One of the most important aspects of Martin’s critique of the native title ‘recognition space’ is that the form of recognition that constitutes that space is dominated by the categories of Australian property law (see also Patton 1995: 158). Although this space is intercultural in a specific sense, marking the articulation of Aboriginal law and ‘mainstream’ Australian law, the forms of practice through which it is constituted are overwhelmingly based on the norms and interests of non-Indigenous parties. Further, given the fraught histories of relationships between Aborigines and white pastoralists in areas like central Cape York Peninsula, there is a considerable danger of reproducing the culturally biased character of the formal recognition space in the other forms of recognition through which native title is realised as a total social fact.

If Patton’s hope for the possibility of more open outcomes from native title claims is to be realised within the complex zone of interactions between Aborigines and settlers, then more open forms of coexistence will need to be realised in day-to-day interactions between settlers and Aborigines than are provided for in native title determinations. Further, these forms of coexistence will necessarily have to be more inclusive of specifically Aboriginal forms of knowledge and practice in order to avoid the cultural hegemony that marks native title’s formal recognition.

In the central Peninsula, consent determinations of native title between Aboriginal claimants and station owners typically depend on the negotiation of Indigenous Land Use Agreements (ILUAs). These negotiations are often been bogged down by discussions over formal sets of rules regarding Aboriginal land use. Nonetheless, despite an often stated dislike of ‘lawyers and paperwork’, settler pastoralists, as well as their legal representatives, are typically convinced of the ability of such formal arrangements to deliver them the ‘certainty’ that they require in order to consent to a native title determination. The need for such rules is typically argued for as providing ‘certainty’ for the continued running of a cattle business. For instance, pastoralists have argued that they require temporary exclusion zones on their properties during the mustering of cattle, or that they require explicit agreement that gates will be shut after they have been used. But pastoralists also seek ‘certainty’ regarding their lifestyles, for instance in seeking formal agreement about privacy zones covering a large area surrounding a homestead.^[13]

Arguments of this kind have often threatened the considerable goodwill of Aboriginal claimants, who see no need for formal delineation of such matters. Rules intended to ensure the proper running of cattle stations have proved particularly irksome. As one man put it, allowing himself an unusual display of public irritation, ‘we’ve been working on stations all our life … we know what to do and what not to do’. Such irritation is not simply due to a denial of Aboriginal knowledge about how a station operates; it is also a reaction to an implicit denial of shared working and life histories between white station owners and Aborigines.^[14]

Although seemingly irritated by the need for formal agreements regarding their use of their country within pastoral leases, Aboriginal claimants tend to be more sympathetic to pastoralists’ concerns about privacy. In the negotiations I have observed or taken part in, such concerns are typically met with assurances that the right of the pastoralists to enjoy their privacy is accepted by the claimants, as is their need to be able to run their stations properly. This sympathetic reaction demonstrates a widespread acceptance by Aboriginal people across Northern Australia’s pastoral regions of settlers’ own rights in relation to stations they have established often over several generations (Redmond 2005: 242; Smith 2003: 37). Similar rights also seem to be extended to those pastoralists who have bought and taken up their station properties more recently.^[15]

The kinds of formal arrangement discussed during the negotiation of ILUAs appear to be far from satisfactory, despite Aboriginal sympathy for some of the outcomes sought by pastoralists. In the central Peninsula, such arrangements are likely to lead to one of two results. Firstly, the literacy requirements for the use of formal agreements will, in most cases, lead to their being ignored or their contents guessed at or remembered by native title holders. Secondly, the legal formality of such agreements, combined with the adversarial character of the negotiations leading to a consent determination, may well dissuade native title holders from seeking to enjoy their ‘rights and interests’, even where these are found to be legally coexistent with those of station owners.

Enjoyment of native title rights on cattle properties is instead more likely to occur where such formal arrangements have been put to one side, and where Aborigines have been encouraged by station owners to ‘ring up and drop in for a cup of tea and a yarn’ on their way to fishing on a creek or river within the station boundaries. This outcome is more likely when friendly relations have been established, regenerated or reiterated between pastoralists and claimants in the course of native title negotiations.

For Aboriginal claimants in the central Peninsula, the power of this kind of invitation to shape future outcomes from a native title claim extends beyond general social niceties. Within local Aboriginal life-worlds, an insistence on not ‘just going past’ someone, but stopping to ‘yarn’ and share food and drink, is a clear statement of social connectedness. Not to do so is to mark one’s relationship (or lack thereof) as one between ‘strangers’ or ‘stranger people’.^[16]

Likewise, negotiations that open out towards a more general, informal sociality resonate with local Aboriginal social norms, whilst negotiations that lead only towards the recognition of formalised rights and interests held in opposition to those of station owners do not. In the central Peninsula’s ‘Aboriginal domain’, the normative expectation is of the maintenance of informal, friendly sociality among consociates. Despite the fact that the Aboriginal domain contains a series of potential forms of recognition constitutive of social differentiation or personal autonomy, the general tendency is one of social inclusion and an emphasis on relatedness rather than social distinction.^[17] Unlike those accustomed to the cultural norms that inhere in nation-states, Aboriginal people remain predisposed not to understand—let alone enact— ‘rights and interests’ outside the context of lived social relationships.^[18] As such, the idea that one might simply enjoy ‘rights and interests’ on the basis of ‘paperwork’ is at best puzzling, and at worst practically impossible.

In order to lead to the realization of meaningful property rights, native title in places like the central Peninsula must involve ongoing informal mutual recognition between local Aborigines and pastoralists on an ‘open’ basis. This kind of recognition, where it takes place, has restored meaningful forms of local community in which it is not only formalised rights and interests, but the ways in which such rights and interests become locally meaningful that come to constitute coexistence.

‘Open’ coexistence of this kind also tends to be restorative of meaningful forms of community (something that both Aborigines and settler pastoralists have claimed that they would like to see happen following ILUA negotiations). Rather than a homogenous community defined by a shared identity or lack of differentiated interests, or an array of formally differentiated social and legal persons, this community is instead constituted through the fundamental coexistence of its members’ sharing of locale and event as the subjects of ongoing local histories (Wagner 1988: 59). As such, it is a community that is fundamentally uncertain, this uncertainty being a reflex of the ‘openness’ through which it continues to be enacted.

The possibility for this kind of ‘openness’ now seems to be excluded within the increasingly ‘juridified’ domain of the Native Title Act,^[19] which increasingly delivers judgements of ownership that are ‘uncontestable, certain, concrete [and] decontextual—in short, monumentalising abstractions’ and which are ‘far from the multivalent determinations of custodianship that once marked indigenous ritual-political life’ (Austin-Broos 2004: 213, citing Povinelli 2002: 227). As I have argued above, even given the forms of abstraction that now predominate within the formal ‘recognition space’, this kind of uncertain community can nonetheless still exist between Aborigines and settlers in their day-to-day recognition of each other’s involvement with country. But despite Northern Australian pastoralists’ general dislike of formality, state bureaucracy and legal processes (cf. Kapferer and Morris 2003), subscription to the Australian notion of a ‘fair go’, and commonly stated desire to return to what are seen as previous ‘good relations’ with local Aborigines, it has taken the force of Australian law and a more general societal shift towards the recognition of Aboriginal ‘rights’ to impel local whites towards this more equitable form of local recognition.