Indigenous nation building and native title: strategic uses of a fraught settler-colonial regime

ABSTRACTDespite the ongoing and destructive nature of invasion and settler-colonial institutions, laws and policies in Australia, many Aboriginal and Torres Strait Islander nations continue to assert their sovereignty; exercise their inherent rights to self-determination as self-defined, autonomous peoples; and pursue collective aspirations in highly constrained and contested environments. Many nations are engaged in Indigenous nation (re)building (INB). One key INB strategy utilised by such nations is to use settler-colonial policy for their own collective ends. This article analyses the relationship between a complex and highly fraught settler-colonial legal-political system, native title, and INB processes in Australia. Using the ‘Identify as a Nation, Organise as a Nation, Act as a Nation’ framework, we explore some of the actual and potential relationships between the native title system and INB. Despite the considerable harms of the native title system on Aboriginal and Torres Strait Islander peoples, we maintain that First Nations may be able to strategically engage in the system in a way that assists them to further their cultural and political autonomy.KEYWORDS: Indigenous nation buildingnative titleself-determinationsettler-colonialismIndigenous Affairs AcknowledgementsThanks to Simone Bignall for her helpful comments on this article.Disclosure statementNo potential conflict of interest was reported by the authors.Notes1 Irene Watson, ‘Settled and Unsettled Spaces: Are We Free to Roam?’, in Sovereign Subjects: Indigenous Sovereignty Matters, ed. Aileen Moreton-Robinson (Sydney: Allen & Unwin, 2007), 25.2 Jorgensen, ‘Editor’s Introduction’, in Rebuilding Native Nations, xii.3 INB research emerges from the Harvard Project on American Indian Economic Development and its sister organisation, the Native Nations Institute for Leadership, Management and Policy. For an overview of the research of the Harvard Project and the Native Nations, see Miriam Jorgensen, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson: University of Arizona Press, 2007).4 See Stephen Cornell and Joe Kalt, ‘Two Approaches to the Development of Native Nations: One Works, the Other Doesn’t’, in Rebuilding Native Nations, 3–33.5 Stephen Cornell, ‘Processes of Native Nationhood: The Indigenous Politics of Self-Government’, The International Indigenous Policy Journal 6, no. 4, art. 4 (2015): 1–27. Cornell has since articulated that a fourth element of ‘Purpose’ is apparent in INB processes (IPOA). The authors of this paper maintain that ‘Purpose’ is sufficiently accounted for in the IOA framework.6 In this article, we refer to Indigenous Peoples, in line with the United Nations Declarations on the Rights of Indigenous Peoples. We also use the terms First Nations and Aboriginal and Torres Strait Islander nations to denote the political nature of these collectives, and to reflect the experiences and preferences of the nations we work with.7 There is a vast range of literature on the global formations and tenets of settler-colonialism. For an overview, see Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’, Journal of Genocide Research 8, no. 4 (2006): 387–409; and Lorenzo Veracini, ‘Introducing Settler Colonial Studies’, Settler Colonial Studies 1, no. 1 (2011): 1–12.8 See Daryle Rigney, Simone Bignall, Alison Vivian and Steve Hemming, Indigenous Nation building and the Political Determinants of Health and Wellbeing (Melbourne: Lowitja, 2022); and also Michael J. Chandler and Christopher E. Lalonde 2008, ‘Cultural Continuity as a Moderator of Suicide Risk Among Canada’s First Nations’, in Healing Traditions: The Mental Health of Aboriginal Peoples in Canada, ed. Laurence Kirmayer and Gail Valaskakis (Vancouver: University of British Columbia Press, 2009), 221–48.9 Council for Aboriginal Reconciliation, Walking Together: The First Steps (Canberra: Australian Government Printing Service, 1994), 4.10 For an overview, see Patrick Wolfe’s seminal text, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (London: Cassell, 1999). There is some evidence to suggest the state’s approach to First Nations may be shifting. In 2022, the Australian Labor Government committed to the 2017 Uluru Statement from the Heart, which calls for a First Nations Voice enshrined in the Constitution; an agreement making process between Australian governments and First Nations; and a truth-telling process. The current proposed amendment to the Australian Constitution to enable an Indigenous Voice to Parliament includes ‘recognition’ of ‘First Peoples’. See Uluru Statement 2023, ‘Design Principles of the Aboriginal and Torres Strait Islander Voice’, https://ulurustatement.org/education/design-principles/.11 Elizabeth Strakosch, ‘The Technical is Political: Settler Colonialism and the Australian Indigenous Policy System’, Australian Journal of Political Science 54, no. 1 (2019): 114–30, and Alison Vivian and Michael Halloran, ‘Dynamics of the Policy Environment and Trauma in Relations Between Aboriginal and Torres Strait Islander Peoples and the Settler-Colonial State’, Critical Social Policy 42, no. 4 (2022): 626–47.12 Cornell, ‘Processes of Native Nationhood’, 8. See also Simone Bignall, ‘What is “Postcolonial?”’, in Postcolonial Agency: Critique and Constructivism (Edinburgh: Edinburgh University Press, 2010).13 Articles 3–15 on self-determination are particularly relevant. For a discussion of the importance of the Declaration to Aboriginal and Torres Strait Islander peoples, see Asmi Wood, ‘Self-Determination Under International Law and Some Possibilities for Australia’s Indigenous Peoples’, in Indigenous Self-Determination in Australia: Histories and Historiography, ed. Laura Rademaker and Tim Rowse (Canberra: Australian National University Press, 2020), 269–92.14 Key First Nations theorists specifically engaged in INB research, working either within or in research partnerships with Australian universities include Daryle Rigney, Janine Gertz, Damein Bell, Matthew Walsh, Donna Murray, Debra Evans, Dennis Eggington and Larissa Behrendt. We also note that there are countless Aboriginal and Torres Strait Islander researchers working on closely related matters around Indigenous self-determination, governance and autonomy.15 Research partnerships (including some authors) with the Gunditjmara People and Ngarrindjeri Nation, and later individuals and groups from the Wiradyuri, Gugu Badhun and Nyungar Nations found that the Harvard Project’s principles were highly relevant in Australia. Research projects have included Australian Research Council projects: ‘Negotiating a space in the nation: the case of Ngarrindjeri’ (DP1094869); ‘Indigenous nationhood in the absence of recognition: Self-governance insights and strategies from three Aboriginal communities’ (LP140100376); and ‘Prerequisite conditions for Indigenous nation self-government’ (DP190102060). A book detailing initial inquiries with the Ngarrindjeri and Gunditjmara nations is forthcoming (see Larissa Behrendt et al. in press, Resistance, Resilience, Resurgence: Indigenous Nation Building in Australia (Bloomsbury)). For further description of INB strategies and experiences in Australia, see Miriam Jorgensen et al., ‘Yes, The Time Is Now: Indigenous Nation Policy Making for Self-determined Futures’, in Public Policy and Indigenous Futures, ed. Nikki Moodie and Sarah Maddison (Melbourne: Springer, 2023), 129–47; Rigney et al., Indigenous Nation Building; Rigney et al., ‘Treating Treaty as a Technology for Indigenous Nation Building’, in Developing Governance and Governing Development: International Case Studies of Indigenous Futures, ed. Diane Smith et al. (London: Rowman and Littlefield, 2021); Steve Hemming and Daryle Rigney, ‘Unsettling Sustainability: Ngarrindjeri Political Literacies, Strategies of Engagement and Transformation’, Continuum: Journal of Media and Cultural Studies 22, no. 6 (2008): 757–75; Steve Hemming, Daryle Rigney and Shaun Berg, ‘Ngarrindjeri Futures: Negotiation, Governance and Environmental Management’, in Unsettling the Settler State: Creativity and Resistance in Indigenous Settler-State Governance, ed. Sarah Maddison and Morgan Brigg (Sydney: Federation Press, 2011), 104–109; Theresa Petray and Janine Gertz, ‘Building an Economy and Building a Nation: Gugu Badhun Self-Determination as Prefigurative Resistance’, Global Media Journal 12, no. 1 (2018): https://www.hca.westernsydney.edu.au/gmjau/wp-content/uploads/2018/10/GMJAU-Building-an-economy-and-buildin … ermination-as-prefigurative-resistance.pdf.pdf (accessed March 17, 2023); and Toni Bauman and Diane Smith, Indigenous Self-Governance and ‘Nation’ Building: Considerations For a Strategic Self-Analysis Tool, Discussion Paper (Canberra: Centre for Aboriginal Economic Policy Research, 2022), https://openresearch-repository.anu.edu.au/handle/1885/269982 (accessed March 17, 2023).16 See Jorgensen et al., ‘Yes, The Time is Now’; Hemming et al., ‘Ngarrindjeri Futures’; and Rigney et al., ‘Treating Treaty as a Technology’.17 Cornell, ‘Processes of Native Nationhood’, 15.18 Mabo v Queensland [No. 2] (1992) 175 CLR 1.19 See, for e.g. Lisa Strelein, ‘Conceptualising Native Title’, Sydney Law Review 23 (2001): 95–124; Kirsten Anker, ‘The Law of the Other: Exploring the Paradox of Legal Pluralism in Australian Native Title’, in Dealing with the Other: Australian Faces and Interfaces, ed. Pierre Lagayette (Paris: Sorbonne University Press, 2008); and Paul McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status and Self-Determination (London: Oxford University Press, London, 2005), 340.20 Noel Pearson, ‘The Concept of Native Title at Common Law’, Australian Humanities Review 5 (1997): http://australianhumanitiesreview.org/1997/03/01/the-concept-of-native-title-at-common-law/ (accessed March 17, 2023). See also Shaunnagh Dorsett and Shaun McVeigh, ‘Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking’, Melbourne University Law Review 36 (2012): 470–93.21 See, for e.g. Aileen Moreton-Robinson, The White Possessive: Property, Power and Indigenous Sovereignty (Minneapolis: University of Minnesota Press, 2015); and for global analysis, J. Kēhaulani Kauanui, ‘“A Structure, Not an Event”: Settler Colonialism and Enduring Indigeneity’, Lateral 5, no. 1 (2016); and Audra Simpson, Mohawk Interrupts: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014).22 National Native Title Council, ‘Current Applications’, http://www.nntt.gov.au/Pages/Statistics.aspx (viewed August 14, 2023); and for analysis of the size and location of PBCs, see Australian Institute for Aboriginal and Torres Strait Islander Studies (AIATSIS), ‘Prescribed Bodies Corporate National Snapshot’, https://nativetitle.org.au/learn/role-and-function-pbc/pbc-national-snapshot (viewed August 15, 2023).23 This was suggested at the time of Mabo and since. As Stephen Young writes, native title is a ‘cover colonial process … produced as a pragmatic, reasonable, and progressive step in the right direction’. See Young, ‘Native Title as Displaced Mediator’, University of New South Wales Law Journal 44, no. 4 (2021): 1743.24 Most prominently by Patrick Wolfe in his seminal 1996 article ‘Settler Colonialism’. See also Stewart Motha, ‘The Failure of “Postcolonial” Sovereignty in Australia’, Australian Feminist Law Journal 22, no. 1 (2005): 107–25; Ben Silverstein, ‘Submerged Sovereignty: Native Title Within a History of Incorporation’, in Sovereignty: Frontiers of Possibility, ed. Julie Evans et al. (Honolulu: University of Hawaii Press, 2013), 60–85; and more recent analyses such as Catherine Howlett and Rebecca Lawrence, ‘Accumulating Minerals and Dispossessing Indigenous Australians: Native Title Recognition as Settler-Colonialism’, Antipode 51, no. 3 (2019): 818–37; and Young, ‘Native Title as Displaced Mediator’, 1739–69.25 See Jorgensen et al., ‘Yes, The Time is Now’, 131–4.26 See, for example, Pamela McGrath, ‘The Work of Rights: The Nature of Native Title Labour’, in Engaging Indigenous Economy: Debating Diverse Approaches, ed. Will Sanders (Canberra: Australian National University Press, 2016), 251–63; and Alexander Page, ‘Fragile Positions in the New Paternalism: Indigenous Community Organisations During the ‘Advancement’ Era in Australia’, in The Neoliberal State, Recognition and Indigenous Rights: New Paternalism to New Imaginings, ed. Diedre Howard-Wagner et al. (Canberra: ANU Press, 2018), 185–200.27 See Ivan Ingram, ‘Indigenous Governance and Native Title in Australia’, in Developing Governance and Governing Development, 29–46; Justin McCaul, ‘Caring for Country as Deliberate Policymaking’, in Public Policy and Indigenous Futures, 51–72; Lisa Strelein and Tran Tran, ‘Building Indigenous Governance from Native Title: Moving Away from ‘Fitting in’ to Creating a Decolonized Space’, Review of Constitutional Studies 18, no. 1 (2013): 19–48; Jessica Weir, ‘Karajarri: Native Title and Governance in the West Kimberley’, Living with Native Title: The Experiences of Registered Native Title Corporations, ed. Toni Bauman et al. (Canberra: AIATSIS, 2013), 147–74; Lisa Strelein, ‘Native Title Bodies Corporate in the Torres Strait: Finding a Place in the Governance of a Region’, in Living with Native Title, 65–108; Tran Tran and Claire Stacey, ‘Wearing Two Hats: The Conflicting Governance Roles of Native Title Corporations and Community/Shire Councils in Remote Aboriginal and Torres Strait Islander Communities’, Land, Rights, Laws: Issues of Native Title 6, no. 4 (2016): 1–20; and Jeremy Webber, ‘Native Title as Self-Government’, UNSW Law Journal 22 (1992): 2.28 We do not define First Nations sovereignty except to note that it is enduring and ongoing. Noting also that the term is contested amongst Aboriginal and Torres Strait Islander peoples, we use ‘sovereignty’ here as an imperfect shorthand to place it in the same analytical frame as settler sovereignty, and to emphasise ongoing power relations in Australia.29 Our methodology for undertaking INB research partnerships is articulated in Alison Vivian et al., ‘Implementing a Project within the Research Paradigm: The Example of Nation Building Research’, Ngiya: Talk the Law 5 (2016): 47–74.30 For analysis of the term’s usage and history, see Jorgensen et al., ‘Yes, The Time is Now’, 131–4.31 Cornell, ‘Processes of Native Nationhood’, 18.32 See also Jorgensen et al., ‘Yes, The Time is Now’, 134.33 Irene Watson, ‘Sovereign Spaces, Caring for Country, and the Homeless Position of Aboriginal Peoples’, South Atlantic Quarterly 108, no. 1 (2009): 45.34 Watson, ‘Sovereign Spaces’, 44.35 Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (London: Cassell, 1999), 203.36 As indicated by Justice North in dissent in Western Australia v Ward [2000] FCA 191 [688]. As Justice North put it, ‘Whilst native title is not recognised by the common law in circumstances amounting to extinguishment, and is therefore ineffective under the common law system, native title does not cease to exist as an operative force among aboriginal people. It does not cease to exist for all purposes, only for the purposes of the common law’. See also Irene Watson, ‘Sovereign Spaces, caring for Country, and the Homeless Position of Aboriginal Peoples’, South Atlantic Quarterly 108, no. 1 (2009): 27; and See also Brenan Edgeworth, ‘Extinguishment of Native Title: Recent High Court Decisions’, Indigenous Law Bulletin 8, no. 22 (2016): 28–34.37 See, for e.g. Ingram ‘Indigenous Governance’, 33–6.38 Ibid., 36; Kingsley Palmer, Australian Native Title Anthropology: Strategic Practice, the Law and the State (Canberra: ANU Press, 2018); and Simon Young, The Trouble with Tradition. Native Title and Cultural Change (Sydney, Federation Press: 2008).39 Strelein and Tran, ‘Building Indigenous Governance’, 46.40 See Melissa Burbidge et al., Report on the 2019 Survey of Prescribed Bodies Corporate (PBCs) (Canberra: National Native Title Council, AIATSIS, 2020), 28–32; McGrath, ‘The Work of Rights’, 251–63; Ingram, ‘Indigenous Governance’, 38–39; Tran and Stacey, ‘Wearing Two Hats’; and also Elizabeth Strakosch, ‘The Technical is Political: Settler Colonialism and the Australian Indigenous Policy System’, Australian Journal of Political Science 54, no. 1 (2019): 114–30.41 See Howlett and Lawrence, ‘Accumulating Minerals and Dispossessing Indigenous Australians’, 1739–69; and Ed Wensing, ‘Dealings in Native Title and Statutory Aboriginal Land Rights in Australia: What Land Tenure Reform is Needed?’, in Engaging Indigenous Economy: Debating Diverse Approaches, CAEPR Monograph No. 35, ed. Will Sanders (Canberra: ANU Press, 2016). The destruction of Juukan Gorge in 2020 at the hands or Rio Tinto has brought these issues again to the fore. See Joint Standing Committee on Northern Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge (Canberra: Parliament of the Commonwealth of Australia, 2021), and Jon Altman, ‘The Native Title Act Supports Mineral Extraction and Heritage Destruction, Arena, June 16, 2020, https://arena.org.au/the-native-title-act-supports-mineral-extraction-and-heritage-destruction/.42 Weir, ‘Karajarri’, 149.43 Ingram, ‘Indigenous Governance’, 43.44 See both Mick Gooda, ‘Chapter 2: Lateral violence in native title: our relationships over our lands, territories and resources’, Native Title Report 2011 (Sydney: Australian Human Rights Commission), 74–115, and Larissa Behrendt and Loretta Kelly, Resolving Indigenous Disputes: Land Conflict and Beyond (Sydney: The Federation Press, 2008), 27–56.45 See Stephen Cornell, ‘That’s the Story of Our Life’, in We are a People: Narrative and Multiplicity in Constructing Ethnic Identity, ed. Paul Spickard and W.J. Burroughs (Philadelphia: Temple University Press, 2000), 41–51.46 Cornell, ‘Processes of Native Nationhood’, 6.47 Donna Murray and Deb Evans, ‘Culturally Centred, Community Led: Wiradjuri Nation Rebuilding through Honouring the Wiradjuri Way’, in Developing Governance and Governing Development, 165–86.48 Murray and Evans, ‘Culturally Centered, Community Led’, 176.49 For discussion of constructions of Aboriginality as ‘homo religiosus’, see Jeremy Beckett, ‘The Past in the Present; the Present in the Past: Constructing a National Aboriginality’, in Past and Present: The Construction of Aboriginality (Canberra: Aboriginal Studies Press, 1988), 207; and, as ‘homo superorganicus’, see Patrick Wolfe, ‘Nation and MiscegeNation: Discursive Continuity in the Post-Mabo Era’, Social Analysis 36 (1994): 134.50 Mabo & Ors v The State of Queensland [No 2] (1992) 175 CLR 1 per Brennan J 64; also per Deane & Gaudron JJ at 89, per Dawson J at 133; The Wik Peoples v State of Queensland (1996) 187 CLR 1 per Kirby J at 215.51 Yorta Yorta (2002) 214 CLR 422 [52], [50].52 Mabo [No 2] (1992) 175 CLR 1, 54–57 (Brennan J); Western Australia v The Commonwealth (1995) 183 CLR 373 per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh at 433.53 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 at [31].54 Alyawarr (FCA) [78]. There is no ‘technical, jurisprudential or social scientific criteria for the classification of groups as ‘societies’.55 For discussions on sovereignty and the legal gymnastics undertaken by the High Court to ensure it did not countenance findings that would challenge its own legitimacy or that of the Australian state, see, for e.g.: Silverstein, ‘Submerged Sovereignty’; Motha, ‘The Failure of “Postcolonial” Sovereignty in Australia’, 107; Ben Golder, ‘Law, History, Colonialism: An Orientalist Reading Of Australian Native Title Law’, Deakin Law Review 9, no. 1 (2004): 41–60; Peter Fitzpatrick, ‘“No Higher Duty”: Mabo and the Failure of Legal Foundation’, Law and Critique 13 (2002): 233–52. Importantly, some First Nations envisage native title as an expression of their sovereignty, regardless of assertions to the contrary (see Benjamin R. Smith and Frances Morphy, ‘The Social Effects of Native Title: Recognition, Translation, Coexistence’, in The Social Effects of Native Title: Recognition, Translation, Coexistence, ed. Benjamin R. Smith and Frances Morphy (Canberra: ANU E Press, 2007)).56 See, for e.g. Weir, ‘Karajarri’, 54. Weir describes how the Karajarri became ‘mobilised around native title’ after the building of a fence that ‘threatened access to culturally significant’ sites.57 Ingram, ‘Indigenous Governance’, 43.58 Ibid., 36.59 Eggington, interview with Anthea Compton and Alison Vivian, March 10, 2022. Eggington prefers ‘Nyungar’ to refer to his nation. Noongar is used elsewhere in this paper is the spelling used in the nation’s native title claim. Originally 78 claims were developed across Noongar Nation (Noongar Boodja/Country extends across much of the south-west of Western Australia). By 1998, these were amalgamated into 6, and by 2003, a singular claim was brought forward by the South West Aboriginal Land and Sea Council (SWALSC).60 This was not without significant challenges. See Manuhuia Barcham, ‘Noongar Nation’, in Contested Governance: Culture, Power and Institutions in Indigenous Australia, ed. Janet Hunt et al. (Canberra: ANU Press, 2008), 265–82.61 Cornell and Kalt, ‘Two Approaches to Native Nation Development’, 28–29.62 Ibid.63 Native Title Act, s 61 Native Title Act, s 251B.64 Native Title Act, s 251B(a).65 Ingram, ‘Indigenous Governance’, 37.66 Native Title Act, s 55. Following a positive determination, the PBC becomes a Registered Native Title Body Corporate (RNTBC). The terms are sometimes used interchangeably.67 See, for e.g. McCaul, ‘Caring for Country as Deliberate Policymaking’, 51–72; and Toni Bauman, ‘Nations and Tribes “Within”: Emerging Aboriginal “Nationalisms” in Katherine’, The Australian Journal of Anthropology 17, no. 3 (2006): 322–35.68 Burbidge et al., Report on the 2019 Survey, 37.69 Ibid., 7, 38.70 Gugu Badhun Country includes the upper Burdekin region in north Queensland. The Gugu Badhun Nation are also known as the ‘People of the Valley of Lagoons’.71 Petray and Gertz, ‘Building an Economy and Building a Nation’.72 Ibid.; and GBAC, Gugu Badhun Aboriginal Corporation Strategic Plan 2020–2025 (Townsville: GBAC, 2020), 5–6, http://www.gugubadhun.com/about-gbac. For analysis of the importance of cultural match, see Cornell and Kalt, ‘Two Approaches to the Development of Native Nations’, 24–25.73 The Gunditjmara People is the self-identified name of the Gunditjmara nation. Their Country extends over the southwest of Victoria.74 For analysis of the Gunditjmara Full Group, see Daryle Rigney et al., ‘Gunditjmara and Ngarrindjeri: Case Studies of Indigenous Self-Government’, in Cambridge Legal History of Australia, ed. Peter Cane, Lisa Ford and Mark McMillan (Cambridge: Cambridge University Press, 2022), 186–224.75 Jorgensen et al., ‘Yes, The Time is Now’, 135–7.76 In fact, one of KLC’s 4 strategic priorities for 2020–24 is ‘empowerment in Nation Building’ for the Traditional Owner groups in the regions. See KLC, KLC Strategic Plan 2020–2024 (Broome: KLC, 2020), 2, https://www.klc.org.au/klc-strategic-plan.77 As expressed by COO Felicity Thiessen in 2021. See CAEPR, ‘“People, Place and Partnership”: A Model for Leveraging and Governing Native Title’, https://caepr.cass.anu.edu.au/events/people-place-and-partnership-model-leveraging-and-governing-native-title (viewed March 30, 2023).78 Cornell, ‘Processes of Native Nationhood’, 12.79 Cornell and Kalt, ‘Two Approaches to Native Nation Development’, 9–11.80 Gertz, ‘Treaties, Agreements and Other Constructive Arrangements, between Indigenous Peoples and States, Including Peace Accords and Reconciliation Initiatives, and Their Constitutional Recognition’, UN Seminar of the Expert Mechanism on the Rights of Indigenous Peoples, 29 November – 1 December 2021, https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIP-Seminar-Treaties.aspx (viewed January 28, 2022).81 The Torres Strait, for example, now includes 19 PBCs alongside the pre-existing Torres Strait Regional Authority and the Torres Strait Islands Regional Council. These bodies have differing forms of representation and (settler-sanctioned) jurisdiction, ensuring a ‘struggle for autonomy’ has ensued (Strelein, ‘Native Title Bodies Corporate’, 66). Likewise, in the Kimberley, PBCs were added into a region where community councils already effectively functioned as ‘local governments’ (Weir, ‘Karajarri’, 148). In the first instance, this suggests that whether or not First Nations already have self-governance systems in place may affect the usefulness of PBC to collective decision-making.82 Cornell, ‘Processes of Native Nationhood’, 16–18.83 Rigney et al., Indigenous Nation Building, 2.84 See Merlan, ‘Australia’s First Nations’, American Anthropologist 124, no. 1 (2022): 175–86.85 Jessica Weir, The Gunditjmara Land Justice Story (Canberra: AIATSIS, 2009), 7.86 Weir, The Gunditjmara Land Justice Story, 27.87 There is a long history of First Nations using community organisations for collective action and political advocacy. The rise of the ‘Indigenous sector’ since the 1980s – a product of the so-called ‘self-determination’ era – has enabled significant political advocacy, leading to some shifts in health, housing and education policy and discourse. See Patrick Sullivan, ‘The Aboriginal Community Sector and the Effective Delivery of Services: Acknowledging the Role of Indigenous Sector Organisations’, Desert Knowledge CRC Working Paper Series 73 (2010), https://www.nintione.com.au/resource/DKCRC-Working-paper-73_Indigenous-sector-oganisations.pdf (viewed March 31, 2023).88 Rigney, quoted in Daryle Rigney, Damein Bell and Alison Vivian, ‘A Conversation on How Indigenous Nations Can Become Treaty Ready’, in Treaty Making: 250 Years Later, ed. Harry Hobbs, Alison Whittaker and Lindon Coombes (Sydney: Federation Press, 2021), 27.89 See, for e.g. Australian Institute of Indigenous Governance, ‘9.1 What is Nation Rebuilding?’ Indigenous Governance Toolkit, https://toolkit.aigi.com.au/toolkit/9-1-what-is-a-network (viewed March 14, 2022); and Agreements, Treaties and Negotiated Settlements, ATNS, Nation Building in Australia, https://www.atns.net.au/nation-building-landing.90 Ingram, ‘Indigenous Governance’, 29.91 Altman, ‘Indigenous Rights, Mining Corporations and the Australian State’, in The Politics of Resource Extraction, ed. Suzana Sawyer and Edmund Terence Gomez (London: Palgrave Macmillan, 2012), 46.92 As put by Ciaran O’Faircheallaigh, ‘There is now a broad policy consensus in Australia that mineral development should proceed with the agreement of, rather than over the opposition of, Aboriginal traditional owners’. See O’Faircheallaigh, ‘Aborigines, Mining Companies and the State in Contemporary Australia: A New Political Economy or ‘Business as Usual’, Australian Journal of Political Science 41, no. 1 (2006): 1–22. Significantly, and as laid out in Part 2, Division 3 of the NTA, ILUAs can be negotiated with native title claimant groups. A positive determination is not required.93 O’Faircheallaigh, ‘Aborigines, Mining Companies and the State’, 6.94 As O’Faircheallaigh explains, settler governments tend due to view Aboriginal land through a neoliberal lens, with a view to enabling particular types of development. See O’Faircheallaigh, ‘Aborigines, Mining Companies and the State’, 2.95 Petray and Gertz, ‘Building an Economy and Building a Nation’.96 Burbidge et al., Report on the 2019 Survey, 21.97 Ngarrindjeri Country includes the Coorong lagoon area on the coast of South Australia inland to the Murray River and Murray lakes. For descriptions of Kuti Co, see Jawun, ‘Kuti Co – Strengthening the Ngarrindjeri Nation Through their Pipi Harvest Enterprise’, Jawun, July 28, 2020, https://jawun.org.au/2020/07/kuti-co-strengthening-the-ngarrindjeri-nation-through-their-pipi-harvest-enterprise/; Indigenous Land & Sea Corporation, ‘Kuti Co Pipi Project’, https://www.ilsc.gov.au/home/project-profiles/kuti-co-pipi-project/; and Goolwa Pipi Co, ‘Back on Country. Ngarrindjeri: 19,000 Years on Country’, https://goolwapipico.com/ngarrindjeri/.98 See Murray and Evans, ‘Culturally Centered, Community Led’, 165–86.99 Jorgensen et al., ‘Yes, The Time is Now’, 138–9, and Donna Murray, interview with Anthea Compton and Alison Vivian, 26 June 2023. Some Wiradyuri people are engaged in preliminary work around possible claim/s.100 See, for e.g. the National Native Title Council’s PBC Policy Reform project at https://nntc.com.au/our-agenda/pbc-policy-reform-nation-building/ (viewed March 14, 2022); or the comments of the QSNTS at the 2022 AIATSIS summit, at https://aiatsis.gov.au/whats-new/news/2022-aiatsis-summit-navigating-spaces-between (viewed December 1, 2022).101 See Gooda, Native Title Report 2011, 107–10, and Behrendt and Kelly, Resolving Indigenous Disputes.102 Janine Gertz’ recently completed doctoral thesis will be a highly significant resource in this regard. See Gertz, Gugu Badhun Sovereignty, Self-Determination, and Nationhood (PhD thesis, James Cook University, 2022), https://researchonline.jcu.edu.au/77294/.103 In addition to PBCs, settler governments are also willing to engage with Aboriginal community-controlled service delivery organisations, including peak bodies, which are not necessarily linked to a particular First Nation. The National Agreement on Closing the Gap is one such example of such engagement.104 Gertz, ‘Treaties, Agreements and Other Constructive Arrangements’.105 The Ngarrindjeri Nation entered into 2016–17 treaty negotiations with the South Australian Government through the Ngarrindjeri Regional Authority (NRA), the peak decision-making body for the nation. The NRA cultivated long-standing effective relationships with state government public servants. See Rigney et al., ‘Treating Treaty as a Technology for Indigenous Nation Building’, 119–40.106 The Barunga Agreement is a Memorandum of Understanding to negotiate framework for treaty development. While the Land Councils are established under the Aboriginal Land Rights (Northern Territory) Act 1976, the NLC and CLC are also NTRBs. See NT Treaty Commission, ‘History’, https://treatynt.com.au/history (viewed March 30, 2023).107 Victorian Government, ‘Applications and Registrations’, https://www.aboriginalheritagecouncil.vic.gov.au/applications-and-registration.108 Gertz, ‘Treaties, Agreements and Other Constructive Arrangements’. As Gertz has described, if PBCs are used in place of other representative bodies in negotiations for treaties, this risk ensuring that negotiations are ‘corporate-to-sovereign’ rather than ‘sovereign-to-sovereign’, with the potential to reinscribe settle-colonial hierarchies.109 Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 has seen the Ngaliwurru and Nungali peoples awarded $2,530,350 in compensation for damage and extinguishment of their native title in and around the town of Timber Creek in the Northern Territory, plus interest. In turn, this has established a calculation for compensation claims and also set a precedent for historical ‘loss’ (since 1975) alongside future extinguishment. See Young, ‘Native Title as Displaced Mediator’; and Young, ‘Computing Compensation for Extinguishing Native Title in Australia’, The New Zealand Law Journal 4 (2020): 153–57.110 See Shelley Marshall, Carla Chan Unger, and Suzi Hutchings, ‘When Native Title Fails: First Nations People are Turning to Human Rights Law to Keep Access to Cultural Sites’, The Conversation, October 22, 2021, https://theconversation.com/when-native-title-fails-first-nations-people-are-turning-to-human-rights-law-to-keep-access-to-cultural-sites-169634; Yorta Yorta Nation Aboriginal Corporation, ‘Yorta Yorta Nation Aboriginal Corporation’, https://yynac.com.au/.111 In 2022, the SWALSC reached an agreement with the WA Government resolving all native title claims in exchange for a package including 6 ILUAs (see SWALSC, Settlement Agreement, https://www.noongar.org.au/about-settlement-agreement). For analysis of some of the differences in Noongar views on the Settlement, including legal challenges against the ILUAs, see Hannah McGlade, ‘The McGlade Case: A Noongar History of Land, Social Justice and Activism’, Australian Feminist Law Journal 43, no. 2 (2017): 185–210.112 Collard, interview with Anthea Compton and Alison Vivian, March 10, 2022.Additional informationFundingThis work was supported by the Australian Research Council under a Discovery Grant (ARC DP190102060 Prerequisite Conditions for Indigenous Self-Government).