Wild Articulations by Timothy Neale

Author:Timothy Neale
Language: eng
Format: epub
Publisher: University of Hawaii Press
Published: 2017-03-14T04:00:00+00:00

This apparently contradictory formation, in which extensive conservation agreement-making occurred alongside intense division over a conservation law, is a product of the legal evolution of land rights generally. During this time, native title statutes and case law have been progressively compromised to limit any procedural and proprietary rights. A key finding of Mabo had been the refusal of the contention that “absolute beneficial ownership” resided with the Crown—the legal emissary of settler law. This principle was applied again in Wik’s use of beneficial construction, which presumed that native title could only be extinguished or delimited by a statute unambiguously (Strelein 2009, 10, 37). Legislators and the High Court then met this challenge by progressively ensuring that native title questions were subject to statutory rather than common law definition, that native title was a “bundle of rights” able to be extinguished piece by piece, and, finally, that the law could not recognize claimants thought to have “ceased to occupy their lands in accordance with traditional laws and customs” (Dorsett and McVeigh 2013). Contrarily, during the same period, the “problem” of native title became, in Ritter’s (2009a, 88) words, a “more or less mundane business” as governments and industry adopted a less litigious approach to native title claims, embracing ILUAs and determinations of native title while also seeking, antithetically, to practically expand the application of native title rights restricted at law. Such an adaptation did not eliminate the essentially adversarial nature of negotiations, though it did significantly reduce the possibility of major public disputes. There is no better proof of the naturalization of a contractual paradigm and a shift in the politics of engagement than the fact that, by the end of 2012, 689 ILUAs had been registered in Australia, 394 of them in Queensland. Rights disavowed at law have been recognized through a contractualist practice, transforming confrontational politics into a regime of bargains and bargaining.

Thus, as in Canada and other settler nations, Australian governments and industry alike have progressively adopted agreement-making as the standardized method for dealing with Indigenous land interests. As such, the formation and implementation of the Wild Rivers Act was an aberration. Throughout, the Queensland government held that the legislation did not constitute a “future act” and therefore did not legally trigger any right to negotiate. This opinion was never tested by the courts, though it finds strong support in the unambiguous findings of Australian courts that native titleholders cannot have exclusive possession of freshwater or saltwater and that, under the terms of the Howard-amended NTA, “the making, amendment or repeal” of laws relating to the management of waterways elicit only a right to be notified and offer comment (Lane 2000). The comments do not have to be heeded, much less obeyed. Nonetheless, were we to agree that the Wild Rivers Act was not technically a future act, it would not alter its deviance within the orthodox pattern of either the “conventional inconsistency” of native title agreement-making, as described by Weiner (2011), or the unique and region-specific agreement processes applied in Cape York Peninsula since the mid-1990s.

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