Reconciliation without justice: competing timelines in indigenous land claims

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Reconciliation without justice: competing timelines in indigenous land claims In 1992 in the landmark case of Mabo (No. 2), Australia's highest court discarded a doctrine which had stood for over 200 years: that the country was terra nullius when white settlers arrived. The decision saw a conclusion, of sorts, to a ten-year legal battle by the Meriam people to be recognised as owners of the Murray Islands under a form of land ownership known as 'native title'. This meant that the Meriam people were entitled to 'possess, occupy, use and enjoy the Murray Islands' but the State of Queensland had the power to extinguish the Meriam people's title, as long as the power was exercised validly and in a manner consistenty with Commonwealth law. It was a difficult compromise to make; no matter how sympathetic to the claims of indigenous peoples, the court at a fundamental level accepted the legitimacy of the authority of the British Crown and successor states over indigenous societies. The repercussions of Mabo were not restricted to Australia alone, but were particularly felt in Canada, New Zealand, and the United States where white, English-speaking settlers formed the dominant population. Mabo and other recent indigenous title cases essentially concern the question of whether, and to what extent, state title to land is predated and constrained. This paper examines formulations of time, their relationship with power, and the impact this has had on the way indigenous title claims are treated in law. A fundamental aspect of social life is a standard temporal reference framework which is shared by all members of that society. While there are many concepts of time, there are two chief forms of time in ethnographic convention: cyclical time and linear time. Cyclical time is usually anchored in direct observation of nature, emphasising substance, and is often treated as a more 'primitive' form of time in contrast to linear time. Cyclical time is iterative and provides a way to understand the cycle of repeating classifications that make up the world and the relationships between them. Linear time, on the other hand, presses forward irreversibly and provides a way to understand progress and sequence. Closely allied with clock-time and emphasizing historical form, linear time is seen as progressive while the iterative character of cyclical time expresses a more conservative outlook. Linear time tends to be viewed as a rational expression of time, with a cultural history which 'bespeaks the continuity of the institutional forms and the forms of experience that are built and operate on its terms. Of linear and cyclical time, it is linear time that dominates public life in the West. The dominance of linear time is expressed in many ways, not least in how land is held and controlled. In the current system of land-holding, which has its origins in feudalism, the state or Crown still holds the radical title which sits at the back of every property relationship concerning land. Power over matter begets personal power and implied into the state's holding of radical title over land is an assertion of the indefinite future continuation of governance. With its emphasis on hierarchy, progress, sequence, and historical form, linear time is one of the mechanisms by which the state reinforces and legitimises its position. This paper argues that indigenous title claims are therefore particularly problematic because they challenge state or Crown authority by asserting a longer historic linear timeframe that predates and - in theory - trumps the state. In the United States, one illustration of the tensions between competing timelines and the suppression of that of the indigenous people may be found in the example of the treatment of indigenous Hawaiians and their traditional lands. The effect of the annexation of Hawaii in 1896 by the United States was to rapidly dispossess native Hawaiians through an internal process of assimilation to private land ownership. There has since been little progress in the politics of indigenous self-determination. Despite the recommendation of the 1987 Senate Select Committee on Indian Affairs that 'the federal government must relinquish its current paternalistic controls over tribal affairs', the most notable recent effort has come from native Hawaiians seeking to reverse colonization by the United States. There has as yet been no remedy, merely an apology in the form of legislation which confirms that 'the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands.' Even where a form of 'native title' is recognised, this does not lead to the indigenous timeline being truly privileged over that of the colonists. Where there are competing linear timelines, the different is reconciled through recognising a form of 'native title' which reflects the rights to traditional lands of indigenous inhabitants. This is not without its problems, as two Canadian Supreme Court cases illustrate. The 1999 Canadian Supreme Court decision in Marshall (No. 1), which found that federal fishing regulations contravened rights of the Maliseet and Mi'kmaq peoples, provoked communal violence between native and non-native fishers and resulted in the subsequent issue of a justification for the decision in Marshall (No.2). The rights recognized and conferred by native title can be relatively far-reaching, as in the 2014 Canadian Supreme Court case of Tsihqot'in Nation v British Columbia, where it was held that rights conferred by native title included not only the right to occupy, but also the right to determine how land will be used; but the Crown can nonetheless still override native title where it is in the public interest to do so. The paper concludes that despite these decisions, where it is recognized at all, native title still falls far short of the radical title to land held by the state or Crown. The competing timelines cannot be truly reconciled by awarding indigenous peoples native title to their lands where the state or Crown still holds radical title. It is also not just the historicity of indigenous rights to land which is suppressed in these decisions but indigenous time concepts, which tend not to be based on linear time – a further discriminatory denigration of indigenous inhabitants and their social organization and customs.
Original languageEnglish
Publication statusPublished - 2016
EventLaw and Society Annual Meeting - New Orleans, United States
Duration: 2 Jun 20165 Jun 2016


ConferenceLaw and Society Annual Meeting
Country/TerritoryUnited States
CityNew Orleans

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