraisal of forestry development opportunities. A social cost-benefit analysis of the privately optimal timber utilisation policies has also been performed to support the decision-making of government policy-makers. This research project was a demanding and complex undertaking, not least because the research was being performed in a unique and diverse indigenous cultural environment where there is a need to respect cultural and research ethics protocols, where formal participatory research methods are inappropriate and where gatekeepers are particularly zealous about ‘protecting’ Wik people from ‘outsiders’. In addition, the property rights of Wik people to timber resources had never previously been analysed methodically, timber inventory and timber market information was lacking for CYP, and there are difficulties in transferring parameter estimates from the industrial hardwood timber industry of Australia to culturally appropriate indigenous operations on CYP. A critical research step was to develop a rapport with Wik people and gain an insight into their forestry objectives, through a number of visits to Aurukun Shire and informal discussions with elders on country. The property rights of Wik people to timber resources have been assessed by reviewing Federal and State Government legislation, court rulings, regional development policies and the Queensland Code of Practice for Native Forest Timber Production on State-owned lands. A timber inventory was conducted over 580,000 ha of Darwin stringybark forest, individual-tree volume and taper models were developed, and a geographical information system was used in estimation of harvestable timber volume and its spatial distribution. To facilitate information transfer to Wik people, expertise was gained in the use of forest visualisation software to pictorially display timber inventory data. A review of literature and discussions with experts identified technically feasible timber processing opportunities for CYP timbers. An informal telephone and in-person survey of 46 businesses, local councils and government agencies in north and south Queensland and the Northern Territory provided market information about CYP timbers. Concepts of a culturally appropriate working week and culturally appropriate rate of production were developed to assist the estimation of cost structures for a Wik timber industry, based on cost estimates for non-indigenous Australian hardwood forestry enterprises that had been obtained from discussion with forestry experts and ‘grey literature’. Generation and evaluation of a suite of privately optimal timber utilisation strategies for Wik people has been supported by the development of a mixed-integer goal programming (GP) model using the GAMS software package. The social analysis of the privately optimal strategies has been performed by adjusting private net present values (NPV) estimated by the GP model with shadow prices and transfer payments. In particular, a carbon model has been developed to estimate the value of carbon emitted by the Wik timber industry. The GP model analysis suggests that a Wik timber industry can generate a positive financial NPV if seed funding of at least $0.5 M is available. In general, privately optimal forestry strategies for Wik people generated by the GP model utilise relatively low-technology equipment, including portable sawmills and air-drying sheds, and produce undressed timber products such as structural timber. This contrasts strongly with Wik visions of an industry selling mostly unprocessed logs or woodchips and non-indigenous representatives of Wik people favouring the manufacture of high-value strip-flooring and furniture. The social analysis of privately optimal timber utilisation strategies reveals that social NPVs are much higher than financial NPVs, even when accounting for the costs of ecosystem services foregone by logging native forest. The establishment of a culturally appropriate Wik timber industry can be expected to generate net social benefits for Australia.

Submitted in fulfilment of the requirements for the degree of Masters in English in the Division of Humanities, Dept. of English, 2006. / Thesis (MA)--Macquarie University (Division of Humanities, Department of English), 2006. / Bibliography: p. 199-210. / Introduction -- Defiance and servility in Andrew Bovell's Holy day -- Writing a reconciled nation: Katherine Thomson's Wonderlands -- Transformation of trauma: Tammy Anderson's I don't wanna play house -- The rage inside the pain: Richard J. Frankland's Conversations with the dead -- Conclusion: towards an understanding of witness to the trauma of invasion. / In an Australia shaped by neo-conservative government and by searing contention, national and global, over what the past is, how it should be allowed to affect the present and who are authentic bearers of witness, this thesis compares testimony to Australia's black/white relations in two plays by white writers, Andrew Bovell's 'Holy day' (2001) and Katherne Thomson's 'Wonderlands' (2003), and two black writers, Tammy Anderson's 'I don't wanna play house' (2001) and Richard J. Frankland's 'Conversations witht the dead' (2002). / Mode of access: World Wide Web. / 210 p. ill. 30 cm

Wik, Wik-Way and Kugu people (Wik people) in Aurukun Shire on Cape York Peninsula (CYP) are among the most socio-economically disadvantaged groups in Australia. While Wik people are presently reliant on government work for welfare programs for income, elders have a vision of economic independence and self-reliance. The large area of native Darwin stringybark (Eucalyptus tetrodonta) forest on traditional Wik land is a potential engine for economic development, which could provide meaningful employment, and contribute to other Wik socio-economic objectives, including facilitating population decentralisation and consolidation of cultural obligations to manage country through provision of on country employment, reducing welfare dependency and expenditure on timber purchases from outside CYP, and increasing income and skill levels in the community. A large proportion of the higher-quality timber resource on traditional Wik land is situated on bauxite mining leases and the current practice is to clear, windrow and burn this timber prior to commencement of mining. A Wik native forest timber industry could make use of this wasted high-quality timber resource. The objectives of this thesis were to: determine the property rights of Wik people to the timber resource on their traditional land; assess whether forestry operations in Darwin stringybark forests in the study area are likely to be financially viable; and generate a suite of optimal timber utilisation strategies for Wik people, subject to cultural, ecological and economic constraints. This required economic research in the areas of indigenous property rights, private and social costs and benefits of forestry, timber markets, and evaluation and application of economic analysis techniques for appraisal of forestry development opportunities. A social cost-benefit analysis of the privately optimal timber utilisation policies has also been performed to support the decision-making of government policy-makers. This research project was a demanding and complex undertaking, not least because the research was being performed in a unique and diverse indigenous cultural environment where there is a need to respect cultural and research ethics protocols, where formal participatory research methods are inappropriate and where gatekeepers are particularly zealous about ‘protecting’ Wik people from ‘outsiders’. In addition, the property rights of Wik people to timber resources had never previously been analysed methodically, timber inventory and timber market information was lacking for CYP, and there are difficulties in transferring parameter estimates from the industrial hardwood timber industry of Australia to culturally appropriate indigenous operations on CYP. A critical research step was to develop a rapport with Wik people and gain an insight into their forestry objectives, through a number of visits to Aurukun Shire and informal discussions with elders on country. The property rights of Wik people to timber resources have been assessed by reviewing Federal and State Government legislation, court rulings, regional development policies and the Queensland Code of Practice for Native Forest Timber Production on State-owned lands. A timber inventory was conducted over 580,000 ha of Darwin stringybark forest, individual-tree volume and taper models were developed, and a geographical information system was used in estimation of harvestable timber volume and its spatial distribution. To facilitate information transfer to Wik people, expertise was gained in the use of forest visualisation software to pictorially display timber inventory data. A review of literature and discussions with experts identified technically feasible timber processing opportunities for CYP timbers. An informal telephone and in-person survey of 46 businesses, local councils and government agencies in north and south Queensland and the Northern Territory provided market information about CYP timbers. Concepts of a culturally appropriate working week and culturally appropriate rate of production were developed to assist the estimation of cost structures for a Wik timber industry, based on cost estimates for non-indigenous Australian hardwood forestry enterprises that had been obtained from discussion with forestry experts and ‘grey literature’. Generation and evaluation of a suite of privately optimal timber utilisation strategies for Wik people has been supported by the development of a mixed-integer goal programming (GP) model using the GAMS software package. The social analysis of the privately optimal strategies has been performed by adjusting private net present values (NPV) estimated by the GP model with shadow prices and transfer payments. In particular, a carbon model has been developed to estimate the value of carbon emitted by the Wik timber industry. The GP model analysis suggests that a Wik timber industry can generate a positive financial NPV if seed funding of at least $0.5 M is available. In general, privately optimal forestry strategies for Wik people generated by the GP model utilise relatively low-technology equipment, including portable sawmills and air-drying sheds, and produce undressed timber products such as structural timber. This contrasts strongly with Wik visions of an industry selling mostly unprocessed logs or woodchips and non-indigenous representatives of Wik people favouring the manufacture of high-value strip-flooring and furniture. The social analysis of privately optimal timber utilisation strategies reveals that social NPVs are much higher than financial NPVs, even when accounting for the costs of ecosystem services foregone by logging native forest. The establishment of a culturally appropriate Wik timber industry can be expected to generate net social benefits for Australia.

It has been 15 years since the United Nations Declaration on the Rights of Indigenous Peoples recognized the Free, Prior and Informed consent Principle, yet it has not been able to function to its fullest potential. This Thesis aims to carry out a Qualitative Comparative Analysis of the following three countries of Australia, Canada, and the United States. With the hypothesis, that the underlying factors behind this failure can be attributed to Settler-Colonialism and Global Capitalism. To carry out this study Theoretical Frameworks based on Settler-Colonial studies and a critique of the Stakeholder theory named Critical Stakeholder Analysis (CSA) will be employed. Using the existing body of research in this area of inquiry as a point of departure, this thesis attributes the failure to implement the Free, Prior, and Informed Consent principle to its fullest potential on asymmetrical power dynamics, settler-colonial structures, and profitability.

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.