Deliberating native title
Creators: name: McCaul, Justin
Publisher: name: The Australian National University
Year: 2023

description: This thesis discusses Indigenous people, native title and deliberative and participatory democracy. In this thesis, I argue an important, yet largely unknown system has emerged as a result of Australia's recognition of the pre-colonial property rights ('native title') of Aboriginal and Torres Strait Islander people. I will demonstrate how an Indigenous property right has become an important means for various forms of deliberative and participatory democracy by Aboriginal people. Since the 1970s, Aboriginal people in Australia have called upon Australian governments to recognise our right to self-determination. We have called on the Australian state to recognise Aboriginal sovereignty, to negotiate a treaty or treaties, and to make space for Indigenous self-government. These calls have been mostly rejected and ignored by the Australian state. Following the recognition of native title in 1992 by the High Court of Australia in the landmark Mabo v Queensland (No 2) Aboriginal people have use their native title rights in innovative ways to engage in engage in forms of deliberative and participatory democracy in environmental public policy, negotiating 'treaty like' agreements, and Indigenous nation building. Native title is based on the recognition of Indigenous traditional law and custom, prompting legal scholars to argue the recognition of native title is inherently the recognition of Indigenous polities, their sovereignty and capacity for self-government. Consequently, many Aboriginal groups are increasingly thinking, planning, and acting sovereign in order to challenge the presumed authority of the Australian state to make and pass laws and policies without the consent of Aboriginal people. Despite well-documented limitations in what the recognition of native title entails and the arduous process to secure a successful native title determination, thirty years after Mabo, many hundreds of Aboriginal groups now hold native title rights recognised by Australian law. The native title system consists of the many government, statutory, Indigenous and civil society groups and institutions that engage with native title as a legal, political, social, and economic matter. This makes the native title system a unique space for understanding Aboriginal modes of deliberative and participatory democracy. Advocates of deliberative and participatory democracy emphasise the 'emancipatory' potential of enhanced democratic engagement for overcoming deep political disagreement. Yet, what I call 'participatory deliberative democracy under conditions of settler colonialism' is a largely under theorised and under studied area by deliberative and participatory democracy scholars. This thesis further our knowledge about deliberative and participatory democracy by analysing how Aboriginal people have turned recognition of pre-colonial property right into an innovative means for deepening democratic engagement within Australian democracy. This thesis makes a contribution to our understanding of settler colonialism and deliberative and participatory democracy.