Changing Places

Challenging the absence of self-determination as a principle in the administration of Native Title in Australia

Parry Agius^(1,2), Richie Howitt⁽²⁾, Sandy Jarvis⁽¹⁾, Lesley Johns⁽¹⁾ and Rhiân Williams⁽²⁾

(1) Aboriginal Legal Rights Movement of South Australia, 35 King William St, Adelaide, SA, 5000, Australia

(2) Department of Human Geography, Macquarie University, NSW, 2109 Australia

Paper for presentation to Dialogues Across Cultures Conference, Centre for Australian Indigenous Studies, Monash University, Melbourne

November 2004-

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Recognition of Native Title in Australia was greeted optimistically as opening new recognition spaces for indigenous self-determination in a nation where such space was historically limited. The reality, however, has been characterized by the consistent refusal of the national government to accept indigenous Australians have any right to self-determination, and a general absence of institutional or structural recognition of indigenous governance structures in administrative and management structures in Australia. The administrative landscape of Native Title was quickly taken over by bureaucratic intermediaries who converted recognition of native title from a political, social and cultural challenge into a set of complicated and technical legal and administrative questions. In this paper we consider our experience in seeking to facilitate ambitious negotiations to recognise Native Title in South Australia and suggest some important general principles from that experience. In arrangements that do not even pay lip service to the right to self-determination, indigenous groups face immense pressure to succumb to outcomes where ‘recognition’ is limited to the crumbs that bureaucrats sweep from the main table of government, and to accept relegation to places in society whose terms are set by the institutions of colonial annihilation of indigenous self-government. In the work reported in this paper, South Australia’s Native Title interests are seeking to change the place that South Australia is by putting in place new institutions, new relationships and new practices that are underpinned by a societal commitment to indigenous South Australians’ right to self-determination. We see this as the basis for political action to challenge the place of indigenous Australians in the administrative and political landscape a consequently to change the places to which indigenous Australians are pushed by the dominant culture of the nation. The experience of Native Title interests in South Australia points to bigger issues indigenous rights and inter-cultural engagement in pluralist democracies that raise important conceptual challenges to theorists of difference and dialogue.

INTRODUCTION

Acceptance that the property rights of indigenous Australians have legal standing has been slow and limited. Historically, Australian governments have created rather than recognised ‘rights’ for indigenous citizens through specific legislation granting ‘land rights’ and provisions for extension of ‘citizenship rights’ to Aboriginal and Torres Strait Islander people. The proposition that indigenous Australians might have inherent rights that pre-date the establishment of the Crown as the pre-eminent institution of governance in Australia was previously dismissed by referring to the legal principle of terra nullius, which stated as fact that Australia, unlike other colonies, was acquired by Britain not by conquest or surrender but by ‘settlement’, as it was, in legal terms, empty of prior owners, law and interests. The opportunity for Aboriginal and Torres Strait Islander people to exercise self-determination and self-government in such circumstances was virtually non-existent.

In 1992, however, the High Court decision in Mabo overturned this legal fiction that indigenous Australians’ systems of governance had been so undeveloped as to be unrecognisable by British common law. In recognising the persistence of native title, the court established the need for governments and existing systems of governance and administration to deal with pre-existing rights of indigenous peoples. Despite its significant limitations, the Mabo decision opened a new discursive space in which discussion of indigenous rights was no longer burdened by the legal fact of non-existence. In a period characterized by complex and divisive debates about national identity, national values and the nature of our colonial legacy, Australia’s native title debate overlapped with a national conversation about reconciliation, stolen generations and contemporary policies on indigenous affairs, and also discussion of refugees and asylum seekers, race and ethnicity, the republic and social and economic restructuring produced by globalisation.

By the mid-1990s, initial optimism that the Mabo decision, and the subsequent Wik decision, established a foundation for indigenous self-determination as the foundation for cross-cultural relationships in Australia gave way to the difficult co-existence of conservative belligerence towards ‘special treatment’ for indigenous Australians and progressive resentment at the failure of symbolic recognition to secure practical improvements on the ground. The steadfast refusal of the national government, and most states and territories, to accept the principle of self-determination as an inherent right belonging to Aboriginal and Torres Strait Islander peoples has meant that most of the political and administrative responses to judicial recognition of native title have sought to extinguish, limit or control the spatial and social extension of this recognition. Consequently, the administrative systems developed to deal with native title are characterised by adversarial relations, tight administrative controls and legal complexity. There has been virtually no acknowledgement that one of the corollaries of recognition of native title is that the systems of indigenous law and governance that give rise to those rights that the national legal system recognises as native title should also be recognised, and that these systems imply a right of self-determination and self-government however inconvenient that might be for national systems that have evolved on the basis of their erasure.

In this, Australia stands apart from other postcolonial settler societies such as Aotearoa/New Zealand, Canada, the USA and South Africa, where existent treaty rights, constitutional recognition or post-apartheid democracy has required a very different sort of national conversation about acknowledgement, recognition and reconciliation. Although a ‘whispering in our hearts’ continues to suggest that national policy frameworks of erasure, denial and control are inappropriate, the national polity has continued to endorse a shift towards exclusionary populism as a basis for Australia’s approach to dialogues across cultures.

In these hostile national circumstances, Aboriginal people in South Australia have been involved in discussions since 1999 about the development of a framework for negotiated settlement of native title claims in that state. With support from the Aboriginal Legal Rights Movement, which is recognised as a Native Title Representative Body (NTRB) under the Commonwealth Native Title Act 1993, South Australian native title claimant groups have established a profound and powerful conversation with the State Government and a variety of industry groups (farming, mining, fishing and local government), with the intention of ‘redesigning the state of South Australia with recognition of Native Title built in’. Although these negotiations are still in train, they provide an important window on the question of self-determination and inter-cultural engagement.

In this paper we provide a brief account of these negotiations and the broader conceptual vision underpinning them and identify a number of key challenges that arise from our experience.

Background to statewide negotiations in south australia

Ground work for the South Australian negotiation process was laid by the 1998 amendments to the Commonwealth Native Title Act. Although these amendments were widely criticized as racist[1], its clearer mechanisms for legally binding agreements concerning native title[2] encouraged the South Australian Government and industry groups to consider that negotiation might be more effective than either claim-by-claim litigation or legislative extinguishment in producing just, sustainable and workable outcomes.

On the Aboriginal side, the amendments required re-registration of all existing Native Title claims. While meeting with Native Title claimant groups about re-registration of their claims, ALRM was also assisting them each to set up a Native Title Management Committee (NTMC) as a way of providing an appropriate and accountable avenue for claim governance that reflected the groups’ kinship and traditional decision-making processes their traditional institutions of governance and core values as a people. Twenty-two NTMCs were established and are involved in the statewide negotiations process. Most of these have registered claims; some have claims that are still proceeding through the registration process and some are still preparing claims for registration.

The NTMCs became the vehicle for claimant groups to exercise self-determination, for example through specific negotiations over mineral exploration and other development activities on the areas under claim. Several NTMCs, for example, have been involved in negotiations over the grant of new petroleum exploration licenses in the Cooper Basin, in the north east of SA. In the south of the state, the Narungga Nations NTMC, negotiated the first Indigenous Land Use Agreement (ILUA) in the state covering sixteen hectares of coastal reserve, the location of a proposed canal residential estate. Many other NTMCs have been involved in negotiations, particularly about mineral exploration.

The statewide process to address native title claims in South Australia commenced in May 1999, when the state hosted a meeting with representatives from the South Australian Chamber of Mines and Energy (SACOME), the South Australian Farmers Federation (SAFF) and the Aboriginal Legal Right Movement (ALRM). This meeting set the stage for development of a peculiarly South Australian approach to negotiation of issues arising from the recognition of native title.

Each of the parties at that meeting identified key concerns and issues. While some significant differences were obvious, it was agreed that there were good prospects and reasonable support for a move towards negotiation of a range of statewide and local level agreements. ALRM made it clear at this meeting that the native title claimants themselves would need to be involved directly in such negotiations, and that the decision to sign-off on any proposals would be a matter for the claimants themselves. After receiving the Solicitor-General’s report, the South Australian Government gave in-principle support for a meeting of all NTMCs to discuss the idea of a statewide negotiation of Native Title.

Having made the decision to pursue a negotiated settlement, the Government anticipated quick progress to finalize an agreement. To challenge this expectation, ALRM asked the non-Aboriginal stakeholders who they thought would sign an agreement. The Government responded that the Attorney-General would be authorized sign on the Government’s behalf, while SAFF and SACOME were clear that their Chief Executive Officers and Boards could and would sign an acceptable agreement. The non-Aboriginal parties all assumed that the Executive Officer of the NTRB or perhaps the ALRM Chair or the ALRM Board would sign on behalf of the Native Title claimants in South Australia. This assumption reflected a profound failure of inter-cultural understanding.

In Aboriginal politics, although a NTRB has the power under the Native Title Act to sign some ILUAs, it does not indeed, it cannot have this power under Aboriginal customary law. One of the clear principles to which native title claimants hold ALRM accountable is that only traditional owners can speak for their country. The proposed negotiations would deal with the rights of specific people and the future of specific country, and it was ALRM’s position that any agreement would need to be authorized and signed off by those people. If ALRM were to sign off on agreements without such authority, those agreements would breach Aboriginal customary law and could not produce the sort of certainty that the other parties want since native title groups would be most unlikely to consider themselves bound by the agreement.

Challenging such assumptions was just the beginning of a long process of all the parties coming to appreciate that negotiations could be neither quick nor simple. In this particular dialogue across cultures, it would be necessary to carry the constituents of each of the parties to better understanding of the negotiations, rather than simply presenting them with a completed agreement. For ALRM, the question of how to bring claimants across the whole state into the process was an immense challenge. Without authorization from the claimants, ALRM could have no mandate to progress discussions. But, how to facilitate decisions from such a large number of claimant groups? The diverse members of the NTMCs were scattered across the state and far beyond many of these groups had never previously met? How do you present a bigger picture of future possibilities and develop a critical appreciation of the practicalities involved in such complex negotiations amongst people who have long been politically marginalized and who distrust political process? How do you build the required negotiating skills and how do you facilitate informed decision-making?

ALRM had to develop a clear understanding of the non-Aboriginal parties’ thinking and make that available to Aboriginal discussion and debate to allow the Aboriginal decision-makers to develop appropriate strategies. A Technical Advisory Group was established and undertook most of the provision of strategic and technical advice to the NTMCs. In addition, ALRM drew in expert advice on a range of issues to be negotiated, including pastoral, fishing, mining, and local government. Successfully combining the two levels of technical advice a strategic thinking level and a substantive issues level, harnessed expertise for the process without ever allowing it to become expert-led or expert-driven.[3] In addition, a Secretariat was established within ALRM’s Native Title Unit to provide logistical support for meetings, and to facilitate communication between claimants, the NTMCs and ALRM.

ALRM’s approach to this challenge emerged through a range of ambitious consultative meetings attended by delegates from the NTMCs in 1999-2000. There was a series of four large meetings, with 250-300 people attending each. Participants were drawn from each of the NTMCs.[4] By late 2000, these meetings had produced a new organization the South Australian Congress of Native Title Management Committee (Congress) in which provided native title claimants with a political vehicle to speak to the Government and other parties. This put in place a structure consistent with Aboriginal Law. The Congress was not a supreme decision-making body with delegated authority. Rather individual NTMCs were able to maintain their own governance procedures, debating proposed decisions and deciding whether or not to opt in to a shared decision.

A Congress in Adelaide in December 2000 coincided with Parliamentary discussion of legislation aimed at confirming extinguishment of native title on a range of land tenure classifications. The Congress met in a hotel across the road from the Parliament. At one stage the meeting was adjourned and nearly two hundred Congress delegates crossed the road to observe the debate from the public galleries of both houses of the Parliament. Aboriginal people were quite shocked at the performance on the floor of the Parliament! They saw representatives vote who had neither listened nor contributed to the debate. When the Congress meeting reconvened, delegates acknowledged that if they did not stand together they would never be able to challenge the system they had just seen disposing of their rights so recklessly. This was a crucial moment, where people expressed a significant level of faith in themselves and in each other. The development of this level of mutual recognition and trust represented a significant shift in the conversation, which we have referred to elsewhere as constructing a new scale of Aboriginal governance in the state.[5]

principles underpinning the south australian process

The South Australian approach to negotiating a settlement of native title issues targets a shift in the relationship between Aboriginal and non-Aboriginal people in order to change the places that Aboriginal people may take in South Australian society. ALRM drew on both legal and human services insights in facilitating development of the statewide negotiation process. One aspect of ALRM’s approach has been that ‘experts’ have not been given primacy in setting the agenda. Rather ALRM’s process has delivered information, challenge and expertise into a largely Aboriginal political debate about how people should best act to secure their rights and interests. And Aboriginal interests have largely represented themselves (and have also been accepted by political, industry and community groups as appropriately representing themselves) in most of the political discussions generated by the process. It was decided early in the process that informed political judgement about how their society is represented to the wider world through claims, negotiations and other activities, and about the balance between litigation, legislation and negotiation in pursuing settlement of native title issues is the political and moral responsibility of native title claimants themselves, not of their advisers.[6]

The vision underpinning ALRM’s approach has been based on ten core (non-negotiable) principles[7]:

Native Title is about people, not legal technicalities: agreement-building must be about relationships between people and cannot be reduced to a legal definition.
The standing of the Aboriginal claimants as the principals in the negotiations: Native Title rights are real property rights that make Aboriginal people a real part of South Australia.
Non-extinguishment: agreement-building should not require extinguishment of Native Title.
Self-determination: agreement-building should be an exercise of self-determination not a precondition for it.
Fairness: agreement-building should be fair all participating groups should be better off, and none should be worse off because of an agreement, including not only Native Title interests, but also other Aboriginal groups and non-Aboriginal interests.
Inter-generational equity: agreements should recognise the principle of inter-generational equity, because they are likely to set important aspects of the conditions facing Aboriginal people for several generations they should not short term deals.
Sustainability: negotiated outcomes should be sustainable for the Aboriginal principals, including the transfer of skills and knowledge that makes the capacities developed within the Aboriginal domains sustainable into future generations.
Meaningful benefits: negotiated outcomes should be meaningful to the Aboriginal principals - agreement-building is only worthwhile if the Aboriginal principals judge that it will produce outcomes they want.
Benchmarks: to be worthwhile, outcomes should not only be better than exist now, but should also be better than can be achieved through other means (eg litigation or legislation) and reasonable against appropriate benchmarks (eg in comparable international settings). Appropriate benchmarks should be reviewed over time and opportunities to improve benchmarks should be taken from time to time.
An act of choice, not the only choice: agreement-building should not lock Aboriginal people into an ‘all-or-nothing’ situation, where they rely on complete settlement to achieve any gains at all - Aboriginal people should continue to negotiate only if they judge it to be producing worthwhile outcomes.

outcomes to date

While final agreement in South Australia remains a long way off, the process was intended to deliver meaningful outcomes along the way rather than locking claimants into waiting for a single, all-or-nothing solution. The State Government agreed to deal with registered claimants as if they were native title holders, and other stakeholders in the South Australian process have accepted this innovative approach.[8] To date the South Australian process has delivered significant procedural, emotional and substantive outcomes (Agius et al 2003), including:

High levels of community and stakeholder participation in relationship-building and cross-cultural recognition;
Establishment of the Congress of South Australian Native Title Management Committees (Congress)[9] as a recognised peak body on native title issues in the state;
Development of Native Title Management Committees’ (NTMC) capacity to make decisions for themselves, to choose whether or not to be involved in negotiations proposed by the state, to set strategic direction and priorities in the process, and to participate directly in decision-making and deliberations about native title and Indigenous rights;
Significant increases in the capacity of NTMCs and the Congress to drive and manage complex negotiations;
Reduced anger, frustration and time delays for native title interests and other parties in Native Title processes;
Withdrawal of a Government argument that native title was historically extinguished across the state in 1836;
Substantial amendment of the Confirmation and Validation Bill before it was presented to the South Australian Parliament in December 2000;
Aboriginal representation on the State Government’s Ministerial Advisory Board;
Several Pilot Projects involving negotiations between NTMCs and development interests, which have produced Memoranda of Understanding and ILUAs with support from the Congress;
On-going multi-stakeholder working parties actively reviewing a range of issues, including Aboriginal heritage management, National Parks and land access; and
Continuing engagement from native title claimants, the State Government (including both Liberal and Labor majority governments), the South Australian Farmers Federation (SAFF) and the South Australian Chamber of Mines and Energy (SACOME), South Australian Fishing Industry Council (SAFIC) and Seafood Council of Australia, and South Australian Local Government Association (SALGA) on issues of policy and process.

These outcomes are significant and have produced high levels of Aboriginal, industry, community and Government confidence in a process that targets a transformative approach to the politics of native title a dialogue across cultures that prioritises self-determination and mutual recognition. This inevitably opens up a wider set of issues for discussion.

implications and ISSUES

The statewide negotiation of native title in South Australia is building a capacity to change the sort of place that South Australia is. It is developing new institutions, new relationships and new practices which transform the nature of governance and administration of Aboriginal people and consequently their relationships with wider South Australian society.

Capacity-building is an issue

As a ‘dialogue across cultures’, the process stands out in Australian experience as creating space for Aboriginal self-determination in a national political context that has been deeply hostile to the principle of self-determination. The impact of historical erasure of the institutions of Aboriginal governance and denial of the ancient jurisdictions of customary law presents a challenge in developing the dialogue as a conversation between equals. The capacity of South Australian Aboriginal peoples to participate in such complex and demanding negotiations is constrained by these circumstances. In reflecting on their experience in complex negotiations, Canadian First Nation leaders have said that they felt like they were negotiating the constitution of a new country.[10] Native title claimants in South Australia want to put education, health, water, environmental management, employment, transport and communications on the negotiating agenda. Limiting the scope of negotiations to those issues that arise directly from a technical-legal approach to native title will not be acceptable to Aboriginal stakeholders although it may well fit with non-Aboriginal parties’ initial ideas about the appropriate scope for ‘comprehensive’ settlement discussions. Yet, in pursuing such wide-ranging reform[11], serious attention has to be given to capacity-building not in the sense that it is commonly used to refer to indigenous peoples’ capacity to respond to agendas that are presented to them[12], but in terms of their capacity to set the agenda for reform, and to exercise self-determination. Similarly, the capacity of mainstream institutions and those involved in them to accept Aboriginal people exercising self-determination has to be built. In both cases, this will involve substantial work in relationship building, and development of individual skills and various systems that are implicated in re-making South Australia as a place where Aboriginal self-determination is a practiced reality of everyday life.

Expertise and resources are an issue

Achieving this will, inevitably, require a rethinking of the sort of expertise that is drawn in to support indigenous peoples in exercising self-determination. There is, without doubt, significant pressure to identify some ‘experts’ who might take up the challenge and do the job of negotiation. It is important to note, however, that any so-called ‘expert’ is no better equipped than the indigenous groups themselves because the idea of a comprehensive negotiated settlement of Native Title at the scale under discussion in South Australia and its negotiation as an act of self-determination has simply not been tackled within the expert community in terms of process or consultation with the community either. Whatever competencies various technical experts have demonstrated to date, the capacity of the technical expert community to support Aboriginal self-determination is not one of them! In other words, it is necessary to develop new competencies within the native title system, within the claimant community, and between Aboriginal and non-Aboriginal stakeholders.

This raises serious resource issues. Resources are needed to support bringing Aboriginal people together, informing them, building new skills and relationships, facilitating communication and decision-making, and assisting people to come to the negotiations as equals with representatives of other stakeholders. The conventional practices of employing representative who simply treat native title negotiations like the dozens of other commercial and political negotiations that shape their professional lives will not produce the kinds of outcomes targeted by all the stakeholder groups involved. In South Australia, the cost to hold meetings of the combined NTMCs meetings which the delegates quickly began to refer to as ‘congress meetings’ was very significant and were a huge logistical undertaking. They had to occur simultaneously with the processing of claims in courts the Federal Court and narrower, local negotiations. Some groups had retained their own lawyers and wanted them present at every meeting. Others were clear that these were matters for Aboriginal political decision, and sought to reduce the influence of lawyers and other ‘experts’.

Aboriginal governance is a big issue

Conceptually, the creation of a new scale of Aboriginal governance through the development of the Congress raises the question of the previous erasure of the institutions and processes of Aboriginal self-governance, usually at more local scales in distinct tribal or language-based jurisdictions. In Australia, this erasure has generally passed without comment, being overtaken by a dominant discourse of colonial dispossession and more recent efforts to secure ‘land rights’, rather than a discourse of self-government or sovereignty. The erasure of Aboriginal self-governance from the cultural landscapes of Australia has actually denied us a language, a terminology with which to talk about these issues. Taiaiake Alfred[13] notes that the term sovereignty is inadequate to the purposes of indigenous self-governance because it is derived from discourses framed by nation states, rather than the particular jurisdictions of diverse indigenous peoples.

Thus, the process of building new systems of Aboriginal governance that reflect practices of self-determination will involve the development of new scale politics in the articulation of relationships within and between elements of the Aboriginal polity of South Australia. In marginalizing Aboriginal people from the structures of governance and excluding them from its institutionalised forms the state of South Australia has historically constituted ‘the state’ as a scale at which crucial decisions were to be made. In Aboriginal customary law, such a scale did not, and to a large extent still does not, exist. Instead, the landscape of Aboriginal governance was constituted at a smaller scale in which different geographies were constituted around affiliations between groups and their kin and country within the people-to-people and people-to-place relationships that constitute Aboriginal social relationships and within which self-determination needs to be conceptualised. Part of the very real challenge in this setting is that the ancient jurisdictions of customary law were not simply left alone as a sort of shadow set of institutions in South Australia, but were actively suppressed, undermined and erased. When we speak about the ‘scale of Aboriginal governance’, the practices of government intervention to exercise social control of Aboriginal people has been so pervasive as to make the concept of Aboriginal governance a difficult one to articulate publicly. So, the challenge is not simply to reinvigorate an existing shadow structure rooted in Aboriginal customary law, but to rebuild relationships within and between elements of the Aboriginal polity in ways that are consistent with customary law, but which meet the challenge of a new scale politics that arises from the demands of relationships with government, industry and other interests that transcend the geographical scales at which customary law was practiced in the past. For example, new projects in mining and energy require infrastructure that traverses the traditional country of many native title claimant groups, and requires consideration of issues and relationships that cannot be encompassed within a single NTMC. Likewise, political decisions about responses to issues of social and environmental justice that require the state to act, cannot be simply encompassed within the traditional relationships embraced by an NTMC.

Clearly, the challenge becomes building new scales at which Aboriginal authority might be constituted and exercised reasonably and accountably. What might an Aboriginal Regional Authority developed on the foundations provided by Congress actually look like? What would it do? How might it relate to government, or to non-native title interests in the wider Aboriginal community of the state? There cannot be any easy, glib answers to such difficult questions, but getting the scale right in building new relationships and new institutions will, in our view at least, be crucial.

Social theory is an issue, because identity, difference and hybridity are implicated in the politics of self-determination

We have reported a process that is focused on an intense and important engagement with the practicalities of social change. In the context of more abstract considerations raised by this conferences title, we also seek to consider the way in which such processes, such engagements, might usefully articulate with the domain of social theory.

In his discussion of the drivers of post-structuralist thought in Western philosophy May suggests that “the holocaust requires of us that we engage in forms of thinking and living that do not reduce others who may be unlike us to the status of mere things’.[14] In Australia, it is the ever-present reality of colonial and post-colonial erasure of the presence of Aboriginal and Torres Strait Islander peoples that requires that our thinking and practices challenge the reduction of the indigenous other to ‘the status of a mere thing’.

Australians face a reality where the social structure of Australia is hostile to most attempts to create a place for Indigenous Australians to belong.[15] It is precisely this that negotiations with the scope of the South Australian native title negotiations confront. Many of the structures that evolved in the context of the legal presumption of Aboriginal absence have actively erased and denied the Aboriginal presence in the cultural landscapes of the state, and defined Aboriginal identity in terms of that constructed absence. In bringing native title claimants together to construct a common political voice, people have witnessed no singular ‘Aboriginal’ identity, nor even a set of essentialised ‘tribal’ identities. Rather the participants have had to come to terms with a diverse set of histories of continuities and change in which individual and groups alike reflect the multiple possibilities of such histories. Within and between the NTMCs this has required the creation of opportunities for people to define their own interests in relation to the negotiations, rather than having them proscribed a priori by the technical requirements of the legal system governing native title.

In this sense, the negotiations have constructed a series of moments which have hybridised the incommensurate experiences of those they have brought together both amongst Aboriginal people and between the Aboriginal and non-Aboriginal interests involved. Bhabha refers to such hybridities in terms of a ‘Third Space of enunciations’[16] and draws attention to the extent to which the hybrid time-spaces of translation and negotiation are “alien territory” for all involved, and in opening the possibility of bringing participants to the “cutting edge” of “the in-between space”[17], it opens the prospects for genuinely new political responses. As we’ve articulated elsewhere[18], the strategies of inclusion and relationship-building that have characterised the South Australian native title negotiations have meant that these hybrid third spaces in South Australia have not been simply adversarial, nor have they asserted a self-righteous Aboriginal identity against a problematised and vilified White or industry identity caricature. In constructing mutual recognition as a foundation for coming to and staying in the negotiations, the process has allowed the participants to deal with real presences, histories and geographies, complex identities and shared experiences as a basis for addressing imagined absences, caricatures and projections as the basis for negotiating social change.

The idea of these negotiations creating a Third Space in which new articulations (both in the sense of expressions and linkages) become possible with the juxtaposition of previously incommensurable realities creates some powerful images and possibilities. It is beyond the scope of this paper to do anything more than point to the fertility of such thinking political terms.

Ethics is an issue

The potency of these negotiations as a point of departure for some challenging dialogues across the gulfs of Australian inter-cultural politics brings us to our closing consideration ethics. Taiaiake Alfred’s manifesto for indigenous leadership issues some pretty strong challenges to indigenous leaders in the Canadian context, arguing, among other things, for example that the comprehensive settlement negotiation process in British Columbia:

illustrates all the problems that indigenous peoples face in their struggle to overcome colonialism: racism and ignorance in the mainstream, apathy in Native communities, co-optation of Native leadership, aggressive manipulation of the process by the state. The basic assumptions embedded in the process and the negotiating positions put forward in relation to indigenous peoples point to the state’s innate prejudice against justice for indigenous peoples (p119-120)[19]

More generally, he argues that the co-optation of indigenous leadership:

is a subtle, insidious, undeniable fact, and it has resulted in a collective loss of ability to confront the daily injustices, both petty and profound, of Native life (p73).[20]

These are serious issues that have led us to long discussions about the ethics of leadership and the ethics of expertise. In both cases, our conclusions have been rather straightforward. In the South Australian process, both leadership and expertise is subject to accountability to customary law, and to the principle of self-determination.

Conlcusion

Through statewide negotiations building on their native title claims, South Australia’s Native Title interests are seeking to change the sort of place that South Australia is, and the sorts of place it provides for Aboriginal peoples, by putting in place new institutions, new relationships and new practices that are underpinned by a societal commitment to indigenous South Australians’ right to self-determination. We see this as the basis for political action to challenge the place of indigenous Australians in the administrative and political landscape and consequently to provide an opportunity to challenge more widely the places to which indigenous Australians are pushed by the dominant culture of the nation. The experience of Native Title interests in South Australia points to bigger issues indigenous rights and inter-cultural engagement in pluralist democracies that raise important conceptual challenges to theorists of difference and dialogue.