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Abstract:
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"My broad purpose here is to lay out some of the ground on which ethical dialogue toward co-management may take place. At this time co-management is something to be worked toward rather than something that has been achieved, as Nonie Sharp contends. The ground of 'working toward' must be founded in ethical dialogue if co- management is to be mutual. Such a ground requires reflexivity and critique. Thus, an examination of western preoccupations explores some limits to western thought, limits which only become apparent by moving outside of them.
"Analysis of management of common property resources in Aboriginal Australia has been hindered by a number of western preoccupations: that hunter-gatherer peoples do not manage resources, but only make use of them; that totems stand for or symbolise something other than themselves; that the boundaries of local land-based groups are congruent with boundaries of responsibility; that a discourse of rights, and particularly of property rights, is capable of encapsulating an indigenous jurisprudence. Each of these preoccupations limits inquiry and fails to do justice to Aboriginal people's thought and practice. I propose to examine each of them, because each derives from a fundamental aspect of western world views, and therefore wields power in polities dominated by western conquest.
"Debates in Australia about Indigenous institutions of common property ownership and management are, in the closing years of the twentieth century, inseparable from the highly political issues of land rights. The official view that Indigenous people did not own the land at the time of European conquest has been overturned by the High Court's 'Mabo' decision (1992) which gave formal legal recognition to the fact that at the time of conquest Indigenous people did own the land. In theory, Indigenous people continue to exercise rights of ownership -- now labelled 'Native Title' -- except in areas where conquest and appropriation have formally extinguished those rights. The Native Title Act (Cth 1993) provides a legislative framework within which the continuity of Native Title can be asserted, and the High Court's recent 'Wik' decision (1996) provides further articulation of how Native Title can be understood legally to survive. Where Native Title continues to exist, land cannot be alienated from Indigenous use and management without negotiation with the Indigenous title holders. Co-operative management agreements are increasing as the Native Title Act begins to have an impact.
"Issues of Indigenous land tenure have thus acquired a special urgency in Australia. The analysis of Aboriginal common property regimes brings to these issues a vital perspective: that usufructuary rights are embedded within regimes of responsibility, and that regimes of rights and regimes of management are inseparable. Without rights, resources will not be managed; without management, resources will not be sustained, and rights will become meaningless."
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