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Reconciling Indigenous and Settler-State Assertions of Sovereignty Over Sea Country in Australia’S Northern Territory

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Reconciling Indigenous and Settler-State Assertions of Sovereignty Over Sea Country in Australia’S Northern Territory Reconciling Indigenous and Settler-State Assertions of Sovereignty Over Sea Country in Australia’s Northern Territory Lauren Butterly A thesis in fulfilment of the requirements of the degree of Doctor of Philosophy Faculty of Law May 2020 i COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents a non-exclusive licence to archive and to make available (including to members of the public) my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known. I acknowledge that I retain all intellectual property rights which subsist in my thesis or dissertation, such as copyright and patent rights, subject to applicable law. I also retain the right to use all or part of my thesis or dissertation in future works (such as articles or books).’ ‘For any substantial portions of copyright material used in this thesis, written permission for use has been obtained, or the copyright material is removed from the final public version of the thesis.’ Signed ……………………………………………........................... Date …………………………………………….............................. AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis.’ Signed ……………………………………………........................... Date …………………………………………….............................. Thesis/Dissertation Sheet Surname/Family Name : Butterly Given Name/s : Lauren Yvonne Abbreviation for degree as given in the University : PhD calendar Faculty : Law School : Law Reconciling Indigenous and Settler-State Assertions of Sovereignty Thesis Title : over Sea Country in Australia’s Northern Territory Abstract 350 words maximum: (PLEASE TYPE) In 2008, the High Court of Australia handed down its decision in Northern Territory v Arnhem Land Aboriginal Land Trust (‘Blue Mud Bay Case’). The Blue Mud Bay Case affirmed the legal rights of Aboriginal Traditional Owners to control access to the waters of the intertidal zone in the Northern Territory (‘NT’). Immediately after the Blue Mud Bay Case was handed down, an interim amnesty came into operation that was agreed so that nothing changed in practice ‘on the water’. The NT Government and Traditional Owners agreed that the best way to move forward was to negotiate how the intertidal zone would be governed. As at mid-2020 these negotiations are ongoing. Therefore, the Traditional Owners in the NT are not currently controlling access to the waters of the intertidal zone as the Blue Mud Bay Case determined was their legal right. The pre-history and the aftermath of the Blue Mud Bay Case reveals a series of evolving interactions between Indigenous and settler-state assertions of sovereignty in sea country in the NT. This thesis analyses five historical and contemporary episodes: 1) the Woodward Aboriginal Land Rights Commission and the debates about sea country in the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in the 1970s; 2) the first sea closure hearing and declaration under that legislation in the early 1980s; 3) the High Court’s decision in Commonwealth v Yarmirr recognising native title offshore in 2001; 4) the Blue Mud Bay Case in 2008; and 5) the negotiations between the NT Government and Traditional Owners following the Blue Mud Bay Case. These episodes are analysed using a reconciling sovereignties frame that examines the interaction between co-existing assertions of Indigenous and settler-state sovereignty over sea country. This examination reveals that, although these episodes may appear disjointed, some of these assertions of sovereignty range across all the episodes. Further, the analysis demonstrates that the protracted nature of the Blue Mud Bay negotiations has been caused by the underlying struggle of the settler-state to acknowledge the challenge to the settler-state’s assertions of authority over sea country. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents a non-exclusive licence to archive and to make available (including to members of the public) my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known. I acknowledge that I retain all intellectual property rights which subsist in my thesis or dissertation, such as copyright and patent rights, subject to applicable law. I also retain the right to use all or part of my thesis or dissertation in future works (such as articles or books). .……………………...…….… Date …………………………………………………………… Signature The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years can be made when submitting the final copies of your thesis to the UNSW Library. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. ii ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed …………………………………………….............. Date …………………………………………….............. INCLUSION OF PUBLICATIONS STATEMENT UNSW is supportive of candidates publishing their research results during their candidature as detailed in the UNSW Thesis Examination Procedure. Publications can be used in their thesis in lieu of a Chapter if: • The candidate contributed greater than 50% of the content in the publication and is the “primary author”, ie. the candidate was responsible primarily for the planning, execution and preparation of the work for publication • The candidate has approval to include the publication in their thesis in lieu of a Chapter from their supervisor and Postgraduate Coordinator. • The publication is not subject to any obligations or contractual agreements with a third party that would constrain its inclusion in the thesis Please indicate whether this thesis contains published material or not: This thesis contains no publications, either published or submitted for publication ☐ (if this box is checked, you may delete all the material on page 2) Some of the work described in this thesis has been published and it has been ☒ documented in the relevant Chapters with acknowledgement (if this box is checked, you may delete all the material on page 2) This thesis has publications (either published or submitted for publication) ☐ incorporated into it in lieu of a chapter and the details are presented below CANDIDATE’S DECLARATION I declare that: • I have complied with the UNSW Thesis Examination Procedure • where I have used a publication in lieu of a Chapter, the listed publication(s) below meet(s) the requirements to be included in the thesis. Candidate’s Name Signature Date (dd/mm/yy) iv The following are publications and presentations arising from the writing of this thesis: Lauren Butterly, ‘Fishing for rights: The water-food nexus and Indigenous fishing in Australia’s Northern Territory’ (Fall 2018) 59(1) Jurimetrics: The Journal of Law, Science, and Technology 43. Lauren Butterly, ‘A Tireless Fight: The Battle for Sea Country legal rights’, Australian National Maritime Museum Blog (Web Page, 30 July 2018) <https://www.sea.museum/2018/07/30/the-battle-for-sea-country-legal-rights> [This was an edited transcript of a presentation given by Lauren Butterly at the Nawi: Travelling our Waters symposium held at the Australian National Maritime Museum [ANMM] in November 2017 and was formally published (with attribution) in Signals (the ANMM’s magazine (no. 123, June 2018) and was republished with permission (and attribution) as: Lauren Butterly, ‘The Battle for Sea Country Rights’ (Issue 2, May 2018) NLC Land Rights News (May 2018) 12-13]. Lauren Butterly, ‘Historic Crossroads: Negotiating Indigenous Rights to Govern Sea Country in the Northern Territory of Australia’ (Australia and New Zealand Law and Society Conference, 13 December 2018, University of Wollongong, Australia). Lauren Butterly, ‘A decade on: What happened to the historic Blue Mud Bay Case (and why is it in the news again)?’, AUSPUBLAW (Web Page, 26 June 2017) <https://auspublaw.org/2017/06/what-happened-to-the-historic-blue-mud-bay-case/>. Lauren Butterly, ‘What lies beneath? The role of law, society and history in the fight for Indigenous sea rights in Australia’ (Australia and New Zealand Law and Society Conference, 8 December 2017, University of Otago, Aotearoa/New Zealand). Lauren Butterly, ‘As far as the eye can see: Ownership, property and governance in Australia’s contested marine spaces’ (Contested Property Claims Conference, 11 December 2015, University of Aarhus, Denmark). Lauren Butterly, ‘Dipping your toes into legal geography’ (Australia and New Zealand Law and Society Conference, 2 December 2015, Flinders University, Adelaide).
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