DOCSLIB.ORG

Depoliticising Native Title Mediation, Uncertainty and the Extension of State Government Power in Western Australian Native Title Determinations

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Depoliticising Native Title Mediation, Uncertainty and the Extension of State Government Power in Western Australian Native Title Determinations Depoliticising Native Title Mediation, uncertainty and the extension of state government power in Western Australian native title determinations Benjamin H. Ripper This thesis is presented for the degree of Master of Arts of The University of Western Australia Discipline of Anthropology & Sociology School of Social Sciences 2013 ii Abstract The Native Title Act 1993 (Cth) (NTA) provides a statutory framework for Indigenous Australians to claim rights over their traditional land and waters. Claims are successful if these rights are deemed to have existed at sovereignty and survived post-sovereignty into the present. The Act was introduced as a result of the High Court Decision in Mabo and Others v Queensland (No. 2) (1992) and was met with by turns with celebration, confusion, consternation and fear. The subsequent push to federally legislate the decision was met with strong opposition from state governments and the mining lobby who demanded 'certainty' in granted land titles. After the NTA was enacted, the position of the Western Australian state government was to resolve native title claims via litigation and to continue to criticise the legislation as an un-workable threat to the state's economy. After 2000, attitudes to native title within government and business experienced a turn- around in which native title resolution has become an accepted part of the business landscape; resolution of native title via litigation was largely replaced by negotiated determinations by consent. The increase in mediation of native title claims has been accompanied by predominantly positive language from the Western Australian state government, native title respondents and Native Title Representative Bodies. In this thesis I argue that this positive language masks the realities of the mediation process, and that state government assessment of cultural evidence has led to reduced transparency in native title decision-making. The mediation policy has reduced uncertainty for the Western Australian state government and industry respondents, but has further entrenched the power imbalance between the Western Australian state government and native title applicants. I draw on the work of James Ferguson (1990) and Foucault's concept of 'governmentality' (Foucault 1978; Rose 1996; Lemke 2004) to reveal how the Western Australian state government has depoliticised native title decision- making. I examine how the Western Australian state government has exerted greater power over the native title process through its mediation regime than it has litigating native title claims in the Federal Court, and contextualise this within the Federal government's approach to native title policy. iii iv Candidate’s Declaration: The thesis is my own composition, all sources have been acknowledged and my contribution is clearly identified in the thesis. For any work in the thesis that has been co-published with other authors, I have the permission of all co-authors to include this work in my thesis. This thesis does not contain work that I have published, nor work under review for publication. The thesis has been substantially completed during the course of enrolment in this degree at UWA and has not previously been accepted for a degree at this or another institution. v vi Acknowledgments I want to whole-heartedly thank my primary supervisor Associate Professor Katie Glaskin for her commitment, knowledge and support for this thesis project from its very beginning. It simply would not have been possible without her input. Thanks also to my secondary supervisor Assistant Professor Debra McDougall who came onboard halfway through the project and contributed invaluable advice on structure, the presentation of ideas and suggestions for source material. I would also like to thank former supervisors Dr. Nicholas Smith, who provided excellent insights into NTRB perspectives on mediation, and Professor Victoria Burbank, whom helped greatly with administrative matters. Special thanks to good friend Dr. Mitchell Low who provided invaluable ‘fresh eyes’ on the thesis just prior to submission. I would like to thank my employers and colleagues at the State Benjamin Ripper ! 29/5/14 11:17 AM Solicitor's Office for their exceptional flexibility and for their respect for Deleted: " independent research. Finally, I would like to thank my partner Aimee Lamatoa Benjamin Ripper ! 29/5/14 11:17 AM for her love and support, and for always being there for a first read or first edit, Deleted: " day or night. vii viii Table of Contents Abstract ......................................................................................................................... iii Benjamin Ripper ! 30/5/14 12:36 PM Candidate’s Declaration: ............................................................................................ v Deleted: ii Benjamin Ripper ! 30/5/14 12:36 PM Acknowledgments ...................................................................................................... vii Deleted: iv Table of Contents ......................................................................................................... ix Benjamin Ripper ! 30/5/14 12:36 PM Deleted: vi List of Tables ................................................................................................................. xi Benjamin Ripper ! 30/5/14 12:36 PM Glossary ....................................................................................................................... xiii Deleted: viii Benjamin Ripper ! 30/5/14 12:36 PM Chapter 1 - Introduction ............................................................................................. 1 Deleted: x Anthropology, native title and the state ........................................................................... 9 Benjamin Ripper ! 30/5/14 12:36 PM Anthropology and native title ........................................................................................................ 9 Deleted: xii The state, its actors, and anthropologies of power ............................................................. 14 Methodology ......................................................................................................................... 18 Project history and formation .................................................................................................... 18 Chapter 2 – Background .......................................................................................... 28 The Mabo decision – The beginning of uncertainty .................................................... 29 The Native Title Act, continued uncertainty and the move to mediate in Western Australia ................................................................................................................................ 34 Pathways to native title – An overview .......................................................................... 37 Chapter 3 – The Language of Mediation .............................................................. 49 Introduction ......................................................................................................................... 49 The National Native Title Tribunal: ‘overwhelmingly positive’ .............................. 52 The Native title language of the Western Australian state governments 1993 - present ................................................................................................................................... 55 The Court Coalition government (1993-2001) ..................................................................... 56 The Gallop Labor government (2001-2006) ......................................................................... 59 The Carpenter Labor government (2006-2008) .................................................................. 63 The Barnett Liberal government (2008 - Present) .............................................................. 64 Federal Government, NTRBs and industry perspectives .......................................... 68 Federal government responses to agreement-making ....................................................... 68 The language of agreement-making in NTRBs ..................................................................... 71 Mining and pastoral industry responses ................................................................................ 74 Conclusion ............................................................................................................................ 77 Chapter 4 – Mediation: Results, Realities and Orthodoxy ............................... 79 Introduction ......................................................................................................................... 79 The simplification of native title rights .......................................................................... 81 Modes of negotiation .......................................................................................................... 88 From public contest to opaque orthodoxy ..................................................................... 95 Conclusion ......................................................................................................................... 105 Chapter 5 – Power, Depoliticisation and Native Title ...................................... 108 Introduction ...................................................................................................................... 108 The concept of a single state ‘intention’ .....................................................................
Load more

Recommended publications
  • Recent Successes and Major Opportunities for Western Australia
    Edith Cowan University Research Online ECU Publications Pre. 2011 1996 High growth maritime industries: Recent successes and major opportunities for Western Australia Edith Cowan University Follow this and additional works at: https://ro.ecu.edu.au/ecuworks Part of the Business Commons Edith Cowan University (1996). High growth maritime industries: Recent successes and major opportunities for Western Australia. Perth, Australia: Edith Cowan University. This Conference Proceeding is posted at Research Online. https://ro.ecu.edu.au/ecuworks/7276 Edith Cowan University Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorize you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. Youe ar reminded of the following: Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. Where the reproduction of such material is done without attribution of authorship, with false attribution of authorship or the authorship is treated in a derogatory manner, this may be a breach of the author’s moral rights contained in Part IX of the Copyright Act 1968 (Cth). Courts have the power to impose a wide range of civil and criminal sanctions for infringement of copyright, infringement of moral rights and other offences under the Copyright Act 1968 (Cth). Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form.
    [Show full text]
  • University Council Membership
    Edith Cowan University University Council University Council Membership Chancellor (Member appointed by the Governor) The Hon Hendy Cowan AO Term of Office: 01/01/2014 – 31/12/2016 01/01/2011 – 31/12/2013 01/01/2008 – 31/12/2010 01/01/2005 – 31/12/2007 Hendy Cowan was elected to the Western Australian Parliament in 1974. He held the rural seat of Merredin-Yilgarn, later renamed Merredin, until he retired in 2001. He served as the Leader of the National Party for 23 years. In the period from 1993 to 2001, he was the State Deputy Premier, Minister for Commerce and Trade, Regional Development and Small Business. Since retirement, his principal interest is farming, although he has a small number of company directorships and is also active in not-for-profit organisations. He joined the board of the Cancer Council Western Australia in 2001 and was elected President in 2003. He retired from the presidency in 2008, but remains on the board. In 2003, Hendy was elected Western Australia’s representative on the board of the Cancer Council Australia (CCA) and in 2010 was elected President of the CCA for a three-year term. In 2004, Hendy was appointed to the Governing Council of Edith Cowan University and in 2005 he was appointed Chancellor. Hendy has two honorary doctorates, one from Edith Cowan University and the other from Murdoch University. He is a recipient of the Queen’s Jubilee Medal and in 2004 won the Governor’s Award for Regional Development in the Citizen of the Year Awards. In June 2014, Hendy was appointed an Officer of the Order of Australia.
    [Show full text]
  • The Voice of Edith Cowan: Australia's First Woman Parliamentarian 1921-1924
    Edith Cowan University Research Online ECU Publications Pre. 2011 1996 The voice of Edith Cowan: Australia's first woman parliamentarian 1921-1924 Harry C.J. Phillips Follow this and additional works at: https://ro.ecu.edu.au/ecuworks Part of the Legislation Commons, Political Science Commons, and the Women's History Commons Phillips, H.C.J. (1996). The voice of Edith Cowan: Australia's first woman parliamentarian 1921-1924. Churchlands, Australia: Edith Cowan University. This Book is posted at Research Online. https://ro.ecu.edu.au/ecuworks/6821 Edith Cowan University Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorize you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: • Copyright owners are entitled to take legal action against persons who infringe their copyright. • A reproduction of material that is protected by copyright may be a copyright infringement. • A court may impose penalties and award damages in relation to offences and infringements relating to copyright material. Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form. THE \TOICE OF EDITH COWAN AUSTRALIA'S FIRST WOMAN PARLIAMENTARIAN, 1921-24 HARRY C. J. PHILLIPS EDITH COWAN UNIVERSITY CHURCHLANDS, WESTERN AUSTRALIA Published by Edith Cowan University Pearson Street, Churchlands, Western Australia 6018 First published in 1996 Copyright-Edith Cowan University This book is copyright. Apart from any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission.
    [Show full text]
  • Edith Cowan University Annual Report 2014
    EDITH COWAN UNIVERSITY ANNUAL REPORT 2014 Edith Cowan University Edith Cowan University acknowledges and respects its continuing association with the Nyoongar people, the traditional custodians of the land upon which its campuses stand. This report is available in Word and PDF formats from the ECU website: www.ecu.edu.au/about‐ ecu/reports‐and‐plans/annual‐reports. To minimise download times and reduce printing, the report can be viewed in sections, as well as a single document. ECU encourages you to use recycled paper and to print the report and/ or its sections in double‐ sided formats. The Annual Report references other documents obtainable from the ECU website. If you have difficulties accessing any of these documents, or you require the Annual Report in an alternative format, then please contact [email protected]. Official correspondence relating to the Annual Report should be addressed to: Council Secretary Edith Cowan University 270 Joondalup Drive JOONDALUP WA 6027 JOONDALUP CAMPUS MOUNT LAWLEY CAMPUS SOUTH WEST CAMPUS 270 Joondalup Drive 2 Bradford Street Robertson Drive JOONDALUP WA 6027 MOUNT LAWLEY WA 6050 BUNBURY WA 6230 Phone: 13 43 28 Phone: 13 43 28 Phone: 13 43 28 Fax: (08) 9300 1257 Fax: (08) 9370 2910 Fax: (08) 9780 7800 ECU EMAIL and WEB ADDRESS [email protected] www.ecu.edu.au Edith Cowan University Annual Report 2014 CONTENTS SECTION 1: OVERVIEW ................................................................................................................ 6 STATEMENT OF COMPLIANCE ......................................................................................................................
    [Show full text]
  • Electoral Law in the State of Western Australia: an Overview
    Electoral Law in the State of Western Australia: An Overview Third edition Electoral Law in the State of Western Australia: An Overview Harry C.J. Phillips This book celebrates 100 years of the Electoral Act 1907 Western Australian Electoral Commission Perth 2008 (Third edition 2013) First published in 2008 by the Western Australian Electoral Commission. Third edition 2013. © Western Australian Electoral Commission This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act no part may be reproduced by any process without written permission. Enquiries should be made to the publisher. Bibliography ISBN 978 0 9804173 4 0 This book celebrates 100 years of the Electoral Act 1907. Printed by State Law Publisher HARRY C.J. PHILLIPS Contents Foreword................................................................................................... xi Acknowledgments ...................................................................................... xii Abbreviations............................................................................................. xii Chapter One: The Colonial Legacy........................................................... 1 The Colonial Franchise ..................................................................... 1 The Colonial Voting System............................................................. 5 Constituency Boundaries................................................................... 6 Administration of the
    [Show full text]
  • Proportional Representation in Western Australia Its Principles
    Proportional Representation in Western Australia Its Principles, History, Outcomes and Education Harry C.J. Phillips WESTERN AUSTRALIAN Electoral Commission Table of Contents FOREWORD ........................................................................................................................................... iii ACKNOWLEDGEMENTS.................................................................................................................... v CHAPTER 1 VOTING SYSTEMS, ELECTORAL LAW AND REPRESENTATION ............... 1 1.1 Representation.............................................................................................................................. 1 1.2 Electoral law (Its components)..................................................................................................... 2 1.3 Types of Proportional Representation.......................................................................................... 3 (a) The list system...................................................................................................................... 4 (b) The Single Transferable Vote (STV) Form of PR................................................................ 4 CHAPTER 2 THE BEGINNINGS OF THE PROPORTIONAL REPRESENTATION QUEST IN AUSTRALIA............................................................................................. 7 2.1 Letter to the Inquirer (1870) ........................................................................................................ 7 2.2 The idealists in the Colonies
    [Show full text]
  • Past As Prologue : the Royal Commission Into Commercial Activities of Government and Other Matters : Proceedings from a Conferen
    Edith Cowan University Research Online ECU Publications Pre. 2011 1994 Past as prologue : the Royal Commission into Commercial Activities of Government and Other Matters : proceedings from a conference on the Part II Report of the Royal Commission and the reform of government in Western Australia Mark Brogan (Ed.) Follow this and additional works at: https://ro.ecu.edu.au/ecuworks Part of the Public Affairs, Public Policy and Public Administration Commons Brogan, M., & Phillips, H. (1994). Past as prologue : the Royal Commission into Commercial Activities of Government and Other Matters : proceedings from a conference on the Part II Report of the Royal Commission and the reform of government in Western Australia. Mount Lawley, Australia: SASTEC, Adith Cowan University. This Conference Proceeding is posted at Research Online. https://ro.ecu.edu.au/ecuworks/7001 Edith Cowan University Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorize you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. Where the reproduction of such material is done without attribution of authorship, with false attribution of authorship or the authorship is treated in a derogatory manner, this may be a breach of the author’s moral rights contained in Part IX of the Copyright Act 1968 (Cth).
    [Show full text]
  • OPENING CEREMONY Ol Neuropolhology
    XIII lnternational Congress of Neuropathology Department of Neuropathology Sept 7-12th 1997, Perth, Australia Royal Perth Hospital Wellington St lnternational Society of Neuropathology and the Perth Western Australia 6000 Australian and New Zealand Society of Neuropathology Tel: (619) 2242925 Fax (619) 2242556 email: [email protected] lniernolionol Society OPENING CEREMONY ol Neuropolhology IN THE SHOWROOM OF THE BURSWOOD CONVENTION CENTRE 6:30 PM SUNDAY, 7TH OF SEPTEMBER 1997 Ghairperson: Professor John Howell 6:30 pm Welcome and reading of message from the Prime Minister of Australia, The Honourable Mr John Howard by Congress President, Professor Byron Kakulas . Religious Blessing of the Congress by His Eminence Archbishop Stylianos, Greek Orthodox Primate of Australia and Oceania Address tlo the lnternational delegates by The Honourable Mr Hendy Cowan, Deputy Premier, Government of Western Australia "The Australian and New Zealand Contribution to Clinical Neuroscience" by Professor Georg Kreutzberg, President of the lnternational Society of Neuropathology 7:15 pm Refreshments in the Ballroom of the Burswood Convention Centre Conference Managers: ICMS Pty Ltd (lnternational Convention Management Services) PO Box 8102, HINDLEY STREET, SOUTH AUSTRALIA 5000 TELEPHONE (618) 8210 6776 FACSIMILE (618) 8212 5101 XIIIth International Congress of Neuropathology Sept 7-l2th 1997, Perth, Australia NATIONAL PATRONS OF THE CONGRESS The HonourableJohn Howard, Prime Minister of Australia Dr lGith Woollard, Federal President, Australian Medical
    [Show full text]
  • Fighting for the Forests
    Fighting for the Forests A History of The Western Australian Forest Protest Movement 1895-2001 Ron Chapman BA (Hons) This thesis is presented for the degree of Doctor of Philosophy of Murdoch University 2008 Declaration I declare that this thesis is my own account of my research and contains as its main content work which has not previously been submitted for a degree at any tertiary education institution. Ron Chapman Abstract This thesis complements and extends Hutton and Connors' research on forest protest contained in their study of the Australian environment movement. As the first comprehensive study of Western Australian forest protest the thesis analyses the protest movement's organisation, campaigns and strategies. Its central argument is that the contemporary Western Australian native forest protest movement established a network of urban and south-west activist groups which encouraged broad public support, and that a diversity of protest strategies focused public attention on forest issues and pressured the state government to change its forest policies. The thesis identifies two distinct periods of protest activity in Western Australia. During a first period of protest from the 1890s, conservationists used non-confrontational strategies to campaign for the protection of areas of native bushland, and the formation of Western Australia's first nature conservation groups in the early twentieth century laid the foundations for a contemporary forest protest movement. A second period of protest from the mid-1950s comprised five evolutionary
    [Show full text]
  • 2006 Annual Report
    Edith Cowan University Annual Report 2006 ECU’s new mission, vision and values This Annual Report reviews the operations of Edith Cowan University (ECU) during 2006. In December 2006, ECU’s governing Council approved the following Mission, Vision and Values to take the University forward into 2007 and beyond. MISSION: To further develop valued citizens for the benefit of Western Australia and beyond, through teaching and research inspired by engagement and partnerships. VISION: For our staff, students and graduates to be highly regarded as ethical and self- reliant contributors to more prosperous, inclusive and sustainable communities. VALUES: We value: integrity — behaving ethically and pursuing rigorous intellectual positions respect — valuing individual differences and diversity rational inquiry — motivated by evidence and reasoning personal excellence — striving to realise potential and performing at exacting international standards. Edith Cowan University: Engaging Minds; Engaging Communities. Towards 2020 documents the University’s new Mission, Vision and Values and can be viewed at: http://www.ecu.edu.au/GPPS/ppas/strategic_plan.html Contents Page No REVIEW OF OPERATIONS Statement of Compliance 1 Chancellor’s Foreword 2 Vice-Chancellor’s Commentary 3 Highlights of the Year 2006 4 University Organisation: About ECU 6 University Mission and Defining Themes 7 ECU Governance Structure 8 - Council Membership 8 - University Committees 10 ECU Organisational Structure 11 The Work of the University Council 12 Key Goals: Strong Strategic
    [Show full text]
  • Annual Report-2000-2001
    Annual Report Western Australian Museum Annual Report 2000 - 2001 Western Australian Museum Annual Report 2000–2001 © Western Australian Museum 2001 Coordinated by Nick Mayman and Ann Ousey Edited by Amanda Curtin, Curtin Communications Designed by Rosalie Okely, Keystrokes Layout by Gregory Jackson Published by the Western Australian Museum Francis Street, Perth, Western Australia 6000 www.museum.wa.gov.au ISSN 0083-8721 2204-6127 2 Western Australian Museum Annual Report 2000–2001 Contents Letter to the Minister 4 A Message from the Minister 5 PART 1: Introduction Introducing the Western Australian Museum 7 The Museum’s Vision, Mission, Functions, Strategic Aims 9 Executive Director’s Review 10 Visitors to Western Australian Museum Sites 15 Organisational Structure 16 Trustees, Boards and Committees 17 Sponsors, Benefactors and Granting Agencies 21 Volunteers 22 Western Australian Museum Foundation 24 Friends of the Western Australian Museum 28 PART 2: The Year Under Review Western Australian Museum–Science and Culture 31 Western Australian Maritime Museum 44 Western Australian Museum–Albany 49 Western Australian Museum–Geraldton 51 Western Australian Museum–Kalgoorlie-Boulder 54 Fremantle History Museum 57 Visitor Services 59 Museum Services 66 Business Management and Development 70 PART 3: Compliance Requirements Accounts and Financial Statements 76 Outcomes, Outputs and Performance Indicators 93 APPENDICES A Staff List, 2000–2001 99 B Staff Membership of External Professional Committees 103 C Fellows, Honorary Associates, Research Associates 105 D Publications List 106 3 Western Australian Museum Annual Report 2000–2001 Letter to the Minister The Hon. Sheila McHale MLA Minister responsible for the Museum Act 1969 Minister In accordance with the provisions of section 66 of the Financial Administration and Audit Act 1985, we have pleasure in submitting for your information and presentation to Parliament the Annual Report of the Western Australian Museum for the financial year ending 30 June 2001.
    [Show full text]
  • HENDY JOHN COWAN B 1943
    STATE LIBRARY OF WESTERN AUSTRALIA J S BATTYE LIBRARY OF WEST AUSTRALIAN HISTORY Oral History Collection THE WESTERN AUSTRALIAN PARLIAMENT PARLIAMENTARY ORAL HISTORY PROJECT Transcript of an interview with HENDY JOHN COWAN b 1943 Access Research Open Publication Open Reference number OH3533 Date of Interview 29 January 2003 Interviewer Criena Fitzgerald Duration 9 x 60 minute cassette tapes Copyright Parliament of Western Australia Library Board of Western Australia NOTE TO READER Readers of this oral history memoir should bear in mind that it is a verbatim transcript of the spoken word and reflects the informal conversational style that is inherent in such historical sources The Parliament of Western Australia and the Battye Library are not responsible for the factual accuracy of the memoir nor for the views therein these are for the reader to judge Bold type face indicates a difference between transcript and tape as a result of corrections made to the transcript only usually at the request of the person interviewed are used for insertions not in the original tape FULL CAPITALS in the text indicate a word or words emphasised by the person interviewed The First Schedule I dii do not wish to be advised of any requests to publish this material or part thereof during my lifetime signed t 3 JLcmt date INTRODUCTION This is an interview with Mr Hendy Cowan for the Parliamentary Oral History Project conducted by Criena Fitzgerald from 29th January 2003 to 27 March 2003 There are nine tapes third Hendy Cowan was born in Narembeen Western Australia
    [Show full text]