June 2017
Native land rights in
Sydney from an
Aboriginal perspective
A study on Aboriginal perceptions of native
land rights in Sydney as contributing to
redesign the relationship between Aboriginals
and the state
Lea Blei-Kuska STUDENT ID: 11239379 University of Amsterdam Supervisor: mw. dr. M.B. Michelle Parlevliet Second reader: mw. dr. A.T.M. Agnes Schreiner Master Thesis Conflict Resolution and Governance
Table of Contents
Abstract ... i Acronyms and Abbreviations ... ii Table of figures ... ii Introduction ... 3 Research Questions ... 8 2. Background ... 10 2.1. Colonial History – NSW and the myth of terra nullius ... 10 2.2. The NSW Aboriginal Land Rights Act (ALRA) ... 15 2.2.1. History of the ALRA ... 15 2.2.2. Claiming land: who, what and where ... 17 2.3. The Native Title Act (Cth) (NTA) ... 21 2.3.1. History of the NTA ... 21 2.3.2. Claiming native title in NSW: who, what and where ... 21 2.4. Interaction of the ALRA and NTA ... 23 2.5. Chapter Conclusion ... 25 3. Theoretical framework ... 28 3.1. Law and Society ... 28 3.2. Reconciliation theory ... 31 3.3. Differentiated notions of justice ... 33 3.4. Bottom-up peacebuilding and invited spaces ... 36 3.5. Narratives and Storylines ... 38 4. Methodology ... 40 4.1. Research Design ... 40 4.2. Operationalization ... 42 4.3. Ethical Considerations ... 47 5. The perceived significance of native land rights from an Aboriginal perspective ... 495.1. Historical significance of native land rights ... 50 5.2. Perceived significance of the Aboriginal Land Rights Act from the perspective of Local Aboriginal Land Councils ... 53 5.3. Perceived significance of the Native Title Act (Cth) from the perspective of native title claimants ... 60 5.4. Native land rights perceived as the source for conflict between Aboriginals ... 64 5.5. Chapter Conclusion ... 70 6. The relationship between Aboriginals and the state ... 71 6.1. Hindering perceptions of native land rights – from an Aboriginal perspective ... 72 6.1.1. The colonial mindset of the Crown ... 72 6.1.2. Framing Aboriginals as dependents on the state ... 73 6.1.3. Inconsequential recognition and Aboriginals calls for substantial rights ... 75 6.2. The potential of native land rights to help– from an Aboriginal perspective ... 79 6.2.1. Threats and Opportunities of the system ... 79 6.3. Chapter Conclusion ... 82 7. Conclusion and Discussion ... 84 Acknowledgments ... 89 Bibliography ... 90 Interviews ... 98 Glossary ... 99 Annex ... 103
i Abstract Lea Blei-Kuska
Debates over native land rights are at the heart of Indigenous struggles due to colonial legacies around the word. In Sydney, NSW, Australia two key legal mechanisms exist through which Aboriginals can claim native land rights. Native land rights legislation in Sydney Australia was framed by the government as providing justice and aiding reconciliation efforts with Aboriginals following the crimes committed by the British colonizers. The question central to this research is: How, from an Aboriginal perspective, native land rights in Sydney contribute to redesigning the relationship between Aboriginals and the state? This question is divided into two sub questions to address both, the perceived significance of Aboriginals working within the legal framework of native land rights and how Aboriginals perceive the native land rights legislation in Sydney as hindering or helping the process of redesigning the relationship in question. Semi-structured interviews with Aboriginals working with and within these legal frameworks form the basis of the data conceived. The sub questions are answered through a theoretical framework informed by how law functions in society, a relational perspective on reconciliation theory, differentiated notions of justice, bottom-up peacebuilding and invited space and the role of narratives and storylines. Together, this framework supports the complexity of the topic in question and helps to illustrate that the state from an Aboriginal perspective still has some way to go in regard to providing justice and reconciling the relationship between Aboriginals and the state. However, the possibilities of native land rights, provided through the different legal frameworks, were perceived by Aboriginals as a strength of native land right legislation that potentially can contribute positively to redesign the relationship between Aboriginals and the state.
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Acronyms and Abbreviations
NSW ALC – New South Wales Aboriginal Land Council LALC- Local Aboriginal Land Council
NTA – Native Title Act (Commonwealth) 1993
ALRA – New South Wales Aboriginal Land Rights Act 1983 (NSW) ILUA – Indigenous Land Use Agreement
Table of figures
Figure 1 - Reconciliation timeline ... 14
Figure 2 – Claimable lands under the ALRA (NSW ALC 2014, 6) ... 19
Figure 4 – Key outcomes that may results from native title claim (NSW ALC 2014, 10) ... 23
Figure 5 – native title claim on successfully claimed land by LALCs ... 23
Figure 6 – Key points of the interaction between the ALRA and the NTA in NSW ... 25
Figure 7 – Snapshot of ALRA and NTA ... 27
Figure 8 - List of interviewees ... 44
Figure 9 – Summary of Helping and Hindering perceptions ... 85
Figure 10 – How Do I Join a LALC? (Office of the Registrar, n.d.). ... 103
Figure 11 - Key stages in the native title determination process (NSW ALC, 2014, 5) ... 104
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Introduction
The following introductory chapter is meant to introduce the reader of this thesis to the complexity of native land rights in Australia from an Aboriginal perspective and lays out why this Aboriginal perspective matters. Firstly, the overall arguments of this research are summarized followed by a reference to the theoretical framework used to make sense of the findings. Secondly, it is elaborated on why native land rights are of importance in connection with existing literature and regarding the academic and social relevance of the topic. Thirdly, contributions of this research are discussed. Fourthly, the research goal and research questions are explained and lastly, terminology put forth in this thesis is explained.
Overall, this thesis argues, firstly that, native land rights legislation in Sydney has unintendedly created conflict between Aboriginals working within the respective legal framework, based on differing perceptions of the significance of the ALRA and NTA. Secondly, because Aboriginals perceive the state not working jointly with them but against them in various ways, overall the ALRA and NTA are perceived as hindering the process of redesigning the relationship between Aboriginals and the state. However, thirdly, the ALRA and NTA are perceived as enabling Aboriginals by creating a space for political participation, that can be utilized to potentially form an opposition that the state can’t ignore, when making decisions on behalf of Aboriginals.
This study is informed by a theoretical framework that combines notions of how law functions in society, and takes on insights from reconciliation theory and differentiated notions of justice that help to make sense of the complex perceptions by Aboriginals of the ALRA and NTA. Reconciliation and restorative justice theory are explored in the context of efforts to do justice for past wrongs and redesigning relationships between former enemies from a bottom-up perspective. Further, this research draws on empirical fieldwork undertaken in Sydney during a six week research period with people that work with and within the legal frameworks of the ALRA and NTA.
Over the past decades, there’s been much discussion in Australia on recognition of Aboriginals as the First People on the land, because they still represent a marginalized group in Australian society (Attwood, 2007; Williams, 2000; 2014). Part of such recognition entails the relationship Aboriginals have with the land (Attwood,
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2005). In Sydney, where British colonizers first entered Australia, two legal frameworks, the NSW Aboriginal Land Rights Act 1983 (ALRA) and the federal Native Title Act (Commonwealth) 1993 (NTA), govern how Aboriginals can have their rights to land formally recognized.
Arguably, these laws offer a space where different narratives around native land rights can be voiced, discussed and facilitated. Further, they provide insight into how laws that were intended to aid reconciliation and justice efforts by the state, function in society. Given, that these laws provide Aboriginals with the opportunity to claim land, one could expect that they create more rights for Aboriginals and are meant to restore dignity, and help repair the relationship between Aboriginals and the state. In 2008, the former Prime Minster of Australia in fact issued a formal apology to Aboriginals and emphasized that, the ideal is to move to a shared future “where all Australians whatever their origins, are truly equal partners […] in shaping the next chapter in the history [of a unified Australia]” (Rudd, 2008).
However, statements from Aboriginals tell a different story. For example, at recent negotiations, between Aboriginal representatives from across Australia at Uluru in the Northern Territory, they issued a joined statement. The Uluru Statement from the Heart from the First Nations National Constitutional Convention (26/05/2017) reads:
“Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness. We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country”.
This statement is puzzling, given that so much time has passed since the arrival of the First Fleet (1788) in Botany Bay (Sydney). Why do Aboriginals still feel powerless and argue, that they are proportionally “the most incarcerated people on the planet” (ibid.)? How can the Uluru Statement from the Heart (ibid.) be reconciled with the state’s emphasis on a unified Australia where all Australians are equal partners in shaping the next chapter in Australia’s history? For one, it seems to suggest that measures such as the native land rights legislation has done little to improve the relationship
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between Aboriginals and the state which is an interesting notion to investigate further. Particularly, studying Aboriginal’s perceptions of the ALRA and the NTA is interesting, because it questions whom these legal frameworks are really benefitting in addressing the legacy of colonialism.
Akhtar (2013, 61) notes in his analysis of native land right debates in Canada, USA, Australia and New Zealand:
“The indigenous peoples have often been the victims of dispossession that took place in the past through the exercise of the legislative power over them. The question of land rights has become an issue of restoring lands that were taken under a past discriminatory project and it is continuing by the denial of indigenous peoples’ claim to title. Moreover, their rights to the lands derive from traditional occupation and laws and customs relating to communal ownership. The issue of proprietary rights for indigenous peoples is integral to their ancestral claims”.
Akhtar (2013) speaks directly to the situation of Aboriginals in Sydney. Aboriginals in NSW were violently dispossessed and displaced through the force of the British Colonial power (Veracini, 2010). Thus, native land rights and successfully claiming land under these laws is of integral importance to Aboriginals not only regarding retributive justice for past wrongs, but also talks about a deeper connection to traditional land than simply compensation of the land that was taken.
Aboriginal scholarship has highlighted that it is important for Aboriginals to define their relationships with the land and the connected perceived significance of native land rights through their own words (Yunkaporta and McGinty, 2009). Yet, to simplify this complex relationship with native land some notions brought forward in academic work about Country is of use for this thesis. Country refers to “a place that gives and receives life” (North Central Catchment Management Authority, 2006, 46). Aboriginals talk about Country the same way they would talk about a person, they speak to, visit, and worry about Country (Australian Heritage Committee, 2007).
Importantly, the terms Land and Country are often used interchangeably by Aboriginals and described as “a resource, which behaves as a living being, and a life support system for humans” (Barrera-Bassols and Zinck, 2003, 232). Further, some scholars have argued, that the perceptions and relationships with the land are not only perceived in material terms as a resource but also regarding a spiritual connection to ancestors for example (Lederach, 2005; Mudrooroo, 1995). Therefore, the formal and legal parameters based on the ALRA and NTA offer a space where different
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relationships with land potentially can unfold. Through these complex relationships with Country, traditional land is also the place where different narratives and storylines about that land can surface (Yunkaporta and McGinty, 2009; Mudrooroo, 1995). The narratives tell stories of ancestors that walked and lived on the land, that fought for land rights, traditions, and ceremonies held on the land, the spiritual non-verbal connection with the land, the healing properties of the land for example.
Moreover, the main body of literature on Aboriginal connection to Country focuses on wellbeing and healing regarding a spiritual connection to Country (Buchanan, 2012; Fredericks, 2013; Holmes et al., 2002, Kingsley et al., 2013) with the goals of incorporating a holistic and culturally appropriate model of practice in primary health care settings in Australia (Keleher, 2004; Pulver et al., 2010).
Instead, I am focusing on the perceived significance by Aboriginals of native land rights expressed through narratives and storylines surrounding the interaction with the ALRA and NTA. Heather Goodall (2008) and Heidi Norman (2015) have researched and documented the land rights movement and activism from the beginning of colonization to the current challenges facing the ALRA. Much literature is written on the how the NTA works and how it is perceived in other Australian states (Perche, 2016; Terrill, 2015; Foley and Anderson, 2006). Yet, there is limited literature available on the implications of the NTA in NSW due to its limited success (Sutton, 2004). Even though, the conflict between Aboriginals working within the ALRA and NTA has been picked up in recent research (Norman, 2015) there has not been an in-depth study of Aboriginals perspectives on whether and how these legislations contribute to redesigning the relationship between Aboriginals and the state. Instead, most scholarship focuses on how Australia’s colonial past still shapes political decision making processes today. It argues, that only by acknowledging the past can non-Aboriginal and non-Aboriginals shape a future where non-Aboriginals and non-non-Aboriginals are equals (Attwood, 2005; Bartlett, 2000).
Regarding the social relevance of this research, isn’t it our duty as the descendants of colonialism, who form the dominant group when it comes to decision making processes in Australian parliament today, to listen, act and reflect upon Aboriginals perspectives of native land rights? With Sydney growing at rapid rates and development booming, shouldn’t Aboriginals who were the first people in Australia be involved in the decision-making processes concerning the land their ancestors walked
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on for thousands of years (Jones et al., 2017)? How can we ever truly reconcile our notions of justice with our violent past if we don’t address, investigate and acknowledge how the crimes of our ancestors committed still cause pain and despair for Aboriginals and their families today?
Thus, this research is relevant in addressing and reflecting upon Aboriginals needs. Both from the Australian state and federal government, regarding native land rights today and future policies and discourse surrounding native land rights. Moreover, the government’s intentions when implementing the ALRA and NTA were without doubt to do good, but something seems to go wrong nevertheless. Thus, it is vital to understand what is happening. Thus, cultivating informed future policies and discourse in Australian politics regarding native land rights and Aboriginals rights in general, from an Aboriginal perspective.
Furthermore, due to my family’s history as bystanders to the horrific crimes committed by the Nazi regime in Germany I’ve carried the notion of generational guilt and how to overcome this legacy of past wrongs with me my entire life. Personally, I believe that it is my duty as a privileged member of both the German and Australian society, to listen and reflect upon the effects of past crimes from the victim’s perspective if we don’t want to repeat the crimes committed by our ancestors.
Moreover, exploring Aboriginal’s perceptions of native land rights is an interesting notion to explore in the light of broader discussions on the position of indigenous peoples around the world. How can law be used as a mechanism to repair the relationship between (formally) oppressed and marginalized indigenous groups and the state? How can law be used to address the legacy of colonialism and prevent future dispossession and displacement of indigenous peoples around the world?
As such, native land rights legislation makes the following contributions to research, policy and practice. Firstly, an Aboriginal perspective, as discussed above, is vital to inform future policy, discourse and practice surrounding native land rights, so to be effective in addressing the needs of Aboriginals from such legislation. Actually, the interaction of the laws seems to be technically at odds with each other, which is a problem not many researchers have given attention too. Secondly, the research highlights that the interaction based on the function of the ALRA and NTA in society in Sydney and NSW requires more research to incorporate and acknowledge
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local complexities and differences. Thirdly, this research has the propensity to inform indigenous struggles over native land rights generally due to the differentiated notions of justice, and questions based on how law functions in society, if perceived as being framed in the interests of the state.
The overall goal of this research is to critically interrogate the significance of native land rights in Sydney, New South Wales (NSW) from the perspectives of Aboriginal Australians working with the legal frameworks of the ALRA and or NTA. Albeit taking the legislation as a point of departure, this research does not constitute an analysis of the legal mechanisms of the ALRA and NTA, but instead focuses on getting an insight into how these laws are being perceived by Aboriginals working within their frameworks, and how these perceptions contribute to redesigning the relationship between the state and Aboriginals.
Research Questions
Therefore, the research question guiding this thesis is as follows:
How, from an Aboriginal perspective, native land rights in Sydney contribute to redesigning the relationship between Aboriginals and the state?
In addressing this question, this research is guided by the following sub-questions, which help to capture the key issues identified earlier:
1. How do Aboriginals that work within the legal framework of native land rights perceive the significance of these rights in Sydney?
2. How do Aboriginals perceive the NSW ALRA and NTA as hindering or contributing the process of redesigning the relationship between Aboriginal Australians and the government?
The following chapters firstly, addresses for the context of this research the required background information on the ALRA and the NTA. Secondly the theoretical framework and methods used to analyze the following result chapters are discussed. Lastly, the conclusions and limitations of this research are summarized. Before proceeding, it is useful to clarify the use of terminology adopted in this thesis namely, what the state and Aboriginals stand for.
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“The state” and “the government” refers interchangeably in this thesis to both the federal and state government which includes governmental organizations and institutions as well as the people working in these frameworks.
While “Aboriginal/Aboriginals” refers to Aboriginal and Torres Strait Islander people. I’m referring to people who are not of Aboriginal descent as “non-Aboriginal Australians. The reason for this terminology is based on the National Aboriginal Community Controlled Health Organization (n.d.), that recommends this language. In recognition, capitals are applied. Further, for clarity, I’m referring to Indigenous peoples around the world as “Indigenous”.
Lastly, “native land rights” refers to both the NSW Aboriginal Land Rights Act (1983) and the Native Title Act (Cth) (1993) interchangeably in the following thesis.
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2. Background
The following background chapters are intended to provide context for the following theoretical framework, methodology and result chapters. Keeping in mind that this research is not a legal analysis of the ALRA and the NTA however, some understanding of the legal frameworks at play are of importance as prerequisite knowledge before turning to the analysis of my findings later in this thesis. I argue in this chapter, that history still dwells among Australians in the present. Thus, an understanding of key events of Australia’s past is required in order to put the ALRA and NTA in context.
In the following three sections I ‘m first turning to the colonial history in NSW which frames the base for native land rights today. Secondly, background information on the ALRA followed by the NTA, which are the two key mechanisms by which Aboriginals can have their rights in land formally recognized, is explored. However, the two systems operate under different laws and differ in the rights they can provide. Thus, to understand the context of this research the differences and limitations of these legislations are discussed. Lastly, a table (Figure 7) that compares the key point of the ALRA and NTA that can be used to refer to at different points throughout this thesis follows.
2.1. Colonial History – NSW and the myth of terra nullius
Here, the colonial background of Sydney and the notion of terra nullius are explored. It is argued, that in Sydney dispossession and displacement of Aboriginals was extremely violent and thus, still influences perceptions of native land rights today.
Aboriginals have lived in Australia for 40,000 to 60,000 years (Hiscock, 2008; Mulvaney and Kamminga, 1999). Captain Cook arrived in Botany Bay on 29 April 1770 after sailing to Tahiti and New Zealand. He carried the Secret Instructions for Lieutenant James Cook Appointed to Command His Majesty’s Bark the Endeavour (30 July 1768) which were instructions from the Admiralty in charge of such journeys at the time. The instructions said, among other things: “You are also with the consent of the natives to take possession of Convenient Situations in the Country in the Name of the Kind of Great Britain” (ibid.). At that time, the Aboriginal population consisted of
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about “250 distinct nations, within each of which there were numerous tribes or clans who spoke one or more of hundreds of languages and dialects. Complex social systems and elaborate and obligatory laws and customs differed from nation to nation” (Dodson and Leibler, 2012, 22). Cook mapped out the Australian coast from Botany Bay up until the northern tip of Queensland where he raised the British flag at Possession Island, of the Cape York Peninsula (ibid.). Thus, taking possession of the eastern coast of Australia, which he named New South Wales (NSW) (ibid.).
Later, in October 1786, Captain Arthur Phillip was appointed the first governor of New South Wales by the British Government (ibid.). He was commissioned to lead the First Fleet to NSW which was to be a convict settlement (ibid.). Interestingly, King George III only instructed Phillip to “live in amity and kindness” with the natives, but “already anticipated the need for measured to limit native interference” (ibid., 22). He arrived on the 18 January 1788 in Botany Bay “with a fleet of nine ships. The Aboriginals of Sydney initially avoided contact with the settlers and withdrew from the areas Phillip chose as settlements immediately” (Reynolds, 2006, 34). However, as the Aboriginal population was depleted by disease and hunger “the Aboriginal groups began to come into settlements, curious to discover more about the intruders on their land, and seeking food and other rewards from contact with the settlers, including tea, alcohol and tobacco” (Perche, 2015, 52). Yet, food shortages affected both the settlers and Aboriginals and this soon led to direct conflict once Aboriginals objected to the loss of access to their usual hunting and fishing grounds (Karskens, 2009). Throughout the nineteenth century, as more regions were occupied by settlers, Aboriginals were pushed off their own land which followed a series of violent deaths on both sides (ibid.). In response to the violence and effects of invasion of their land Aboriginals engaged in revenge attacks (Kidd, 1997; Reynolds, 2006; Read, 1983). “Between 15 January and 6 February 1788 around 1,000 officials, marines, dependants and convicts came ashore in Port Jackson” (Dodson and Leibler, 2012, 22). Furthermore, Phillip’s instructions “assumed that Australia was terra nullius, or belonged to no-one” (ibid., 22). Dodson and Leibler (2012, 22) summarized the consequence of terra nullius:
“The subsequent occupation of the country and land law in the new colony proceeded on the fiction of terra nullius. It follows that ultimately the basis of settlement in Australia is and always has been the exertion of force by and on behalf of the British Crown. No-one asked permission to settle. No-one consented, no-one ceded. Sovereignty was not passed from the Aboriginal peoples by any actions of legal significance voluntarily taken by or on behalf of them […] Aboriginal people did not
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accept their dispossession and the purported imposition upon them of foreign laws without resistance. The earliest record of fighting by Aboriginal people resisting European occupation was in May 1788. Fighting continued into the early 1930s as the colonists pushed further into the interior. This period of conflict between Aboriginal people and European settlers is sometimes referred to as ‘the frontier wars1”.
What followed, was a long era of control of Aboriginals though policies which are often referred to as Protection and Assimilation (ibid.). The Aborigines Acts was enacted in NSW in 19092 which required Aboriginals in NSW to live on reserves run by governments or missionaries where their lives were closely regulated (McRae et al., 2009). By 1911, in NSW there were 115 reserves, and the restrictions imposed on through the Aborigines Act included controlling “marriage, prohibiting alcohol […]. By means of by-laws and regulations, as well as social convention, Aboriginal people were denied entry to swimming pools, picture theaters, hospitals, clubs and so on.” (Dodson and Leibler, 2012, 25). Moreover, the removal of Aboriginal children in NSW from their families under the provision to ‘protect’ these children was very common and resulted in what is today referred to the Stolen Generation3. Furthermore, the later loss of reserve lands played a central role in the activism that lead to the passing of the ALRA and thus, are explored in more depth in the following section about the ALRA (Norman, 2015)
By the 1930s legislators were experiencing difficulties to widen the definition of Aborigines “in order to formalize control over an increasing population of mixed descent” (ibid., 26). McCorquodale (1986) argued, that this difficultly lead to inconsistent legal treatment and arbitrary administrative treatment4. In 1937, when the first Commonwealth-State Native Welfare Conference was held, an official policy of assimilation was sanctioned (Dodson and Leibler, 2012). Until, 1972 all aspects of the lives of Aboriginals were subjected to the control of the settlers. Dodson and Leibler (2012, 26) concluded, that “fundamental human rights – such as freedom of
1 See for example Markus, A. (1990) Governing Savages. Sydney: Allen and Unwin.
2 It was enacted in all mainland States: Victoria in 1869, Queensland in 1897, Western Australia in 1905,
New South Wales in 1909, South Australia in 1911 and Northern Territory in 1912 (For further information see McRae, Nettheim and Beacroft (2009).
3 For further information on the Stolen Generation see Altman and Hinkson (Eds) (2007) Coercive
reconciliation: stabilize, normalize, exit Aboriginal Australia .Sydney: Arena Publications
4 A detailed analysis of 700 separate pieces of legislation suggests the use of no less than 67 identifiable
classifications, descriptions and definitions in Australia by the 1930s. For further information see McCorquodale (1986).
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movement, freedom of association, freedom of employment, control over property, and custody of children – were denied, and the law characterized by systematic racial discrimination”.
From as early as 1910, there were calls from both non-Aboriginal Australians and Aboriginals for an increased attention to the effect of the treatment of Aboriginal people. In Figure 1 below a timeline illustrating official reconciliation steps that were undertaken by the government due to increased pressure by Aboriginals and non-Aboriginal activists over time.
Fast-forwarding to 2017, Australia is now debating Constitutional recognition of Aboriginals and the possibility of treaties with different Aboriginal groupings around Australia and native land rights are central to the debate (Referendum Council, 2017). While this debate is important in many ways for Aboriginals, this research does not focus on the specifics of the debate and due to limitations of space and scope I’m not analyzing it here in detail. However, some information on the Australian Constitution is important regarding how the state can make laws that directly affect Aboriginals without Aboriginals approval of such laws. Section 51 of the Australian Constitution holds the basis for powers to make national laws on various matters, such as taxation, foreign affairs and social security. To pass a law on any matter, the federal government is required to identify a head of power. This head of power that allows Parliament to make laws regarding Aboriginals on issues such as native land rights is known as the “race power” (Referendum Council, 2017) and is illustrated through section 51 (xxvi). Section 51 (xxvi) of the Constitution of the Commonwealth of Australia that states:
“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: […] (xxvi) The people of any race for whom it is deemed necessary to make special laws”.
Without a question, the notion of race power is problematic in many ways5, however, recent events need to be seen in the context of key events that have come before as illustrated in Figure 1.
5 As mentioned above the specifics are beyond the scope of this research, for further information see
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Figure 1 - Reconciliation timeline
Without the NTA (1992) for example the delegates probably would have not stepped away from negotiations over Constitutional recognition during the First Nations Convention at Uluru (2017).
Noel Pearson (2009) has summarizes, that Australia’s colonial history is something that still shapes decision making processes in the present. He asserts, while history dwells among Australians today it also shapes how Australians move forward in the relationship with each other which includes the relationship between Aboriginals and the state. Further he stated, that “the success with which this country deals with its past is absolutely critical to the future that the country lays down for itself. To deal successfully with that past is to admit the truth of the past and admit the facts of what has happened.” (ibid., 54).
The notion of how non-Aboriginal Australians and Aboriginals move forward in the context of working with each other through the ALRA and NTA as well as regarding Constitutional Recognition or future treaties between different Aboriginal groups will always be shaped by Australia’s history. The ALRA and the NTA were framed as official actions by the government, state and federal, to do justice for past wrongs in form of land rights and in turn to contribute to reconciling the relationship with
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Aboriginals (Attwood, 2007; Pearson, 2009). The timeline in Figure 1 highlights not only the importance of the chronological order of events but also the interdepend dynamic of these events.
Therefore, it is of importance to first look at the ALRA and the NTA in chronological order, because the respective legislation was framed by different activist’s pressure and policies at the time (Tickner, 2001). I’m firstly tuning to background information on the ALRA and then NTA, which is necessary to understand how the ALRA and the NTA work together as the two legal key mechanisms to claim native land rights in NSW.
2.2. The NSW Aboriginal Land Rights Act (ALRA)
This section discusses first the history of the NSW Aboriginal Land Rights Act (ALRA) and is followed by a brief discussion on who can claim land and what land can be claimed. It is argued, that the ALRA was passed by the NSW Parliament due to a call for justice and compensation for past dispossession and displacement from both Aboriginal and non-Aboriginal Australians.
2.2.1. History of the ALRA
Since the arrival of the First Fleet, the ownership of land, and the associated rights to use and access land have been a consistent source of conflict between British colonizers and Aboriginals in NSW (Attwood, 2004; Foley and Anderson, 2006; Goodall, 2008, Tehan et al., 2006). Land thus, has been central to the Aboriginal experience of colonization and its aftermath, “in terms of dispossession of land and resources, and the associated loss of sovereignty and culture” (Perche, 2015, 3). Unfortunately, Aboriginals never were in the position of dictating how this central problem of land ownership should be understood and negotiated due to being forced into dependency on the governments welfare system (ibid.).
Governor Lachlan Macquarie was the first who formally granted land in NSW to Aboriginals for settlements in the 1820s with the provision to train Aboriginals in farming (Karskens, 2009). As the Sydney settlement grew Aboriginals were displaced to the outskirts of the settlement away from their traditional land as their presence was
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feared by settlers (ibid.). Macquarie’s experiment was met with resistance from Aboriginals and failed as they walked off the reserve. Consequently, the land was given to convicts (ibid.). Yet, his successors distributed “larger areas of land as reserves to missionaries, rather than directly to individual” Aboriginals (Perche, 2015, 58). Perche (2015) has argued, “that the governance of the reserves was never understood to be within Aboriginal control”. While, Banner (2005, 129) adds, that the reserves functioned as a form of compensation for the dispossession as the allocations of land were “analogous to a trust with the Aborigines as beneficiaries and settlers as trustees, with power to make the important decisions”. Moreover, “land was granted in the form of leases, not freehold title, and if Aboriginal people were not deemed to be using the land in a productive manner, the lease could be revoked, and the land used as a source of income for the government” (Perche, 2015, 71). It is important to highlight, while at the beginning reserves served as compensation for dispossession and displacement of Aboriginals they were also framed as a fulfilment of a moral obligation to do justice from the settlers perspective (Perche, 2015).
It is of importance to highlight the differences between the NTA and the ALRA to understand the possible implications of these laws when applied. As Heidi Norman (2015, 224) explains “Both are defined and limited by the relevant legislation and therefore have a distinct Common Law and statutory meaning beyond what they might mean at the level of everyday conversation or how they are variously taken to heart by Aboriginal people”. This study focuses on the perceptions by Aboriginal people working within the legal framework of native land rights. Legally speaking, while the ALRA is used to recover and the protection of claimed lands, the NTA is set out to protect and recognize rights and interests that Aboriginal Traditional Owners already have through traditional law and custom. These include but are not limited to access to “land to visit, camp, live, hunt and gather, conduct ceremonies and speak for country” (ibid.).
By the 1960s growing pressures on the NSW government in form of expert advice, international attention and changing demands and tactics on the part of Aboriginal activists lead to a push for the ALRA6. Norman (2015) argued, that
6 For further background information of how the ALRA was pushed by various political actors at the time
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Aboriginals formed cultural and social attachments to the reserve and mission land. Over the twentieth century the Aborigines Welfare Board (AWB) and the Aborigines Protection Board (APB) controlled the reserve lands and between 1938-1964 reserve lands were drastically reduced to make way for the development of settlements such as Sydney and assert greater control over Aboriginals which at that point where perceived as “a dying race” (Perche, 2015, 45). Thus, in NSW the political mobilization for land rights was “underscored by the immediacy of the concurrent threat to the reserves as well as the much longer term land-based contest and loss” (Norman, 2015, 19). Heidi Norman (2015, 71) summarized the deep-seated suspicion towards the government by Aboriginals at the time of the land rights movement:
“The laws to validate the theft of many thousands of hectares of reserve lands help by the Aborigines Protection Board and Aborigines Welfare Board has loomed large in the minds of Aboriginal people, and has come to stand for a deep-seated suspicion and fear of deception by governments. Securing reserve lands was, a core element of the Land Rights movement, but the movement had also expanded its claim to include the return of lands beyond reserve lands”.
2.2.2. Claiming land: who, what and where
The NSW Aboriginal Land Council (NSWALC) was originally established in 1977 as an independent Aboriginal organization to advocate for the recognition of Aboriginal land rights” (NSW ALC, 2014, 4). The ALRA was passed by the NSW Parliament in 1983 after an inquiry of the NSW Select Committee of the Legislative Assembly upon Aborigines based on recommendations from 1978-1981 by the NSWALC. The ALRA further, established a network of “democratically representative Local Aboriginal Land Councils (LALCs) across the state, to acquire and manage land as an economic base for Aboriginal communities, and a statutory account of compensatory monies to fund their operations” (ibid.). This includes the NSW ALC and any of the 120 LALCs across NSW. All Aboriginal Land Councils are “independent, self-funded non-government organizations” (ibid., 5). Not only is their function to provide state-wide representation, LALCs also, have the “function to acquire and manage land, and to protect and promote Aboriginal culture and heritage” (ibid.).
Moreover, the preamble of the ALRA acknowledges the relational connection to land by stating:
“Whereas: (1) Land in the State of New South Wales was traditionally owned and occupied by Aboriginal persons: (2) Land is of spiritual, social, cultural and economic
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importance to Aboriginal persons: (3) It is fitting to acknowledge the importance which land has for Aboriginal persons and the need of Aboriginal persons for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aboriginal persons has been progressively reduced without compensation”. (Long Title - NSW Aboriginal Land Rights Act 1983).
Principally, in recognition of these facts the ALRA was enacted to return certain Crown lands to Aboriginals in NSW, as compensation for dispossession and the ongoing disadvantaged suffered by as a result (Norman, 2015).
The LALCs are accountable to their members, who have to be Aboriginal and 18 years of age, through the membership provisions explained in detail in Part 5, Division 2, of the ALRA (1983). To become a member7 of a LALC a membership application form, that is available from the CEO of the LALC, must be completed. At the following members’ meeting the members of the LALC vote to approve or deny the application. If approved, the member becomes first a non-voting member and after final approval by the Registrar becomes a voting member of the LALC. Aboriginals can be part of several LALC, however can only have voting rights in one LALC (Office of the Registrar, n.d.). The approval process by members has raised criticism by Aboriginals that were refused membership on the basis of having their Aboriginality questioned by members of the LALC (Radoll et al., 2013). This highlights an important mechanism of the ALRA that has created between native title claimants that were refused membership by LALC members.
Any Aboriginal Land Council under the ALRA may make a land claim, however a limitation of the ALRA is that not all land in NSW is claimable land8 (NSW ALC, 2014). The NSW ALC (2014, 6) has summarized section 36 of the ALRA which specifies which lands can be claimed (Figure 2). It is important to add, that privately owned land cannot be claimed and a traditional connection to the land is not needed for the claim to succeed (ibid.). Moreover, the native title and land rights can sometimes exist in the same land which I’m explaining in more detail later in this section.
7 See Figure 11 in Annex for detailed information by the Office of the Registrar on how to become a
member of a LALC.
8 Claimable Crown lands” refers to section 36 of the ALRA outlines that Crown land could not be claimed
whereupon such lands: (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the option of the Crown Lands Minster, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose. (NSW ALRA 1983, section 36).
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Figure 2 – Claimable lands under the ALRA (NSW ALC 2014, 6)
Further, “the Registrar9 of the ALRA in an independent statutory officer with responsibility, among other things, for registering land claims, for mediating, conciliating and arbitrating disputes concerning the ALRA, and for overseeing LALC elections and membership rolls. The Registrar of the ALRA must also keep and maintain a ‘Register of Aboriginal Owners10’” (ibid., 6).
9 For detailed information about the Registrar see sections 170-175 of the ALRA
10 Aboriginal Owners are Aboriginal people who are on the register of Aboriginal Owners and have a
cultural association with an area that comes from the following: their direct descendence from the original Aboriginal inhabitants of an area; and the traditions, customs, observances, beliefs, or history of those original inhabitants (NSW ALRA, 2014).
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As illustrated in Figure 3 the ALRA prescribes a clear process for making and determining land claims. The Minister/s administering the Crown Land Act 1989 has/ have the responsibility to either grant or refuse land claims. While the NSW Land and Environment Court has the responsibility for determining appeals made about land claims determinations. The NSW ALC (2014, 7) has summarized the claiming process:
“An Aboriginal Land Council needs to lodge a land claim with the Registrar of the ALRA, who registers it and then forwards it the Minister administering the Crown Land Act 1983. Registered land claims are then investigated by the Government, currently by Trade and Investment NSW, before the Minster of Minsters administering the Crown Lands Act make a decision on whether the land claimed is claimable Crown land under the ALRA. […] If the land is determined to be claimable Crown land, it must be granted to an Aboriginal Land Council”.
When the land claim is successful, the Aboriginal Land Council holds the land under freehold title, which is full ownership of the land. The land can be sold, leased, mortgaged or otherwise used or dealt with, subjected to the land dealings provisions of the ALRA. Furthermore, when the land is recognized to be of Aboriginal cultural significance, but needed for the purpose of nature conservation, land can be granted to an Aboriginal Land Council and then leased back to the NSW Government11 (ibid.).
I’m now turning to explore background information on
the NTA in NSW followed by a short discussion on how the ALRA was amended to work in conjunction with the NTA.
11 Examples include, national parks, conservation reserves, or land that is part of a travelling stock
reserve. The land is than jointly managed by the NSW Government and Aboriginal Owners (see section 170-175 of the ALRA). Part 4A of the National Parks and Wildlife Act sets out provisions relating to joint management which often decrease the development value of the land (Norman 2015).
Figure 3 – Key stages in the ALRA claim process
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2.3. The Native Title Act (Cth) (NTA)
This section discusses first the history of the federal Native Title Act (NTA) and is followed by a brief discussion on who can claim native title and what land can be claimed. It is argued, that claiming native title in Sydney is presented with challenges due to colonial history and that proving native title is a lengthy and draining process for native title claimants.
2.3.1. History of the NTA
The NTA was established on the legal basis of overturning the legal fiction of terra nullius (“a land belonging to no one”) which was used as a legal justification for the “imposition of a foreign sovereignty and the very real dispossession of Aboriginal peoples from their lands and waters (Bartlett, 2000). Despite the obvious truth of Aboriginal occupation, this fiction persisted for over 200 years, during which time Australian laws denied the inherent rights of Aboriginal peoples to their lands and waters. The Mabo High Court decision12 in 1992 was the first time that the Australian law recognized the inherent rights and interests Aboriginal people have in land, under a traditional system of law and custom. “What rights and interests may be recognized will depend on the nature of traditional laws, customs and usage of an area” (ibid., 8). The Mabo case decision lead to the passing of the Native Title Act (Cth). The NTA was passed by the Commonwealth Parliament in 1993 and laws ensuring consistency between the Commonwealth and NSW were passed by the NSW Parliament the following year on 28 November 1994” (NSW ALC, 2014, 8). This is a key date, regarding the interaction of the ALRA and NTA and are discussed in more detail at the end of this section.
2.3.2. Claiming native title in NSW: who, what and where
Aboriginal individuals or groups are required to prove the existence of rights and interests in an area of land or water due to their traditional law and customs, and from
12 For further information on the Mabo vs Queensland case see Stephenson and Ratnapala (1993) and
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which they have an uninterrupted connection with (ibid.). To prove that Aboriginal people are traditional owners of the area they are claiming, the native title claimants must show “they have maintained a continuing connection with the area through the acknowledgement and observance of traditional laws and customs since the time of first European settlement in the area” (ibid., 9). Native title claimants generally consist of the ‘claim group’ which are all the Aboriginal people who claim to hold native title in a particular area and who authorize representatives (known as the ‘Applicant’) to make a native title claim” (ibid., 10).
Claimable land under the NTA is, vacant Crown land, National Parks, Sate Forests, Crown Reserves, some types of non-exclusive leases, land covered by permissive occupancies and licenses, inland waters and the sea (ibid.).
The various mechanisms and stages native title claimants must go through to claim land under the NTA are complex and not necessary to fully understand the results of this thesis13. However, the commencement of the native title claim process which is an application that is made to the Federal Court is of importance as it includes a registration test. All applications are subjected to a registration test, and only claims that pass the conditions14 of this test will be processed further. This test has been described, as a hurdle in the already difficult process to claim native title in NSW due to past dispossession and displacement (Bartlett, 2000; Glaskin, 2003; Sutton, 2004) If a native title claim is successful or an ILUA (see Figure 4) has been agreed upon native title co-exist alongside other rights and interests in the same area. This can mean access and usage rights are legally recognized, including camping, hunting, fishing and other cultural activities (ibid.).
Below in Figure 4 I’ve included a summary of the key outcomes from NTA provided by the NSW ALC (2014, 10)
13 For detailed information on the NTA claiming process see Annex Number 1 INCLUDE PAGE 14 “The registration test’s conditions ensure amongst other things that native title claims sufficiently
identify the following: who are the claimants, what the rights and interests being claimed are, where the area of land subject to the claim is, that there is a factual basis for the rights and interests claimed, including that there has been a continued association with the area claim”. Native Title Act (Cth), Section 190B.
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Figure 4 – Key outcomes that may results from native title claim (NSW ALC 2014, 10)
2.4. Interaction of the ALRA and NTA
The ALRA and the NTA differ, however each can be beneficial for Aboriginals in NSW. To recall, while the ALRA offers rights that include full ownership or freehold title, these rights are not delivered under the NTA. In turn, the NTA can deliver rights and interests in land that are not claimable under the ALRA.
The ALRA was amended on 28 November 1994 to take into account the new Commonwealth native title regime which supersedes state law (ibid.). Resulting that the ALRA now provides that, “if the land was granted as a result of a land claim made after 28 November 1994, the land is subject to any native title rights and interests existing in relation to the lands granted immediately before the transfer (sections 36(9) and 36(9A), ALRA)”. (ibid., 16). How is freehold land held by the LALCs affected when, as illustrated
in Figure 5, a new native title claim is made on that land? A native title determination
Figure 5 – native title claim on successfully claimed land by LALCs
Land claimed successfully by LALCS New native title claim on land claimed by LALCs
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may affect freehold land owned by LALCs different ways such as through ILUAs for example. However, LALCs “cannot lose their freehold land if there is a native title determination, yet a determination that native title exists over LALC owned land may change what LALCs can do with their freehold” [land] (ibid., 19). Important to add is, that LALCs cannot lodge a claim over land that is subject to a registered native title claim or determination (ibid.). The interaction between the legislations becomes difficult when the LALC wants to deal with land where native title has not been extinguished and where there has been no determination of native title. In this case, the LALCs will either need “to wait until a native title claim group makes an application that is determined, or make a non-claimant application15.
The interaction between these two key mechanisms to claim native land rights in NSW, is further complicated by the interaction between LALCs and native title claimants, because “people or organizations with property or other interests in a claim area may become a respondent party to a native title claim to ensure that their interests are properly dealt with in the native title determination” (ibid., 20). Therefore, an LALCs could become a party to a native title claim. However, recalling the membership rules of the LALC16 this also means, that native title claimants and holders can become members of LALCs. Once the NTA was passed in 1993, the “number of Native Title claims lodged in New South Wales was testimony to the enduring desire by Aboriginal people for recognition beyond what was prescribed in the ALRA. For example, in 1996-97 the NSWALC was involved in thirty-four Native Title claims in the period, eight of which were accepted and lodged. By September 1998, the NSWALC reported that there were well over a hundred claims in NSW” (Norman, 2015, 133). The number of claims for Native Title recognition stands for the “absence of the recognition of the enduring connection to place in the ALRA” (ibid.).
In Figure 6 below, I have summarized the key points of the ALRA and the NTA based on the information provided in the NSW ALC A Guide for the Community (2014).
15 An application made by a person who does not claim to have native title but who seeks a
determination that native title does not exist (section 56,57 and 58 of the NTA (Cth)).
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Figure 6 – Key points of the interaction between the ALRA and the NTA in NSW
2.5. Chapter Conclusion
This chapter has highlighted, that the ALRA and NTA are both complex legal frameworks with different mechanisms and limitations. In terms of the interaction of the two, the NTA as a federal legislation supersedes the NSW ALRA. Figure 7 below summarizes the key points discussed in this chapter and can be used for future reference throughout this thesis. This makes it all the more relevant to examine how native land rights are perceived by Aboriginals as contributing to the process of redesigning the relationship between Aboriginals and the state. The next two chapters explain the theoretical and methodological approach adopted in this study to examine this question.
ALRA NTA
What is it? The return of certain Crown lands to Aboriginal peoples as
compensation for dispossession and the resulting ongoing disadvantage suffered by Aboriginal peoples.
The recognition of the
traditional and customary rights and interests Aboriginal
peoples have in lands.
Key
points
Land rights and native title may co-exist in land
The granting of an Aboriginal land claim lodged after 1994 will not affect any native title rights.
Where native title has been extinguished in land owned by an Aboriginal land council it may be ‘revived’, but will not restrict the Aboriginal land council’s ability to deal with the land.
Land claims made over land that is the subject of a registered native title claim or a positive determination of native title must be refused.
Aboriginal Land Councils cannot deal with land that has been granted subject to native title unless there is a determination of native title over that land.
Native Title claimants and holders may be members of Aboriginal Land Councils and vice versa.
Aboriginal Land Councils and NativeTitle claimants/holders may develop agreements about land subject to both native title and land rights.
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How long has it been around?
A non-statutory NSW Aboriginal Land Council was established in 1977 as an Aboriginal lobby on land rights. The Aboriginal Land Rights Act (ALRA) was passed by the NSW Parliament in 1983.
Native title was first recognized by the courts in the 1992 Mabo decision. Legislation then followed with the
Commonwealth passing the Native Title Act (NTA) in 1993 and the NSW Parliament passing the Native Title (New South Wales) Act in 1994.
Is traditional connection required?
Traditional connection does not need to be established for a land claim to be granted. The ALRA also contains provisions for culturally significant lands to be returned to people with a connection to the place.
Native title will only be determined to exist where Aboriginal people have established to the Federal Court that they have maintained a continuing connection with an area through an
acknowledgement of traditional laws and customs.
Who can make a claim?
Aboriginal Land Councils constituted under the ALRA.
A native title claim group’s nominated representatives, known as ‘the Applicant’. The word Applicant is used even though this will usually be a group of people, not an individual.
What land can be successfully claimed?
Crown lands that are not lawfully being used or occupied, not needed or likely to be needed for residential or essential public purposes and not the subject of a registered native title claim or determination.
Vacant Crown land, National Parks, State Forests, Crown Reserves, some types of non-exclusive leases, land covered by permissive occupancies and licenses, inland waters and the sea.
Does it mean ownership?
Yes, generally full or freehold title to land is granted, though
sometimes land may be held in leasehold.
In some cases it can mean rights akin to full ownership. More often, native title is recognized to co-exist alongside other rights and interests in the same area. This can mean access and usage rights are legally recognized, including for camping, hunting, fishing and other cultural activities.
Who holds the rights?
Aboriginal Land Councils constituted under the ALRA.
Either the native title holders or a Prescribed Body Corporate (PBC) holds the title in trust or as an agent
How many claims in NSW?
Since 1983, there have been approximately 36,000 land claims lodged, with 2,473 of these successfully granted. However, there are still approximately 26,000 to be determined.
There have been four
determinations that native title exists in NSW and nine Indigenous Land Use
Agreements (ILUAs) registered. A number of other
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section 31 deeds have been reached. There are currently 24 claimant applications and 6 nonclaimant applications in NSW yet to be determined. There are 232 determinations nationally that native title exists.
Figure 7 – Snapshot of ALRA and NTA
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3. Theoretical framework
In this chapter, I’m discussing the theoretical framework that informs this research. Firstly, I’m exploring three insights based on socio-legal studies that are of particular importance to understand the function of laws such as the ALRA and NTA in society. Secondly, I’m turning to how reconciliation is understood in the context of native land rights. Thirdly, differentiated notions of justice are explored followed by a section on bottom-up peace building and invited space. Lastly, narratives and storylines are discussed from a theoretical perspective as they tie the theoretical framework together, as they offer the means for Aboriginals to voice their perceptions of native land rights. I argue, that together this theoretical framework offers the basis to analyze how, from an Aboriginal perspective, native land rights can contribute to redesign the relationship between Aboriginals and the state. The background chapter offers the necessary context to pose questions that need to be explored in the relation to the theoretical framework demonstrated in this chapter. I’m concluding this chapter with my sub-questions and follow up with a chapter on methodology applied in my research based on the sub-questions.
3.1. Law and Society
Socio-legal studies provide a helpful perspective for studying how native land rights are perceived by Aboriginals to contribute to the process of redesigning the relationship between Aboriginals and the state because they offer the following three insights that are of relevance to this research.
Firstly, law does not only exist in the written form but comes alive in practice (Freeman, 2006). This notion explains why perceptions of the significance of the ALRA and NTA might differ, because LALCs and native title claimants interact with each other through the legal frameworks of the ALRA and NTA in which written law becomes alive through this interaction. To recall from the background chapter on the ALRA and NTA both have legal limitations, that define the interactions of LALCs and native claimants due to these laws17.
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Secondly, law is a social phenomenon, namely law may have unintended consequences and while society changes over time the text of law remains the same (Freeman, 2006). Scholars of socio-legal studies (Cotterrell, 2013; Freeman, 2006) have emphasized that it is of importance to place law in a social context to recognize that different laws might actually have unintended consequences when applied in society. This aspect raises the question for this study if the ALRA and NTA from an Aboriginal perspective are perceived as having created unintended consequences that in turn affect the relationship between Aboriginals and the state.
Australian society’s understanding of Aboriginals has evolved since the time of colonization as also have the accepted norms surrounding justice (Williams, 2000; 2014). If society evolves, the laws not necessarily change with it which the constitutional recognition debate exemplifies (ibid.). Yet, this notion of changes in societies mindset speaks to how the ALRA passed in 1983 spoke to calls in society in NSW about justice and compensation for past wrongs as dispossession and displacement which was especially violent in NSW. While, on a federal level, by 1992 the dominant mindset of non-Aboriginal Australians evolved to overturn terra nullius and recognize traditional laws and customs in connection to native land.
Thirdly, laws can have a unifying effect but can also generate conflict. The ALRA and NTA, as highlighted in the previously, were meant to provide justice for Aboriginals and implemented to unify a divided society (Rudd, 2008). As Barak-Erez (2006, 165) argues, “law presents itself as a feasible means of achieving such unity”. He continues:
“First, law and justice enjoy universal support, at least in principle. Secondly, law purports to bridge over disputes and presumes to establish a rule for harmonious social conduct. Thirdly, in democratic discourse law often enjoys an elevated, quasi-religious status. Fourthly, in practice, numerous problems that are not solved by other institutions find their way to the legal system. In other words, the centrality of the legal system in public life is an additional factor making it a candidate for the role of society’s unifying element. In fact, thinking of law as a tool of social integration is not new. Durkheim argued that as modern society lacks the natural solidarity which characterized simple and homogenous early societies, law can serve as modern society’s basis of social solidarity. Another approach relevant here is that of Habermas, who pointed out that law provides a problem-solving mechanism capable of replacing social processes when the latter fail.” (ibid.).
Law, can thus, potentially be a unifying mechanism in society that could contribute to redesigning the relationship between former enemies such as Aboriginals and the government in Australia.
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In contrast, it is important to highlight, “that law applies to those considered as part of the polity, or at least subject of its jurisdiction, and excludes others” (ibid., 166). This notion, could lead to Aboriginals questioning for whom – the state or Aboriginals - the ALRA and NTA where intended. Scholars such as Heidi Norman (2015) and Leon Terrill (2015) have argued, that at the time of passing both the ALRA and NTA were not only framed by non-Aboriginal Australians but, also seemed to serve the call for justice at the relevant time to reconcile non-Aboriginal notions of what a just society would entail. Barak-Erez (2006, 198) highlights this notion by stating, that “throughout history, law has expressed the values of the power holders in society, both economically and politically. As such it provided an ostensibly neutral cover-up for ideological and interest-related decisions”. This is an important point to analyze in the following result chapters. Are the ALRA and NTA perceived to be implemented for them and framed through what they want from land rights or do they serve the government? These questions can be answered by analyzing different narratives and storylines by native title claimants and LALCs which ties this theoretical framework together and are discussed at the end of this chapter.
However, law can still make some contribution to social reconciliation and reconstruction” (Bark-Erez, 2006, 172). Further, Barak-Erez (2006) concludes
“First and foremost, the legislative arena can be utilized for initiating laws aimed at nation building and reconciliation between groups. In addition, although legal proceedings cannot fulfill the same role, they can serve as a stimulus to the revival of a vigorous social dialogue”.
Overall, socio-legal studies are insightful for this research, to understand the perceived significance of the role of laws such as the ALRA and NTA from an Aboriginal perspective. Whom are the NTA and ALRA benefiting most and how do perceptions of the significance of these legal frameworks differ? What does it imply for the relationship with the state if perceptions of the significance differ? What are possible unintended consequences form an Aboriginal perspective of native land rights and how do they affect the relationship between the state and Aboriginals? These questions are explored in the result chapters.
To be able to analyze potential contributing and hindering aspects of the ALRA and NTA to redesigning the relationship with Aboriginals and the state it is important to look at what informs this relationship besides the law at work. I’m now turning to
