One of the most important social effects of native title has been its impact on coexistence. Since the initial success of the Mabo No. 2 claim and the passing of the NTA, native title has been labelled as a threat to co-existence. Such claims are exemplified by the statements made following the passage of the Act by the then Deputy Prime Minister Tim Fischer’s about the threat to Australians’ backyards (claims echoed in the Attorney-General Philip Ruddock’s recent claims that the Noongar native title case in Perth represents a threat to beaches and parks around Australia).

In Chapter 6, Smith discusses the relationship between Aboriginal people and pastoralists in central Cape York Peninsula, at the eastern fringes of the Wik claim area. Until recently, these relationships have remained extremely close, but also deeply marked by the history of indentured labour relationships between Aborigines and settlers. But a decline in Aboriginal employment following the ‘freedom’ of the 1970s has weakened—although not removed—these ties, which were further strained by the advent of land rights and the NTA). Non-Indigenous pastoralists’ responses to the Wik claim were initially extremely negative, and many claimed that the recognition of native title rights and interests in the area of their pastoral leases would bankrupt them. However, following the Howard government’s 10-point plan and a growing understanding of the practical effects of native title, many (although not all) of the region’s pastoralists became more willing to negotiate ILUAs and support a determination of limited native title rights in their lease areas. In so doing, a number of the pastoralists publicly asserted their desire to re-develop ties with local Aboriginal families, whilst also stressing their need for control of activities in their lease areas and their desire for privacy.

This mixture of solicitation of social relationships and assertion of the need for control and privacy is at least superficially reminiscent of the now widely-recognised dynamic between autonomy and relatedness that lies at the heart of Aboriginal social relations (Martin 1993; Myers 1986). Certainly the pastoralists’ asserted needs were recognised by the Aborigines with whom they were negotiating proposed ILUAs—not least because most of the Aborigines were themselves familiar with the requirements of running a cattle station. But Smith argues that there are more than superficial parallels or particular historical ties at play in such situations. Rather, the intercultural space of negotiation between Aborigines and settlers in remote Australia itself subsists within a more general human orientation to relations with and between other persons. Perhaps the most successful approach made by the settlers in the context of the ILUA negotiations was an emphasis on face-to-face and informal negotiation of ongoing coexistence rather than on formal legal structures. This inter-personal emphasis resonates strongly with the indeterminate or ‘uncertain’ but heavily interactive character of local Aboriginal sociality in a manner that reassured the Aboriginal claimants that a meaningful social outcome was possible as part of the agreement-making process. Nonetheless, there was some ingenuousness to the pastoralists’ claims—their insistence on informal relations took place against the backdrop of a formal agreement that they were assured allowed them near-absolute control over when and where Aborigines could make use of country within their leases. And it seems certain that there would have been no such negotiations unless the NTA had impelled the settlers to ‘come to the table’ in the first place. Thus whilst meaningful ‘informal’ coexistence (and, arguably, a measure of social justice) may yet emerge from the Wik decision, it has taken the formal force of the law to bring this about.

Redmond’s paper (Chapter 4) similarly addresses the topic of ‘pathways out of the near-hegemonic relations of the past’ in the context of the native title process. In the Northern Kimberley, the suppressed memories of historical oppression of Aboriginal people by European pastoralists were laid bare in the adversarial process of the pursuit of native title. Nonetheless, as in central Cape York Peninsula, Aboriginal and non-Indigenous parties in the native title process were both required to and in many cases remain desirous of continuing to co-exist in the region.

Like Morphy (Chapter 2), Redmond focuses on the courtroom as the social context within which competing constructions of Aboriginal connections were articulated. In the case of the Ngarinyin peoples’ claim, however, the contestation of continuing Aboriginal title included counter-claims made by a number of local pastoralists, many of whom have long-standing social connections with Ngarinyin people. These pastoralists included both an ‘elite’ contingent, and other pastoralists who represented themselves as ‘battlers’. With regard to both sets of pastoralists, the native title claim saw a worsening of social relationships with the Aboriginal claimants. The perceived threat of native title to the pastoralists’ interests led to an aggressive challenge to the Ngarinyin claim, accompanied by attempts to exclude claimants from cattle stations, even after a successful determination of native title rights and interests in the areas covered by the pastoralists’ leases. The pastoralists were also aggrieved by the manner in which the court proceedings elicited frank accounts of the mistreatment of Aboriginal workers and their families by their white ‘bosses’, despite Aboriginal attempts to accompany such accounts with reference to the close ties that have continued to exist between the Ngarinyin and their employers.

Despite the context of the courtroom—which, as Redmond notes, might have proved overwhelming for the claimants, given that for most of them it had only ever been experienced as a place of punishment—and the attempts by the respondents’ lawyers to trip up and shame the Ngarinyin in cross-examination, the claimants’ resilience led to a determination of extensive (and in some cases exclusive) determination of native title. However, the effects of the determination with regard to regional coexistence have been ambiguous. On the one hand, Redmond suggests that native title ‘may well open up pathways out of the almost hegemonic relationships of the past’. Further, at least some pastoralists have begun to rekindle relationships with select groups among the claimants. On the other hand, locked gates, the establishment of access protocols which (consciously or otherwise) act to further exclude the Ngarinyin from their homelands, and other forms of resistance to the claimants’ win mean that many Ngarinyin feel that little or nothing has changed following the determination.

The hardening of non-Indigenous attitudes to Aboriginal groups in response to claims over traditional homelands is apparently widespread. Scambary (Chapter 8) describes the ongoing politicisation of Indigenous rights in the Northern Territory, where reactionary statements about land rights and native title have proved to be sure-fire vote winners. The Larrakia claim over Darwin has been the target of reactionary politics by both the Country Liberal and Labor parties in the Territory, as well as of a broader public backlash that followed the 1996 lodgement of Darwin area claim. This backlash focused both on fears that the wider public would be excluded from areas such as public beaches and reserves (despite assurances by claimants that they did not seek to exclude non-Larrakia) and fears over hindrances to development. Notably both sets of fears have again surfaced in reaction to the recent successful claim by the Noongar people over the Perth area.^[7]

Scambary’s paper points to the complexities of co-existence in relation to native title, which affects relationships not only between Aborigines and settlers but also between claimants and other Aboriginal people. With regard to relations with non-indigenes, Scambary outlines the ways in which the Northern Territory government simultaneously opposed the Larrakia Native Title Claim and sought the involvement of the Larrakia Nation in the ‘Community Harmony’ project, which sought to address the issue of Aboriginal itinerants in Darwin, in part through the development of protocol for Aboriginal people visiting Darwin.

Indigenous ‘itinerants’, for the most part, have developed fairly good relations with the Larrakia, and many itinerants supported the Larrakia claim. However, Scambary suggests that the relationship between the Larrakia and the itinerants was weakened by the native title process. The native title claim was cited by the Northern Territory government as preventing the grant of title to an established fringe camp area (despite successfully negotiated deals for land use between the Larrakia and non-Indigenous parties) and the ability of the Larrakia to support itinerant interests was weakened by the demands of the native title process. As a result, ties between the Larrakia and itinerant groups became strained. Further, the partnerships that had developed between the Larrakia and the Territory government were wound back when the government decided to retreat from these partnership arrangements in order to bolster support for an upcoming election.

In other cases, a more positive relationship seems to have developed between governments and local Indigenous groups in the native title context. In Victoria, for example, the Wotjobaluk people, despite some reservations, have established successful partnerships with the Victorian Government following the registration and eventual consent determination of a native title claim (Beer et. al. 2005). Building on a government policy of recognition of traditional owners within and beyond the parameters of native title, these partnerships have involved a number of developments that have gone a considerable way to meeting the aspirations of the Wotjobaluk group. These include social and economic aspirations (e.g. the preservation of ‘oral history’ and cultural knowledge, and the development of a financial base for Wotjobaluk activities), partnerships in the management of Wotjobaluk traditional country (including employment in land management and advisory roles and ownership of significant pieces of land), and the recognition of the Wotjobaluk as traditional owners. From the perspective of the Victorian government, it has been important to establish a framework for the acknowledgement of traditional ownership and to seek to resolve conflicts between and within native title and traditional owner groups. Through the development of relationships with these groups it is also clear that the State government has sought to use the native title process as a springboard to facilitate social and economic development for the State’s Indigenous people.

Unfortunately, other claimants have not had such a positive experience of dealings with State governments. Claudie (Chapter 5) expresses considerable frustration with regard to the State’s actions in a claim over his family’s traditional homelands in central Cape York Peninsula. After expending considerable effort to produce a report on Aboriginal aspirations for the claim area, the claimants were left waiting while an opaque ‘land evaluation’ process was undertaken by the State government. This process was further complicated by mixed messages about the State’s willingness to concede the continuing existence of native title over the claim area. And the report—when finally sighted by the claimants—persuaded at least some claimants that the State, rather than being prepared to negotiate in good faith, had already decided how it would deal with the area and was simply seeking to justify this decision through a report of possibly dubious quality despite the demonstrated willingness of the traditional owners to reach a compromise that included the interests of all stakeholders.

In sum, it is clear that the relationship between native title and coexistence is a complex one. On the one hand, the recent reaction to the success of the Noongar claim makes it clear that governmental opposition—and public outcry and misinformation—remain strong in the face of native title claims. And reactions to claims in rural and remote areas give lie to the claim that such opposition is due to the urban setting of the Noongar (and similar) claims. On the other hand, some State governments and other parties—including a number of pastoralists—have developed more accommodating perspectives on native title claims, and have also sought to develop forms of meaningful coexistence which extend beyond the confines of native title rights and interests. Doubtless these agreements are partly based on the levels of ‘certainty’ that have followed from the Federal government’s legislative intervention following the success of the Wik claim in the High Court—and it should be remembered that such ‘certainty’ does not apply to Indigenous groups whose ability to gain meaningful coexistence on their terms have suffered as a result. But current developments within and beyond native title nonetheless hold some hope for meaningful steps towards coexistence across Australia.