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.
| Identifer | oai:union.ndltd.org:ADTP/216250 |
| Date | January 2007 |
| Creators | Anker, Kirsten, kirsten.anker@mcgill.ca |
| Source Sets | Australiasian Digital Theses Program |
| Detected Language | English |
| Rights | The author retains copyright of this thesis., http://www.library.usyd.edu.au/copyright.html |
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