Native title as a deliberative space for Indigenous self-determination

In 1992, the High Court of Australia delivered its historic Mabo v Queensland (No 2) decision, declaring Australian law could now recognise the pre-colonial rights (‘native title’) of Indigenous people to their traditional lands under their own laws.

However, under Australian settler-colonial law, native title is constructed as a domestic property right and not as a set of political, cultural or sovereign rights’. Consequently, Indigenous peoples claims to self-determination has attained a prominent place in contemporary political and public debates on Indigenous-state relations in Australia.

With Australia continuing to reject Indigenous self-determination, Aboriginal people must engage pragmatically and innovatively with state policies and institutions.

In this presentation McCaul discusses examples of democratic innovation within Australia’s native title system as practiced by Aboriginal people focusing on comprehensive settlement agreements between Indigenous groups and the state; participatory governance in relation to the environmental management of Indigenous lands; and efforts to re-build Indigenous nationhood and traditional institutions of governance. McCaul argues native title has created space for public deliberation on self-determination and efforts to decolonise relations, governance, and policymaking between Indigenous polities and the settler colonial state.

Justin McCaul is a descendent of the Mbarbarum Traditional Owners of far north Queensland. He joined ANU College of Law as an Associate Lecturer/PhD Candidate in February 2019.

He has many years of experience working in native title and Indigenous policy in Australia for several non-government organisations including Oxfam Australia. He also worked in Cambodia on rural development and biodiversity conservation projects with Indigenous groups in northeast Cambodia. Before joining ANU he worked at the National Native Title Council researching the challenges Indigenous organisations face utilising their native title rights.

His PhD uses deliberative democracy theory to discuss how Indigenous groups use their native title rights to assert self-determination claims and engage in public policy.