The conclusion draws together the threads of the three key fields of colonial knowledge and shows some of the later trajectories of these rich archives. Australian data proved central to key ideas that were fomented during the nineteenth century, and which continue to affect contemporary society. Debates about civilisational orders, and about the role of science and religion in relation to the extension of imperial power and economic privilege, were widespread. The distinctive nature of the Australian colonial experiment continues to make important contributions to global debates about the history of humanitarianism and human rights, apologies and reparations sought by colonised and displaced peoples for the wrongs of imperialism and colonial governance, and the uneven distribution of wealth, up to the twenty-first century.

Australia has a vast range of renewable and non-renewable energy resources. These resources generate energy for domestic and international consumers for a range of different residential and industrial purposes. The acceleration of climate change and the need to reduce anthropogenic greenhouse gas emissions has opened up new opportunities to generate energy in a less carbon-intensive manner. The shift away from carbon-intensive fossil fuel energy generation has accelerated markets for renewable energy generation from kinetic processes like solar, wind and hydrogen. Historically, the energy framework in Australia has been dominated by non-renewable energy generation. This is largely a consequence of the fact that Australia has extensive coal and gas reserves. Black and brown coal reserves are particularly prevalent in the eastern states of New South Wales and Victoria. Australia’s identified conventional gas resources are extensive and extraction has increased threefold over the past two decades despite the accelerating climate emergency. Most of the recoverable reserves of conventional gas are located off the west and north-west coasts.

In the Epilogue, I consider the ways that the rise and fall of the professional class has left the world in thrall to a conflict between managerial capitalism and professional technocracy. Unlike labour versus capital, this intra-bourgeois conflict is not productive of change. Rather, self-perpetuating cycles seeking material and moral authority have infected workplaces and global politics, impeding reform. Much is at stake, including climate change. Professionals, whose work remains necessary to a good society, need to separate virtue from capitalism, disaggregating their moral goals from their own class interests – even to the point of turning the hierarchy that they made on its head. The Epilogue draws inspiration from the reversals of hierarchies made possible by acts of decolonization.

Performance and performative writing can play a key role in opening up an extralegal space for new representations of non-human species and Earth itself. This is apparent in two recent initiatives: the Rights of Nature tribunals and the Wild Law Judgment project. The Rights of Nature tribunals constitute an unconventional performative forum for recognition of non- mainstream representations of Earth and its communities. The Wild Law Judgment project has provided an important space for unsettling anthropocentric assumptions and expectations in the common law. In ‘dressing up’ as judges, as tribunal members and judgment rewriters, we perform law differently to achieve Earth-centred outcomes.

This chapter contests the prevailing interpretation of the post-Mabo turn as a decisive new era in Australian cultural history. While the Mabo High Court decision of 1992 was an important milestone in struggles for Indigenous land rights, the insistence on this date as a literary periodization neglects the continuities in settler culture that still structure settler fiction in Australia. Alternatively, recent First Nations fiction suggests possibilities within and outside dominant paradigms of legality.

In past years, many histories of Australia began with the so-called ‘discovery’ of parts of the ‘Great South Land’ by European explorers.

While this approach may be understandable, it is no longer acceptable to view the Indigenous history of Australia purely from a European perspective. To do so would disrespect profoundly the continent’s first inhabitants. This chapter thus begins with a consideration of the profound relationship between Indigenous Australians and the land. It examines the landmark 1992 decision in Mabo v Queensland (No 2), which led to the passage of the Native Title Act 1993 (Cth) ensuring the continuing recognition and protection of Indigenous Australians’ native title rights and interests. The chapter focuses on the rights, obligations and procedures for establishing, proving, and contesting native title claims through both the Federal Court and the National Native Title Tribunal. It discusses the landmark High Court decision in Northern Territory v Griffiths in relation to compensation for extinguishment of native title. The chapter concludes by considering state and territory legislation introduced following the enactment of the Native Title Act 1993 (Cth).

Since the 1960s, Australian law has responded to the dispossession of Indigenous peoples. Most States and Territories have land rights legislation. These schemes vary, for example in their reliance on claims processes, administrative transfer and statutory vesting for returning land into Indigenous hands. In general, they confer robust property rights (often freehold) and a strong say over mining and development. The concept of native title emerged from the common law decision of the High Court in Mabo v Queensland (No 2) in 1992 and is regulated by a complex federal statute. The capacity for native title to deliver on Indigenous expectations has been influenced by court decisions in key cases, about what groups must prove in order to win recognition, what rights they obtain, what rules apply to the extinguishment of native title and what constitutes ‘just terms’ for dispossession. Governments have also affected developments, as authors of policy and legislation, and as respondents to Indigenous claims in courts and tribunals. Achieving greater land justice from native title and statutory land rights will require governments to adopt a longer-term strategic focus that emphasizes Indigenous empowerment and self-determination.

The radical or underlying title of the Crown to all lands in the kingdom is a feature of English common law derived from Anglo-Norman feudal doctrines. When British sovereignty was proclaimed over new plantations or colonies, following the reasoning of William Blackstone, English law was part and parcel of the birthright of British subjects (whether English, Welsh, Scottish or Irish) who settled in ‘uncultivated’ distant lands. Crown title, though, is now said by the Supreme Court of Canada “to be burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival.” [Tsilhqot’in Nation 2014) Development of what is called the ‘common law doctrine of aboriginal title’ – though not derived from English common law – is a feature of case precedents in Canada, Australia and New Zealand in recent decades. Courts in these jurisdictions have consistently relied on proclamations of British sovereignty as the origin point for the radical title of the Crown, and the Crown’s right to extinguish native title. The comparative aspect of the paper investigates divergent judicial responses to the status and relevance of pre-existing indigenous norms and values. These range from terra nullius outright rejection of their relevance, to limited acceptance of usufructuary and possessory rights, to a broader acceptance that native title must be understood in the light of indigenous understandings.

While the appointment of Howick, now Earl Grey, to the position of Colonial Secretary in 1846 promised the triumph of the New Zealand Company’s campaign to undo the consequences of the imperial and government’s recognition of native title over much of the colony’s lands, this did not come to pass. In both New Zealand and London, leading figures were troubled that the principles Earl Grey championed in regard to native title would mean that the government would break the promises they claimed the British Crown had entered into with the natives in making the Treaty of Waitangi, and they brought pressure to bear on the government. But, most importantly, for all the talk about the importance of defining the nature of native rights of property, philosophical ideas and legal principles counted for very little in the way that native title was finally treated by the British government. A new governor, George Grey, had been provided the resources denied to his predecessors, and he purchased large swathes of land from the natives. In doing so, native title was made, once and for all, in New Zealand.

The winter and spring of 1844–45 saw debate about native title in New Zealand reach a zenith in Britain. In a fierce parliamentary clash, the Treaty of Waitangi became the reference point in discussions of native title. This was not a consequence of the meanings or the importance attributed to the Treaty at the time it was made in 1840 but a result of the claims that had been made about it since 1842–43. In fact, the Treaty’s rise to prominence was the result of a struggle over the meaning of native title. The continuing attack by the New Zealand Company and allies, such as Lord Howick, saw the government increasingly arguing that the Treaty had to be upheld because it had acquired the nature of a solemn contract, and the honour and good faith of the British Crown and the nation were at stake. At the same time, the way that principal political players in Britain represented the natives’ military power varied enormously according to political circumstances and need, which draws into question the conventional wisdom that the British government respected the New Zealanders and their rights because of the simple fact of their might.

Hobson’s successor as Governor, Robert FitzRoy found New Zealand in crisis but had few resources to address it and adopted rash measures that appeared to abandon the means by which the British government hoped to acquire ownership of vast swathes of land. A major political struggle erupted in London between the New Zealand Company and the Colonial Office with the former spinning a powerful tale that its troubles were primarily the result of the natives’ rights of property in land being defined wrongly. More specifically, the Company’s directors and Lord Howick blamed the Treaty of Waitangi for the way that the natives’ rights in land had been defined. It mattered not a jot that the stories told about its significance involved more fiction than fact. For its part, the Colonial Office insisted that the Treaty had to be upheld in light of what had happened in the past, the facts on the ground in New Zealand and the undertakings the Crown had given the natives. In the colony, abstract legal principles and philosophical ideas similarly played little role in the way the key British players approached native title, especially in comparison to a mixture of moral, political and strategic considerations.

In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.

In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.