Resumen de Building indigenous governance from native title: moving away from "fitting in" to creating a decolonized space

Lisa Strelein, Tran Tran

• The business of decolonisation involves engaging with former colonial laws, policies and practices in order to create a ‘space’ for Indigenous peoples to express their unique identities, cultures and ways of knowing. In postcolonial contexts, transitional justice measures have been used as a mechanism to enable the decolonisation of legal spaces. However, decolonisation does not always guarantee a post colonial state. As a transitional justice mechanism, native title in Australia has evolved via the common law to recognise the relationships that Indigenous peoples have with their land and waters. However, native title has been accused of limiting the ability of native title holders to engage effectively in governance structures. Drawing on parallels in the Canadian context, we consider the limitations of native title law as a tool for decolonisation and the constraints imposed by Australia’s federal constitutional structure. The paper then outlines the legal regime established under native title discussing how it operates outside the realm of ‘government’. We then consider the way in which native title holders engage with Indigenous and non-indigenous governance within this ‘private sector’ before discussing whether native title has been able to provide a decolonised space within Australia’s governance system.