Dissertations / Theses on the topic 'Native title (Australia)'
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1
Dorsett, Shaunnagh Law Faculty of Law UNSW. "Thinking jurisdictionally: a genealogy of native title." Awarded by:University of New South Wales. School of Law, 2005. http://handle.unsw.edu.au/1959.4/23963.
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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.
2
Holtheuer, Laura. "Biopiracy and Native Title: An Exploration of the Native Title Act 1993 (Cth) and Indigenous Knowledge Protection." Thesis, Business Law, 2023. https://hdl.handle.net/2123/30003.
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The exploitation of Indigenous Knowledge is pervasive and widespread. Despite its
significance and value however, the current legal frameworks available for its protection fail
to offer a comprehensive regime which fundamentally accommodates for the unique
characteristics that underlie Indigenous Knowledge. This thesis critically examines the
protective frameworks currently available in Australia for Aboriginal and Torres Strait Islander
Peoples’ Knowledge of plant-based biological resources and traditional medicine, mainly
environmental laws, intellectual property rights, and human rights. Although their inadequacy
has been continually demonstrated, regulatory research in Australia has primarily focused on
recommending developments to the current frameworks available, disregarding the unique
characteristics and fundamental principles of the knowledge they seek to protect.
This thesis aims to fill the gap in the research concerning the protection of Indigenous
Knowledge systems through an exploration of the Native Title Act 1993 (Cth) and the
feasibility of incorporating Indigenous Knowledge protection within its scope, justified by the
interconnected and land-related nature of Knowledge and Indigenous ways of life. The analysis
is framed around the definition of native title contained in s 223(1) of the Native Title Act 1993
(Cth) and draws from jurisprudential interpretations to determine whether it could encompass,
and therefore protect, Indigenous Knowledge pertaining to plant-based biological resources
and traditional medicine specifically. Through case study application, this thesis illustrates and
concludes that the s 223(1) native title definition has the scope to protect Indigenous
Knowledge of plant-based biological resources. While the success of applying this conclusion
in practice remains severely limited given the inequality and imbalance of power amongst
Indigenous Peoples and ‘settler’ Australians that still permeates the legal context and
Australian society more widely, recent developments in this space indicate a growing social
and political demand for much needed change which may act as the vehicle through which to
grant Indigenous Peoples rights to their knowledge under the native title framework.
3
Brazenor, Clare. "The spatial dimensions of Native Title." Connect to thesis, 2000. http://eprints.unimelb.edu.au/archive/00001050.
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Anker, Kirsten. "The unofficial law of native title indigenous rights, state recognition and legal pluralism in Australia /." Connect to full text, 2007. http://hdl.handle.net/2123/2294.
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Thesis (Ph. D.)--University of Sydney, 2007.Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Law, University of Sydney. Degree awarded 2007. Includes bibliographical references. Also available in print form.
5
Robson, Stephen William. "Rethinking Mabo as a clash of constitutional languages /." Access via Murdoch University Digital Theses Project, 2006. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070207.131859.
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Phillips, Jacqueline 1980. "Native title law as 'recognition space'? : an analysis of indigenous claimant engagement with law's demands." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101825.
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This thesis engages in a critique of the concept of Australian native title law as a 'recognition space'. It doing so, it treats native title law as a form of identity politics, the courts a forum in which claims for the recognition of identity are made. An overview of multicultural theories of recognition exposes what is signified by the use of recognition discourse and situates this rhetoric in political and theoretical context. A critique of native title recognition discourse is then developed by reference to the insights of sociolegal scholarship, critical theory, critical anthropology and legal pluralism. These critiques suggest that legal recognition is affective and effective. This thesis highlights native title law's false assumptions as to cultural coherence and subject stasis by exploring law's demands and indigenous claimant engagement with these demands. In this analysis, law's constitutive effect is emphasized. However, a radical constructivist approach is eschewed, subject engagement explored and agency located in the limits of law's constitutive power. The effects of legal recognition discourse, its productive and enabling aspects, are considered best understood by reference to Butler's notion of provisional 'performativity'. Ultimately, claimant 'victories' of resistance and subversion are considered not insignificant, but are defined as temporary and symbolic by virtue of the structural context in which they occur.
7
Cleary, Paul. "Iron ore dreaming : a study of native title negotiations in the Pilbara, Western Australia." Phd thesis, Canberra, ACT : The Australian National University, 2014. http://hdl.handle.net/1885/150452.
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Dominello, Francesca Giorgia Law Faculty of Law UNSW. "Lessons in history in the high court's approach to native title in Australia." Awarded by:University of New South Wales, 2007. http://handle.unsw.edu.au/1959.4/35385.
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The High Court decision in Mabo v Queensland (No 2) was interpreted by some as bringing to an end a history of discrimination and dispossession of indigenous peoples' lands. In this respect it was located within the new history movement in Australia - a movement which has raised awareness of the impact that colonisation has had on indigenous peoples in Australia. ln this thesis the extent to which Mabo was in fact a product of the new history movement in Australia is examined. An analysis of the results in the more recent High Court cases on native title such as Western Australia v Ward and Members of the Members of the Yorta Yorta Aboriginal Community v Victoria reveals that the promises that came with native title recognition in Mabo have not been fulfilled. ln Ward the native title claim was partially accepted; in Yorta Yorta lhe claim was completely rejected. But as the analysis further reveals the shortcomings of the native title regime as demonstrated by these cases can be partly located in the Mabo decision itself. One of the contributions that some new historians have made to the writing of Australian history has been to reveal how the perceived differences between indigenous peoples and the colonists resulted in the perception of indigenous peoples as inferior beings. In turn, such perceptions worked to legitimise their dispossession in the native title context, indigenous peoples are no longer to be perceived as inferior (the rejection of the terra nullius doctrine in Mabo was an acknowledgement that indigenous peoples did have their own laws and social organisation) However the perception that they are different remains in the way that laws for them are constructed: native title may be recognised by the common law, but it is not part of the common law. As it is argued in this thesis the perceived differences in the origins of native title and the Australian common law has resulted in the inferior r treatment of native title. Potential solutions are canvassed in the thesis. Included among them is the need to give recognition to Aboriginal sovereignty However, it is concluded that if any change is to take place it must involve changing perceptions of indigenous peoples so that the protection of their interests may be more broadly construed as being in the interests of Australia.
9
Lochead, Karen Elizabeth. "Reconciling dispossession?: The legal and political accommodation of Native title in Canada and Australia /." Burnaby B.C. : Simon Fraser University, 2005. http://ir.lib.sfu.ca/handle/1892/2039.
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Vincent, Eve Mary. "Forces of destruction, acts of creation : aboriginality, identity and native title, on the far west coast of South Australia." Thesis, The University of Sydney, 2013. http://hdl.handle.net/2123/13502.
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Herne, Stephen Charles. "A jurisprudence of difference : the denial of full respect in the Australian law of native title." University of Western Australia. Law School, 2009. http://theses.library.uwa.edu.au/adt-WU2008.0262.
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au, j. morrison@murdoch edu, and Judith Ellen Morrison. "Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia." Murdoch University, 2007. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20080904.141252.
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This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
13
Morrison, Judith Ellen. "Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia." Thesis, Morrison, Judith Ellen (2007) Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia. PhD thesis, Murdoch University, 2007. https://researchrepository.murdoch.edu.au/id/eprint/210/.
Full textAbstract:
This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
14
Morrison, Judith Ellen. "Independent scholarly reporting about conflict interventions : negotiating Aboriginal Native Title in South Australia /." Morrison, Judith Ellen (2007) Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia. PhD thesis, Murdoch University, 2007. http://researchrepository.murdoch.edu.au/210/.
Full textAbstract:
This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
15
Moran, Anthony F. "Imagining the Australian nation settler- nationalism and Aboriginality /." Click here for electronic access to document, 1999. http://dtl.unimelb.edu.au/R/U1L2H28HB18MC24L4CL743PII8DUPUQSDYN9NGAGLBXL8YA8BU-00451?func=results-jump-full&set_entry=000013.
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Burn, Geoffrey Livingston. "Land and reconciliation in Australia : a theological approach." Thesis, University of Exeter, 2010. http://hdl.handle.net/10036/117230.
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This thesis is a work of Christian theology. Its purpose is twofold: firstly to develop an adequate understanding of reconciliation at the level of peoples and nations; and secondly to make a practical contribution to resolving the problems in Australia for the welfare of all the peoples, and of the land itself. The history of the relationships between the Indigenous and non-Indigenous peoples in Australia has left many problems, and no matter what the non-Indigenous people try to do, the Indigenous peoples of Australia continue to experience themselves as being in a state of siege. Trying to understand what is happening, and what can be done to resolve the problems for the peoples of Australia and the land, have been the implicit drivers for the theological development in this thesis. This thesis argues that the present generation in any trans-generational dispute is likely to continue to sin in ways that are shaped by the sins of the past, which explains why Indigenous peoples in Australia find themselves in a stage of siege, even when the non-Indigenous peoples are trying to pursue policies which they believe are for the welfare of all. The only way to resolve this is for the peoples of Australia to seek reconciliation. In particular, the non-Indigenous peoples need to repent, both of their own sins, and the sins of their forebears. Reconciliation processes have become part of the international political landscape. However, there are real concerns about the justice of pursuing reconciliation. An important part of the theological development of this thesis is therefore to show that pursuing reconciliation establishes justice. It is shown that the nature of justice, and of repentance, can only be established by pursuing reconciliation. Reconciliation is possible because God has made it possible, and is working in the world to bring reconciliation. Because land is an essential part of Indigenous identity in Australia, the history of land in court cases and legislation in Australia over the past half century forms an important case study in this work. It is shown that, although there was significant repentance within the non-Indigenous legal system in Australia, the degree of repentance available through that legal system is inherently limited, and so a more radical approach is needed in order to seek reconciliation in Australia. A final chapter considers what the non-Indigenous people of Australia need to do in order to repent.
17
Samec, Ernest FE. "Compensation for a claim of breach of fiduciary obligation owed by the crown towards indigenous people arising from the mismanagement of native title: A comparative analysis of the law in the United States, Canada and Australia." Thesis, Samec, Ernest FE (1999) Compensation for a claim of breach of fiduciary obligation owed by the crown towards indigenous people arising from the mismanagement of native title: A comparative analysis of the law in the United States, Canada and Australia. Honours thesis, Murdoch University, 1999. https://researchrepository.murdoch.edu.au/id/eprint/48776/.
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The objective of this research paper is to examine the principles governing an award of compensation arising from a claim for a breach of fiduciary duty owed by the Crown towards the indigenous custodians of native title in Australia. If a fiduciary relationship can be established, breach of the duty would make the Crown as fiduciary liable to these indigenous people as beneficiaries for any damage flowing from the breach. The inherent flexibility of the remedies available for a breach of fiduciary duty are potentially significant to provide the necessary compensation1 for injustices suffered by indigenous people2 in relation to land…
18
HUNTER, Andrew, and a. hunter@ecu edu au. "Philosophical Justification and the Legal Accommodation of Indigenous Ritual Objects; an Australian Study." Edith Cowan University. Community Services, Education And Social Sciences: School Of International, Cultural And Community Studies, 2006. http://adt.ecu.edu.au/adt-public/adt-ECU2006.0029.html.
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Indigenous cultural possessions constitute a diverse global issue. This issue includes some culturally important, intangible tribal objects. This is evident in the Australian copyright cases viewed in this study, which provide examples of disputes over traditional Indigenous visual art. A proposal for the legal recognition of Indigenous cultural possessions in Australia is also reviewed, in terms of a new category of law. When such cultural objects are in an artistic form they constitute the tribe's self-presentation and its mechanism of cultural continuity. Philosophical arguments for the legal recognition of Indigenous intellectual `property' tend to assume that the value of Indigenous intellectual property is determinable on external criteria.
19
Fardin, Giovanni S. "Mining performance bonds : Strengthening enforceability through free, prior and informed consent in Australia's native title system." Thesis, University of Dundee, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.505596.
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Hunter, Andrew G. "Philosophical justification and the legal accommodation of Indigenous ritual objects; an Australian study." Thesis, Edith Cowan University, Research Online, Perth, Western Australia, 2006. https://ro.ecu.edu.au/theses/71.
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Indigenous cultural possessions constitute a diverse global issue. This issue includes some culturally important, intangible tribal objects. This is evident in the Australian copyright cases viewed in this study, which provide examples of disputes over traditional Indigenous visual art. A proposal for the legal recognition of Indigenous cultural possessions in Australia is also reviewed, in terms of a new category of law. When such cultural objects are in an artistic form they constitute the tribe's self-presentation and its mechanism of cultural continuity. Philosophical arguments for the legal recognition of Indigenous intellectual `property' tend to assume that the value of Indigenous intellectual property is determinable on external criteria.
21
Aitken, Kristin P., and n/a. "The settlement of indigenous peoples claims to natural resources : the Sealords deal." University of Otago. Department of Geography, 1993. http://adt.otago.ac.nz./public/adt-NZDU20070601.113012.
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The settlement of the claim to fisheries by Maori is a political milestone. The Sealords Deal (the Deal) as it is commonly known, is the first settlement in New Zealand which extinguishes Maori claims to a particular resource. It affects all iwi and proposes the development of a process for the allocation of benefits. As such it needs to be considered in terms of other post-colonial nations� experiences in the resolution of claims to natural resources.
Canada, the United States and Australia provide examples of different attitudes and approaches to the resolution of claims to natural resources by their indigenous populations. A typical history of the resolution of claims to natural resources in post-colonial nations begins with initial European contact, followed by increased numbers of settlers which places pressure on governments and the judiciary to justify the acquisition and exploitation of land and other resources. This leaves the indigenous population landless and welfare dependent.
This pattern is reflected in judicial decision-making. In New Zealand, the courts initially acknowledged that the rights of Maori to their lands and other resources, existed unless specifically taken away. When pressure for acquisition of land occurred the courts responded by holding that Maori rights to resources only existed if specifically granted by a court or the legislature. This reversed the original presumption of existence of a right unless taken away.
It has only been recently that the New Zealand judiciary has reaccepted the common law doctrine of aboriginal title. This brings New Zealand more in line with Canada and the United States, but New Zealand still has some way to go in acknowledging the doctrine of fiduciary obligation of the Crown/government to Maori.
It is also helpful to analyse the changes that have taken place in governments� policies that have enabled the creation of an enviroment in which such a settlement can take place. The Labour governments of 1984 and 1987 began a number of policy initiatives which created a socio-economic climate and responsive enviroment favourable to the settlement of such a claim.
Changes are also occurring internationally. Indigenous people�s rights are coming to the fore with the proposed Universal Declaration on Indigenous Rights nearly in place.
All this change at a national and international level has only been possible by post-colonial nations acknowledging their past in order to move to the future with confidence. The Sealords Deal is an example of an attempt by Maori and the New Zealand government to make this move forward.
22
Babidge, Sally. "Family affairs an historical anthropology of state practice and Aboriginal agency in a rural town, North Queensland /." Click here for electronic access to document: http://eprints.jcu.edu.au/942, 2004. http://eprints.jcu.edu.au/942.
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Thesis (Ph.D.) - James Cook University, 2004.Thesis submitted by Sally Marie Babidge, BA (Hons) UWA June 2004, for the Degree of Doctor of Philosophy in the School of Anthropology, Archaeology and Sociology, James Cook University. Bibliography: leaves 283-303.
23
Corbett, Lee School of Sociology & Anthropology UNSW. "Native title & constitutionalism: constructing the future of indigenous citizenship in Australia." 2007. http://handle.unsw.edu.au/1959.4/40710.
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This thesis argues that native title rights are fundamental to Indigenous citizenship in Australia. It does this by developing a normative conception of citizenship in connection with a model of constitutionalism. Here, citizenship is more than a legal status. It refers to the norms of individual rights coupled with democratic responsibility that are attached to the person in a liberal-democracy. Constitutionalism provides the framework for understanding the manner in which Australian society realizes these norms. This thesis focuses on a society attempting to grapple with issues of postcolonialism. A fundamental question faced in these societies is the legitimacy of group rights based in pre-colonization norms. This thesis argues that these rights can be legitimized when constitutionalism is understood as originating in the deliberations connecting civil society with the state; which deliberations reconcile individual rights with group rights in such a way as to resolve the issue of their competing claims to legitimacy. Civil society is the social space in which politico-legal norms collide with action. The argument constructed here is that native title is built on norms that have the potential (it is a counterfactual argument) to contribute to a postcolonial civil society. This is one in which colonizer and colonized coordinate their action in a mutual search for acceptable solutions to the question 'how do we live together?'. The optimistic analysis is tempered by a consideration of the development of native title law. The jurisprudence of the High Court after the Wik's Case has undermined the potential of native title to play a transformative role. It has undermined Indigenous Australians' place in civil society, and their status as equal individuals and responsible citizens. In seeking to explain this, the thesis turns from jurisprudence to political sociology, and argues that an alternative model of constitutionalism and civil society has supplanted the postcolonial; viz., the neoliberal.
24
Glaskin, Katie. "Claiming country : a case study of historical legacy and transition in the native title context." Phd thesis, 2002. http://hdl.handle.net/1885/146023.
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Anker, Kirsten, and kirsten anker@mcgill ca. "The unofficial law of native title: indigenous rights, state recognition and legal pluralism in Australia." 2007. http://hdl.handle.net/2123/2294.
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Doctor of Philosophy (PhD)The official version of law in Australia is that the state has a monopoly over sovereignty: there is only one Australian law whose meaning is determined by the courts. However, the courts have implied that there is another law, the law of Indigenous peoples which exists as a social fact. It can be recognised by the state for particular purposes, such as the protection of the ‘native title’ of Aboriginal peoples and Torres Strait Islanders to their traditional countries. Native title is characterised as the translation of a primarily spiritual connection to land into proprietary rights and interests, requiring proof of the connection that a particular Indigenous society has under traditional laws and customs continuously acknowledged since Britain claimed sovereignty. Given the special nature of native title, the preference is to recognise title by negotiated agreement. This thesis undertakes a study of some of the assumptions and inconsistencies on which the recognition of native title – and this ‘not quite’ legal pluralism – rests. It questions law’s relation to fact, time, space, identity, language and practice as these are deployed in calibrating Indigenous peoples’ claims, and so reaches across disciplines to History (questioning the knowable past), Philosophy (the notion of recognition), Legal Theory (the concept of law as rules and the separation between law and fact), Anthropology and Literary Studies (the possibility of translation), Aesthetics (the rationality of proof), and Geography (the alternative space of negotiation). In looking closely at the practical and discursive process of making a claim, an account of native title can be given that refuses the cogency of the monopoly of sovereignty, and envisages instead a multi-faceted phenomenon that is the ‘unofficial’ law of native title. Native title is a set of practices which stimulate new articulations of Indigenous law and settler law and put them in relation with one another: the process of recognition is also a creative process of transformation.
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Scambary, Benedict. "My country, mine country : indigenous people, mining and development contestation in remote Australia." Phd thesis, 2007. http://hdl.handle.net/1885/149611.
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Preston, Judith A. "Bloody but unbowed : how international and national legal norms and frameworks can improve recognition and inclusion of Aboriginal and Torres Strait Islander knowledge in Australian environmental decision-making." Thesis, 2019. http://hdl.handle.net/1959.7/uws:56825.
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The Earth’s natural and cultural resources are disappearing at an unrelenting pace, adversely affecting both human and non-human species. Solutions to these challenges derived from legal framework requires a shift towards creative and interdisciplinary approaches. Increased reference to knowledges held and protected by Indigenous custodians and inclusion of their input into decision-making particularly related to natural resource protection and development, form part of this shift. Legal frameworks globally, have begun to include references to Indigenous knowledges (IK) as important knowledge sources included in national constitutions as well as environmental and cultural heritage protection laws. In Australia, Indigenous knowledges have been referenced as important sources of knowledge in laws at national, state and local levels. Custodians of IK may be consulted in the decision-making process particularly in environmental matters; however, it is generally subject to the discretion of the decision-makers.
This thesis considers IK in the context of the relationship, rights and needs of Aboriginal and Torres Strait Islander knowledges custodians as determined by them. A key starting point is to consider whether these knowledges, and its custodians, are respected and consulted effectively. Consideration would also be given as to whether their voices are heard within Australian environmental law and governance frameworks in accordance with international law and policy, which incorporates Indigenous self-determination. This requires enabling laws and institutions to address the dispossession and disempowerment suffered by Aboriginal and Torres Strait Islander communities by colonial powers and the impediments of both past and current governance. The thesis cannot address and make an in-depth analysis into all these complex issues simultaneously. It does not attempt to know, or articulate, Aboriginal and Torres Strait Islander knowledges in the vastly different nations, cultures and ecosystems throughout Australia. This is sui generis to Indigenous peoples and their Country. Direct Indigenous voices and institutions should determine whether IK can be revealed and applied in the wider context of EDM. However, this thesis can delve further into these issues to provide a base of knowledge for the reader to begin comprehending the complexity and importance of IK and its place in the Australian legal framework to improve EDM. Focus is placed on the value and recognition of IK within the legal system and processes for empowering the holders of IK to be a powerful and effective voice within EDM. The proposed approaches can only facilitate improved environmental governance. Achieving the integration and implementation of IK in EDM requires wider legal, political, economic and social change towards Aboriginal and Torres Strait Islander self-determination.
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Connolly, Anthony J. "Conceptual incommensurability and the judicial understanding of indigenous action." Phd thesis, 2006. http://hdl.handle.net/1885/150950.
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Mitchell, Myles Bevan. "The Esperance Nyungars, at the Frontier: An archaeological investigation of mobility, aggregation and identity in late- Holocene Aboriginal society, Western Australia." Phd thesis, 2016. http://hdl.handle.net/1885/117827.
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This thesis documents the results of an Aboriginal
community-based archaeological research project in the Esperance
region, southern Western Australia. It is based on analysis of
rock art, stone arrangements and flaked stone artefacts. The aim
is to understand the role of the study sites – Belinup and
Marbaleerup – within patterns of movement that underpinned
society and economy in this region during the late-Holocene. The
research explores concepts of identity (Jones 1997; Meskell and
Preucel 2004) relating to the local Esperance Nyungar people, and
the broader Noongar and Western Desert cultural blocs. It has
been suggested that negotiations over territory, law and identity
during the recent past were directly related to the expansion of
the Western Desert cultural bloc (Gibbs and Veth 2002), which
situates the study area at a dynamic frontier of cultural change.
Exploration of these questions leads to a discussion about the
historical construction of Esperance Nyungar identity.
The study sites are hypothesised to have functioned in the past
as aggregation locales (Conkey 1980). Investigation of this
hypothesis is illuminative; firstly, for understanding more about
the study sites; and secondly about the application of the
aggregation concept, and its limitations for archaeology. The
results inform a discussion of how mobility (Binford 1980; Kelly
1992) and aggregation can be usefully applied together to
investigate the intersections of social and economic elements in
hunter-gatherer settlement.
As a conceptual tool for archaeology, identity is challenging
because it cannot be directly interpreted from material culture
in a simple way. Despite the challenges, identity is an important
tool for understanding past societies. Identity is investigated
here by mapping the occurrence of symbols across landscapes and
considering how these may, or may not, relate to notions of
identity and connections to place. The approach begins with what
is known (contemporary identity and connection), and works
backwards through time and outwards through space towards the
unknown. Identity is a powerful way to link the archaeological
past with the contemporary descendent community.
The process of undertaking a community-based research partnership
is discussed, with critical reflection on the challenges and
successes. An argument is presented for how and why community
input and ownership is critical to the success of archaeological
research into Aboriginal pasts in Australia and abroad.
The results demonstrate the inherent dynamism in Aboriginal
society in southern Western Australia and highlight a historical
legacy to the processes of cultural change underpinning Esperance
Nyungar identity today. Those processes predate the colonial
interruption, and continue into the post-Native Title era. This
leads to a discussion and critique of the Native Title system,
which often neglects to acknowledge the nuanced realities of
Aboriginal societies and the inherent mutability of identity and
connections across time and space. It is argued that the internal
social dynamics of Aboriginal society are an important part of
identity, as people continually negotiate who they are and how
they relate to people and places. This constant process of
identity-making is a fundamental part of Aboriginal culture and
society now and into the distant past.
30
Delpero, Jackie. "The Tide of History: Australian Native Title Discourse in Global Perspective." Thesis, 2003. https://vuir.vu.edu.au/18157/.
Full textAbstract:
Australian native-title law has many inconsistencies and contradictions. Emanating
from the Mabo decision is the central contradiction that the Crown's acquisition of
sovereignty in Australia was illegitimate but valid. This thesis attempts to identify the
underlying structures beneath this and other contradictions and inconsistencies by
tracing the features of a recent determination of a native title claim back through time.
In 1994, the Yorta Yorta people of south-east Australia made a claim under the Native
Title Act of 1993. The Court framed its determination of the claim within the
metaphor of the 'tide of history'. To make his decision, Justice Olney reconstructed
the Yorta Yorta people's ancestors as native inhabitants from within expansionist
ideology. Within that ideology, the term 'native inhabitant' is synonymous with
inferiority, incompetence and externality. This thesis argues that these representations
justified the processes of cultural modification. Modification is a feature of
colonisation that seeks to make natives resemble Europeans. This thesis argues that
these processes are linked to dispossession and are the essence of the 'tide of history'.
A feature of expansionist ideology is the sovereign imperative to maintain exclusive
power to make, enforce and suspend law. This thesis argues that the sovereign need
for exclusivity in Australia is central to the Native Title Act and the Yorta Yorta
decision. To trace the 'tide of history', this thesis begins with the early Roman
Church and follows its development as it pursued the Petrine mandate. It continues
into the secular era of discovery and considers how the 'tide of history' manifested in
North America and produced the Marshall judgements. It follows the 'tide of history'
into Australia from the Crown's claim to discovery and considers its role in the Mabo
decision and the Native Title Act. It analyses the Yorta Yorta people's claim for
native title through the logic that underpinned the majority judges' reasoning. This
thesis concludes that the 'tide of history' that washed away the Yorta Yorta people's
native title is a product of European expansionist ideology. From within that
ideology, the judiciary and the legislature imposed a two-way loss on the Yorta Yorta
people, which enhanced the Crown's exclusivity, rendering benign the conception of
the Crown's acquisition of sovereignty as illegitimate but valid.
31
Lyssa, Alison. "Performing Australia's black and white history: acts of danger in four Australian plays of the early 21 century." 2006. http://hdl.handle.net/1959.14/714.
Full textAbstract:
Submitted in fulfilment of the requirements for the degree of Masters in English in the Division of Humanities, Dept. of English, 2006.Thesis (MA)--Macquarie University (Division of Humanities, Department of English), 2006.
Bibliography: p. 199-210.
Introduction -- Defiance and servility in Andrew Bovell's Holy day -- Writing a reconciled nation: Katherine Thomson's Wonderlands -- Transformation of trauma: Tammy Anderson's I don't wanna play house -- The rage inside the pain: Richard J. Frankland's Conversations with the dead -- Conclusion: towards an understanding of witness to the trauma of invasion.
In an Australia shaped by neo-conservative government and by searing contention, national and global, over what the past is, how it should be allowed to affect the present and who are authentic bearers of witness, this thesis compares testimony to Australia's black/white relations in two plays by white writers, Andrew Bovell's 'Holy day' (2001) and Katherne Thomson's 'Wonderlands' (2003), and two black writers, Tammy Anderson's 'I don't wanna play house' (2001) and Richard J. Frankland's 'Conversations witht the dead' (2002).
Mode of access: World Wide Web.
210 p. ill. 30 cm