Academic literature on the topic 'Aboriginal Australians. Legal status, laws, etc'

Along with all the other baggage the British brought with them to Port Jackson in 1788 were laws of ownership that were totally foreign to the original inhabitants. The particular law I'll consider here is that of copyright. The result of a few hundred years of evolution, moulded by the common law and acts of Parliament, copyright protects the intellectual property of writers and artists (Saunders). It has three requirements: originality, material form and identifiable author. However, superimposed on the creative practices of the original inhabitants of Australia, copyright has proved a dismal failure. Its inability to continue its evolution means that it does not serve Indigenous Australians, whose creative practices do not fit neatly within its confines. The notions of 'rights' or 'ownership' inherent in current copyright law do not reflect, and are therefore unable to protect, Indigenous intellectual property. The limits of protection are summed up by Janke et al: '[c]ommercial interests are protected … rather than interests pertaining to cultural integrity … [r]ights are valid for a limited period … whereas under Indigenous laws, they exist in perpetuity. Individual notions of ownership are recognised, rather than the Indigenous concept of communal ownership' (Janke 1997). Practical effects of these limitations are the loss of copyright of stories written down or electronically recorded by outsiders, and the absence of special consideration for, or protection of, secret or sacred material (Janke 1997). Mansell notes that Aboriginal intellectual property rights are poorly protected by current laws be they copyright, patent, plant breeders, design laws or trademarks where 'the creative customs and practices of Aborigines' are different to those of whites, who 'emphasise the individual and provide the mechanisms for the commercialisation of an individual's activity. The traditional base of Aboriginal art forms was not created with this in mind' (Mansell 196). Indigenous cultures have their own systems for the protection of intellectual property which are predicated not on the protection of commercial advantage but on the meaning and cultural integrity of the work of art (Janke 1996 15; 1998a 4). Some of these so-called works of art are, in fact, 'law bearers'; these 'Indigenous traditional cultural productions are … legal titles to clan land' (Morris 6). Ignoring this meaning of cultural productions is a little like your bank manager framing your mortgage document or rental agreement for its aesthetic qualities, and evicting you from your house. While copyright law does acknowledge legally-defined entities like corporations or government departments as copyright holders, it is too limited in its definitions to recognise the complex familial relationships and reciprocal responsibilities of Aboriginal society. Under Indigenous laws 'individuals are differentiated in their awareness of elements of the local culture and in the way they make use of those elements depending on such things as their sex, their moiety or skin group, and their initiatory status' (Johnson 10). Given the complex nature of Indigenous attitudes to rights in and ownership of intellectual property, those concerned with questions of fairness in the administration of copyright law must take a new perspective. While copyright law appears, in the main, to have been unable to deal with a system of law which pre-dates it by thousands of years, there have recently been some tentative steps towards a recognition of Indigenous concerns. Golvan, acknowledging that much work needs to be done 'to ensure that the legal system is meaningful to Aboriginal people', sees some aspects of the judgement in the Carpets Case1 which 'show a strong determination to seek to unite Western copyright principles with the need to deal with issues of indigenous cultural harm' (Golvan 10). And, in Foster v Mountford 1976 (discussed below), Justice Muirhead noted that 'revelation of the secrets [contained in the offending book] … may undermine the social and religious stability of [the] hard-pressed community' (quoted in McDonald 24). These examples show some willingness on the part of the courts to take into account matters which fall outside of common law. While there has as yet been very little litigation regarding copyright ownership of written works, there is no reason to assume that this situation will continue. The first case of infringement of Aboriginal copyright to surface in the media occurred in 1966, when David Malangi's painting 'The Hunter' was adapted without permission as part of the design for the new one-dollar note (Johnson 13). Ten years later, the Pitjantjatjara Council was involved in litigation with Dr Mountford, 'an anthropologist who had been given information by the Pitjantjatjara people … in 1940 … about tribal sites and objects, communal legends, secrets, paintings, engravings, drawings and totemic geography' (McDonald 23). Interestingly, this particular case relied not on copyright law but on a breach of confidence as 'the material … was not protected by copyright, being material in which copyright either did not subsist, or in which copyright had expired' (23). This is a good example of the lack of protection afforded by copyright law to intellectual property of religious and spiritual significance.2 At first glance, the implications of the 1992 Mabo land rights case for publishing in Australia today might seem remote. However, some of the implications of this historic case hold the potential for a new approach to intellectual property rights which may actually serve the interests of Indigenous artists and writers. The importance to intellectual property rights of the Mabo decision lies in the fact that 'the Court held that … local law remains in place except to the extent that it may be in conflict with British law, and until it is over-ruled by the colonisers' 3 (McDonald 26). This meant that not only the myth of terra nullius was repudiated, but with it any notion that Australia was 'either a wild and lawless place or a legal blank slate. Indigenous customary law … was thereby given both recognition and validity' (26). Gray goes further than this, and states in relation to native title and Aboriginal art: 'the two in fact are quite inseparable if not exactly the same' (Gray 12). This statement strongly emphasises Morris' concerns expressed above, regarding the diminution of authority of 'cultural productions' when they are perceived as merely artistic objects. Pearson, in discussing Mabo, talks of native title as the 'recognition space' 4 between common law and Aboriginal law (Pearson 154). He points out that Aboriginal law exists, is practised is in fact a 'social reality', and adds that 'it is fictitious to assume that Aboriginal law is extinguished where the common law is unable to recognise that law' 5 (155). Recently the Australian Society of Authors (Heiss) prepared two discussion papers and a checklist for non-Indigenous writers who want to write about Indigenous culture. One of the papers, 'Australian Copyright vs Indigenous Intellectual and Cultural Property Rights', reiterates the point that the Copyright Act 1968 'as it stands is unsuited to protecting Indigenous culture'. It briefly discusses the desirability of the sharing of copyright between the Indigenous storyteller or informant and their non-Indigenous collaborator an issue I will examine in greater depth in my thesis on cross-cultural editing. A problematic practice, shared copyright deals with 'ownership' in a way that satisfies white or western conceptions but may compromise the Indigenous sense of (Indigenous) communal title to the work. The importance of effective copyright law for Indigenous Australians goes beyond the earning of royalties or the commercial 'ownership' of creative work: it refers to the protection of their cultural heritage (Heiss). One solution suggested by Janke is an amendment to 'the Copyright Act to provide moral rights (rights of attribution, no false attribution and cultural integrity)' (in Heiss). Another possible, though longer term solution, may lie in the way common law itself develops. It has evolved over time, albeit slowly, to suit the needs of the particular environment economic, technological, cultural or other in which it has to operate. As Ginsberg remarks in the context of the introduction of moral rights law to two common law countries, the US and Australia, regarding the gradual adoption of moral rights: 'a Common Law approach to moral rights … slowly builds up to the general principle from gritty examples worked out fact-by-fact. This accretion method is familiar to both our countries' legal approaches' (Ginsberg 34). This same accretion method could be used to change copyright law so that it more adequately protects Indigenous intellectual property. Whatever solution is reached, at present the copyright laws are colour-blind when presented with the complex and alien nature of Indigenous cultural practice. In the interests of reconciliation, natural justice and the integrity of Indigenous culture, reform cannot come too soon. NOTES 1. Milpurrurru v Indofurn Pty Ltd, 1995; an Australian company copied and adapted various Indigenous works of art and had them woven into carpets in Vietnam, and imported into Australia. Permission to use the designs was never sought. An award of almost $200,000 was made to the 8 artists involved, and the offending carpets were withdrawn from sale. By 1996, Indofurn had been wound up and the director declared bankrupt: the artists have not received a cent. (Janke 1998b 9). 2. Fortunately for the Pitjantjatjara elders, the court held that Mountford's book did constitute a breach of confidence. 3. 'The Court held that the rights of Indigenous inhabitants of a colony are the same as the rights of a conquered nation: local law remains in place except to the extent that it may be in conflict with British law, and until it is over-ruled by the colonisers' (McDonald 26). 4. 'Native title is therefore the space between the two systems, where there is recognition. Native title is, for want of a better formulation the recognition space between the common law and the Aboriginal law which now afforded recognition in particular circumstances' (Pearson 154). 5. However, some cases subsequent to Mabo place limitations upon the recognition of Indigenous traditional law. Justice Mason in Coe v Commonwealth of Australia (1993, at 115) stated that 'Mabo … is at odds with the notion … that [Indigenous Australians] are entitled to any rights and interest other than those created or recognised by the law of the Commonwealth, the [relevant] State… and the common law' (McDonald 2627). References Coe v Commonwealth of Australia (1993) 68 ALJR 110 Ginsberg, J. (1992). Moral Rights in a Common Law System. Moral Rights in a Copyright System. P. Anderson and D. Saunders. Brisbane, Qld: Institute for Cultural Policy Studies, Griffith University. Golvan, C. (1996). 'Aboriginal Art and Copyright.' Culture and Policy 7(3): 512. Gray, S. (1996). 'Black Enough? Urban and non-traditional Aboriginal art and proposed legislative protection for Aboriginal art.' Culture and Policy 7(3): 29-44 Heiss, A. (2001). Australian Copyright vs Indigenous Intellectual and Cultural Property Rights, Australian Society of Authors. < http://www.asauthors.org/resources> Accessed 15.08.01. Janke, T. (1996). 'Protecting Australian indigenous arts and cultural expression.' Culture and Policy 7(3): 1327. Janke, T. (1998a). Editorial. Queensland Community Arts Network News 1: 45. Janke, T. (1998b). Federal Court awards record damages to Aboriginal artists. Queensland Community Arts Network News 1: 89. Janke, T., Frankel, M. & Company, Solicitors (1997). Proposals For The Recognition and Protection of Indigenous Cultural and Intellectual Property, AIATSIS for the Indigenous Cultural and Intellectual Property Project. <http://www.icip.lawnet.com.au/> Accessed 25.4.98. Johnson, V. (1996). Copyrites: Aboriginal art in the age of reproductive technologies. Sydney, NSW: NIAAA & Macquarie University. Mansell, M. (1997). Barricading our last frontier Aboriginal cultural and intellectual propery rights. Our land is Our Life: Land rights past, present and future. G. Yunupingu. St Lucia, Qld, UQP: 195209. Milpurrurru v Indofurn Pty Ltd (1995) 30 IPR 209. Morris, C. (1998). The Responsibility of Maintaining the Oldest Continuous Culture in the World. Queensland Community Arts Network News 1: 67. Pearson, N. (1997). The Concept of Native Title at Common Law. Our Land is Our Life: Land rights past, present and future. G. Yunupingu. St Lucia, Qld, UQP: 150162. Saunders, D. (1992). Early Modern Law of Copyright in England: Statutes, courts and book cultures. Authorship and Copyright. D. Saunders. London, Routledge: 3574. Links http://www.icip.lawnet.com.au/ http://www.asauthors.org/resources Citation reference for this article MLA Style McDonnell, Margaret. "The Colour of Copyright" M/C: A Journal of Media and Culture 5.3 (2002). [your date of access] < http://www.media-culture.org.au/0207/copyright.php>. Chicago Style McDonnell, Margaret, "The Colour of Copyright" M/C: A Journal of Media and Culture 5, no. 3 (2002), < http://www.media-culture.org.au/0207/copyright.php> ([your date of access]). APA Style McDonnell, Margaret. (2002) The Colour of Copyright. M/C: A Journal of Media and Culture 5(3). < http://www.media-culture.org.au/0207/copyright.php> ([your date of access]).

Australia in Maps is a compilation of cartography taken from the collection of over 600,000 maps held at the Australian National Library. Included in this collection are military maps, coastal maps and modern-day maps for tourists. The map of the eastern coast of ‘New Holland’ drawn by James Cook when he ‘discovered’ Australia in 1770 is included. Also published is Eddie Koiki Mabo’s map drawn on a hole-punched piece of paper showing traditional land holdings in the Murray Islands in the Torres Strait. This map became a key document in Eddie Mabo’s fight for native title recognition, a fight which became the precursor to native title rights as they are known today. The inclusion of these two drawings in a collection of maps defining Australia as a country illustrates the dichotomies and contradictions which exist in a colonial nation. It is now fifteen years since the Native Title Act 1994 (Commonwealth) was developed in response to the Mabo cases in order to recognise Indigenous customary law and traditional relationships to the land over certain (restricted) parts of Australia. It is 220 years since the First Fleet arrived and Indigenous land was (and remains) illegally possessed through the process of colonisation (Moreton-Robinson Australia). Questions surrounding ‘country’ – who owns it, has rights to use it, to live on it, to develop or protect it – are still contested and contentious today. In part, this contention arises out of the radically different conceptions of ‘country’ held by, in its simplest sense, Indigenous nations and colonisers. For Indigenous Australians the land has a spiritual significance that I, as a non-Indigenous person, cannot properly understand as a result of the different ways in which relationships to land are made available. The ways of understanding the world through which my identity as a non-Indigenous person are made intelligible, by contrast, see ‘country’ as there to be ‘developed’ and exploited. Within colonial logic, discourses of development and the productive use of resources function as what Wetherell and Potter term “rhetorically self-sufficient” in that they are principles which are considered to be beyond question (177). As Vincent Tucker states; “The myth of development is elevated to the status of natural law, objective reality and evolutionary necessity. In the process all other world views are devalued and dismissed as ‘primitive’, ‘backward’, ‘irrational’ or ‘naïve’” (1). It was this precise way of thinking which was able to justify colonisation in the first place. Australia was seen as terra nullius; an empty and un-developed land not recognized as inhabited. Indigenous people were incorrectly perceived as individuals who did not use the land in an efficient manner, rather than as individual nations who engaged with the land in ways that were not intelligible to the colonial eye. This paper considers the tensions inherent in definitions of ‘country’ and the way these tensions are played out through native title claims as white, colonial Australia attempts to recognise (and limit) Indigenous rights to land. It examines such tensions as they appear in the media as an example of how native title issues are made intelligible to the non-Indigenous general public who may otherwise have little knowledge or experience of native title issues. It has been well-documented that the news media play an important role in further disseminating those discourses which dominate in a society, and therefore frequently supports the interests of those in positions of power (Fowler; Hall et. al.). As Stuart Hall argues, this means that the media often reproduces a conservative status quo which in many cases is simply reflective of the positions held by other powerful institutions in society, in this case government, and mining and other commercial interests. This has been found to be the case in past analysis of media coverage of native title, such as work completed by Meadows (which found that media coverage of native title issues focused largely on non-Indigenous perspectives) and Hartley and McKee (who found that media coverage of native title negotiations frequently focused on bureaucratic issues rather than the rights of Indigenous peoples to oppose ‘developments’ on their land). This paper aims to build on this work, and to map the way in which native title, an ongoing issue for many Indigenous groups, figures in a mainstream newspaper at a time when there has not been much mainstream public interest in the process. In order to do this, this paper considered articles which appeared in Australia’s only national newspaper – The Australian – over the six months preceding the start of July 2008. Several main themes ran through these articles, examples of which are provided in the relevant sections. These included: economic interests in native title issues, discourses of white ownership and control of the land, and rhetorical devices which reinforced the battle-like nature of native title negotiations rather than emphasised the rights of Indigenous Australians to their lands. Native Title: Some Definitions and Some Problems The concept of native title itself can be a difficult one to grasp and therefore a brief definition is called for here. According to the National Native Title Tribunal (NNTT) website (www.nntt.gov.au), native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs. The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. Native title is therefore recognised as existing on the basis of certain laws and customs which have been maintained over an area of land despite the disruption caused by colonisation. As such, if native title is to be recognised over an area of country, Indigenous communities have to argue that their cultures and connection with the land have survived colonisation. As the Maori Land Court Chief Judge Joe Williams argues: In Australia the surviving title approach […] requires the Indigenous community to prove in a court or tribunal that colonisation caused them no material injury. This is necessary because, the greater the injury, the smaller the surviving bundle of rights. Communities who were forced off their land lose it. Those whose traditions and languages were beaten out of them at state sponsored mission schools lose all of the resources owned within the matrix of that language and those traditions. This is a perverse result. In reality, of course, colonisation was the greatest calamity in the history of these people on this land. Surviving title asks aboriginal people to pretend that it was not. To prove in court that colonisation caused them no material injury. Communities who were forced off their land are the same communities who are more likely to lose it. As found in previous research (Meadows), these inherent difficulties of the native title process were widely overlooked in recent media reports of native title issues published in The Australian. Due to recent suggestions made by Indigenous Affairs Minister Jenny Macklin for changes to be made to the native title system, The Australian did include reports on the need to ensure that traditional owners share the economic profits of the mining boom. This was seen in an article by Karvelas and Murphy entitled “Labor to Overhaul Native Title Law”. The article states that: Fifteen years after the passage of the historic Mabo legislation, the Rudd Government has flagged sweeping changes to native title to ensure the benefits of the mining boom flow to Aboriginal communities and are not locked up in trusts or frittered away. Indigenous Affairs Minister Jenny Macklin, delivering the third annual Eddie Mabo Lecture in Townsville, said yesterday that native title legislation was too complex and had failed to deliver money to remote Aboriginal communities, despite lucrative agreements with mining companies. (1) Whilst this passage appears supportive of Indigenous Australians in that it argues for their right to share in economic gains made through ‘developments’ on their country, the use of phrases such as ‘frittered away’ imply that Indigenous Australians have made poor use of their ‘lucrative agreements’, and therefore require further intervention in their lives in order to better manage their financial situations. Such an argument further implies that the fact that many remote Indigenous communities continue to live in poverty is the fault of Indigenous Australians’ mismanagement of funds from native title agreements rather than from governmental neglect, thereby locating the blame once more in the hands of Indigenous people rather than in a colonial system of dispossession and regulation. Whilst the extract does continue to state that native title legislation is too complex and has ‘failed to deliver money to remote Aboriginal communities’, the article does not go on to consider other areas in which native title is failing Indigenous people, such as reporting the protection of sacred and ceremonial sites, and provisions for Indigenous peoples to be consulted about developments on their land to which they may be opposed. Whilst native title agreements with companies may contain provisions for these issues, it is rare that there is any regulation for whether or not these provisions are met after an agreement is made (Faircheallaigh). These issues almost never appeared in the media which instead focused on the economic benefits (or lack thereof) stemming from the land rather than the sovereign rights of traditional owners to their country. There are many other difficulties inherent in the native title legislation for Indigenous peoples. It is worth discussing some of these difficulties as they provide an image of the ways in which ‘country’ is conceived of at the intersection of a Western legal system attempting to encompass Indigenous relations to land. The first of these difficulties relates to the way in which Indigenous people are required to delineate the boundaries of the country which they are claiming. Applications for native title over an area of land require strict outlining of boundaries for land under consideration, in accordance with a Western system of mapping country. The creation of such boundaries requires Indigenous peoples to define their country in Western terms rather than Indigenous ones, and in many cases proves quite difficult as areas of traditional lands may be unavailable to claim (Neate). Such differences in understandings of country mean that “for Indigenous peoples, the recognition of their indigenous title, should it be afforded, may bear little resemblance to, or reflect minimally on, their own conceptualisation of their relations to country” (Glaskin 67). Instead, existing as it does within a Western legal system and subject to Western determinations, native title forces Indigenous people to define themselves and their land within white conceptions of country (Moreton-Robinson Possessive). In fact, the entire concept of native title has been criticized by many Indigenous commentators as a denial of Indigenous sovereignty over the land, with the result of the Mabo case meaning that “Indigenous people did not lose their native title rights but were stripped of their sovereign rights to manage their own affairs, to live according to their own laws, and to own and control the resources on their lands” (Falk and Martin 38). As such, Falk and Martin argue that The Native Title Act amounts to a complete denial of Aboriginal sovereignty so that Indigenous people are forced to live under a colonial regime which is able to control and regulate their lives and access to country. This is commented upon by Aileen Moreton-Robinson, who writes that: What Indigenous people have been given, by way of white benevolence, is a white-constructed from of ‘Indigenous’ proprietary rights that are not epistemologically and ontologically grounded in Indigenous conceptions of sovereignty. Indigenous land ownership, under these legislative regimes, amounts to little more than a mode of land tenure that enables a circumscribed form of autonomy and governance with minimum control and ownership of resources, on or below the ground, thus entrenching economic dependence on the nation state. (Moreton-Robinson Sovereign Subjects 4) The native title laws in place in Australia restrict Indigenous peoples to existing within white frameworks of knowledge. Within the space of The Native Title Act there is no room for recognition of Indigenous sovereignty whereby Indigenous peoples can make decisions for themselves and control their own lands (Falk and Martin). These tensions within definitions of ‘country’ and sovereignty over land were reflected in the media articles examined, primarily in terms of the way in which ‘country’ was related to and used. This was evident in an article entitled “An Economic Vision” with a tag-line “Native Title Reforms offer Communities a Fresh Start”: Central to such a success story is the determination of indigenous people to help themselves. Such a business-like, forward-thinking approach is also evident in Kimberley Land Council executive director Wayne Bergmann's negotiations with some of the world's biggest resource companies […] With at least 45 per cent of Kimberley land subject to native title, Mr Bergmann, a qualified lawyer, is acutely aware of the royalties and employment potential. Communities are also benefitting from the largesse of Australia’s richest man, miner Andrew “Twiggy” Forrest, whose job training courses and other initiatives are designed to help the local people, in his words, become “wonderful participating Australians.” (15) Again, this article focuses on the economic benefits to be made from native title agreements with mining companies rather than other concerns with the use of Indigenous areas of country. The use of the quote from Forrest serves to imply that Indigenous peoples are not “wonderful participating Australians” unless they are able to contribute in an economic sense, and overlooks many contributions made by Indigenous peoples in other areas such as environmental protection. Such definitions also measure ‘success’ in Western terms rather than Indigenous ones and force Indigenous peoples into a relationship to country based on Western notions of resource extraction and profit rather than Indigenous notions of custodianship and sustainability. This construction of Indigenous economic involvement as only rendered valid on particular terms echoes findings from previous work on constructions of Indigenous people in the media, such as that by LeCouteur, Rapley and Augoustinos. Theorising ‘Country’ The examples provided above illustrate the fact that the rhetoric and dichotomies of ‘country’ are at the very heart of the native title process. The process of recognising Indigenous rights to land through native title invites the question of how ‘country’ is conceived in the first place. Goodall writes that there are tensions within definitions of ‘country’ which indicate the ongoing presence of Indigenous people’s connections to their land despite colonisation. She writes that the word ‘country’: may seem a self-evident description of rural economy and society, with associations of middle-class gentility as well as being the antonym of the city. Yet in Australia there is another dimension altogether. Aboriginal land-owners traditionally identify themselves by the name of the land for which they were the custodians. These lands are often called, in today’s Aboriginal English, their ‘country’. This gives the word a tense and resonating echo each time it is used to describe rural-settler society and land. (162) Yet the distinctions usually drawn between those defined as ‘country’ people or ‘locals’ and the traditional Indigenous people of the area suggest that, as Schlunke states, in many cases Indigenous people are “too local to be ‘local’” (43). In other words, if white belonging and rights to an area of country are to be normalised, the prior claims of traditional owners are not able to be considered. As such, Indigenous belonging becomes too confronting as it disrupts the ways in which other ‘country’ people relate to their land as legitimately theirs. In the media, constructions of ‘country’ frequently fell within a colonial definition of country which overlooked Indigenous peoples. In many of these articles land was normatively constructed as belonging to the crown or the state. This was evidenced in phrases such as, “The proceedings [of the Noongar native title claim over the South Western corner of Australia] have been watched closely by other states in the expectation they might encounter similar claims over their capital cities” (Buckley-Carr 2). Use of the word their implies that the states (which are divisions of land created by colonisation) have prior claim to ‘their’ capital cities and that they rightfully belong to the government rather than to traditional owners. Such definitions of ‘country’ reflect European rather than Indigenous notions of boundaries and possession. This is also reflected in media reports of native title in the widespread use of European names for areas of land and landmarks as opposed to their traditional Indigenous names. When the media reported on a native title claim over an area of land the European name for the country was used rather than, for example, the Indigenous name followed by a geographical description of where that land is situated. Customs such as this reflect a country which is still bound up in European definitions of land rather than Indigenous ones (Goodall 167; Schlunke 47-48), and also indicate that the media is reporting for a white audience rather than for an Indigenous one whom it would affect the most. Native title debates have also “shown the depth of belief within much of rural and regional Australia that rural space is most rightfully agricultural space” (Lockie 27). This construction of rural Australia is reflective of the broader national imagining of the country as a nation (Anderson), in which Australia is considered rich in resources from which to derive profit. Within these discourses the future of the nation is seen as lying in the ‘development’ of natural resources. As such, native title agreements with industry have often been depicted in the media as obstacles to be overcome by companies rather than a way of allowing Indigenous people control over their own lands. This often appears in the media in the form of metaphors of ‘war’ for agreements for use of Indigenous land, such as development being “frustrated” by native title (Bromby) and companies being “embattled” by native title issues (Wilson). Such metaphors illustrate the adversarial nature of native title claims both for recognition of the land in the first place and often in subsequent dealings with resource companies. This was also seen in reports of company progress which would include native title claims in a list of other factors affecting stock prices (such as weak drilling results and the price of metals), as if Indigenous claims to land were just another hurdle to profit-making (“Pilbara Lures”). Conclusion As far as the native title process is concerned, the answers to the questions considered at the start of this paper remain within Western definitions. Native title exists firmly within a Western system of law which requires Indigenous people to define and depict their land within non-Indigenous definitions and understandings of ‘country’. These debates are also frequently played out in the media in ways which reflect colonial values of using and harvesting country rather than Indigenous ones of protecting it. The media rarely consider the complexities of a system which requires Indigenous peoples to conceive of their land through boundaries and definitions not congruent with their own understandings. The issues surrounding native title draw attention to the need for alternative definitions of ‘country’ to enter the mainstream Australian consciousness. These need to encompass Indigenous understandings of ‘country’ and to acknowledge the violence of Australia’s colonial history. Similarly, the concept of native title needs to reflect Indigenous notions of country and allow traditional owners to define their land for themselves. In order to achieve these goals and overcome some of the obstacles to recognising Indigenous sovereignty over Australia the media needs to play a part in reorienting concepts of country from only those definitions which fit within a white framework of experiencing the world and prioritise Indigenous relations and experiences of country. If discourses of resource extraction were replaced with discourses of sustainability, if discourses of economic gains were replaced with respect for the land, and if discourses of white control over Indigenous lives in the form of native title reform were replaced with discourses of Indigenous sovereignty, then perhaps some ground could be made to creating an Australia which is not still in the process of colonising and denying the rights of its First Nations peoples. The tensions which exist in definitions and understandings of ‘country’ echo the tensions which exist in Australia’s historical narratives and memories. The denied knowledge of the violence of colonisation and the rights of Indigenous peoples to remain on their land all haunt a native title system which requires Indigenous Australians to minimise the effect this violence had on their lives, their families and communities and their values and customs. As Katrina Schlunke writes when she confronts the realisation that her family’s land could be the same land on which Indigenous people were massacred: “The irony of fears of losing one’s backyard to a Native Title claim are achingly rich. Isn’t something already lost to the idea of ‘Freehold Title’ when you live over unremembered graves? What is free? What are you to hold?” (151). If the rights of Indigenous Australians to their country are truly to be recognised, mainstream Australia needs to seriously consider such questions and whether or not the concept of ‘native title’ as it exists today is able to answer them. Acknowledgments I would like to thank Damien Riggs and Andrew Gorman-Murray for all their help and support with this paper, and Braden Schiller for his encouragement and help with proof-reading. I would also like to thank the anonymous referees for their insightful comments. References Anderson, Benedict. Imagined Communities. London: Verso, 1983. “An Economic Vision.” The Australian 23 May 2008. Bromby, Robin. “Areva deal fails to lift Murchison.” The Australian 30 June 2008: 33. Buckley-Carr, Alana. “Ruling on Native Title Overturned.” The Australian 24 April 2008: 2. Faircheallaigh, Ciaran. “Native Title and Agreement Making in the Mining Industry: Focusing on Outcomes for Indigenous Peoples.” Land, Rights, Laws: Issues of Native Title 2, (2004). 20 June 2008 http://ntru.aiatsis.gov.au/ntpapers/ipv2n25.pdf Falk, Philip and Gary Martin. “Misconstruing Indigenous Sovereignty: Maintaining the Fabric of Australian Law.” Sovereign Subjects: Indigenous Sovereignty Matters. Ed. Aileen Moreton-Robinson. Allen and Unwin, 2007. 33-46. Fowler, Roger. Language in the News: Discourse and Ideology in the Press. London: Routledge, 1991. Glaskin, Katie. “Native Title and the ‘Bundle of Rights’ Model: Implications for the Recognition of Aboriginal Relations to Country.” Anthropological Forum 13.1 (2003): 67-88. 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Kensington: UNSW P, 2000. 14-32. Meadows, Michael. “Deals and Victories: Newspaper Coverage of Native Title in Australia and Canada.” Australian Journalism Review 22.1 (2000): 81-105. Moreton-Robinson, Aileen. “I still call Australia Home: Aboriginal Belonging and Place in a White Postcolonising Nation.” Uprooting/Regrounding: Questions of Home and Migration. Eds. S Ahmed et.al. Oxford: Berg, 2003. 23-40. Moreton-Robinson, Aileen. “The Possessive Logic of Patriarchal White Sovereignty: The High Court and the Yorta Yorta Decision.” Borderlands e-Journal 3.2 (2004). 20 June 2008. http://www.borderlands.net.au/vol3no2_2004/moreton_possessive.htm Morteton-Robinson, Aileen. Ed. Sovereign Subjects: Indigenous Sovereignty Matters. Allen and Unwin, 2007. 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Each community’s title deed carries the indelible blood stains of our ancestors. (Watson, "Howard’s End" 2)IntroductionAccording to the Oxford English Dictionary, the term coalition comes from the Latin coalescere or ‘coalesce’, meaning “come or bring together to form one mass or whole”. Coalesce refers to the unity affirmed as something grows: co – “together”, alesce – “to grow up”. While coalition is commonly associated with formalised alliances and political strategy in the name of self-interest and common goals, this paper will draw as well on the broader etymological understanding of coalition as “growing together” in order to discuss the Australian government’s recent changes to land rights legislation, the 2007 Emergency Intervention into the Northern Territory, and its decision to use Indigenous land in the Northern Territory as a dumping ground for nuclear waste. What unites these distinct cases is the role of the Australian nation-state in asserting its sovereign right to decide, something Giorgio Agamben notes is the primary indicator of sovereign right and power (Agamben). As Fiona McAllan has argued in relation to the Northern Territory Intervention: “Various forces that had been coalescing and captivating the moral, imaginary centre were now contributing to a spectacular enactment of a sovereign rescue mission” (par. 18). Different visions of “growing together”, and different coalitional strategies, are played out in public debate and policy formation. This paper will argue that each of these cases represents an alliance between successive, oppositional governments - and the nourishment of neoliberal imperatives - over and against the interests of some of the Indigenous communities, especially with relation to land rights. A critical stance is taken in relation to the alterations to land rights laws over the past five years and with the Northern Territory Emergency Intervention, hereinafter referred to as the Intervention, firstly by the Howard Liberal Coalition Government and later continued, in what Anthony Lambert has usefully termed a “postcoalitional” fashion, by the Rudd Labor Government. By this, Lambert refers to the manner in which dominant relations of power continue despite the apparent collapse of old political coalitions and even in the face of seemingly progressive symbolic and material change. It is not the intention of this paper to locate Indigenous people in opposition to models of economic development aligned with neoliberalism. There are examples of productive relations between Indigenous communities and mining companies, in which Indigenous people retain control over decision-making and utilise Land Council’s to negotiate effectively. Major mining company Rio Tinto, for example, initiated an Aboriginal and Torres Strait Islanders Policy platform in the mid-1990s (Rio Tinto). Moreover, there are diverse perspectives within the Indigenous community regarding social and economic reform governed by neoliberal agendas as well as government initiatives such as the Intervention, motivated by a concern for the abuse of children, as outlined in The Little Children Are Sacred Report (Wild & Anderson; hereinafter Little Children). Indeed, there is no agreement on whether or not the Intervention had anything to do with land rights. On the one hand, Noel Pearson has strongly opposed this assertion: “I've got as much objections as anybody to the ideological prejudices of the Howard Government in relation to land, but this question is not about a 'land grab'. The Anderson Wild Report tells us about the scale of Aboriginal children's neglect and abuse" (ABC). Marcia Langton has agreed with this stating that “There's a cynical view afoot that the emergency intervention was a political ploy - a Trojan Horse - to sneak through land grabs and some gratuitous black head-kicking disguised as concern for children. These conspiracy theories abound, and they are mostly ridiculous” (Langton). Patrick Dodson on the other hand, has argued that yes, of course, the children remain the highest priority, but that this “is undermined by the Government's heavy-handed authoritarian intervention and its ideological and deceptive land reform agenda” (Dodson). WhitenessOne way to frame this issue is to look at it through the lens of critical race and whiteness theory. Is it possible that the interests of whiteness are at play in the coalitions of corporate/private enterprise and political interests in the Northern Territory, in the coupling of social conservatism and economic rationalism? Using this framework allows us to identify the partial interests at play and the implications of this for discussions in Australia around sovereignty and self-determination, as well as providing a discursive framework through which to understand how these coalitional interests represent a specific understanding of progress, growth and development. Whiteness theory takes an empirically informed stance in order to critique the operation of unequal power relations and discriminatory practices imbued in racialised structures. Whiteness and critical race theory take the twin interests of racial privileging and racial discrimination and discuss their historical and on-going relevance for law, philosophy, representation, media, politics and policy. Foregrounding contemporary analysis in whiteness studies is the central role of race in the development of the Australian nation, most evident in the dispossession and destruction of Indigenous lands, cultures and lives, which occurred initially prior to Federation, as well as following. Cheryl Harris’s landmark paper “Whiteness as Property” argues, in the context of the US, that “the origins of property rights ... are rooted in racial domination” and that the “interaction between conceptions of race and property ... played a critical role in establishing and maintaining racial and economic subordination” (Harris 1716).Reiterating the logic of racial inferiority and the assumption of a lack of rationality and civility, Indigenous people were named in the Australian Constitution as “flora and fauna” – which was not overturned until a national referendum in 1967. This, coupled with the logic of terra nullius represents the racist foundational logic of Australian statehood. As is well known, terra nullius declared that the land belonged to no-one, denying Indigenous people property rights over land. Whiteness, Moreton-Robinson contends, “is constitutive of the epistemology of the West; it is an invisible regime of power that secures hegemony through discourse and has material effects in everyday life” (Whiteness 75).In addition to analysing racial power structures, critical race theory has presented studies into the link between race, whiteness and neoliberalism. Roberts and Mahtami argue that it is not just that neoliberalism has racialised effects, rather that neoliberalism and its underlying philosophy is “fundamentally raced and produces racialized bodies” (248; also see Goldberg Threat). The effect of the free market on state sovereignty has been hotly debated too. Aihwa Ong contends that neoliberalism produces particular relationships between the state and non-state corporations, as well as determining the role of individuals within the body-politic. Ong specifies:Market-driven logic induces the co-ordination of political policies with the corporate interests, so that developmental discussions favour the fragmentation of the national space into various contiguous zones, and promote the differential regulation of the populations who can be connected to or disconnected from global circuits of capital. (Ong, Neoliberalism 77)So how is whiteness relevant to a discussion of land reform, and to the changes to land rights passed along with Intervention legislation in 2007? Irene Watson cites the former Minister for Indigenous Affairs, Mal Brough, who opposed the progressive individual with what he termed the “failed collective.” Watson asserts that in the debates around land leasing and the Intervention, “Aboriginal law and traditional roles and responsibilities for caring and belonging to country are transformed into the cause for community violence” (Sovereign Spaces 34). The effects of this, I will argue, are twofold and move beyond a moral or social agenda in the strictest sense of the terms: firstly to promote, and make more accessible, the possibility of private and government coalitions in relation to Indigenous lands, and secondly, to reinforce the sovereignty of the state, recognised in the capacity to make decisions. It is here that the explicit reiteration of what Aileen Moreton-Robinson calls “white possession” is clearly evidenced (The Possessive Logic). Sovereign Interventions In the Northern Territory 50% of land is owned by Indigenous people under the Aboriginal Land Rights Act 1976 (ALRA) (NT). This law gives Indigenous people control, mediated via land councils, over their lands. It is the contention of this paper that the rights enabled through this law have been eroded in recent times in the coalescing interests of government and private enterprise via, broadly, land rights reform measures. In August 2007 the government passed a number of laws that overturned aspects of the Racial Discrimination Act 197 5(RDA), including the Northern Territory National Emergency Response Bill 2007 and the Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Bill 2007. Ostensibly these laws were a response to evidence of alarming levels of child abuse in remote Indigenous communities, which has been compiled in the special report Little Children, co-chaired by Rex Wild QC and Patricia Anderson. This report argued that urgent but culturally appropriate strategies were required in order to assist the local communities in tackling the issues. The recommendations of the report did not include military intervention, and instead prioritised the need to support and work in dialogue with local Indigenous people and organisations who were already attempting, with extremely limited resources, to challenge the problem. Specifically it stated that:The thrust of our recommendations, which are designed to advise the NT government on how it can help support communities to effectively prevent and tackle child sexual abuse, is for there to be consultation with, and ownership by the local communities, of these solutions. (Wild & Anderson 23) Instead, the Federal Coalition government, with support from the opposition Labor Party, initiated a large scale intervention, which included the deployment of the military, to install order and assist medical personnel to carry out compulsory health checks on minors. The intervention affected 73 communities with populations of over 200 Aboriginal men, women and children (Altman, Neo-Paternalism 8). The reality of high levels of domestic and sexual abuse in Indigenous communities requires urgent and diligent attention, but it is not the space of this paper to unpack the media spectacle or the politically determined response to these serious issues, or the considered and careful reports such as the one cited above. While the report specifies the need for local solutions and local control of the process and decision-making, the Federal Liberal Coalition government’s intervention, and the current Labor government’s faithfulness to these, has been centralised and external, imposed upon communities. Rebecca Stringer argues that the Trojan horse thesis indicates what is at stake in this Intervention, while also pinpointing its main weakness. That is, the counter-intuitive links its architects make between addressing child sexual abuse and re-litigating Indigenous land tenure and governance arrangements in a manner that undermines Aboriginal sovereignty and further opens Aboriginal lands to private interests among the mining, nuclear power, tourism, property development and labour brokerage industries. (par. 8)Alongside welfare quarantining for all Indigenous people, was a decision by parliament to overturn the “permit system”, a legal protocol provided by the ALRA and in place so as to enable Indigenous peoples the right to refuse and grant entry to strangers wanting to access their lands. To place this in a broader context of land rights reform, the Aboriginal Land Rights (Northern Territory) Act 2006, created the possibility of 99 year individual leases, at the expense of communal ownership. The legislation operates as a way of individualising the land arrangements in remote Indigenous communities by opening communal land up as private plots able to be bought by Aboriginal people or any other interested party. Indeed, according to Leon Terrill, land reform in Australia over the past 10 years reflects an attempt to return control of decision-making to government bureaucracy, even as governments have downplayed this aspect. Terrill argues that Township Leasing (enabled via the 2006 legislation), takes “wholesale decision-making about land use” away from Traditional Owners and instead places it in the hands of a government entity called the Executive Director of Township Leasing (3). With the passage of legislation around the Intervention, five year leases were created to enable the Commonwealth “administrative control” over the communities affected (Terrill 3). Finally, under the current changes it is unlikely that more than a small percentage of Aboriginal people will be able to access individual land leasing. Moreover, the argument has been presented that these reforms reflect a broader project aimed at replacing communal land ownership arrangements. This agenda has been justified at a rhetorical level via the demonization of communal land ownership arrangements. Helen Hughes and Jenness Warin, researchers at the rightwing think-tank, the Centre for Independent Studies (CIS), released a report entitled A New Deal for Aborigines and Torres Strait Islanders in Remote Communities, in which they argue that there is a direct casual link between communal ownership and economic underdevelopment: “Communal ownership of land, royalties and other resources is the principle cause of the lack of economic development in remote areas” (in Norberry & Gardiner-Garden 8). In 2005, then Prime Minister, John Howard, publicly introduced the government’s ambition to alter the structure of Indigenous land arrangements, couching his agenda in the language of “equal opportunity”. I believe there’s a case for reviewing the whole issue of Aboriginal land title in the sense of looking more towards private recognition …, I’m talking about giving them the same opportunities as the rest of their fellow Australians. (Watson, "Howard’s End" 1)Scholars of critical race theory have argued that the language of equality, usually tied to liberalism (though not always) masks racial inequality and even results in “camouflaged racism” (Davis 61). David Theo Goldberg notes that, “the racial status-quo - racial exclusions and privileges favouring for the most part middle - and upper class whites - is maintained by formalising equality through states of legal and administrative science” (Racial State 222). While Howard and his coalition of supporters have associated communal title with disadvantage and called for the equality to be found in individual leases (Dodson), Altman has argued that there is no logical link between forms of communal land ownership and incidences of sexual abuse, and indeed, the government’s use of sexual abuse disingenuously disguises it’s imperative to alter the land ownership arrangements: “Given the proposed changes to the ALRA are in no way associated with child sexual abuse in Aboriginal communities […] there is therefore no pressing urgency to pass the amendments.” (Altman National Emergency, 3) In the case of the Intervention, land rights reforms have affected the continued dispossession of Indigenous people in the interests of “commercial development” (Altman Neo-Paternalism 8). In light of this it can be argued that what is occurring conforms to what Aileen Moreton-Robinson has highlighted as the “possessive logic of patriarchal white sovereignty” (Possessive Logic). White sovereignty, under the banner of benevolent paternalism overturns the authority it has conceded to local Indigenous communities. This is realised via township leases, five year leases, housing leases and other measures, stripping them of the right to refuse the government and private enterprise entry into their lands (effectively the right of control and decision-making), and opening them up to, as Stringer argues, a range of commercial and government interests. Future Concerns and Concluding NotesThe etymological root of coalition is coalesce, inferring the broad ambition to “grow together”. In the issues outlined above, growing together is dominated by neoliberal interests, or what Stringer has termed “assimilatory neoliberation”. The issue extends beyond a social and economic assimilationism project and into a political and legal “land grab”, because, as Ong notes, the neoliberal agenda aligns itself with the nation-state. This coalitional arrangement of neoliberal and governmental interests reiterates “white possession” (Moreton-Robinson, The Possessive Logic). This is evidenced in the position of the current Labor government decision to uphold the nomination of Muckaty as a radioactive waste repository site in Australia (Stokes). In 2007, the Northern Land Council (NLC) nominated Muckaty Station to be the site for waste disposal. This decision cannot be read outside the context of Maralinga, in the South Australian desert, a site where experiments involving nuclear technology were conducted in the 1960s. As John Keane recounts, the Australian government permitted the British government to conduct tests, dispossessing the local Aboriginal group, the Tjarutja, and employing a single patrol officer “the job of monitoring the movements of the Aborigines and quarantining them in settlements” (Keane). Situated within this historical colonial context, in 2006, under a John Howard led Liberal Coalition, the government passed the Commonwealth Radioactive Waste Management Act (CRWMA), a law which effectively overrode the rulings of the Northern Territory government in relation decisions regarding nuclear waste disposal, as well as overriding the rights of traditional Aboriginal owners and the validity of sacred sites. The Australian Labor government has sought to alter the CRWMA in order to reinstate the importance of following due process in the nomination process of land. However, it left the proposed site of Muckaty as confirmed, and the new bill, titled National Radioactive Waste Management retains many of the same characteristics of the Howard government legislation. In 2010, 57 traditional owners from Muckaty and surrounding areas signed a petition stating their opposition to the disposal site (the case is currently in the Federal Court). At a time when nuclear power has come back onto the radar as a possible solution to the energy crisis and climate change, questions concerning the investments of government and its loyalties should be asked. As Malcolm Knox has written “the nuclear industry has become evangelical about the dangers of global warming” (Knox). While nuclear is a “cleaner” energy than coal, until better methods are designed for processing its waste, larger amounts of it will be produced, requiring lands that can hold it for the desired timeframes. For Australia, this demands attention to the politics and ethics of waste disposal. Such an issue is already being played out, before nuclear has even been signed off as a solution to climate change, with the need to find a disposal site to accommodate already existing uranium exported to Europe and destined to return as waste to Australia in 2014. The decision to go ahead with Muckaty against the wishes of the voices of local Indigenous people may open the way for the co-opting of a discourse of environmentalism by political and business groups to promote the development and expansion of nuclear power as an alternative to coal and oil for energy production; dumping waste on Indigenous lands becomes part of the solution to climate change. During the 2010 Australian election, Greens Leader Bob Brown played upon the word coalition to suggest that the Liberal National Party were in COALition with the mining industry over the proposed Mining Tax – the Liberal Coalition opposed any mining tax (Brown). Here Brown highlights the alliance of political agendas and business or corporate interests quite succinctly. Like Brown’s COALition, will government (of either major party) form a coalition with the nuclear power stakeholders?This paper has attempted to bring to light what Dodson has identified as “an alliance of established conservative forces...with more recent and strident ideological thinking associated with free market economics and notions of individual responsibility” and the implications of this alliance for land rights (Dodson). It is important to ask critical questions about the vision of “growing together” being promoted via the coalition of conservative, neoliberal, private and government interests.Acknowledgements Many thanks to the reviewers of this article for their useful suggestions. 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Introduction In 2017, 250 Indigenous delegates from across the country convened at the National Constitution Convention at Uluru to discuss a strategy towards the implementation of constitutional reform and recognition of Aboriginal and Torres Strait Islander peoples (Referendum Council). Informed by community consultations arising out of 12 regional dialogues conducted by the government appointed Referendum Council, the resulting Uluru Statement from the Heart was unlike any constitutional reform previously proposed (Appleby & Synot). Within the Statement, the delegation outlined that to build a more equitable and reconciled nation, an enshrined Voice to Parliament was needed. Such a voice would embed Indigenous participation in parliamentary dialogues and debates while facilitating further discussion pertaining to truth telling and negotiating a Treaty between Indigenous and non-Indigenous peoples. The reforms proposed are based on the collective input of Indigenous communities that were expressed in good faith during the consultation process. Arising out of a government appointed and funded initiative that directly sought Indigenous perspectives on constitutional reform, the trust and good faith invested by Indigenous people was quickly shut down when the Prime Minster, Malcolm Turnbull, rejected the reforms without parliamentary debate or taking them to the people via a referendum (Wahlquist Indigenous Voice Proposal; Appleby and McKinnon). In this article, we argue that through its dismissal the government treated the Uluru Statement from the Heart as a passing phase or mere “thought bubble” that was envisioned to disappear as quickly as it emerged. The Uluru Statement is a gift to the nation. One that genuinely offers new ways of envisioning and enacting reconciliation through equitable relationships between Indigenous and non-Indigenous populations. Indigenous voices lie at the heart of reconciliation but require constitutional enshrinement to ensure that Indigenous peoples and cultures are represented across all levels of government. Filter Bubbles of Distortion Constitutional change is often spoken of by politicians, its critics, and within the media as something unachievable. For example, in 2017, before even reading the accompanying report, MP Barnaby Joyce (in Fergus) publicly denounced the Uluru Statement as “unwinnable” and not “saleable”. He stated that “if you overreach in politics and ask for something that will not be supported by the Australian people such as another chamber in politics or something that sort of sits above or beside the Senate, that idea just won't fly”. Criticisms such as these are laced with paternalistic rhetoric that suggests its potential defeat at a referendum would be counterproductive and “self-defeating”, meaning that the proposed changes should be rejected for a more digestible version, ultimately saving the movement from itself. While efforts to communicate the necessity of the proposed reforms continues, presumptions that it does not have public support is simply unfounded. The Centre for Governance and Public Policy shows that 71 per cent of the public support constitutional recognition of Indigenous Australians. Furthermore, an online survey conducted by Cox Inall Ridgeway found that the majority of those surveyed supported constitutional reform to curb racism; remove section 25 and references to race; establish an Indigenous Voice to Parliament; and formally recognise Indigenous peoples through a statement of acknowledgment (Referendum Council). In fact, public support for constitutional reform is growing, with Reconciliation Australia’s reconciliation barometer survey showing an increase from 77 per cent in 2018 to 88 per cent in 2020 (Reconciliation Australia). Media – whether news, social, databases, or search engines – undoubtedly shape the lens through which people come to encounter and understand the world. The information a person receives can be the result of what Eli Pariser has described as “filter bubbles”, in which digital algorithms determine what perspectives, outlooks, and sources of information are considered important, and those that are readily accessible. Misinformation towards constitutional reform, such as that commonly circulated within mainstream and social media and propelled by high profile voices, further creates what neuroscientist Don Vaughn calls “reinforcement bubbles” (Rose Gould). This propagates particular views and stunts informed debate. Despite public support, the reforms proposed in the Uluru Statement continue to be distorted within public and political discourses, with the media used as a means to spread misinformation that equates an Indigenous Voice to Parliament to the establishment of a new “third chamber” (Wahlquist ‘Barnaby’; Karp). In a 2018 interview, PM Scott Morrison suggested that advocates and commentators in favour of constitutional reform were engaging in spin by claiming that a Voice did not function as a third chamber (Prime Minister of Australia). Morrison claimed, “people can dress it up any way they like but I think two chambers is enough”. After a decade of consultative work, eight government reports and inquiries, and countless publications and commentaries, the Uluru Statement continues to be played down as if it were a mere thought bubble, a convoluted work in progress that is in need of refinement. In the same interview, Morrison went on to say that the proposal as it stands now is “unworkable”. Throughout the ongoing movement towards constitutional reform, extensive effort has been invested into ensuring that the reforms proposed are achievable and practical. The Uluru Statement from the Heart represents the culmination of decades of work and proposes clear, concise, and relatively minimal constitutional changes that would translate to potentially significant outcomes for Indigenous Australians (Fredericks & Bradfield). International examples demonstrate how such reforms can translate into parliamentary and governing structures. The Treaty of Waitangi (Palmer) for example seeks to inform Māori and Pākehā (non-Maori) relationships in New Zealand/Aotearoa, whilst designated “Māori Seats” ensure Indigenous representation in parliament (Webster & Cheyne). More recently, 17 of 155 seats were reserved for Indigenous delegates as Chile re-writes its own constitution (Bartlett; Reuters). Indigenous communities and its leaders are more than aware of the necessity of working within the realms of possibility and the need to exhibit caution when presenting such reforms to the public. An expert panel on constitutional reform (Dodson 73), before the conception of the Uluru Statement, acknowledged this, stating “any proposal relating to constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians, and likely to jeopardise broad public support for the Panel’s recommendations”. As outlined in the Joint Select Committee’s final report on Constitutional Recognition relating to Aboriginal and Torres Strait Islander peoples (Referendum Council), the Voice to parliament would have no veto powers over parliamentary votes or decisions. It operates as a non-binding advisory body that remains external to parliamentary processes. Peak organisations such as the Law Council of Australia (Dolar) reiterate the fact that the proposed reforms are for a voice to Parliament rather than a voice in Parliament. Although not binding, the Voice should not be dismissed as symbolic or something that may be easily circumvented. Its effectiveness lies in its ability to place parliament in a position where they are forced to confront and address Indigenous questions, concerns, opinions, and suggestions within debates before decisions are made. Bursting the ‘Self-Referential Bubble’ Indigenous affairs continue to be one of the few areas where a rhetoric of bipartisan agreement is continuously referenced by both major parties. Disagreement, debate, and conflict is often avoided as governments seek to portray an image of unity, and in doing so, circumvent accusations of turning Indigenous peoples into the subjects of political point scoring. Within parliamentary debates, there is an understandable reservation and discomfort associated with discussions about what is often seen as an Indigenous “other” (Moreton-Robinson) and the policies that a predominantly white government enact over their lives. Yet, it is through rigorous, open, and informed debate that policies may be developed, challenged, and reformed. Although bipartisanship can portray an image of a united front in addressing a so-called “Indigenous problem”, it also stunts the conception of effective and culturally responsive policy. In other words, it often overlooks Indigenous voices. Whilst education and cultural competency plays a significant role within the reconciliation process, the most pressing obstacle is not necessarily non-Indigenous people’s inability to fully comprehend Indigenous lives and socio-cultural understandings. Even within an ideal world where non-Indigenous peoples attain a thorough understanding of Indigenous cultures, they will never truly comprehend what it means to be Indigenous (Fanon; de Sousa Santos). For non-Indigenous peoples, accepting one’s own limitations in fully comprehending Indigenous ontologies – and avoiding filling such gaps with one’s own interpretations and preconceptions – is a necessary component of decolonisation and the movement towards reconciliation (Grosfoguel; Mignolo). As parliament continues to be dominated by non-Indigenous representatives, structural changes are necessary to ensure that Indigenous voices are adequality represented. The structural reforms not only empower Indigenous voices through their inclusion within the parliamentary process but alleviates some of the pressures that arise out of non-Indigenous people having to make decisions in attempts to solve so-called Indigenous “problems”. Government response to constitutional reform, however, is ridden with symbolic piecemeal offerings that equate recognition to a form of acknowledgment without the structural changes necessary to protect and enshrine Indigenous Voices and parliamentary participation. Davis and her colleagues (Davis et al. “The Uluru Statement”) note how the Referendum Council’s recommendations were rejected by the then minister of Indigenous affairs Nigel Scullion on account that it privileged Aboriginal and Torres Strait Islander voices. They note that, until the Referendum Council's report, the nation had no real assessment of what communities wanted. Yet by all accounts, the government had spent too much time talking to elites who have regular access to them and purport to speak on the mob's behalf. If he [Scullion] got the sense constitutional symbolism and minimalism was going to fly, then it says a lot about the self-referential bubble in which the Canberra elites live. The Uluru Statement from the Heart stands as testament to Indigenous people’s refusal to be the passive recipients of the decisions of the non-Indigenous political elite. As suggested, “symbolism and minimalism was not going to fly”. Ken Wyatt, Scullion’s replacement, reiterated the importance of co-design, the limitations of government bureaucracy, and the necessity of moving beyond the “Canberra bubble”. Wyatt stated that the Voice is saying clearly that government and the bureaucracy does not know best. It can not be a Canberra-designed approach in the bubble of Canberra. We have to co-design with Aboriginal communities in the same way that we do with state and territory governments and the corporate sector. The Voice would be the mechanism through which Aboriginal and Torres Strait Islander interests and perspectives may be strategically placed within parliamentary dialogues. Despite accusations of it operating as a “third chamber”, Indigenous representatives have no interest in functioning in a similar manner to a political party. The language associated with our current parliamentary system demonstrates the constrictive nature of political debate. Ministers are expected to “toe the party line”, “crossing the floor” is presented as an act of defiance, and members must be granted permission to enter a “conscience vote”. An Indigenous Voice to Parliament would be an advisory body that works alongside, but remains external to political ideologies. Their priority is to seek and implement the best outcome for their communities. Negotiations would be fluid, with no floor to cross, whilst a conscience vote would be reflected in every perspective gifted to the parliament. In the 2020 Australia and the World Annual Lecture, Pat Turner described the Voice’s co-design process as convoluted and a continuing example of the government’s neglect to hear and respond to Indigenous peoples’ interests. In the address, Turner points to the Coalition of the Peaks as an exemplar of how co-design negotiations may be facilitated by and through organisations entirely formed and run by Indigenous peoples. The Coalition of the Peaks comprises of fifty Aboriginal and Torres Strait Islander community-controlled peak organisations and was established to address concerns relating to closing the gap targets. As Indigenous peak organisations are accountable to their membership and reliant on government funding, some have questioned whether they are appropriate representative bodies; cautioning that they could potentially compromise the Voice as a community-centric body free from political interference. While there is some debate over which Indigenous representatives should facilitate the co-design of a treaty and Makarrata (truth-telling), there remains a unanimous call for a constitutionally enshrined Voice to Parliament that may lead negotiations and secure its place within decision-making processes. Makarrata, Garma, and the Bubbling of New Possibilities An Indigenous Voice to Parliament can be seen as the bubbling spring that provides the source for greater growth and further reform. The Uluru Statement from the Heart calls for a three-staged approach comprising of establishing an Indigenous Voice, followed by Treaty, and then Truth-Telling. This sequence has been criticised by some who prioritise Truth and Treaty as the foundation for reform and reconciliation. Their argument is based on the notion that Indigenous Sovereignty must first be acknowledged in Parliament through an agreement-making process and signing of a Treaty. While the Uluru Statement has never lost sight of treaty, the agreement-making process must begin with the acknowledgment of Indigenous people’s inherent right to participate in the conversation. This very basic and foundational right is yet to be acknowledged within Australia’s constitution. The Uluru Statement sets the Voice as its first priority as the Voice establishes the structural foundation on which the conversation pertaining to treaty may take place. It is through the Voice that a Makarrata Commission can be formed and Indigenous and non-Indigenous peoples may “come together after a struggle” – the translation of the word’s Yolngu origins (Gaykamangu; Pearson). Only then may we engage in truth telling and forge new paths towards agreement-making and treaty. This however raises the question as to how a Voice to Parliament may look and what outcomes it aims to achieve. As discussed in the previous section, it is a question that is often distorted by disinformation and conjecture within public, political, and news-media discourses. In order to unpack what a Voice to Parliament may entail, we turn to another Yolngu word, Garma. Garma refers to an epistemic and ontological positioning in which knowledge is attained from a point where differences converge and new insights arise. For Yolngu people, Garma is the place where salt and fresh water intersect within the sea. Fresh and Salt water are the embodiments of two Yolngu clans, the Dhuwa and Yirritja, with Garma referring to the point where the knowledge and laws of each clan come into contact, seeking harmonious balance. When the ebb and flow of the tides are in balance, it causes the water to foam and bubble taking on new form and representing innovative ideas and possibilities. Yolngu embrace this phenomenon as an epistemology that teaches responsibility and obligations towards the care of Country. It acknowledges the autonomy of others and finds a space where all may mutually benefit. When the properties of either water type, or the knowledge belonging a single clan dominates, ecological, social, political, and cosmological balance is overthrown. Raymattja Marika-Munungguritj (5) describes Garma as a dynamic interaction of knowledge traditions. Fresh water from the land, bubbling up in fresh water springs to make waterholes, and salt water from the sea are interacting with each other with the energy of the tide and the energy of the bubbling spring. When the tide is high the water rises to its full. When the tide goes out the water reduces its capacity. In the same way Milngurr ebbs and flows. In this way the Dhuwa and Yirritja sides of Yolngu life work together. And in this way Balanda and Yolngu traditions can work together. There must be balance, if not either one will be stronger and will harm the other. The Ganma Theory is Yirritja, the Milngurr Theory is Dhuwa. Like the current push for constitutional change and its rejection of symbolic reforms, Indigenous peoples have demanded real-action and “not just talk” (Synott “The Uluru statement”). In doing so, they implored that Aboriginal and Torres Strait Islander peoples be involved in all decision-making processes, for they are most knowledgeable of their community’s needs and the most effective methods of service delivery and policy. Indigenous peoples have repeatedly expressed this mandate, which is also legislated under international law through the UN Declaration on the Rights of Indigenous Peoples. Coming together after a struggle does not mean that conflict and disagreement between and amongst Indigenous and non-Indigenous communities will cease. In fact, in alignment with political theories such as agonism and pluralism, coming together within a democratic system necessitates a constructive and responsive embrace of different, competing, and in some cases incommensurable views. A Voice to Parliament will operate in a manner where Indigenous perspectives and truths, as well as disagreements, may be included within negotiations and debates (Larkin & Galloway). Governments and non-Indigenous representatives will no longer speak for or on behalf of Indigenous peoples, for an Indigenous body will enact its own autonomous voice. Indigenous input therefore will not be reduced to reactionary responses and calls for reforms after the damage of mismanagement and policy failure has been caused. Indigenous voices will be permanently documented within parliamentary records and governments forced to respond to the agendas that Indigenous peoples set. Collectively, this amounts to greater participation within the democratic process and facilitates a space where “salt water” and the “bubbling springs” of fresh water may meet, mitigating the risk of harm, and bringing forth new possibilities. Conclusion When salt and fresh water combine during Garma, it begins to take on new form, eventually materialising as foam. Appearing as a singular solid object from afar, foam is but a cluster of interlocking bubbles that gain increased stability and equilibrium through sticking together. When a bubble stands alone, or a person remains within a figurative bubble that is isolated from its surroundings and other ways of knowing, doing, and being, its vulnerabilities and insecurities are exposed. Similarly, when one bubble bursts the collective cluster becomes weaker and unstable. The Uluru Statement from the Heart is a vision conceived and presented by Indigenous peoples in good faith. It offers a path forward for not only Indigenous peoples and their future generations but the entire nation (Synott “Constitutional Reform”). It is a gift and an invitation “to walk with us in a movement of the Australian people for a better future”. Through calling for the establishment of an Indigenous Voice to Parliament, a Makarrata Commission, and seeking Truth, Indigenous advocates for constitutional reform are looking to secure their own foothold and self-determination. The Uluru Statement from the Heart is more than a “thought bubble”, for it is the culmination of Indigenous people’s diverse lived experiences, outlooks, perspectives, and priorities. When the delegates met at Uluru in 2017, the thoughts, experiences, memories, and hopes of Indigenous peoples converged in a manner that created a unified front and collectively called for Voice, Treaty, and Truth. 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In Australia the “intimacy” of citizenship (Berlant 2), is often used to reinforce subscription to heteronormative romantic and familial structures. Because this framing promotes discourses of moral failure, recent political attention to sexuality and same-sex couples can be filtered through insights into coalitional affiliations. This paper uses contemporary shifts in Australian politics and culture to think through the concept of coalition, and in particular to analyse connections between sexuality and governmentality (or more specifically normative bias and same-sex relationships) in what I’m calling post-coalitional Australia. Against the unpredictability of changing parties and governments, allegiances and alliances, this paper suggests the continuing adherence to a heteronormatively arranged public sphere. After the current Australian Prime Minister Julia Gillard deposed the previous leader, Kevin Rudd, she clung to power with the help of independents and the Greens, and clichés of a “rainbow coalition” and a “new paradigm” were invoked to describe the confused electorate and governmental configuration. Yet in 2007, a less confused Australia decisively threw out the Howard–led Liberal and National Party coalition government after eleven years, in favour of Rudd’s own rainbow coalition: a seemingly invigorated party focussed on gender equity, Indigenous Australians, multi-cultural visibility, workplace relations, Austral-Asian relations, humane refugee processing, the environment, and the rights and obligations of same-sex couples. A post-coalitional Australia invokes something akin to “aftermath culture” (Lambert and Simpson), referring not just to Rudd’s fall or Howard’s election loss, but to the broader shifting contexts within which most Australian citizens live, and within which they make sense of the terms “Australia” and “Australian”. Contemporary Australia is marked everywhere by cracks in coalitions and shifts in allegiances and belief systems – the Coalition of the Willing falling apart, the coalition government crushed by defeat, deposed leaders, and unlikely political shifts and (re)alignments in the face of a hung parliament and renewed pushes toward moral and cultural change. These breakdowns in allegiances are followed by swift symbolically charged manoeuvres. Gillard moved quickly to repair relations with mining companies damaged by Rudd’s plans for a mining tax and to water down frustration with the lack of a sustainable Emissions Trading Scheme. And one of the first things Kevin Rudd did as Prime Minister was to change the fittings and furnishings in the Prime Ministerial office, of which Wright observed that “Mr Howard is gone and Prime Minister Kevin Rudd has moved in, the Parliament House bureaucracy has ensured all signs of the old-style gentlemen's club… have been banished” (The Age, 5 Dec. 2007). Some of these signs were soon replaced by Ms. Gillard herself, who filled the office in turn with memorabilia from her beloved Footscray, an Australian Rules football team. In post-coalitional Australia the exile of the old Menzies’ desk and a pair of Chesterfield sofas works alongside the withdrawal of troops from Iraq and renewed pledges for military presence in Afghanistan, apologising to stolen generations of Indigenous Australians, the first female Governor General, deputy Prime Minister and then Prime Minister (the last two both Gillard), the repealing of disadvantageous workplace reform, a focus on climate change and global warming (with limited success as stated), a public, mandatory paid maternity leave scheme, changes to the processing and visas of refugees, and the amendments to more than one hundred laws that discriminate against same sex couples by the pre-Gillard, Rudd-led Labor government. The context for these changes was encapsulated in an announcement from Rudd, made in March 2008: Our core organising principle as a Government is equality of opportunity. And advancing people and their opportunities in life, we are a Government which prides itself on being blind to gender, blind to economic background, blind to social background, blind to race, blind to sexuality. (Rudd, “International”) Noting the political possibilities and the political convenience of blindness, this paper navigates the confusing context of post-coalitional Australia, whilst proffering an understanding of some of the cultural forces at work in this age of shifting and unstable alliances. I begin by interrogating the coalitional impulse post 9/11. I do this by connecting public coalitional shifts to the steady withdrawal of support for John Howard’s coalition, and movement away from George Bush’s Coalition of the Willing and the War on Terror. I then draw out a relationship between the rise and fall of such affiliations and recent shifts within government policy affecting same-sex couples, from former Prime Minister Howard’s amendments to The Marriage Act 1961 to the Rudd-Gillard administration’s attention to the discrimination in many Australian laws. Sexual Citizenship and Coalitions Rights and entitlements have always been constructed and managed in ways that live out understandings of biopower and social death (Foucault History; Discipline). The disciplining of bodies, identities and pleasures is so deeply entrenched in government and law that any non-normative claim to rights requires the negotiation of existing structures. Sexual citizenship destabilises the post-coalitional paradigm of Australian politics (one of “equal opportunity” and consensus) by foregrounding the normative biases that similarly transcend partisan politics. Sexual citizenship has been well excavated in critical work from Evans, Berlant, Weeks, Richardson, and Bell and Binnie’s The Sexual Citizen which argues that “many of the current modes of the political articulation of sexual citizenship are marked by compromise; this is inherent in the very notion itself… the twinning of rights with responsibilities in the logic of citizenship is another way of expressing compromise… Every entitlement is freighted with a duty” (2-3). This logic extends to political and economic contexts, where “natural” coalition refers primarily to parties, and in particular those “who have powerful shared interests… make highly valuable trades, or who, as a unit, can extract significant value from others without much risk of being split” (Lax and Sebinius 158). Though the term is always in some way politicised, it need not refer only to partisan, multiparty or multilateral configurations. The subscription to the norms (or normativity) of a certain familial, social, religious, ethnic, or leisure groups is clearly coalitional (as in a home or a front, a club or a team, a committee or a congregation). Although coalition is interrogated in political and social sciences, it is examined frequently in mathematical game theory and behavioural psychology. In the former, as in Axelrod’s The Evolution of Cooperation, it refers to people (or players) who collaborate to successfully pursue their own self-interests, often in the absence of central authority. In behavioural psychology the focus is on group formations and their attendant strategies, biases and discriminations. Experimental psychologists have found “categorizing individuals into two social groups predisposes humans to discriminate… against the outgroup in both allocation of resources and evaluation of conduct” (Kurzban, Tooby and Cosmides 15387). The actions of social organisation (and not unseen individual, supposedly innate impulses) reflect the cultural norms in coalitional attachments – evidenced by the relationship between resources and conduct that unquestioningly grants and protects the rights and entitlements of the larger, heteronormatively aligned “ingroup”. Terror Management Particular attention has been paid to coalitional formations and discriminatory practices in America and the West since September 11, 2001. Terror Management Theory or TMT (Greenberg, Pyszczynski and Solomon) has been the main framework used to explain the post-9/11 reassertion of large group identities along ideological, religious, ethnic and violently nationalistic lines. Psychologists have used “death-related stimuli” to explain coalitional mentalities within the recent contexts of globalised terror. The fear of death that results in discriminatory excesses is referred to as “mortality salience”, with respect to the highly visible aspects of terror that expose people to the possibility of their own death or suffering. Naverette and Fessler find “participants… asked to contemplate their own deaths exhibit increases in positive evaluations of people whose attitudes and values are similar to their own, and derogation of those holding dissimilar views” (299). It was within the climate of post 9/11 “mortality salience” that then Prime Minister John Howard set out to change The Marriage Act 1961 and the Family Law Act 1975. In 2004, the Government modified the Marriage Act to eliminate flexibility with respect to the definition of marriage. Agitation for gay marriage was not as noticeable in Australia as it was in the U.S where Bush publicly rejected it, and the UK where the Civil Union Act 2004 had just been passed. Following Bush, Howard’s “queer moral panic” seemed the perfect decoy for the increased scrutiny of Australia’s involvement in the Iraq war. Howard’s changes included outlawing adoption for same-sex couples, and no recognition for legal same-sex marriages performed in other countries. The centrepiece was the wording of The Marriage Amendment Act 2004, with marriage now defined as a union “between a man and a woman to the exclusion of all others”. The legislation was referred to by the Australian Greens Senator Bob Brown as “hateful”, “the marriage discrimination act” and the “straight Australia policy” (Commonwealth 26556). The Labor Party, in opposition, allowed the changes to pass (in spite of vocal protests from one member) by concluding the legal status of same-sex relations was in no way affected, seemingly missing (in addition to the obvious symbolic and physical discrimination) the equation of same-sex recognition with terror, terrorism and death. Non-normative sexual citizenship was deployed as yet another form of “mortality salience”, made explicit in Howard’s description of the changes as necessary in protecting the sanctity of the “bedrock institution” of marriage and, wait for it, “providing for the survival of the species” (Knight, 5 Aug. 2003). So two things seem to be happening here: the first is that when confronted with the possibility of their own death (either through terrorism or gay marriage) people value those who are most like them, joining to devalue those who aren’t; the second is that the worldview (the larger religious, political, social perspectives to which people subscribe) becomes protection from the potential death that terror/queerness represents. Coalition of the (Un)willing Yet, if contemporary coalitions are formed through fear of death or species survival, how, for example, might these explain the various forms of risk-taking behaviours exhibited within Western democracies targeted by such terrors? Navarette and Fessler (309) argue that “affiliation defences are triggered by a wider variety of threats” than “existential anxiety” and that worldviews are “in turn are reliant on ‘normative conformity’” (308) or “normative bias” for social benefits and social inclusions, because “a normative orientation” demonstrates allegiance to the ingroup (308-9). Coalitions are founded in conformity to particular sets of norms, values, codes or belief systems. They are responses to adaptive challenges, particularly since September 11, not simply to death but more broadly to change. In troubled times, coalitions restore a shared sense of predictability. In Howard’s case, he seemed to say, “the War in Iraq is tricky but we have a bigger (same-sex) threat to deal with right now. So trust me on both fronts”. Coalitional change as reflective of adaptive responses thus serves the critical location of subsequent shifts in public support. Before and since September 11 Australians were beginning to distinguish between moderation and extremism, between Christian fundamentalism and productive forms of nationalism. Howard’s unwavering commitment to the American-led war in Iraq saw Australia become a member of another coalition: the Coalition of the Willing, a post 1990s term used to describe militaristic or humanitarian interventions in certain parts of the world by groups of countries. Howard (in Pauly and Lansford 70) committed Australia to America’s fight but also to “civilization's fight… of all who believe in progress and pluralism, tolerance and freedom”. Although Bush claimed an international balance of power and influence within the coalition (94), some countries refused to participate, many quickly withdrew, and many who signed did not even have troops. In Australia, the war was never particularly popular. In 2003, forty-two legal experts found the war contravened International Law as well as United Nations and Geneva conventions (Sydney Morning Herald 26 Feb. 2003). After the immeasurable loss of Iraqi life, and as the bodies of young American soldiers (and the occasional non-American) began to pile up, the official term “coalition of the willing” was quietly abandoned by the White House in January of 2005, replaced by a “smaller roster of 28 countries with troops in Iraq” (ABC News Online 22 Jan. 2005). The coalition and its larger war on terror placed John Howard within the context of coalitional confusion, that when combined with the domestic effects of economic and social policy, proved politically fatal. The problem was the unclear constitution of available coalitional configurations. Howard’s continued support of Bush and the war in Iraq compounded with rising interest rates, industrial relations reform and a seriously uncool approach to the environment and social inclusion, to shift perceptions of him from father of the nation to dangerous, dithery and disconnected old man. Post-Coalitional Change In contrast, before being elected Kevin Rudd sought to reframe Australian coalitional relationships. In 2006, he positions the Australian-United States alliance outside of the notion of military action and Western territorial integrity. In Rudd-speak the Howard-Bush-Blair “coalition of the willing” becomes F. Scott Fitzgerald’s “willingness of the heart”. The term coalition was replaced by terms such as dialogue and affiliation (Rudd, “Friends”). Since the 2007 election, Rudd moved quickly to distance himself from the agenda of the coalition government that preceded him, proposing changes in the spirit of “blindness” toward marginality and sexuality. “Fix-it-all” Rudd as he was christened (Sydney Morning Herald 29 Sep. 2008) and his Labor government began to confront the legacies of colonial history, industrial relations, refugee detention and climate change – by apologising to Aboriginal people, timetabling the withdrawal from Iraq, abolishing the employee bargaining system Workchoices, giving instant visas and lessening detention time for refugees, and signing the Kyoto Protocol agreeing (at least in principle) to reduce green house gas emissions. As stated earlier, post-coalitional Australia is not simply talking about sudden change but an extension and a confusion of what has gone on before (so that the term resembles postcolonial, poststructural and postmodern because it carries the practices and effects of the original term within it). The post-coalitional is still coalitional to the extent that we must ask: what remains the same in the midst of such visible changes? An American focus in international affairs, a Christian platform for social policy, an absence of financial compensation for the Aboriginal Australians who received such an eloquent apology, the lack of coherent and productive outcomes in the areas of asylum and climate change, and an impenetrable resistance to the idea of same-sex marriage are just some of the ways in which these new governments continue on from the previous one. The Rudd-Gillard government’s dealings with gay law reform and gay marriage exemplify the post-coalitional condition. Emulating Christ’s relationship to “the marginalised and the oppressed”, and with Gillard at his side, Rudd understandings of the Christian Gospel as a “social gospel” (Rudd, “Faith”; see also Randell-Moon) to table changes to laws discriminating against gay couples – guaranteeing hospital visits, social security benefits and access to superannuation, resembling de-facto hetero relationships but modelled on the administering and registration of relationships, or on tax laws that speak primarily to relations of financial dependence – with particular reference to children. The changes are based on the report, Same Sex, Same Entitlements (HREOC) that argues for the social competence of queer folk, with respect to money, property and reproduction. They speak the language of an equitable economics; one that still leaves healthy and childless couples with limited recognition and advantage but increased financial obligation. Unable to marry in Australia, same-sex couples are no longer single for taxation purposes, but are now simultaneously subject to forms of tax/income auditing and governmental revenue collection should either same-sex partner require assistance from social security as if they were married. Heteronormative Coalition Queer citizens can quietly stake their economic claims and in most states discreetly sign their names on a register before becoming invisible again. Mardi Gras happens but once a year after all. On the topic of gay marriage Rudd and Gillard have deferred to past policy and to the immoveable nature of the law (and to Howard’s particular changes to marriage law). That same respect is not extended to laws passed by Howard on industrial relations or border control. In spite of finding no gospel references to Jesus the Nazarene “expressly preaching against homosexuality” (Rudd, “Faith”), and pre-election promises that territories could govern themselves with respect to same sex partnerships, the Rudd-Gillard government in 2008 pressured the ACT to reduce its proposed partnership legislation to that of a relationship register like the ones in Tasmania and Victoria, and explicitly demanded that there be absolutely no ceremony – no mimicking of the real deal, of the larger, heterosexual citizens’ “ingroup”. Likewise, with respect to the reintroduction of same-sex marriage legislation by Greens senator Sarah Hanson Young in September 2010, Gillard has so far refused a conscience vote on the issue and restated the “marriage is between a man and a woman” rhetoric of her predecessors (Topsfield, 30 Sep. 2010). At the same time, she has agreed to conscience votes on euthanasia and openly declared bi-partisan (with the federal opposition) support for the war in Afghanistan. We see now, from Howard to Rudd and now Gillard, that there are some coalitions that override political differences. As psychologists have noted, “if the social benefits of norm adherence are the ultimate cause of the individual’s subscription to worldviews, then the focus and salience of a given individual’s ideology can be expected to vary as a function of their need to ally themselves with relevant others” (Navarette and Fessler 307). Where Howard invoked the “Judaeo-Christian tradition”, Rudd chose to cite a “Christian ethical framework” (Rudd, “Faith”), that saw him and Gillard end up in exactly the same place: same sex relationships should be reduced to that of medical care or financial dependence; that a public ceremony marking relationship recognition somehow equates to “mimicking” the already performative and symbolic heterosexual institution of marriage and the associated romantic and familial arrangements. Conclusion Post-coalitional Australia refers to the state of confusion borne of a new politics of equality and change. The shift in Australia from conservative to mildly socialist government(s) is not as sudden as Howard’s 2007 federal loss or as short-lived as Gillard’s hung parliament might respectively suggest. Whilst allegiance shifts, political parties find support is reliant on persistence as much as it is on change – they decide how to buffer and bolster the same coalitions (ones that continue to privilege white settlement, Christian belief systems, heteronormative familial and symbolic practices), but also how to practice policy and social responsibility in a different way. Rudd’s and Gillard’s arguments against the mimicry of heterosexual symbolism and the ceremonial validation of same-sex partnerships imply there is one originary form of conduct and an associated sacred set of symbols reserved for that larger ingroup. Like Howard before them, these post-coalitional leaders fail to recognise, as Butler eloquently argues, “gay is to straight not as copy is to original, but as copy is to copy” (31). To make claims to status and entitlements that invoke the messiness of non-normative sex acts and romantic attachments necessarily requires the negotiation of heteronormative coalitional bias (and in some ways a reinforcement of this social power). As Bell and Binnie have rightly observed, “that’s what the hard choices facing the sexual citizen are: the push towards rights claims that make dissident sexualities fit into heterosexual culture, by demanding equality and recognition, versus the demand to reject settling for heteronormativity” (141). The new Australian political “blindness” toward discrimination produces positive outcomes whilst it explicitly reanimates the histories of oppression it seeks to redress. The New South Wales parliament recently voted to allow same-sex adoption with the proviso that concerned parties could choose not to adopt to gay couples. The Tasmanian government voted to recognise same-sex marriages and unions from outside Australia, in the absence of same-sex marriage beyond the current registration arrangements in its own state. In post-coalitional Australia the issue of same-sex partnership recognition pits parties and allegiances against each other and against themselves from within (inside Gillard’s “rainbow coalition” the Rainbow ALP group now unites gay people within the government’s own party). Gillard has hinted any new proposed legislation regarding same-sex marriage may not even come before parliament for debate, as it deals with real business. Perhaps the answer lies over the rainbow (coalition). As the saying goes, “there are none so blind as those that will not see”. References ABC News Online. “Whitehouse Scraps Coalition of the Willing List.” 22 Jan. 2005. 1 July 2007 ‹http://www.abc.net.au/news/newsitems/200501/s1286872.htm›. Axelrod, Robert. The Evolution of Cooperation. New York: Basic Books, 1984. Berlant, Lauren. The Queen of America Goes to Washington City: Essays on Sex and Citizenship. Durham: Duke University Press, 1997. Bell, David, and John Binnie. The Sexual Citizen: Queer Politics and Beyond. Cambridge, England: Polity, 2000. Butler, Judith. Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge, 1990. Commonwealth of Australia. Parliamentary Debates. House of Representatives 12 Aug. 2004: 26556. (Bob Brown, Senator, Tasmania.) Evans, David T. Sexual Citizenship: The Material Construction of Sexualities. London: Routledge, 1993. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. A. Sheridan. London: Penguin, 1991. ———. The Will to Knowledge: The History of Sexuality. Vol. 1. Trans. Robert Hurley. London: Penguin, 1998. Greenberg, Jeff, Tom Pyszczynski, and Sheldon Solomon. “The Causes and Consequences of the Need for Self-Esteem: A Terror Management Theory.” Public Self, Private Self. Ed. Roy F. Baumeister. New York: Springer-Verlag, 1986. 189-212. Human Rights and Equal Opportunity Commission. Same-Sex: Same Entitlements Report. 2007. 21 Aug. 2007 ‹http://www.hreoc.gov.au/human_rights/samesex/report/index.html›. Kaplan, Morris. Sexual Justice: Democratic Citizenship and the Politics of Desire. New York: Routledge, 1997. Knight, Ben. “Howard and Costello Reject Gay Marriage.” ABC Online 5 Aug. 2003. Kurzban, Robert, John Tooby, and Leda Cosmides. "Can Race Be Erased? Coalitional Computation and Social Categorization." Proceedings of the National Academy of Sciences 98.26 (2001): 15387–15392. Lambert, Anthony, and Catherine Simpson. "Jindabyne’s Haunted Alpine Country: Producing (an) Australian Badland." M/C Journal 11.5 (2008). 20 Oct. 2010 ‹http://journal.media-culture.org.au/index.php/mcjournal/article/view/81›. Lax, David A., and James K. Lebinius. “Thinking Coalitionally: Party Arithmetic Process Opportunism, and Strategic Sequencing.” Negotiation Analysis. Ed. H. Peyton Young. Michigan: University of Michigan Press, 1991. 153-194. Naverette, Carlos, and Daniel Fessler. “Normative Bias and Adaptive Challenges: A Relational Approach to Coalitional Psychology and a Critique of Terror Management Theory.” Evolutionary Psychology 3 (2005): 297-325. Pauly, Robert J., and Tom Lansford. Strategic Preemption: US Foreign Policy and Second Iraq War. Aldershot: Ashgate, 2005. Randall-Moon, Holly. "Neoliberal Governmentality with a Christian Twist: Religion and Social Security under the Howard-Led Australian Government." Eds. Michael Bailey and Guy Redden. Mediating Faiths: Religion and Socio- Cultural Change in the Twenty-First Century. Farnham: Ashgate, in press. Richardson, Diane. Rethinking Sexuality. London: Sage, 2000. Rudd, Kevin. “Faith in Politics.” The Monthly 17 (2006). 31 July 2007 ‹http://www.themonthly.com.au/monthly-essays-kevin-rudd-faith-politics--300›. Rudd, Kevin. “Friends of Australia, Friends of America, and Friends of the Alliance That Unites Us All.” Address to the 15th Australian-American Leadership Dialogue. The Australian, 24 Aug. 2007. 13 Mar. 2008 ‹http://www.theaustralian.com.au/national-affairs/climate/kevin-rudds-address/story-e6frg6xf-1111114253042›. Rudd, Kevin. “Address to International Women’s Day Morning Tea.” Old Parliament House, Canberra, 11 Mar. 2008. 1 Oct. 2010 ‹http://pmrudd.archive.dpmc.gov.au/node/5900›. Sydney Morning Herald. “Coalition of the Willing? Make That War Criminals.” 26 Feb. 2003. 1 July 2007 ‹http://www.smh.com.au/articles/2003/02/25/1046064028608.html›. Topsfield, Jewel. “Gillard Rules Out Conscience Vote on Gay Marriage.” The Age 30 Sep. 2010. 1 Oct. 2010 ‹http://www.theage.com.au/national/gillard-rules-out-conscience-vote-on-gay-marriage-20100929-15xgj.html›. Weeks, Jeffrey. "The Sexual Citizen." Theory, Culture and Society 15.3-4 (1998): 35-52. Wright, Tony. “Suite Revenge on Chesterfield.” The Age 5 Dec. 2007. 4 April 2008 ‹http://www.theage.com.au/news/national/suite-revenge-on-chesterfield/2007/12/04/1196530678384.html›.

Parity between the sexes, harmony between the religions, balance between the cultural differences: these principles all hinge upon the idealistic concept of all things in our human society being equal. In this issue of M/C Journal the notion of ‘equal’ is reviewed and discussed in terms of both its discourse and its application in real life. Beyond the concept of equal itself, uniting each author’s contribution is acknowledgement of the competing objectives which can promote bias and prejudice. Indeed, it is that prejudice, concomitant to the absence of equal treatment by and for all peoples, which is always of concern for the pursuit of social justice. Although it has been reduced to a brand-name of low calorie sugar substitute in the Australian supermarket and cafe set, the philosophical values and objectives behind the concept of equal underpin some of the most highly prized and esteemed ideals of western liberal democracy and its ideas on justice. To be equal in the modern sense means to be empowered, to enjoy the same entitlements as others and to have the same rights. At the same time, the privileges associated with being equal also come with responsibilities and it these that we continue to struggle with in our supposed enlightened age. The ideals we associate with equal are far from new, since they have informed ideas about citizenship and justice at least from the times of Ancient Greece and perhaps more problematically, the Principate period of the Roman Empire. It was out of the Principate that the notion primus inter pares (‘first among equals’) was implemented under Augustus in an effort to reconcile his role as Emperor within the Republic of Rome. This oxymoron highlights how very early in the history of Western thought inevitable compromises arose between the pursuit of equal treatment and its realisation. After all, Rome is as renowned for its Empire and Senate as it is for the way lions were fed Christians for entertainment. In the modern and postmodern world, the values around the concept of equal have become synonymous with the issue of equality, equal being a kind of applied action that has mobilised and enacted its ideals. With equality we are able to see more clearly the dialectic challenging the thesis of equal, the antitheses of unequal, and inequality. What these antitheses of equal accentuate is that anything to do with equality entails struggle and hard won gains. In culture, as in nature, things are rarely equal from the outset. As Richard Dawkins outlined in The Selfish Gene, “sperms and eggs … contribute equal number of genes, but eggs contribute far more in the way of food reserves … . Female exploitation begins here” (153). Disparities that promote certain advantages and disadvantages seem hard-wired into our chemistry, biology and subsequent natural and cultural environments. So to strive for the values around an ideal of equal means overcoming some major biological and social determinants. In other words, equality is not a pursuit for the uncommitted. Disparity, injustice, disempowerment, subjugations, winners and losers, victors and victims, oppressors and oppressed: these are the polarities that have been the hallmarks of human civilization. Traditionally, societies are slow to recognise contemporary contradictions and discriminations that deny the ideals and values that would otherwise promote a basis of equality. Given the right institutional apparatus, appropriate cultural logic and individual rationales, that which is unequal and unjust is easily absorbed and subscribed to by the most ardent defender of liberty and equality. Yet we do not have to search far afield in either time or geography to find evidence of institutionalised cultural barbarity that was predicated on logics of inequality. In the post-renaissance West, slavery is the most prominent example of a system that was highly rationalised, institutionalised, adhered to, and supported and exploited by none other than the children of the Enlightenment. The man who happened to be the principle author of one of the most renowned and influential documents ever written, the Declaration of Independence (1776), which proclaimed, “all men are created equal”, was Thomas Jefferson. He also owned 200 slaves. In the accompanying Constitution of the United States, twelve other amendments managed to take precedence over the abolition of slavery, meaning America was far from the ‘Land of the Free’ until 1865. Equal treatment of people in the modern world still requires lengthy and arduous battle. Equal rights and equal status continues to only come about after enormous sacrifices followed by relentless and incremental processes of jurisprudence. One of the most protracted struggles for equal standing throughout history and which has accompanied industrial modernity is, of course, that of class struggle. As a mass movement it represents one of the most sustained challenges to the many barriers preventing the distribution of basic universal human rights amongst the global population. Representing an epic movement of colossal proportions, the struggle for class equality, begun in the fiery cauldron of the 19th century and the industrial revolution, continued to define much of the twentieth century and has left a legacy of emancipation perhaps unrivalled on scale by any other movement at any other time in history. Overcoming capitalism’s inherent powers of oppression, the multitude of rights delivered by class struggle to once voiceless and downtrodden masses, including humane working conditions, fair wages and the distribution of wealth based on ideals of equal shares, represent the core of some of its many gains. But if anyone thought the central issues around class struggle and workers rights has been reconciled, particularly in Australia, one need only look back at the 2007 Federal election. The backlash against the Howard Government’s industrial relations legislation, branded ‘Work Choices’, should serve as a potent reminder of what the community deems fair and equitable when it comes to labor relations even amidst new economy rhetoric. Despite the epic scale and the enormous depth and breadth of class struggle across the twentieth century, in the West, the fight began to be overtaken both in profile and energy by the urgencies in equality addressed through the civil rights movement regarding race and feminism. In the 1960s the civil rights and women’s liberation movements pitted their numbers against the great bulwarks of white, male, institutional power that had up until then normalised and naturalised discrimination. Unlike class struggle, these movements rarely pursued outright revolution with its attendant social and political upheavals, and subsequent disappointments and failures. Like class struggle, however, the civil rights and feminist movements come out of a long history of slow and methodical resistance in the face of explicit suppression and willful neglect. These activists have been chipping away patiently at the monolithic racial and sexist hegemony ever since. The enormous achievements and progress made by both movements throughout the 1960s and 1970s represent a series of climaxes that came from a steady progression of resolute determination in the face of seemingly insurmountable odds. As the class, feminist and civil rights movements infiltrated the inner workings of Western democracies in the latter half of the twentieth century they promoted equal rights through advocacy and legislative and legal frameworks resulting in a transformation of the system from within. The emancipations delivered through these struggles for equal treatment have now gone on to be the near-universal model upon which contemporary equality is both based and sought in the developed and developing world. As the quest for equal status and treatment continues to advance, feminism and civil rights have since been supplanted as radical social movements by the rise of a new identity politics. Gathering momentum in the 1980s, the demand for equal treatment across all racial, sexual and other lines of identity shifted out of a mass movement mode and into one that reflects the demands coming from a more liberalised yet ultimately atomised society. Today, the legal frameworks that support equal treatment and prevents discrimination based on racial and sexual lines are sought by groups and individuals marginalised by the State and often corporate sector through their identification with specific sexual, religious, physical or intellectual attributes. At the same time that equality and rights are being pursued on these individual levels, there is the growing urgency of displaced peoples. The United Nations High Commission for Refugees (UNHCR) estimate globally there are presently 8.4 million refugees and 23.7 million uprooted domestic civilians (5). Fleeing from war, persecution or natural disasters, refugee numbers are sure to grow in a future de-stabilised by Climate Change, natural resource scarcity and food price inflation. The rights and protections of refugees entitled under international frameworks and United Nations guidelines must be respected and even championed by the foreign States they journey to. Future challenges need to address the present imbalance that promotes unjust and unequal treatment of refugees stemming from recent western initiatives like Fortress Europe, offshore holding sites like Naru and Christmas Island and the entire detention centre framework. The dissemination and continued fight for equal rights amongst individuals across so many boundaries has no real precedent in human history and represents one of the greatest challenges and potential benefits of the new millennium. At the same time Globalisation and Climate Change have rewritten the rule book in terms of what is at stake across human society and now, probably for the first time in humanity’s history, the Earth’s biosphere at large. In an age where equal measures and equal shares comes in the form of an environmental carbon footprint, more than ever we need solutions that address global inequities and can deliver just and sustainable equal outcomes. The choice is a stark one; a universal, sustainable and green future, where less equals more; or an unsustainable one where more is more but where Earth ends up equaling desolate Mars. While we seek a pathway to a sustainable future, developed nations will have to reconcile a period where things are asymmetrical and positively unequal. The developed world has to carry the heavy and expensive burden required to reduce CO2 emissions while making the necessary sacrifices to stop the equation where one Westerner equals five Indians when it comes to the consumption of natural resources. In an effort to assist and maintain the momentum that has been gained in the quest for equal rights and equal treatment for all, this issue of M/C Journal puts the ideal of ‘equal’ up for scrutiny and discussion. Although there are unquestioned basic principles that have gone beyond debate with regards to ideas around equal, problematic currents within the discourses surrounding concepts based on equality, equivalence and the principles that come out of things being equal remain. Critiquing the notion of equal also means identifying areas where seeking certain equivalences are not necessarily in the public interest. Our feature article examines the challenge of finding an equal footing for Australians of different faiths. Following their paper on the right to free speech published recently in the ‘citizen’ issue of M/C Journal, Anne Aly and Lelia Green discuss the equal treatment of religious belief in secular Australia by identifying the disparities that undermine ideals of religious pluralism. In their essay entitled “Less than Equal: Secularism, Religious Pluralism and Privilege”, they identify one of the central problems facing Islamic belief systems is Western secularism’s categorisation of religious belief as private practice. While Christian based faiths have been able to negotiate the bifurcation between public life and private faith, compartmentalising religious beliefs in this manner can run contrary to Islamic practice. The authors discuss how the separation of Church and State aspires to see all religions ignored equally, but support for a moderate Islam that sees it divorced from the public sphere is secularism’s way of constructing a less than equal Islam. Debra Mayrhofer analyses the unequal treatment received by young males in mainstream media representations in her paper entitled “Mad about the Boy”. By examining TV, radio and newspaper coverage of an ‘out-of-control teenage party’ in suburban Melbourne, Mayrhofer discusses the media’s treatment of the 16-year-old boy deemed to be at the centre of it all. Not only do the many reports evidence non-compliance with the media industry’s own code of ethics but Mayrhofer argues they represent examples of blatant exploitation of the boy. As this issue of M/C Journal goes online, news is now circulating about the boy’s forthcoming appearance in the Big Brother house and the release of a cover of the Beastie Boys’ 1986 hit “Fight for Your Right (to Party)” (see News.com.au). Media reportage of this calibre, noticeable for occurring beyond the confines of tabloid outlets, is seen to perpetuate myths associated with teenage males and inciting moral panics around the behaviour and attitudes expressed by adolescent male youth.Ligia Toutant charts the contentious borders between high, low and popular culture in her paper “Can Stage Directors Make Opera and Popular Culture ‘Equal’?” Referring to recent developments in the staging of opera, Toutant discusses the impacts of phenomena like broadcasts and simulcasts of opera and contemporary settings over period settings, as well as the role played by ticket prices and the introduction of stage directors who have been drawn from film and television. Issues of equal access to high and popular culture are explored by Toutant through the paradox that sees directors of popular feature films that can cost around US$72M with ticket prices under US$10 given the task of directing a US$2M opera with ticket prices that can range upward of US$200. Much has been written about newly elected Australian Prime Minister Kevin Rudd’s apology to the Stolen Generations of Aboriginal Australians whereas Opposition Leader Brendan Nelson’s Apology has been somewhat overlooked. Brooke Collins-Gearing redresses this imbalance with her paper entitled “Not All Sorrys Are Created Equal: Some Are More Equal than ‘Others.’” Collins-Gearing responds to Nelson’s speech from the stance of an Indigenous woman and criticises Nelson for ignoring Aboriginal concepts of time and perpetuating the attitudes and discourses that led to the forced removal of Aboriginal children from their families in the first place. Less media related and more science oriented is John Paull’s discussion on the implications behind the concept of ‘Substantial Equivalence’ being applied to genetically modified organisms (GMO) in “Beyond Equal: From Same But Different to the Doctrine of Substantial Equivalence”. Embraced by manufacturers of genetically modified foods, the principle of substantial equivalence is argued by Paull to provide the bioengineering industry with a best of both worlds scenario. On the one hand, being treated the ‘same’ as elements from unmodified foods GMO products escape the rigours of safety testing and labelling that differentiates them from unmodified foods. On the other hand, by also being defined as ‘different’ they enjoy patent protection laws and are free to pursue monopoly rights on specific foods and technologies. It is easy to envisage an environment arising in which the consumer runs the risk of eating untested foodstuffs while the corporations that have ‘invented’ these new life forms effectively prevent competition in the marketplace. This issue of M/C Journal has been a pleasure to compile. We believe the contributions are remarkable for the broad range of issues they cover and for their great timeliness, dealing as they do with recent events that are still fresh, we hope, in the reader’s mind. We also hope you enjoy reading these papers as much as we enjoyed working with their authors and encourage you to click on the ‘Respond to this Article’ function next to each paper’s heading, aware that there is the possibility for your opinions to gain equal footing with those of the contributors if your response is published. References Dawkins, Richard. The Selfish Gene. Oxford: Oxford UP, 1976.News.com.au. “Oh, Brother, So It’s Confirmed – Corey Set for House.” 1 May 2008. 3 May 2008 < http://www.news.com.au/entertainment/story/0,26278,23627561-10229,00.html >.UNHCR – The UN Refugee Agency. The World’s Stateless People. 2006. 2 May 2008 < http://www.unhcr.org/basics/BASICS/452611862.pdf >.

In its preamble, The Western Australian Charter of Multiculturalism (WA) commits the state to becoming: “A society in which respect for mutual difference is accompanied by equality of opportunity within a framework of democratic citizenship”. One of the principles of multiculturalism, as enunciated in the Charter, is “equality of opportunity for all members of society to achieve their full potential in a free and democratic society where every individual is equal before and under the law”. An important element of this principle is the “equality of opportunity … to achieve … full potential”. The implication here is that those who start from a position of disadvantage when it comes to achieving that potential deserve more than ‘equal’ treatment. Implicitly, equality can be achieved only through the recognition of and response to differential needs and according to the likelihood of achieving full potential. This is encapsulated in Kymlicka’s argument that neutrality is “hopelessly inadequate once we look at the diversity of cultural membership which exists in contemporary liberal democracies” (903). Yet such a potential commitment to differential support might seem unequal to some, where equality is constructed as the same or equal treatment regardless of differing circumstances. Until the past half-century or more, this problematic has been a hotly-contested element of the struggle for Civil Rights for African-Americans in the United States, especially as these rights related to educational opportunity during the years of racial segregation. For some, providing resources to achieve equal outcomes (rather than be committed to equal inputs) may appear to undermine the very ethos of liberal democracy. In Australia, this perspective has been the central argument of Pauline Hanson and her supporters who denounce programs designed as measures to achieve equality for specific disadvantaged groups; including Indigenous Australians and humanitarian refugees. Nevertheless, equality for all on all grounds of legally-accepted difference: gender, race, age, family status, sexual orientation, political conviction, to name a few; is often held as the hallmark of progressive liberal societies such as Australia. In the matter of religious freedoms the situation seems much less complex. All that is required for religious equality, it seems, is to define religion as a private matter – carried out, as it were, between consenting parties away from the public sphere. This necessitates, effectively, the separation of state and religion. This separation of religious belief from the apparatus of the state is referred to as ‘secularism’ and it tends to be regarded as a cornerstone of a liberal democracy, given the general assumption that secularism is a necessary precursor to equal treatment of and respect for different religious beliefs, and the association of secularism with the Western project of the Enlightenment when liberty, equality and science replaced religion and superstition. By this token, western nations committed to equality are also committed to being liberal, democratic and secular in nature; and it is a matter of state indifference as to which religious faith a citizen embraces – Wiccan, Christian, Judaism, etc – if any. Historically, and arguably more so in the past decade, the terms ‘democratic’, ‘secular’, ‘liberal’ and ‘equal’ have all been used to inscribe characteristics of the collective ‘West’. Individuals and states whom the West ascribe as ‘other’ are therefore either or all of: not democratic; not liberal; or not secular – and failing any one of these characteristics (for any country other than Britain, with its parliamentary-established Church of England, headed by the Queen as Supreme Governor) means that that country certainly does not espouse equality. The West and the ‘Other’ in Popular Discourse The constructed polarisation between the free, secular and democratic West that values equality; and the oppressive ‘other’ that perpetuates theocracies, religious discrimination and – at the ultimate – human rights abuses, is a common theme in much of the West’s media and popular discourse on Islam. The same themes are also applied in some measure to Muslims in Australia, in particular to constructions of the rights of Muslim women in Australia. Typically, Muslim women’s dress is deemed by some secular Australians to be a symbol of religious subjugation, rather than of free choice. Arguably, this polemic has come to the fore since the terrorist attacks on the United States in September 2001. However, as Aly and Walker note, the comparisons between the West and the ‘other’ are historically constructed and inherited (Said) and have tended latterly to focus western attention on the role and status of Muslim women as evidence of the West’s progression comparative to its antithesis, Eastern oppression. An examination of studies of the United States media coverage of the September 11 attacks, and the ensuing ‘war on terror’, reveals some common media constructions around good versus evil. There is no equal status between these. Good must necessarily triumph. In the media coverage, the evil ‘other’ is Islamic terrorism, personified by Osama bin Laden. Part of the justification for the war on terror is a perception that the West, as a force for good in this world, must battle evil and protect freedom and democracy (Erjavec and Volcic): to do otherwise is to allow the terror of the ‘other’ to seep into western lives. The war on terror becomes the defence of the west, and hence the defence of equality and freedom. A commitment to equality entails a defeat of all things constructed as denying the rights of people to be equal. Hutcheson, Domke, Billeaudeaux and Garland analysed the range of discourses evident in Time and Newsweek magazines in the five weeks following September 11 and found that journalists replicated themes of national identity present in the communication strategies of US leaders and elites. The political and media response to the threat of the evil ‘other’ is to create a monolithic appeal to liberal values which are constructed as being a monopoly of the ‘free’ West. A brief look at just a few instances of public communication by US political leaders confirms Hutcheson et al.’s contention that the official construction of the 2001 attacks invoked discourses of good and evil reminiscent of the Cold War. In reference to the actions of the four teams of plane hijackers, US president George W Bush opened his Address to the Nation on the evening of September 11: “Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts” (“Statement by the President in His Address to the Nation”). After enjoining Americans to recite Psalm 23 in prayer for the victims and their families, President Bush ended his address with a clear message of national unity and a further reference to the battle between good and evil: “This is a day when all Americans from every walk of life unite in our resolve for justice and peace. America has stood down enemies before, and we will do so this time. None of us will ever forget this day. Yet, we go forward to defend freedom and all that is good and just in our world” (“Statement by the President in His Address to the Nation”). In his address to the joint houses of Congress shortly after September 11, President Bush implicated not just the United States in this fight against evil, but the entire international community stating: “This is the world’s fight. This is civilisation’s fight” (cited by Brown 295). Addressing the California Business Association a month later, in October 2001, Bush reiterated the notion of the United States as the leading nation in the moral fight against evil, and identified this as a possible reason for the attack: “This great state is known for its diversity – people of all races, all religions, and all nationalities. They’ve come here to live a better life, to find freedom, to live in peace and security, with tolerance and with justice. When the terrorists attacked America, this is what they attacked”. While the US media framed the events of September 11 as an attack on the values of democracy and liberalism as these are embodied in US democratic traditions, work by scholars analysing the Australian media’s representation of the attacks suggested that this perspective was echoed and internationalised for an Australian audience. Green asserts that global media coverage of the attacks positioned the global audience, including Australians, as ‘American’. The localisation of the discourses of patriotism and national identity for Australian audiences has mainly been attributed to the media’s use of the good versus evil frame that constructed the West as good, virtuous and moral and invited Australian audiences to subscribe to this argument as members of a shared Western democratic identity (Osuri and Banerjee). Further, where the ‘we’ are defenders of justice, equality and the rule of law; the opposing ‘others’ are necessarily barbaric. Secularism and the Muslim Diaspora Secularism is a historically laden term that has been harnessed to symbolise the emancipation of social life from the forced imposition of religious doctrine. The struggle between the essentially voluntary and private demands of religion, and the enjoyment of a public social life distinct from religious obligations, is historically entrenched in the cultural identities of many modern Western societies (Dallmayr). The concept of religious freedom in the West has evolved into a principle based on the bifurcation of life into the objective public sphere and the subjective private sphere within which individuals are free to practice their religion of choice (Yousif), or no religion at all. Secularism, then, is contingent on the maintenance of a separation between the public (religion-free) and the private or non- public (which may include religion). The debate regarding the feasibility or lack thereof of maintaining this separation has been a matter of concern for democratic theorists for some time, and has been made somewhat more complicated with the growing presence of religious diasporas in liberal democratic states (Charney). In fact, secularism is often cited as a precondition for the existence of religious pluralism. By removing religion from the public domain of the state, religious freedom, in so far as it constitutes the ability of an individual to freely choose which religion, if any, to practice, is deemed to be ensured. However, as Yousif notes, the Western conception of religious freedom is based on a narrow notion of religion as a personal matter, possibly a private emotional response to the idea of God, separate from the rational aspects of life which reside in the public domain. Arguably, religion is conceived of as recognising (or creating) a supernatural dimension to life that involves faith and belief, and the suspension of rational thought. This Western notion of religion as separate from the state, dividing the private from the public sphere, is constructed as a necessary basis for the liberal democratic commitment to secularism, and the notional equality of all religions, or none. Rawls questioned how people with conflicting political views and ideologies can freely endorse a common political regime in secular nations. The answer, he posits, lies in the conception of justice as a mechanism to regulate society independently of plural (and often opposing) religious or political conceptions. Thus, secularism can be constructed as an indicator of pluralism and justice; and political reason becomes the “common currency of debate in a pluralist society” (Charney 7). A corollary of this is that religious minorities must learn to use the language of political reason to represent and articulate their views and opinions in the public context, especially when talking with non-religious others. This imposes a need for religious minorities to support their views and opinions with political reason that appeals to the community at large as citizens, and not just to members of the minority religion concerned. The common ground becomes one of secularism, in which all speakers are deemed to be indifferent as to the (private) claims of religion upon believers. Minority religious groups, such as fundamentalist Mormons, invoke secular language of moral tolerance and civil rights to be acknowledged by the state, and to carry out their door-to-door ‘information’ evangelisation/campaigns. Right wing fundamentalist Christian groups and Catholics opposed to abortion couch their views in terms of an extension of the secular right to life, and in terms of the human rights and civil liberties of the yet-to-be-born. In doing this, these religious groups express an acceptance of the plurality of the liberal state and engage in debates in the public sphere through the language of political values and political principles of the liberal democratic state. The same principles do not apply within their own associations and communities where the language of the private religious realm prevails, and indeed is expected. This embracing of a political rhetoric for discussions of religion in the public sphere presents a dilemma for the Muslim diaspora in liberal democratic states. For many Muslims, religion is a complete way of life, incapable of compartmentalisation. The narrow Western concept of religious expression as a private matter is somewhat alien to Muslims who are either unable or unwilling to separate their religious needs from their needs as citizens of the nation state. Problems become apparent when religious needs challenge what seems to be publicly acceptable, and conflicts occur between what the state perceives to be matters of rational state interest and what Muslims perceive to be matters of religious identity. Muslim women’s groups in Western Australia for example have for some years discussed the desirability of a Sharia divorce court which would enable Muslims to obtain divorces according to Islamic law. It should be noted here that not all Muslims agree with the need for such a court and many – probably a majority – are satisfied with the existing processes that allow Muslim men and women to obtain a divorce through the Australian family court. For some Muslims however, this secular process does not satisfy their religious needs and it is perceived as having an adverse impact on their ability to adhere to their faith. A similar situation pertains to divorced Catholics who, according to a strict interpretation of their doctrine, are unable to take the Eucharist if they form a subsequent relationship (even if married according to the state), unless their prior marriage has been annulled by the Catholic Church or their previous partner has died. Whereas divorce is considered by the state as a public and legal concern, for some Muslims and others it is undeniably a religious matter. The suggestion by the Anglican Communion’s Archbishop of Canterbury, Dr Rowan Williams, that the adoption of certain aspects of Sharia law regarding marital disputes or financial matters is ultimately unavoidable, sparked controversy in Britain and in Australia. Attempts by some Australian Muslim scholars to elaborate on Dr Williams’s suggestions, such as an article by Anisa Buckley in The Herald Sun (Buckley), drew responses that, typically, called for Muslims to ‘go home’. A common theme in these responses is that proponents of Sharia law (and Islam in general) do not share a commitment to the Australian values of freedom and equality. The following excerpts from the online pages of Herald Sun Readers’ Comments (Herald Sun) demonstrate this perception: “These people come to Australia for freedoms they have never experienced before and to escape repression which is generally brought about by such ‘laws’ as Sharia! How very dare they even think that this would be an option. Go home if you want such a regime. Such an insult to want to come over to this country on our very goodwill and our humanity and want to change our systems and ways. Simply, No!” Posted 1:58am February 12, 2008 “Under our English derived common law statutes, the law is supposed to protect an individual’s rights to life, liberty and property. That is the basis of democracy in Australia and most other western nations. Sharia law does not adequately share these philosophies and principles, thus it is incompatible with our system of law.” Posted 12:55am February 11, 2008 “Incorporating religious laws in the secular legal system is just plain wrong. No fundamentalist religion (Islam in particular) is compatible with a liberal-democracy.” Posted 2:23pm February 10, 2008 “It should not be allowed in Australia the Muslims come her for a better life and we give them that opportunity but they still believe in covering them selfs why do they even come to Australia for when they don’t follow owe [our] rules but if we went to there [their] country we have to cover owe selfs [sic]” Posted 11:28am February 10, 2008 Conflicts similar to this one – over any overt or non-private religious practice in Australia – may also be observed in public debates concerning the wearing of traditional Islamic dress; the slaughter of animals for consumption; Islamic burial rites, and other religious practices which cannot be confined to the private realm. Such conflicts highlight the inability of the rational liberal approach to solve all controversies arising from religious traditions that enjoin a broader world view than merely private spirituality. In order to adhere to the liberal reduction of religion to the private sphere, Muslims in the West must negotiate some religious practices that are constructed as being at odds with the rational state and practice a form of Islam that is consistent with secularism. At the extreme, this Western-acceptable form is what the Australian government has termed ‘moderate Islam’. The implication here is that, for the state, ‘non-moderate Islam’ – Islam that pervades the public realm – is just a descriptor away from ‘extreme’. The divide between Christianity and Islam has been historically played out in European Christendom as a refusal to recognise Islam as a world religion, preferring instead to classify it according to race or ethnicity: a Moorish tendency, perhaps. The secular state prefers to engage with Muslims as an ethnic, linguistic or cultural group or groups (Yousif). Thus, in order to engage with the state as political citizens, Muslims must find ways to present their needs that meet the expectations of the state – ways that do not use their religious identity as a frame of reference. They can do this by utilizing the language of political reason in the public domain or by framing their needs, views and opinions exclusively in terms of their ethnic or cultural identity with no reference to their shared faith. Neither option is ideal, or indeed even viable. This is partly because many Muslims find it difficult if not impossible to separate their religious needs from their needs as political citizens; and also because the prevailing perception of Muslims in the media and public arena is constructed on the basis of an understanding of Islam as a religion that conflicts with the values of liberal democracy. In the media and public arena, little consideration is given to the vast differences that exist among Muslims in Australia, not only in terms of ethnicity and culture, but also in terms of practice and doctrine (Shia or Sunni). The dominant construction of Muslims in the Australian popular media is of religious purists committed to annihilating liberal, secular governments and replacing them with anti-modernist theocratic regimes (Brasted). It becomes a talking point for some, for example, to realise that there are international campaigns to recognise Gay Muslims’ rights within their faith (ABC) (in the same way that there are campaigns to recognise Gay Christians as full members of their churches and denominations and equally able to hold high office, as followers of the Anglican Communion will appreciate). Secularism, Preference and Equality Modood asserts that the extent to which a minority religious community can fully participate in the public and political life of the secular nation state is contingent on the extent to which religion is the primary marker of identity. “It may well be the case therefore that if a faith is the primary identity of any community then that community cannot fully identify with and participate in a polity to the extent that it privileges a rival faith. Or privileges secularism” (60). Modood is not saying here that Islam has to be privileged in order for Muslims to participate fully in the polity; but that no other religion, nor secularism, should be so privileged. None should be first, or last, among equals. For such a situation to occur, Islam would have to be equally acceptable both with other religions and with secularism. Following a 2006 address by the former treasurer (and self-avowed Christian) Peter Costello to the Sydney Institute, in which Costello suggested that people who feel a dual claim from both Islamic law and Australian law should be stripped of their citizenship (Costello), the former Prime Minister, John Howard, affirmed what he considers to be Australia’s primary identity when he stated that ‘Australia’s core set of values flowed from its Anglo Saxon identity’ and that any one who did not embrace those values should not be allowed into the country (Humphries). The (then) Prime Minister’s statement is an unequivocal assertion of the privileged position of the Anglo Saxon tradition in Australia, a tradition with which many Muslims and others in Australia find it difficult to identify. Conclusion Religious identity is increasingly becoming the identity of choice for Muslims in Australia, partly because it is perceived that their faith is under attack and that it needs defending (Aly). They construct the defence of their faith as a choice and an obligation; but also as a right that they have under Australian law as equal citizens in a secular state (Aly and Green). Australian Muslims who have no difficulty in reconciling their core Australianness with their deep faith take it as a responsibility to live their lives in ways that model the reconciliation of each identity – civil and religious – with the other. In this respect, the political call to Australian Muslims to embrace a ‘moderate Islam’, where this is seen as an Islam without a public or political dimension, is constructed as treating their faith as less than equal. Religious identity is generally deemed to have no place in the liberal democratic model, particularly where that religion is constructed to be at odds with the principles and values of liberal democracy, namely tolerance and adherence to the rule of law. Indeed, it is as if the national commitment to secularism rules as out-of-bounds any identity that is grounded in religion, giving precedence instead to accepting and negotiating cultural and ethnic differences. Religion becomes a taboo topic in these terms, an affront against secularism and the values of the Enlightenment that include liberty and equality. In these circumstances, it is not the case that all religions are equally ignored in a secular framework. What is the case is that the secular framework has been constructed as a way of ‘privatising’ one religion, Christianity; leaving others – including Islam – as having nowhere to go. Islam thus becomes constructed as less than equal since it appears that, unlike Christians, Muslims are not willing to play the secular game. In fact, Muslims are puzzling over how they can play the secular game, and why they should play the secular game, given that – as is the case with Christians – they see no contradiction in performing ‘good Muslim’ and ‘good Australian’, if given an equal chance to embrace both. Acknowledgements This paper is based on the findings of an Australian Research Council Discovery Project, 2005-7, involving 10 focus groups and 60 in-depth interviews. The authors wish to acknowledge the participation and contributions of WA community members. References ABC. “A Jihad for Love.” Life Matters (Radio National), 21 Feb. 2008. 11 March 2008. < http://www.abc.net.au/rn/lifematters/stories/2008/2167874.htm >.Aly, Anne. “Australian Muslim Responses to the Discourse on Terrorism in the Australian Popular Media.” Australian Journal of Social Issues 42.1 (2007): 27-40.Aly, Anne, and Lelia Green. “‘Moderate Islam’: Defining the Good Citizen.” M/C Journal 10.6/11.1 (2008). 13 April 2008 < http://journal.media-culture.org.au/0804/08aly-green.php >.Aly, Anne, and David Walker. “Veiled Threats: Recurrent Anxieties in Australia.” Journal of Muslim Minority Affairs 27.2 (2007): 203-14.Brasted, Howard.V. “Contested Representations in Historical Perspective: Images of Islam and the Australian Press 1950-2000.” Muslim Communities in Australia. Eds. Abdullah Saeed and Akbarzadeh, Shahram. Sydney: University of New South Wales Press, 2001. 206-28.Brown, Chris. “Narratives of Religion, Civilization and Modernity.” Worlds in Collision: Terror and the Future of Global Order. Eds. Ken Booth and Tim Dunne. New York: Palgrave Macmillan, 2002. 293-324. Buckley, Anisa. “Should We Allow Sharia Law?” Sunday Herald Sun 10 Feb. 2008. 8 March 2008 < http://www.news.com.au/heraldsun/story/0,21985,231869735000117,00.html >.Bush, George. W. “President Outlines War Effort: Remarks by the President at the California Business Association Breakfast.” California Business Association 2001. 17 April 2007 < http://www.whitehouse.gov/news/releases/2001/10/20011017-15.html >.———. “Statement by the President in His Address to the Nation”. Washington, 2001. 17 April 2007 < http://www.whitehouse.gov/news/releases/2001/09/20010911-16.html >.Charney, Evan. “Political Liberalism, Deliberative Democracy, and the Public Sphere.” The American Political Science Review 92.1 (1998): 97- 111.Costello, Peter. “Worth Promoting, Worth Defending: Australian Citizenship, What It Means and How to Nurture It.” Address to the Sydney Institute, 23 February 2006. 24 Apr. 2008 < http://www.treasurer.gov.au/DisplayDocs.aspx?doc=speeches/2006/004.htm &pageID=05&min=phc&Year=2006&DocType=1 >.Dallmayr, Fred. “Rethinking Secularism.” The Review of Politics 61.4 (1999): 715-36.Erjavec, Karmen, and Zala Volcic. “‘War on Terrorism’ as Discursive Battleground: Serbian Recontextualisation of G. W. Bush’s Discourse.” Discourse and Society 18 (2007): 123- 37.Green, Lelia. “Did the World Really Change on 9/11?” Australian Journal of Communication 29.2 (2002): 1-14.Herald Sun. “Readers’ Comments: Should We Allow Sharia Law?” Herald Sun Online Feb. 2008. 8 March 2008. < http://www.news.com.au/heraldsun/comments/0,22023,23186973-5000117,00.html >.Humphries, David. “Live Here, Be Australian.” The Sydney Morning Herald 25 Feb. 2006, 1 ed.Hutcheson, John S., David Domke, Andre Billeaudeaux, and Philip Garland. “U.S. National Identity, Political Elites, and Patriotic Press Following September 11.” Political Communication 21.1 (2004): 27-50.Kymlicka, Will. “Liberal Individualism and Liberal Neutrality.” Ethics 99.4 (1989): 883-905.Modood, Tariq. “Establishment, Multiculturalism and British Citizenship.” The Political Quarterly (1994): 53-74.Osuri, Goldie, and Subhabrata B. Banerjee. “White Diasporas: Media Representations of September 11 and the Unbearable Whiteness of Being in Australia.” Social Semiotics 14.2 (2004): 151- 71.Rawls, John. A Theory of Justice. Cambridge: Harvard UP, 1971.Said, Edward. Orientalism. New York: Vintage Books 1978.Western Australian Charter of Multiculturalism. WA: Government of Western Australia, Nov. 2004. 11 March 2008 < http://www.equalopportunity.wa.gov.au/pdf/wa_charter_multiculturalism.pdf >.Yousif, Ahmad. “Islam, Minorities and Religious Freedom: A Challenge to Modern Theory of Pluralism.” Journal of Muslim Minority Affairs 20.1 (2000): 30-43.

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 thesis is an exploration of how indigenous knowledge has emerged as a subject within Australian intellectual property law. It uses the context of copyright law to illustrate this development. The work presents an analysis of the political, social and cultural intersections that influence legal possibilities and effect practical expectations of the law in this area. The dilemma of protecting indigenous knowledge resonates with tensions that characterise intellectual property as a whole. The metaphysical dimensions of intellectual property have always been insecure but these difficulties come to the fore with the identification of boundaries and markers that establish property in indigenous subject matter. While intellectual property law is always managing difference, the politics of law are more transparent when managing indigenous concerns. Rather than assume the naturalness of the category of indigenous knowledge within law, this work interrogates the politics of its construction precisely as a ???special??? category. Employing a multidisciplinary methodology, engaging theories of governmental rationality that draws upon the scholarship of Michel Foucault to appreciate strategies of managing and directing knowledge, the thesis considers how the politics of law is infused by cultural, political, bureaucratic and individual factors. Key elements in Australia that have pushed the law to consider expressions of indigenous knowledge in intellectual property can be located in changing political environments, governmental intervention through strategic reports, cultural sensitivity articulated in case law and innovative instances of individual agency. The intersection of these elements reveals a dynamic that exerts influence in the shape the law takes.

"August 2006"
Thesis (PhD) -- Macquarie University, Division of Law, 2007.
Bibliography: p. 343-364.
Abstract -- Candidate's certification -- Acknowledgements -- Acronyms -- Chapter one -- Chapter two: Linking public participation to environmental decision making and natural resources management -- Chapter three: The right to public participation -- Chapter four: Implementing the right to public participation in environmental decision making : the participation of indigenous peoples in the conservation and management of protected areas -- Chapter five: The legal and policy regime for the participation of indigenous peoples in the conservation and management of protected areas in Australia -- Chapter six: The legal and policy regime for the participation of indigenous peoples in the conservation and management of protected areas in Uganda -- Chapter seven: Implementing public participation in environmental decision making in Australia and Uganda : a comparative analysis -- Chapter eight: The right to public participation in enviromental decision making and natural resources management : summary and conclusions -- Bibliography.
In recognition of the importance of public participation as a basis for good governance and democracy, Mr Kofi Annan, Secretary General to the United Nations, has noted that: "Good governance demands the consent and participation of the governed and the full participation and lasting involvement of all citizens in the future of their nation. The will of the people must be the basis of governmental authority. That is the foundation of democracy. That is the foundation of good governance Good governance will give every citizen, young or old, man or woman, a real and lasting stake in the future of his or her society". The above quotation encapsulates the essence of what this thesis has set out to do; to examine the concept of public participation and its application in environmental governance within the context of the participation of indigenous peoples in the conservation and management of protected areas in Australia and Uganda. The concept of public participation is of such intrinsic importance that it has emerged as one of the fundamental principles underpinning environmental governance and therefore forms the basis for this study. -- Environmental governance, as a concept that captures the ideal of public participation, is basically about decisions and the manner in which they are made. It is about who has 'a seat at the table' during deliberations and how the interests of affected communities and ecosystems are represented. It is also about how decision makers are held responsible for the integrity of the process and for the results of their decisions. It relates to business people, property owners, farmers and consumers. Environmental governance is also about the management of actions relating to the environment and sustainable development. It includes individual choices and actions like participating in public hearings or joining local watchdog groups or, as consumers, choosing to purchase environmentally friendly products. -- The basic principles behind good governance and good environmental decision making have been accepted for more than a decade. The 178 nations that attended the Rio Summit in 1992 all endorsed these nvironmental governance principles when they signed the Rio Declaration on Environment and Development (Rio Declaration) - a charter of 27 principles meant to guide the world community towards sustainable development. The international community re-emphasised the importance of these principles at the World Summit on Sustainable Development in 2002. -- The right to public participation in nvironmental decision making and natural resources management is one of the 27 principles endorsed by the nations of the world and is embodied in the provisions of Principle 10 of the Rio Declaration.
Environmental decisions occur in many contexts. They range from personal choices like whether to walk or drive to work, how much firewood to burn, or whether to have another child. They encompass the business decisions that communities or corporations make about where to locate their facilities, how much to emphasise eco-friendly product design and how much land to preserve. They include national laws enacted to conserve the environment, to regulate pollution, manage public land or regulate trade. They take into account international commitments made to regulate trade in endangered species or limit acid rain or C02 emissions. -- Environmental decisions also involve a wide range of actors: individuals; local, state and national governments; community and tribal authorities such as indigenous peoples; civic organisations; interested groups; labour unions; national and transactional corporations; scientists; and international bodies such as the United Nations, the European Union, and the World Trade Organisation. -- Each of the actors have different interests, different levels of authority and different information, making their actions complex and frequently putting their decisions at odds with each other and with ecological processes that sustain the natural systems we depend on. -- Accordingly, this thesis aims to examine participation in environmental decision making in a way that demonstrates these complexities and interdependencies. It will explore the theoretical and conceptual basis for public participation and how it is incorporated into international and domestic environmental and natural resources law and policy. -- It will examine public participation in the context of the legal and policy framework for the conservation and management of protected areas and will use case studies involving the participation of indigeneous peoples in Australia and Uganda to provide the basis for a comparative analysis. -- The thesis will also faces on a comparative analysis of the effectiveness and meaningfulness of the process for public participation in environmental decision making in Australia and Uganda. There is extensive literature on the purposes to which participation may be put; the stages in the project cycle at which it should be employed; the level and power with regard to the decision making process which should be afforded to the participants; the methods which may be appropriate under the different circumstances, as well as detailed descriptions of methods; approaches and forms or typologies of public participation; and the benefits and problems of such participation.
However, there is not much significant literature that examines and analyses the meaningfulness and effectiveness of the contextual processes of such participation. This is despite the widespread belief in the importance and value of public participation, particularly by local and indigenous communities, even in the face of disillusionment caused by deceit, manipulation and tokenism. Accordingly, the thesis will use case studies to demonstrate the meaningfulness and effectiveness or otherwise of public participation in environmental decision making in protected area management. -- Increasingly, the terminology of sustainable development is more appropriate to describe contemporary policy objectives in this area, with an emphasis on promoting local livelihood and poverty alleviation within the constraints of ecosystem management. However, the domestic legal frameworks, and institutional development, in Australia and Uganda tend to reflect earlier concepts of environmental and natural resources management (referred to as environmental management in this thesis). There are some significant differences between a North (developed) nation and a South (developing) nation, in terms of the emphasis on economic objectives, political stability, resources and legal and administrative capacity. The thesis intends to explore these differences for the comparative analysis and to draw on them to highlight the complexities and interdependencies of public participation by indigenous peoples in environmental decision making, natural resources and protected area management.
Mode of access: World Wide Web.
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This paper discusses the legal principles which are relevant in determining the appropriate level of compensation for infringements to aboriginal and treaty rights. This issue has been left open by the Supreme Court of Canada in the seminal case of Delgamuukw. The nature of aboriginal and treaty rights as well as the fiduciary relationship and duties of the Crown are briefly described. The basic constitutional context in which these rights evolve is also discussed, including the federal common law of aboriginal rights and the constitutional position of these rights in Canada. Having set the general context, the paper then reviews the legal principles governing the infringement of aboriginal and treaty rights, including the requirement for just compensation. Reviews of the legal principles applicable to compensation in cases of expropriation and of the experience in the United States in regards to compensation in cases of the taking of aboriginal lands are also carried out. Six basic legal principles relevant for determining appropriate compensation in cases of infringement to aboriginal and treaty rights are then suggested, justified and explained. (Abstract shortened by UMI.)

This dissertation attempts to show that Aboriginal peoples' ways of thinking have not been recognized by early colonial European political thinkers. I begin with an examination of Kymlicka's political theory of minority rights and show that, although Kymlicka is a strong advocate of the right of Aboriginal self-government in Canada, he fails to consider Aboriginal ways of thinking within his own political system. From an Aboriginal perspective this is not surprising. However, I claim that Kymlicka opens the conceptual space for the inclusion of Aboriginal voices. The notion of "incorporation" means that Aboriginal peoples became included in the Canadian state and in this process their Aboriginal sovereignty was extinguished. Aboriginal peoples question the legitimacy of such a claim. A consequence of the Canadian government unilaterally asserting its sovereignty over Aboriginal peoples is that Aboriginal ways of thinking are not recognized as valuable within the legal and political discourse of sovereignty. In chapters two through five, respectively, I examine the Valladolid debate of 1550 between the Spanish monk Bartolome de Las Casas and Juan Sepulveda, The Great Law of Peace of the Iroquois Confederacy, Thomas Hobbes's distinction between the state of nature and a civil society, and Alexis de Tocqueville's account of democracy in America. Each of the examples, except for The Great Law of Peace, generate a philosophical dialogue that includes judgments about Aboriginal peoples. However, none of these European thinkers considers the possibility that Aboriginal voices could play a valuable role in shaping their political thought. To show the value of an Aboriginal exemplar of political thinking I consider the Iroquois Great Law of Peace. The Iroquois view of political sovereignty respects the diversity of voices found within a political relationship. This was put into practice and enforced in early colonial northeast America until the power dynamic shifted betwe

The aim of this thesis is to reveal the need for a principled framework that would establish an effective implementation of the aboriginal peoples' right to self-government in Canada. In recent decades, many agreements instituting the right to self-government of First Nations have been concluded between the federal and provincial governments and aboriginal peoples. It then becomes important to evaluate the attempts of the two existing orders of government and the courts of Canada as regards the right to self-government and assess the potential usefulness of the two's efforts at defining and implementing the right. Firstly, the importance and legitimacy of the right to self-government is recognized through its beginnings in the human right norm of self-determination in international law to the establishment of the right in Canadian domestic law. Secondly, an evaluation of the principal attempts, on behalf of the governments and the courts, to give meaning and scope to the aboriginal right to self-government, which culminate in the conclusion of modern agreements, reveals their many inefficiencies and the need for a workable and concrete alternative. Lastly, the main lacunae of the negotiation process, the main process by which the right is concluded and implemented, and the use of the courts to determine the scope and protection of the right to self-government, are revealed. An analysis of European initiatives to entrench the right to self-government, mainly the European Charter of Self-Government and its established set of principles that guide the creation of self-government agreements, are also used in order to propose a viable option for the establishment of a principled framework for the aboriginal right to self-government in Canada.

Is it possible to redefine Aboriginal title? This study intends to answer this question through the construction of an integral doctrine of aboriginal title based on a detailed analysis of its criticisms. The author uses international law to show a possible way to redefine this part of Canadian law. After a careful review of the most important aspects of aboriginal land in international law, the author chooses the law of the InterAmerican Court of Human Rights as its framework. Using the decisions of this Court he produces an internationalized redefinition of Aboriginal title.

In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.