Deliberating Native Title

The historic Mabo v Queensland (No 2) is arguably the most important legal case in Australia’s history. In Mabo, the High Court of Australia declared the Australian legal system could now recognise the pre-colonial rights (‘native title’) of Indigenous people over their traditional lands under their own laws. The decision overturned the infamous and prevailing legal doctrine of terra nullius (land belonging to no one) which justified British colonisation and dispossession of Indigenous people in Australia. The Australian government responded to the decision by introducing Native Title Act 1993 to provide for the legal recognition and protection of native title. Mabo and the Native Title Act 1993 were viewed as the opportunity to reset the political and legal relationship between Indigenous Australians and the state and deliver greater gains including the right to self-determination and self-government. Yet, three decades on from Mabo and Indigenous Australians remain the most socioeconomically disadvantaged and politically marginalised group in Australia. The state continues to deny any right to self-government despite Indigenous and legal scholars arguing any recognition of Indigenous rights in land presupposes a recognition of an inherent right to self-government. The right to a form of self-government has attained a prominent place in contemporary political and public debates on Indigenous-state relations in Australia. This paper seeks to makes a contribution to understanding the usefulness of deliberative democratic theory in relation to settler colonialism, Indigenous peoples, and their claims to self-government in Australia. Drawing on my research and the work of Indigenous and legal scholars from Australia and other settler colonial states such as Canada, the paper seeks to demonstrate native title has been a catalyst for the creation of a distinct political space for Indigenous people to engage with the state and other actors. Using deliberative democratic theory the paper will illustrate that though native title is a creation of Australia’s settler colonial legal and political system, Indigenous people nonetheless use native title to engage with the state to assert self government claims, redefine the politics of place and engage in acts of decolonisation through public policy.