In contradistinction to the certainties aspired to in codifying a ‘community of native title holders’ and their ‘rights and interests’, it remains possible for whitefellas and Aborigines in central Cape York Peninsula to coexist as members of an uncertain community. This community is constituted through a more ‘open’ and processual style of recognition than that provided for in formal determinations of the coexistence of native title and pastoral leases. Given that this style of recognition—where it occurs—is reminiscent of the forms of sociality that characterise the ‘Aboriginal domain’, it seems to represent a move towards a culturally heterogenous space of interaction, rather than one dominated either by the legal and social norms of ‘mainstream’ Australian society, or earlier local forms of white hegemony.
Aborigines in the central Peninsula have long understood such coexistence to exist, despite the long history of their domination by white ‘bosses’ on the region’s cattle stations. But a meaningful engagement with this kind of coexistence by pastoralists has depended on the force of Australian law and a growing realisation that, in the longer term, any future certainty depends on their accommodation of the aspirations of their Aboriginal neighbours.
With this in mind, comments made by pastoralists and their solicitors during a court hearing for a consent determination of a native title claim in the central Peninsula are particularly interesting. In their comments, the pastoralists emphasised the importance of interpersonal relationships between pastoralists and the Aboriginal claimants both in reaching the consent determination, and in translating this determination of native title back into meaningful day-to-day relationships:
MR K_ [solicitor and co-owner of S_ station]: Thank you, your Honour. The pastoralists that I represent consent to the determinations of Native Title. Your Worship, the Court cannot make any order, nor can any government legislate, in respect of how the parties, the pastoralists and the Native Title holders can co-exist and work together to build relationships for the future. This has been achieved by agreement, and it is a tribute to the foresight and open mindedness displayed by the parties and is an example to others as to how outcomes might be achieved by negotiation. Thank you, your Honour.
HIS HONOUR: Thank you. Mr F_?
MR F_ [co-owner of S_ station]: May it please the Court, the lessees of S_ [station] consent to determination. I also would like to pay tribute to the traditional owners of this place and, in particular, the W_ People. I would also like to mention, especially, the traditional owners for [S_ station]. It might interest the Court to know that approximately five years ago we decided we weren’t progressing fast enough, I guess is the terminology, and insisted, for the first time, that we meet the traditional owners face-to-face. And I think from that point on we made a lot of progress, and I think it is fair to say today that, with the lessees of S_ and myself, that those relationships in some cases have developed into friendships. So it looks very good for the future.
And I do have to say that, … that when you sort of look around and have a look at all the time we’ve been working on this and realise that this is what we wind up at the end of it, the people sitting in the gallery could really be forgiven for wondering what the blazes we’ve been doing.
So what had the various parties been doing all this time? A number of things, but not least bringing about a situation in which the pastoralists and their legal representatives, as well as other parties, were prepared to recognise the ‘traditional owners’ as such.
The fraught process by which consent determination was reached in this claim indicates the interminable interrelation between law and justice. In central Cape York Peninsula, where there has been a long history of injustice, the forms of recognition offered by the Native Title process, flawed though they may be, have nonetheless provided a means to return station owners to a more open and just dealing with local Aborigines.
While the native title process can produce its own injustices through the particular style of formal recognition on which it depends, it can also act to re-open a space for more just forms of coexistence. This uncertain space of interaction between Aboriginal people and settler pastoralists is marked by a ‘face-to-face’ style of recognition and interaction which continues to build relationships into the future, It seems that in allowing for a more open, processual style of interaction, even as it excludes openness from its formal operation, the native title process may potentially lead to the social justice hoped for by Patton, despite the limited results often offered by determination itself.