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Reilly, Alexander --- "A Constitutional Framework for Indigenous Governance" [2006] SydLawRw 20; (2006) 28(3) Sydney Law Review 403

* Senior Lecturer, Division of Law, Macquarie University. My sincere thanks to George Williams and the anonymous referees of the Sydnew Law Review for their extensive comments on earlier drafts of this article. The article contributes to an Australian Research Council funded project on Regional Governance and Indigenous communities that the Jumbunna Indigenous House of Learning, University of Technology Sydney, and the Gilbert and Tobin Centre of Public Law, University of New South Wales, have undertaken in partnership with Reconciliation Australia.

[1] The system of electing representatives under the ATSIC Act was introduced in 1990. For an analysis of ATSIC and its representative structure prior to its abolition, see the Department of Immigration, Multicultural and Indigenous Affairs, In the Hands of the Regions – A New ATSIC: A Report of the Aboriginal and Torres Strait Islander Commission (2003) (hereafter In the Hands of the Regions). See also the Senate Select Committee on the Administration of Indigenous Affairs, After ATSIC – Life in the Mainstream? (2005). This inquiry, initiated by the Australian Democrats in the Senate, was highly critical of the decision to abolish ATSIC.

[2] On the theory of legal pluralism, see generally, John Griffiths, ‘What is Legal Pluralism’ (1986) 24 JLP 1. See also William Connolly, The Ethos of Pluralization (1995).

[3] Stephen Cornell, Catherine Curtis & Miriam Jorgensen, ‘The Concept of Governance and its Implications for First Nations’, Joint Occasional Papers on Native Affairs, No 2004–02: <http:/ /www.jopna.net/pubs/jopna_2004-02_Governance.pdf> (24 July 2006). The Harvard Project on American Indian Economic Development (hereafter the ‘Harvard Project’) was founded by Stephen Cornell and Joseph Kalt at Harvard University in 1987. The Project aims to understand and foster the conditions under which sustained development can be achieved among American Indian nations.

[4] Anne Kjær, Governance (2004) at 3.

[5] Similarly, Anne Kjær distinguishes government from governance on the grounds that government was limited to ‘the exercise of power by political leaders’. Id at 1.

[6] Michel Foucault, ‘The Subject and the Power’ in Hubert Dreyfus & Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (1982) at 220–221.

[7] Mitchell Dean, ‘Notes on the Concept of Governance’ presentation at Macquarie University, 11 August 2005.

[8] Göran Hydén, ‘Governance and the Reconstitution of Political Order’ in Richard Joseph (ed), State, Conflict and Democracy in Africa (1999).

[9] Kjær, above n4 at 7.

[10] Jan Kooiman, Governing as Governance (2003) at 77–132.

[11] Id at 78.

[12] Paul McHugh, Aboriginal Societies and the Common Law (2004). McHugh’s analysis is of

Indigenous peoples in North America and Australasia.

[13] Id at 427–428.

[14] Diane Smith, ‘Researching Australian Indigenous Governance: A Methodological and Conceptual Framework: Working Paper No 2’ (Centre for Aboriginal Economic Policy Research, 2005) at 8.

[15] Ibid.

[16] These variations are the focus of the Centre for Aboriginal Economic Policy Research research into Indigenous community governance. See generally, Smith, above n14.

[17] For example, in international law, a ‘state’ must have a population, a territory, a government, and the ability to engage in diplomatic or foreign relations.

[18] These two types of sovereignty are often referred to as ‘external’ and ‘internal’ sovereignty.

[19] See, for example, Coe v Commonwealth (No 1) [1979] HCA 68; (1979) 24 ALR 118; Coe v Commonwealth (No 2) [1993] HCA 42; (1993) 118 ALR 193.

[20] See, for example, Mick Dodson, ‘Sovereignty’ (2002) 4 Balayi: Culture, Law and Colonialism 13; Marcia Langton, ‘The Nations of Australia’, speech given at the Alfred Deakin Lecture, 20 May 2001; Michael Mansell, ‘Towards Aboriginal Sovereignty: Aboriginal Provisional Government’ (1994) 13 Social Alternatives 16; Paul Coe, ‘The Struggle for Aboriginal Sovereignty’ (1994) 13 Social Alternatives 19.

[21] New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 388 (Gibbs J); Mabo (No 2) v Queensland (No 2) (1992) 175 CLR 31–32 (Brennan J) (hereafter Mabo); 95 (Deane & Gaudron JJ). For a critique of the High Court’s acceptance of the Act of state doctrine, see Stewart Motha, ‘The Sovereign Event in a Nation’s Law’ (2002) 13 Law and Critique 311; Peter Fitzpatrick, ‘No Higher Duty: Mabo and the Failure of Legal Foundation’ (2002) 13 Law & Crit 233–252.

[22] Yorta Yorta Members of the Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at 445–447 (Gleeson CJ, Gummow & Hayne JJ).

[23] Henry Reynolds, Aboriginal Sovereignty (1996) at 1–15.

[24] Valerie Kerruish, ‘At the Court of the Strange God’ (2002) 13 Law & Crit 271 at 274.

[25] Id at 271.

[26] Larissa Behrendt, Achieving Social Justice (2003) at 96. See also Sean Brennan, Brenda Gunn & George Williams, ‘ “Sovereignty” and its Relevance to Treaty-Making Between Indigenous Peoples’ and Australian Governments’ [2004] SydLawRw 15; (2004) 26 Syd LR 307.

[27] Steven Curry, Indigenous Sovereignty and the Democratic Project (2004) at 148.

[28] Ibid.

[29] Sean Brennan, Larissa Behrendt, Lisa Strelein & George Williams, Treaty (2005) at 71.

[30] National Aboriginal and Islander Health Organisation, Sovereignty (1983) quoted in Larissa

Behrendt, above n26 at 100.

[31] Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (1999) at 59.

[32] United Nations Document 45/1994. For a discussion of the draft declaration, see Chidi

Oguamanam, ‘Indigenous People and International Law: The Making of a Regime’ (2004) 30 Queen’s Law Journal 348; Erica-Irene Daes, ‘The Concepts of Self-Determination and the Autonomy of Indigenous Peoples’ in the Draft United National Declaration on the Rights of Indigenous Peoples (2001) 14 St Thomas LR 259; Hannah McGlade, ‘Not Invited to the Negotiation Table: The Native Title Amendment Act 1998 (Cth) and Indigenous Peoples’ Right to Political Participation and Self-Determination Under International Law’ (2000) 1 Balayi: Culture, Law and Colonialism 97.

[33] William Jonas, ‘Community Justice, Law and Governance: A Rights Perspective’, speech given at the Indigenous Governance Conference, Canberra, 3–5 April 2002: <http:// www.hreoc.gov.au/speeches/social_justice/community_justice.html> (3 May 2006).

[34] Brennan et al, above n26 at 314. See also Brennan et al, above n29 at 72–74.

[35] Noel Pearson, Our Right to Take Responsibility (2000) at 13–14.

[36] Id at 27–31.

[37] Griffiths, above n2 at 38.

[38] In Australia, see the Commonwealth Constitution, s51 and ss106–109.

[39] The Supreme Court of Canada declared this principle when considering the constitutionality of unilateral secession by Quebec. See In the Matter of Section 53 of the Supreme Court Act, RSC, 1985. S–26 [1998] 2 SCR 217.

[40] Russell Mathews, Revenue Sharing in Federal Systems (1980).

[41] Preston King, The Federal Solution and Federation (1982); see also Kenneth Wheare, Federal Government (1963).

[42] Eghosa Osaghae, ‘Federalism in Comparative Perspective’ (1997) 16 Politeia 1 at 1.

[43] Christine Fletcher, Trapped in Civil Society: Aborigines and Federalism in Australia (1996) at

[18] . See also Fletcher, Does Federalism Safeguard Indigenous Rights? (1999); Eghosa Osaghae, ‘A Reassessment of Federalism as a Degree of Decentralization’ (1990) 20 Publius: The Journal of Federalism 83–98.

[44] For the value of viewing questions of constitutionalism from the perspective of the struggles of Indigenous peoples, see James Tully, Strange Multiplicity: Constitutionalism in the Age of Diversity (1995).

[45] Albert Dicey, Introduction to the Study of the Law of the Constitution (1st ed 1885, 10th ed 1959) at 141.

[46] James Tully, ‘The Struggles of Indigenous Peoples for and of Freedom’ in Duncan Ivison, Paul Patton & Will Sanders, Political Theory and the Rights of Indigenous Peoples (2000) at 52.

[47] The Commonwealth Constitution was amended to enable the Commonwealth Parliament to make special laws for Indigenous Australians.

[48] Martin Painter, Collaborative Federalism (1998) at 44.

[49] Australian Government, CoAG Indigenous Trials: <http://www.indigenous.gov.au/coag/ about.html> (3 May 2006).

[50] Ibid.

[51] CoAG Communiqué, 5 April 2002: <http://www.coag.gov.au/meetings/050402/index.htm# reconciliation> (16 October 2005). At Senate Estimates Committee reviews, it has been revealed that, despite regular promises, no system of evaluation has been established for these trials and that it is not clear who is responsible for creating and implementing the evaluations – separate government departments or the newly formed Office for Indigenous Policy Coordination (hereafter ‘OIPC’) which was established in the wake of the abolition of ATSIC. See, ‘CoAG: A Black Hole of Govt Approach’ National Indigenous Times (10 Nov 2005).

[52] The Nunavut Treaty covered the eastern part of the Canadian North West Territories, was on federal land and the negotiations were with the Federal Government alone. The new territory of Nunavut came into being on 1 April, 1999 after negotiations which, according to the Canadian Human Rights Commission, began in 1971: <http://www.chrc-ccdp.ca/publications/1999_ar/ page8-en.asp> (9 August 2006).

[53] The negotiations led to the passing of the Pitjantjatjara Land Rights Act 1981 (SA). See Heather McRae, Garth Nettheim, Laura Beacroft & Luke McNamara, Indigenous Legal Issues: Commentary and Materials (3rd ed, 2003) at 220–222.

[54] For example, the Native Title Act 1993 (Cth) withstood a challenge to its validity by the Western Australian State government in 1995. See Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373. The Western Australian State Government had passed an act which purported to extinguish native title and replace with with a statutory right. The legislation was held to be inconsistent with the Native Title Act 1993 (Cth) under s109 of the Constitution and therefore to be inoperative.

[55] There are considerable differences in the recognition afforded to Indigenous land rights in state grants. For example, the High Court has held that pastoral leases in Qld, WA and NSW all have different impacts on native title rights. Compare Wik Peoples v Queensland (1996) 187 CLR 1; Anderson v Wilson (2002) 213 CLR 401; and Ward v Western Australia (2002) 213 CLR 1. There are also different ways and different extents to which Indigenous lands are protected under state legislative schemes. For example, all states except Western Australia have passed some form of land rights legislation.

[56] See, for example Bain Attwood, Telling the Truth about Aboriginal History (2005); Henry Reynolds, The Other Side of the Frontier: An Interpretation of the Aboriginal Response to the Invasion and Settlement of Australia (1st ed, 1981); Lyndall Ryan, Aboriginal Tasmanians (1st ed, 1981); Raymond Evans, Kay Saunders & Kathryn Cronin, Race Relations in Queensland: A History of Exclusion, Exploitation and Extermination (1st ed, 1988).

[57] Most famously in Mabo, above n21. In Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621, Justice Crispin of the Supreme Court of the ACT provided a sweeping history of violence against Aboriginal peoples in the colonial period. Native title claims in the Federal Court have given rise to further judicial pronouncements on the impact of colonisation in regions throughout Australia. See, for example Yorta Yorta Aboriginal Community v Victoria, above n22 (Olney J); Ward v Western Australia, above n55 (Lee J).

[58] Mabo, above n21 at 38–42 (Brennan J), 101–103 (Deane & Gaudron JJ).

[59] See generally Peter Russell, Recognising Aboriginal Title: the Case and Indigenous Resistance to English-Settler Colonialism (2005) at chapter 5.

[60] Royal Commission into Aboriginal Deaths in Custody: National Report (1991) at 510. In fact, policies of removing children for the purpose of assimilation occurred much earlier than this. The Human Rights and Equal Opportunity Report, Bringing Them Home, concluded that in the period from 1910 to 1970, between 10–30 per cent of Indigenous children were forcibly removed from their families and communities: Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) (hereafter Bringing Them Home) at chapter 2. For a history of Indigenous claims and policy responses in Australia up to the 1970s, see Heather Goodall, Invasion to Embassy: Land in Aboriginal Politics in New South Wales 1770–1972 (1996).

[61] Aboriginal and Torres Strait Islander Commission, As a Matter of Fact: Answering the Myths and Misconceptions about Indigenous Australians (1999) at 10 (hereafter As a Matter of Fact).

[62] See Ann Curthoys, Freedom Ride: A Freedom Rider Remembers (2002).

[63] See, for example William Deane, ‘Some signposts from Daguragu’ (1997) 8 Public LR 15; Bain Attwood, ‘The Articulation of ‘land rights’ in Australia: The Case of Wave Hill’ (2000) 44 Social Analysis 3.

[64] In 1927, Fred Maynard wrote to the NSW Premier, Jack Lang, with a claim for land for Indigenous peoples and for control of Aboriginal affairs to be transferred to a board of management ‘comprised of capable, educated aboriginals under a chairman appointed by the Government.’ Letter dated 3 October 1927, reproduced in Bain Attwood & Andrew Markus, The Struggle for Aboriginal Rights: A Documentary History (1999) at 66–67. In 1935 Aboriginal people in South Australia requested that a Board of Management be appointed, which would include an Aboriginal representative. In 1938, a request was made of the Commonwealth Government to appoint a Commonwealth Ministry for Aboriginal Affairs. It was suggested that an advisory board of six persons, three of them Aboriginal, be established to advise the minister: see Attwood & Markus, The Struggle for Aboriginal Rights at 39.

[65] Aboriginal Councils and Associations Act 1976 (Cth). A Bill to repeal this Act, the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 (Cth), is currently before the Commonwealth Parliament.

[66] Such as the Aboriginal Land Rights Act 1983 (NSW); Aboriginal Land Act 1991 (Qld); Aboriginal Lands Act 1995 (Tas); Aboriginal Lands Trust Act 1966 (SA); Aboriginal Lands Act 1991 (Vic). Western Australia does not have Aboriginal land rights legislation. For a review and discussion of these and other legislative schemes, see Frith Way with Simeon Beckett, ‘Land Holding and Governance Structures under Australian Land Rights Legislation’, Discussion Paper 4 in Garth Nettheim, Gary Meyers & Donna Craig, Australian Research Council Collaborative Research Project, Governance Structures for Indigenous Australians On and Off Native Title Lands (1998).

[67] See, for example Local Government Act 1993 (NT); Local Government (Community Government Areas) Act 2004 (Qld).

[68] The most recent momentum for a treaty surrounded the work of the Council for Aboriginal Reconciliation in the 1990s. One of the chairs of the Council for Reconciliation, Patrick Dodson, advocated a treaty in a series of public lectures at this time. See, for example Patrick Dodson, ‘Beyond the Mourning Gate – Dealing with Unfinished Business’ (2000). Since 2000, there has been continued academic interest in the notion of a Treaty, but the political momentum seems absent at the present time. See, for example Brennan et al, above n29; Marcia Langton, Lisa Palmer, Maureen Tehan & Kathryn Shain, Honour Among Nations? Treaties and Agreements with Indigenous People (2004).

[69] In the Hands of the Regions, above n1.

[70] Peter Shergold, Secretary, Department of the Prime Minister and Cabinet quoted in Department of Immigration and Multicultural and Indigenous Affairs, New Arrangements in Indigenous Affairs (2005): <http://www.oipc.gov.au/About_OIPC/new_arrangements.asp> (14 December 2005).

[71] Senator Amanda Vanstone, Press Release (11 July 2005).

[72] Senator Amanda Vanstone, ATSIC Now History – A Better Future Ahead for Indigenous Australians Press Release (24 March 2005).

[73] Office of Indigenous Policy Coordination: <http://www.oipc.gov.au/About_OIPC/ Indigenous_ Affairs_Arrangements/4Administration.asp> (14 December 2005).

[74] Senator Amanda Vanstone,Minister Accounces New Indigenous Representation Arrangements’ Press Release (29 June 2005).

[75] Office of Indigenous Policy Coordination: <http://www.oipc.gov.au/About_OIPC/ Indigenous_ Affairs_Arrangements/7IndigenousRegionalRepresentation.asp> (14 December 2005).

[76] ‘Regional Partnership Agreements’: <http://www.indigenous.gov.au/rpa/wa/warpanov0501.pdf.> (12 December 2005).

[77] The figure of 1300 communities is taken from Australians for Native Title and Reconciliation, ‘Shared Responsibility Agreements – A Critique’: <http://www.antar.org.au//index.php? option=com_content & task=view & id=96 & Itemid=105> (9 August 2006).

[78] Australians for Native Title and Reconciliation, ‘Shared Responsibility Agreements – A Critique’: <http://www.antar.org.au/shared_resp_agreemts.html> at 12 December 2005. 1829; R v Murrell and Bummaree, Supreme Court of New South Wales, Forbes CJ, 5 February 1836, published in Sydney Herald, 8 February 1836; R v Bonjon, Supreme Court of New South Wales, Willis J, 16 September 1841, published in Port Phillip Patriot, 20 September 1841. See also R v Ballard, R v Murrell and R v Bonjon [1998] AILR 27.

[79] See R v Ballard or Barrett, Supreme Court of New South Wales, Forbes CJ, 21 April 1829, published in Sydney Gazette, 23 April

[80] Attorney-General (NSW) v Brown (1847) 1 Legge 312; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286.

[81] Milirpum v Nabalco Pty Ltd (1971) 17 FLR 141 (hereafter Milirpum).

[82] Id at 272–73 (Blackburn J).

[83] Section 1A of the Amended Statement of Claim in Coe v Commonwealth, above n19, reproduced in the judgment of Gibbs J at 120.

[84] Section 3B of amended statement of claim in Coe v Commonwealth, above n19, reproduced in the judgment of Gibbs J at 121.

[85] Coe v Commonwealth, (No 1), above n19 at 136 (Jacobs J).

[86] Mabo, above n21 at 32–42 (Brennan J), at 95–99 (Deane & Gaudron JJ).

[87] Id at 86–95 (Deane & Gaudron JJ).

[88] Wik Peoples v Queensland, above n55 at 182 (Gummow J).

[89] See Jeremy Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’ in Duncan Ivison et al, above n46; Lisa Strelein, ‘Conceptualising Native Title’ (2001) 23 Syd LR

[95] .

[90] In particular, under ss5557 of the Native Title Act 1993 (Cth), a successful native title claimant group must register as a ‘Prescribed Body Corporate’ to manage its native title interest.

[91] The main cases were Wik Peoples v Queensland, above n55; Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96; Ward v Western Australia, above n55, Commonwealth v Yarmirr (2001) 208 CLR 1; Yorta Yorta Aboriginal Community v Victoria, above n22.

[92] Native Title Act 1993 (Cth) at ss5557.

[93] See generally Christos Mantziaris & David Martin, Native Title Corporations: A Legal and Anthropological Analysis (2000).

[94] For example, the Noongar peoples have registered a joint native title claim over most of the South-West corner of the Western Australian State. National Native Title Tribunal, ‘Noongar People Lodge United Native Title Claim in South West WA’ Press Release (10 September 2003): <http://www.nntt.gov.au/media/1063172786_2824.html> (15 December 2005).

[95] See generally Diane Smith & Julie Finlayson (eds), Fighting Over Country (1997).

[96] Brennan et al, above n29 at chapter 6.

[97] See, for example the United States of America, Canada, South Africa, Norway, and New Zealand.

[98] See, for example Iris Young, Justice and the Politics of Difference (1990).

[99] Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995).

[100] See, for example Fred Myers, Pintupi Country, Pintupi Self: Sentiment, Place and Politics Among Western Desert Aboriginies (1986); Deborah Rose, Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness (1996); Helen Verran, ‘Re-imagining Land Ownership in Australia’ (1998) 1 Postcolonial Studies 237; Stephen Muecke, Kim Benterrak & Paddy Roe, Reading the Country: An Introduction to Nomadology (1984); Alexander Reilly, ‘Cartography, Property and the Aesthetics of Place: Mapping Native Title in Australia’ (2004) 34 Studies in Law, Politics and Society 221.

[101] See generally, Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice (2002).

[102] Jeremy Waldron, ‘Superseding Historic Injustice’ (1992) 103 Ethics 4.

[103] Duncan Ivison, Postcolonial Liberalism (2002) at 100.

[104] For an analysis of the limitations of liberal theory in this regard, see id at 14–48.

[105] Will Kymlicka, Liberalism, Community and Culture (1989) at 135.

[106] Id at 151–152.

[107] Kymlicka, above n99 at 86.

[108] Ivison, above n103 at 103.

[109] Id at 16–23.

[110] See, for example Patrick Dodson, above n68; Mudrooroo, Us Mob : History, Culture, Struggle: An Introduction to Indigenous Australia (1995); Alice Nannup, Lauren Marsh & Stephen Kinnane, When the Pelican Laughed (1992).

[111] James Tully, above n44 at 8.

[112] Ivison, above n103 at 80–81.

[113] See Thomas Hobbes, Leviathan (1996); John Locke, Two Treatise of Government (1988).

[114] Kymlicka, above n99; above n105.

[115] Iris Young, above n98.

[116] Anne Phillips, Politics of Presence (1995).

[117] A body of literature has recently picked up on the work of Carl Schmitt arguing for a return to the political, by which is meant, the return of more radical and conflicting ideas in political discussion. See for example, Chantal Mouffe, Democratic Paradox (2000); John McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (1997); Jacques Derrida, Politics of Friendship (1997).

[118] Membership is defined in terms of ‘citizenship’. See Commonwealth Electoral Act 1918 (Cth) s99A.

[119] See, for example Parliamentary Electorates and Elections Act 1912 (Cth), Part III ‘Qualification of Electors’; Commonwealth Electoral Act 1918 (Cth), Part VII. There is a special provision for ‘itinerant electors’ in the Commonwealth Electoral Act who can apply to be on the electoral role in a particular state despite not satisfying the residence requirement. See Commonwealth Electoral Act 1918 (Cth), s96.

[120] Road Transport (Driver Licensing) Regulation 1999 (NSW) s16(1)(b).

[121] Mabo, above n21 at 61.

[122] Western Australia v Ward, above n55 at 379 (Beaumont & von Doussa JJ).

[123] Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113; Gibbs v Capewell, Australian Electoral Commission and Minister for Aboriginal and Islander Affairs (1995) 128 ALR 577.

[124] Ibid.

[125] Shaw v Wolf, above n123 at 117–122.

[126] Commonwealth Constitution s51(xxvi).

[127] See Brennan J in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 253: ‘ “Race” is not a term of art; it is not a precise concept: see Ealing London Borough Council v Race Relations Board per (Lord Simon of Glaisdale). There is, of course, a biological element in the concept. The UNESCO studies on race and racial discrimination reveal some difficulty in giving a precise definition even to this element.’

[128] See Loretta De Plevitz & Larry Croft, ‘Aboriginality Under the Microscope: The Biological Descent Test in Australian Law’ (2003) 3 QUTLJT 104.

[129] Shaw v Wolf, above n123.

[130] Id at 137.

[131] Commonwealth Grants Commission, Report on Indigenous Funding 2001 (2001) at xv.

[132] Id at xv.

[133] Id at xviii.

[134] Mathews, above n40.

[135] ATSIC programs fell into this category of funding.

[136] Commonwealth Constitution s81. See Combet v Commonwealth (2005) 221 ALR 621; Attorney General Victoria: Ex rel Dale v Commonwealth [1945] HCA 30; (1945) 71 CLR 237.

[137] ATSIC, As a Matter of Fact, above n61 at 20.

[138] The audit cleared 95 per cent of organisations for further funding. Where there were problems, it was generally the lack of experience in managing finance, and the size of the organisations that was the cause. Ibid.

[139] Id at 26.

[140] Larissa Behrendt, ‘Indigenous Self-determination : Rethinking the Relationship Between Rights and Economic Development’ [2001] UNSWLawJl 70; (2001) 24 UNSWLJ 850; Sean Sexton, ‘Law, Empowerment and Economic Rationalism’ (1996) 3 Aboriginal Law Bulletin 12; Jo Altman, ‘Economic Development and Indigenous Australia: Contestations over Property, Institutions and Ideology’: <http://www.anu.edu.au/caepr/Publications/topical/Altman_Economic_Development_2004.pdf (15 December 2005).

[141] See generally, Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); Pitjantjatjara Land Rights Act 1981 (SA); Maralinga Tjarutja Land Rights Act 1984 (SA); Aboriginal Land Rights Act 1983 (NSW); Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth); Aboriginal Land Act 1970 (Vic); Aboriginal Land Act 1991 (Qld); Aboriginal Lands Act 1995 (Tas).

[142] For a discussion of lands rights administration in New South Wales, including the role of the NSWALC, see Linda Pearson, ‘Aboriginal Land Rights Legislation in New South Wales’ (1993) 10 Environmental and Planning Law Journal 398; Meredith Wilkie, Aboriginal Land Rights in NSW (1985).

[143] See for example, Richard Bartlett, ‘The Proprietary Nature of Native Title’ (1998) 6 APLJ 77; Noel Pearson, ‘From Remnant Title to Social Justice’ (1993) 65(4) Aust Q 179; Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Syd LR 95.

[144] See generally, Fejo v Northern Territory, above n91; Ward v Western Australia, above n55; Commonwealth v Yarmirr, above n91; Yorta Yorta Aboriginal Community v Victoria, above n22.

[145] Ward v Western Australia, above n55 at 184–5 (Gleeson CJ, Gaudron, Gummow & Hayne JJ), 244–245 (Kirby J).