Native title and the inherent right of Indigenous self-government

Wednesday, 6 June 2018
Ciaran O'Faircheallaigh

An overarching issue that shapes the framework for interaction of different systems of law in relation to land and sea country involves the extent to which, and the manner in which, recognition of native title brings with it recognition of an inherent right to Indigenous self-government. In Australia, the link between native title as a property right and native title as a right of internal self-government has effectively been broken. This has profound implications for the governance of Indigenous affairs, and for the extent to which native title holders can, in effect, exercise rights and interests in land notionally conferred on them by determinations of native title. This paper shows that there was no inevitability about the denial of an inherent right of government as a component of native title, drawing on an analysis of legislative and policy developments in Australia and on a comparison with parallel developments in Canada. It argues that unless this denial can be reversed, there is little prospect that native title can allow Indigenous Australians to reassert their laws as an essential element in management of their country, or use recognition of native title to address economic, social and cultural challenges and opportunities they face.