LESSONSIN HISTORY IN THE HIGH COURT'S APPROACH TO NATIVE TITLE IN AUSTRALIA
FrancescaGiorgia Dominello Master of Laws (LLM) 2007 THE UNIVERSITYOF NEW SOUTHWALES Thesis/DissertationSheet
Surnameor Familyname: Dominello
Firstname: Francesca Other name/s: Giorgia
Abbreviationfor degreeas givenin the Universitycalendar: LLM
School: Law Faculty: Law
Title: Lessons in History in the High Court's Approach to Native Title in Australia
Abstract350 words maximum:
The High Court decisionin Mabo v Queensland(No 2) was interpretedby some as bringingto an end a history of discriminationand dispossessionof indigenouspeoples' lands. In this respect it was located within the new history movementin Australia- a movementwhich has raisedawareness of the impact that colonisationhas had on indigenouspeoples in Australia.ln this thesisthe extentto which Mabo was in fact a productof the new historymovement in Australiais examined.An analysisof the resultsin the more recent High Court cases on native title such as Western Australia v Ward and Members of the Members of the Yorta Yorta Aboriginal Community v Victoria reveals that the promises that came with native title recognitionin Mabo have not been fulfilled. ln Ward the native title claim was partially accepted; in Yorta Yorta lhe claim was completelyrejected. But as the analysisfurther reveals the shortcomingsof the nativetitle regimeas demonstratedby these cases can be partlylocated in the Mabo decisionitself. One of the contributionsthat some new historianshave made to the writingof Australian historyhas been to reveal how the perceiveddifferences between indigenous peoples and the colonists resultedin the perceptionof indigenouspeoples as inferiorbeings. In turn, such perceptionsworked to legitimisetheir dispossession.In the native title context,indigenous peoples are no longer to be perceivedas inferior(the rejectionof the terra nulliusdoctrinein Mabo was an acknowledgementthat indigenouspeoples did havetheir own laws and socialorganisation). However, the perceptionthat they are differentremains in the way that laws for them are constructed:native title may be recognisedby the common law, but it is not part of the common law. As it is argued in this thesisthe perceiveddifferences in the originsof nativetitle and the Australiancommon law has resultedin the inferiortreatment of native title.Potential solutions are canvassedin the thesis.Included among them is the needto give recognition to Aboriginalsovereignty. However, it is concludedthat if any changeis to take place it must involve changingperceptions of indigenouspeoples so thatthe protectionof theirinterests may be more broadly construedas being in the interestsof Australia.
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Date ¿E AFRtL 29c'_6 ORIGINALITYSTATEMENT 'l herebydeclare that this submissionis my own work and to the best of my knowledgeit containsno materialspreviously published or writtenby another person,or substantialproportions of materialwhich have been acceptedfor the award of any other degree or diploma at UNSW or any other educational institution,except where due acknowledgementis made in the thesis. Any contributionmade to the research by others, with whom I have worked at UNSWor elsewhere,is explicitlyacknowledged in the thesis.I also declarethat the intellectualcontent of this thesis is the productof my own work, except to the extentthat assistancefrom others in the project'sdesign and conceptionor in style, presentationand linguisticexpression is acknowledged.'
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. .¿.8...Af.ß!..ç. ?:.s.S Acknowledgementsand attribution
I would like to thank my supervisor,Arthur Glass, for sticking with me the entire time it has taken to complete this thesis. I am particularly grateful for his honest criticism, even if it was not always easy to accept. I particularly would like to thank Tony Blackshieldfor'coming out of retirement'to read earlier drafts of this thesis.I found his input and wealth of knowledge invaluable, but above all else I am grateful to him for his moral support. I also would like to thank my colleaguesat Macquarie University for their support, in particular, Bruce Kercher, Rosalind Croucher, Denise Meyerson, Peter Radan,Lawrence McNamara and PenelopeWatson. Particular thanks to Malcolm Voyce, Archana Parashar, Vij Nagarajan and Yee Fen Lim for their support and encouragement.
In the time it has taken to completethis thesisI have been blessedwith two children: Edita Nova Dominello Grinbergsand Orlando GiuseppeCesare Dominello Grinbergs. Between being a full-time mother and a fuIl-time academic it often seemed that it would never get finished. I would like to thank all my family and friends who have given me their support. In particular I would like to thank my husband, Michael Grinbergs,my sisters,Antonella Ryan and Marisa Dominello, my father, Vincenzo Dominello, and my mother-in-law, Pauline Grinbergs. Particular thanks to my very good friend, Jennifer Balint, and my electronic pen pals, Stewart Motha and Bart van Klink.
I wish to dedicatethis thesisto the memory of mother, CesarinaVittoria Mulé, whose view of life was to seeno obstacleas insurmountable.It is my hope that such a view will prevail in the contextof reconciliationin Australia.The most recentannouncement by Prime Minister John Howard that he intends to pursue an amendmentto the 'special Preambleof the Constitutionwhere the place' of indigenouspeoples will be acknowledgedmay be a step in the right direction. But with the Federal election looming, and his current low approval rating, his changeof heart, though welcome, rnay be viewed with someskepticism.
Last, but not least,I would like to acknowledgethe financial assistanceprovided by the Lionel Murphy Foundation.
FrancescaDominello
October2007 INTRODUCTION
Mabo is an historic decision.We can make it an historic tuming point, the basis of a new relationship between indigenous and non-Aboriginal Australians. The message should be that there is nothing to fear or to lose in the recognition of historical truth, or the extension of social justice, or the deepening of Australian social democracy to include indigenous Australians.There is everything to gain.' Paul Keating,1992
lMabo] has already led to increasingtension and resentment.Unresolved it can lead to very rapid economic decline and to a partitioning of the continent ... Mabo directly threatensthe unity of Australia. It brings in a separatelaw for one group of Australians. It encouragesaboriginal Australians to think of themselves as separateand distinct from their fellow citizens. It promises racial tension. It guarantees economic stagnation. I call on all ofyou to stand up for the ideals of federation - one nation - one continent; one law, one people, one destiny.2 Hugh Morgan,1993
Many people might argue that terra nullius was put to rest by the High Court in the Native Title decision. This decision was celebrated as being an initiative in reconciliation when it overtumed the application of terra nullius to Australia's law of real property. However the High Court did not fully reject the terra nullius doctrine.
The real death of terra nullius would have dismantledthe Australian legal system.
The celebration of the death of terra nullius is a farce: a collective act of schizophrenia, a false-hood,a conspirationallie, which has lulled the Australianpsyche into a fantasy myth that there had been in the Native Title decision an act of recognition of indigenouspeoples rights'3 kene watson,lggT
ln Mabo v Queensland (No 2)a the High Court held, by a six-member majority, that the Meriam people,the recognisedindigenous inhabitants of the Murray Islands, were entitled,as againstthe whole world, to possession,occupation, use and enjoyment
' 'The Paul Keating, RedfernPark Speech'in Michelle Grattan(ed),.Essøys on Australian Reconciliøtion (2000)60,62. 2 Hugh Morgan, 'A Day to Remember' (Opening Address, 78tr'A¡nual Conferenceof the Returned 'Between ServicesLeague, Victorian Branch, Melbourne, 30 June 1993), quoted in A¡drew Markus, Mabo and a Hard Place:Race and the Contradictionsof Conservatism'in Bain Attwood (ed),In the Age QfMabo (1996)88, 90. ' Irene Watson, 'Indigenous Peoples' Law-ways: Survival against the Colonial State' (1997) 8 Australian FeministLaw Journal 39 47 -8. o , ltssz¡ 175cLR | ('Mabo'). of the lands of the Murray Islands.sFor the first time in Australian law a form of indigenousnative title was found, not only to exist, but also to have predatedand to have survived the acquisition of British sovereigntyover the islands.Moreover, the decision was not confined iust to the Murrav Islands. but extended to all of the territories within Australian borders. In essencethe High Court in Mabo found that the successiveacts of acquisitionby British sovereigntyover the Australianterritories did not equate to absolute beneficial ownership vesting in the Crown. The Crown's acquisition'of sovereignty meant that it acquired radical title over the Australian territories; however, beneficial title vested in the original occupants in the form of native title and existed as a burden on the Crown's radical title.6 The Court's formulation was grounded in the common law: the common law recognisedthat native title did exist, however the contentof native title would arise from the traditions and customsof the indigenouspeoples themselves.T
In order to facilitate the commonlaw recognitionof native title, the Court first consideredit necessaryto reject the terra nullius doctrine as forming any part of
Australianlaw. The Court found that the terranullius doctrinehad operatedto deny any indigenousrights to land through the characterisationof Australia at the time of first settlementas a land belongingto no one.This legal characterisationhad found support from a line of judicial pronouncementsthat had declaredthe continentto be in effect
t tbid 76 (Brennan J). This order related to the whole of the Murray Islands except for a parcel of land leasedto the Trusteesof the Australian Board of Missions and any parcels of land which had been validly appropriated for use for administrative purposes the use of which was inconsistent with the continuedenjoyment of the rights and privilegesof Meriam peopleunder native title. 'Ibid 4l (BrennanJ). t lbid Sg (BrennanJ), 89 (Deaneand GaudronJJ) and 187 (TooheyJ). 'desert and uncultivated'8at the time of British settlementand provided the framework in which colonisationwas legitimised. In turn the effects of colonisationwould have
devastatingconsequences for the indigenouspeoples who did inhabit the continent.
The rejection of the terra nullius doctrine featured strongly in each of the majority judgments. For Deane and Gaudron JJ the dispossession,degradation and
devastationof Aboriginal peopleshave left 'a nationallegacy of unutterableshame'.e
Inevitably, one is compelledto acknowledgethe role played, in the dispossessionand oppressionof the Aborigines, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the senseof unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands of the colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositionsprovided a legal basisfor andjustificationof the dispossession.r0
The acts and events by which that dispossessionin legal theory was carried into practicaleffect constitutethe darkestaspect ofthe history ofthis nation.The nation as a whole must remain diminished unless and until there is an acknowledgementof, and retreatfrom, thosepast injustices.. . . [T]hat re-examinationcompels their rejection.rr 'made For Brennan J a law which the indigenous inhabitants intruders in their own
homes and mendicants for a place to live"' *as plainly unjust and discriminatory:
Judgedby any civilized standard,such a law is unjust and its claim to þg purt of the law to be appliedin contemporaryAustralia must be questioned.'' ::**
[I]t is imperativein today's world that the common law should neitherbe nor be seen to be frozen in an age of racial discrimination.The f,rctionby which the rights and interestsof the indigenousinhabitants in land were treatedas non-existentwas justified by a policy which hasno placein the contemporarylaw of this country.'o
o Seeespecially Attorney-General (NSll) v Broyvn(184'7) 1 Legge372; Cooper v Stuart (1889) 14 App Cas 286; llilliams v Attorney-General (NSl4/) (1913) 16 CLR 404; and Randwick Corporation v Rutledge(1959) 102CLR 54. See generallyMabo (1992) 175 CLR 1, 102-4(Deane and GaudronJJ). ' Mabo (1992)175 CLR 1 104. 'o Ibid toB. " Ibid l09. t2 rbid29. t3 Ibid. 'o rbid 4t-2. [A]n unjust and discriminatorydoctrine of that kind can no longerbe accepted.rs
Similarly for Toohey J:
the consequencesthat, immediatelyon annexation,all indigenousinhabitants became trespasserson the land on which they and their ancestorshad lived ... was not a consequencethe commonlaw dictated;if it were thought to be, this Court should declareit to be an unacceptableconsequence, being at oddswith basicvalues of the coÍrmonlaw.t6
It hasbeen well noted that initial reactionsto Mabo were muted.lTHowever. bv
1993 a heateddebate over Mabo was in full swins. Reactionsto the decision have indeed been mixed. However, to make this point so simply would be a gross understatement.As Sir Harry Gibbs, former Chief Justice of the High Court succinctly put it:
Many decisions of the High Court have resulted in controversy, but few, if any, have given rise to such a .diversity of responses,ranging from euphoria to deep anxiety, as Mabo v Oueensland.'o
For thosewho supportedthe decisionit representeda long overduecorrection to
Australianlaw. In a televisedspeech in 1993 former Prime Minister Paul Keating told the nation:
The Court'sdecision rejected a lie andacknowledged a truth. The lie wasterra nullius - the convenientfiction that Australia had been a landof no-one.The truth was native title.... [A]fter200 years, we will atlast be building on thetruth.re
Evidently, for Keating, and for those who sharedhis views and supportedthe
High Court's decisionin Mabo, the rejectionof the terra nullius doctrineheralded the triumph of 'truth', not only in relationto the 'truth' aboutindigenous societies, but also
'truth' in relation to the about the history of the Australian nation. In this regard the
'' Ibid. 'u Ibid 184. I7 Markus,above n 2, 89. 't 'Foreword' Sir Har:ryGibbs, in MA Stephensonand Suri Ratnapala(ed), Mabo: A Judiciat Revolution (1993)xiii, xiii. le 'Introduction: Quoted in Bain Attwood, The Pastas Future: Aborigines,Australia and the (dis)course of History' in Bain Attwood (ed),In theAge of Mabo (1996)vii, xxxiii. decision was more than just a legal decision whose consequencesin ordinary circumstanceswould be mainly felt by the immediate legal community and by the parties involved (although the significance of the decision for theseparties should not be underestimated).In this casethe consequenceswould be felt by the entire nation.
Now that the truth had been revealed it was thought that the course of Australia's history had changed forever. For many, although not all, this was undoubtedly for the better. Rhetoric or not, many, including Keating, believed that Mabo had createdthe potential to lay a new foundation for the Australian nation.
Bain Attwood has aptly outlined the conditionsfor this 'new' Australia in his edited collection of essaysentitled, In the Age of Mabo: History, Aborigines and
Australia (1996). However, his specific referenceto a 'new Australia' is more a reflection of his basic argument that Mabo is part of the 'process of "national
¿ss¡s¿1"-constituting[and reflecting] a new nationalhistory or tradition'20and it is in relationto this interpretationof Mabo that this thesisis primarily focused.In ChapterII
'new' four aspectsof this nationalhistory or tradition will be outlined: In that Chapter, a general outline of three important aspectsof Australian historiography will be examined: first, different approachesto historical methodology taken by (what are referredto in this thesisas) 'old' and 'new' historianswill be examined;21secondly, the approachof the old historiansto the study of Aboriginality, which somenew historians
'great havetermed the Australiansilence' in relationto the history of colonial relations in Australia will be outlined;22and thirdly, alternateversions of this history written in
'o 'Mabo, Bain Attwood, Australia and the End of History' in Bain Attwood (ed), In the Age of Mabo (1996)100, 104. '' Seebelow ChapterII(A). " Seebelow ChapterII(B). more recent times by the new historianswill be outlined.23Finally, this coverageof
Australian historiography will form the basis for the discussionin the final part of that
Chapter where intersectionsbetween Australian historiography and law and policies as they have related to indigenous peoples in Australia up to the time that Mabo was decidedwill be identifiedand discussed.2a
Basically, the new historianshave sought changefor indigenouspeoples by raising awarenessof the history of colonisationin Australia and the impact it has had on indigenouspeoples in particular. Insofar as Mabo was seen as a product of this movement,thepost-Mabo era,was to be the ageof reconciliationand the end of unjust dispossessionof indigenouspeoples' lands.This vision, however,did not becomethe reality. If one takes seriously the idea that tn Mabo truth had triumphed, then it is somewhatdisturbing that it took 204 yearsbefore Australian law actedon the truth, and even more alanning that even after the truth had been upheld in Mabo it has not been acted upon in ways that advancereconciliation and bring an end to the history of 'why?' dispossession.The initial questionfor examinationis Why did it take so long for Australian law to recognise native title? And more generally, why are some indigenouspeoples in Australia still being dispossessedof their lands?These questions 'how?' will need to be examinedfirst before tuming to the questionof How can we now advancereconciliation and bring dispossessionto an end?
'why An answerto the first question: did it take so long for Australian law to
'the recognisenative title?' may simply lie in truth' itself. This issuewill be exploredin
Chapter II through an application of Michel Foucault's theory of the production of
" Seebelow ChapterII(C). 2a Seebelow ChapterII(D) knowledgeor'truth' throughthe agenciesof power." The basic contentionis that if the 'truth' did triumph in Mabo, both its earlierobscuration and its final emergencecan be located in the shifting discourseson Aboriginality, or what have been described elsewhereas the'discourses ofpower'.26
The discoursesof power which have been central to the construction of
Aboriginality include the areas of Aboriginalism or Aboriginal Studies, law and politics. The main focus of ChapterII is on the areaof Aboriginal Studies(including the areas of history, anthropology and archaeology). The aim of that Chapter is to provide an outline of the history of Aboriginality, and thereby to locate Aboriginality in the historiographyof Australia. In Foucauldianterms it is 'a history which considers how European power and knowledge have constructed Aborigines (and
Aboriginality)'" in the study of indigenouspeoples. In the final sectionof the Chapter intersectionsbetween this history and laws and policies impacting on indigenous peopleswill be drawn that will show how throughthe intersectionsbetween 'truth' and
'history' power dispossessionpre-Mabo was legitimised. A review of this will also provide the backdropto ChaptersIII, IV and V which will examinethe result in Mabo, and the subsequentlegal developmentsin the areaof native title. In this way the second 'why question: are some indigenouspeoples in Australia still being dispossessedof
25 'Truth SeeMichel Foucault, and Power' in Michel Foucault,Power/Knov,leclge; Selectecl Inten,ietus 'Intervista and Other llritings 1972-77 (Colin Gordan et al trans, 1980 ed) 109, 119-133 ftrans of: a Michel Foucault']. Seealso Michel Foucault,The Archcteology of Knowledge(Ê'Nl SheridanSmith trans, 1972 ed) ftransof: Archéologiedu sa'¡,oir];Michel Foucault,Order of Things(AM SheridanSmith trans, l97l ed) [trans of: Les Mots et les choses];Michel Foucault, The Histor of Sexuality, Volume I: An Introduction (Robert Hurley trans, 1979 ed) [trans ofl.Histoire de la sexualité]. 2ó 'The David Ritter, "Rejection of Terra Nullius" in Møbo: A Critical Analysis' (1996) 18 SydneyLøw R^eview5,9. '' 'Introduction', Bain Attwood, in Bain Attwood and John Amold (eds), Power, Knowledge and Aborigines (1992) i, ii. In this chapter Attwood relies heavily on the works of Michel Foucault and Edward Said to reveal the ways that Europeandiscourses have produced the conditions of Aboriginality. This will be explored further in this thesis.See below Chapter II(D). their lands' may be considered. The question of 'how can we now advance reconciliationand bring dispossessionto an end' will be addressedin ChapterVI where potential solutions to dispossessionand the achievementof reconciliation will be outlined in the wake of the failure of Mabo to fully inspire such change.
It could be said that if, in fact, Mabo rejected a lie lterra nulliusl and acknowledged a truth fnative title] - the lie that it rejected had once been the truth.
What may be puzzling for some is how what has been declared to be true, can subsequentlybe found to be false. In 1770 when LieutenantJames Cook (as he then was) took possessionof the territoriesof New SouthWales in the name of the Crown, the widely held view in Western philosophical and scientific communities was that there was nothing in nature that could not be understood through the application of reason.On this understandingit could be arguedthat the perceptionof the territoriesof
New South Wales as teruanullius was the logical conclusionof reasonin view of the
'facts': the indigenousinhabitants, who were describedby Cook'to have no fix'd habitationbut move from place to place like Wild Beastsin searchof food' and the 'one Australian landscapethey occupied, which Cook found to have not Inch of
Cultivatedland in the Whole Country'.28
'truth' As is madeclearer from a Foucauldianperspective, is not a phenomenon that existsin naturewaiting to be revealedby the knowing subject- truth is not prior to knowledge,'itis knowledge[the knowing subject], which creates... truth andreality'.2e
On the basis of this analysisthe applicationof the terra nullius doctrine was not the inevitableproduct of rational thought,but reflectedimages of the indigenouspeoples
tt Ale* Castles,An AustralianLegal History (1982) 22. 2e 'Introduction', Attwood, aboven27, i. and their environment that had been generatedin European circles even before the arrival of Cook and his crew.
As a scientistCook may havethought he was conveyingobjective scientific fact when he penned thesedescriptions of the indigenous inhabitants and their environment in his journal, but from a Foucauldianperspective these images convey more about
Cook and the Europeanattitudes that were held in relation to peoples from new worlds at the time, than they do about the actual peoples who were the objects of study.
According to Foucault's analysis of Enlightenment thought, it is through the
'the 'the 'the constructionof Other' that self or group' can obtain a senseof self and take on an identity. The constructionof this identity 'rests upon negating, repressingor
'the excluding things antithetical to it' - Other' - which in turn can be constructedas 'the outside,opposite and different to selfl.3OThe Other and the self appearto have nothing in common,the binary division betweenthem is forgedby reasonitself. Just as any similarities between the self and the Other are obliterated, so too are any differences between the members of each group. Consequently,in the context of 'we' Australian colonialism were the English, British or Europeanswho would later
'they' call themselvesAustralians; and were all the same, savages,primitive and uncivilised - one of the few differentiatinsfeatures between the men and women was the perceptionof the women as common prostituteswhich justified their treatmentas such. This was the general attitude adopted by the early colonists as a way of maintaining stark contrastsbetween themselves and the indigenousinhabitants; and as will be seen this attitude has survived in one form or another ever since, whether in colonial times with constructionsof indigenouspeoples as prehistoricor ahistorical,or
30 Ibid iii in more recent times as un-Australian and a threat to the national interest. Within this paradigmEuropean standards became the benchmark againstwhich indigenouspeoples were measuredand found lacking: perceived differencesbetween them were translated into negativeperceptions of indigenouspeoples. The perceptionof indigenouspeoples as different sometimesmeant they were denied as having any human traits at all.
However, from the Foucauldian perspective, the two groups were never separatedby a gulf of reason,or by anything else for that matter. The process of identification of the self coexistsand is interdependentwith the identification of the
Other. Yet, it was this very processof identification - 'they are not like us' - that assistedin the stratification of a hierarchical relationship between the colonists and the indigenous populations, where the former reinforced a senseof their own superiority
(by virrue of their reason)by their senseof the latter's inferiority (they exhibited the inverse,they lacked reason).The dispossessionof the indigenouspeoples' lands was only one of the many consequencesof this relationship,legitimated by 'truths' about
'Truths' them. such as thesewould in turn gain legal and political acceptanceso that any dispossessionor discriminationmore generally,would be legitimised in law and nolicv.
Perhaps no harm would have been done if the various descriptions of indigenouspeoples had remainedin the realm of the imagination.Unfortunately, power differentialsbetween indigenous peoples and their coloniserswere to shapethe future society in Australia favourably for the latter at the expenseof the former. From the
'truth' Foucauldianperspective may be the product of knowledge,but knowledgeis the productof power. And this appearsobvious in this contextin the eventualtreatment of
10 the Australian territories as if thev were terra nullius." This characterisationwould not have been possible without the support of the discursive framework then in place, including the international laws and customs of that period, which supported the colonisationof new worlds by Europeans.But even without the force of law behind them, the early colonists'advanced weapoffy, their increasingnumbers, and their own immunity to the diseasesthey spread,could not be matchedby indigenouspopulations.
Might may not havebeen right, but the idea of English superioritymasked the brutality of dispossession.After all, the Aborigines were savages,not the English. It was through the exercise of colonial power that knowledge about Aborigines was
3' While the expressionterra nullius was never used in the early authorities that related to determining the legal statusof the indigenous inhabitants of New South Wales, theseinhabitants came to be treated as 'without if they were laws, without a sovereign and primitive in their social organisation' (Mabo (1992) 175 CLR 1,36 (BrennanJ). In Rv Murrell (1836) I Legge72,itwas found that the Aboriginalnatives were not sovereignand did not havetheir own laws. Burton J opined: although it be granted that the aboriginal natives of New Holland are entitled to be regardedby Civilized nationsas a free and independentpeople, and are entitled to the possessionof those rights which as such are valuable to them, yet the various tribes had not attained at the first settlementof the English people amongstthem to such a position in point of numbers and civilization,and to sucha form of Governmentand laws, as to be entitledto be recognizedas so many sovereignstates governed by laws of their own. (SupremeCourt, MiscellaneousCorrespondence relating to Aborigines, State Records of New South Wales, 511161,210,211, Decisionsof the SuperiorCourts of New South Wales, 1788-1899,
But see Rt,Bonjon (Unreported,Supreme Court of New SouthWales, Willis J, 18 September1841). In that case Willis J accordedthe statusof domestic dependentnation to the Aborigines of New South Wales. He found that Aboriginal customary law and jurisdiction survived the introduction of the common law to the colony of New South Vy'ales.(See John Hookey, 'Settlementand sovereignty' in PeterHanks and Bryan Keon-Cohen(ed), Aborigines and theLaw (1984) 1, 5. Seealso Decisionsof the Superior Courts of New South Wales, 1788-1899,
t1 circulated, and through the circulation of theseimages of Aboriginality colonial power was,and continuesto be, sustained- still at the expenseof indigenouspeoples.
However, the construction of Aboriginality has not remained static. That perceptionsof Aboriginality have changed over time and, indeed, that a range of images of Aboriginality have coexisted at any one time, is consistent with the
Foucauldiananalysis of truth as neitheruniversal nor fixed in time, but as situational.32 'truth' Hence, can changeas surroundingcircumstances change, including changein the purposeswhich truth is expectedto serve.The result in Mabo has been explained in similar terms, particularly by those who have identified shifts in the latter half of the twentieth century in the construction of Aboriginality. Their researchhas shown how theseshifts in knowledge were reflected in Mabo, most notably in the High Court's rejectionof the terranullius doctrineand its recognitionof nativetitle.
However, among the many differing perceptionsof Aboriginality the central 'savages' image of indigenouspeoples as has dominatedthe discoursessurrounding
Aboriginality. For most of the period of colonisation variations of the image of 'treacherous Aborigines as savages'dominated the discourseon Aboriginality and served to legitimise the discrimination and dispossession.Legal propositionswhich characterisedthe continentas desertand uncultivated were consistentwith the savagery imagery.Chief JusticeForbes may havetalked of their'law' in 1829,33as did Sydney
32 'Introduction', Attwood, above n27 , i. 33 R v Ballard or Barrett, (Dowling, Proceedingsof the SupremeCourt, Yol. 22, A¡chives Office of New South Wales, 213205,98, 104, Decisions of the Superior Courts of New South Vy'ales,1788-1899,
l2 Stephen,a barristerin 1836,34but eventuallythe dominantperceptions would leaveno room to accommodatethe legal systemsof the pre-existing indigenouspopulations inhabiting the continent. The corollary of desert and uncultivated was that the
'without indigenouspopulations were laws, without a sovereignand primitive in their social organization'." By contrast, the result in Mabo reflects the humanitarian 'noble discoursebuilt aroundthe image of Aboriginality as the savage'that was also present, though mostly as a subordinate discourse throughout the period of colonisation.Within this discourse,as it developedin anthropologicalstructuralism, indigenouspeoples were found to live in complex social structuresand to govem themselvesaccording to elaboratekinship rules which not only overlapped and could impact on neighbouring groups, but affected all of their relationships with the world 'culture' around them. The growing acceptanceof indigenouspeoples' as possessing madethe argumentthat the continentwas desertand uncultivatedincreasingly suspect.
The strongestattempt to depart from the image of the savagecompletely has been within this humanitariandiscourse, through attempts to representindigenous peoples as fellow human beings who should be accordedequal treatment (and in some cases special treatment) for the purpose of bringing to an end the pattem of their dispossessionand discriminationagainst them.
Mabo could be construed as such an attempt insofar as it tried to achieve equality between indigenous and non-indigenous peoples through a positive recognitionof difference- native title - and tried to accommodatethis property title within the rubric of Australian law. At the very least Brennan J's reiection of the
3a Australian, 9 February 1836, Decisions of the Superior Courts of New South Wales, 1788-1899,
l3 'absence of law' or'barbarian theory of law'36in view of factssurrounding the order of indigenoussociety is an indication of the way the discourseson Aboriginality have been reflected in law, and of how any changein such discoursescan influence legal developments.Moreover the decision in Mabo clearly indicateshow perceptionsof
Aboriginality areinextricably linked to moral values:the perceivedshift in perception of Aboriginality paralleled a shift in moral values surrounding the treatment of indigenouspeoples. For BrennanJ it had becomenecessary to bring the law into line with thesechanged moral values.37
Prior to the Mabo decision it had become commonly acceptedat least by the new historians, especially historians such as Henry Reynolds, that the terra nullius doctrine stood in the way of acceptanceof indigenous precepts of property in
Australian law.38 This understandingwas based on Blackburn J's judgment in
Milírrpum v Nabalco3ewhere he rejectedthe claim of the Yinkala peoplefor their land on the basis of what he consideredwas the establishedlegal position, in spite of the recognitionhe gave to their elaboratesocial organisationof the claimant group. This decisionhighlighted the disparity that had come to exist betweenAustralian law and
Australian history. By contrast the rejection of the terra nullius doctrine and the recognition of native title in Mabo were perceived to have frnally bridged the gap betweenAustralian law and Australianhistory by bringing Australianlaw into line with
Australianhistory. Such assertionshave led someto arguethat Mabo was the product
'" Ibid 39. 3' rbíd 42. 38 Seeespecially Henry Reynolds,The Law of the Land (1987) 12-14. t' lt9lI¡FLR 14l.
T4 of the new history movementin Australia.a0This argumentwill be exploredin Chapter
III using the historicalframework established in ChapterII as a guide.
The problem, however, that remained after Mabo was that not all were convincedthat it was a good decision- in its own terms and for Australia. In this regardMabo came to possessdiscursive power all of its own. Supportersmay have sung its praises- and may still continueto do so. For supporterslike Keating,Mabo provided the foundation for a new relationship between indigenous and non-indigenous
Australia from a relationship of coloniser-colonisedto one based on the notion of equality, with potentially far-reaching consequences at all levels of social organisation.alKeating was not alone in maintainingthis interpretationof Mabo. Paul
Patton,analysing the decisionfrom a post-structuralperspective adapted from Deleuze and Guattari's theory of deterritonalization, has also supportedthis view of Mabo.a2Its signifìcancefor Patton,lay in the very fact that the recognitionof nativetitle was itself recognition of difference and escapedthe traditional modes of treatmentof cultural differencein the past.Native title was a form of title that neither existedseparate from the Australian legal system (as outside law/history), nor did it exist as part of
Australianlaw (as subjectto assimilation),but its recognitioncreated a spacein which indigenouspeoples could engagein self-determinationby becoming directly involved in the processesof determiningthe contentof native title - the sui generis nature of naturetitle meantthat the incidentsof native title were to emanatefrom the indisenous
a0 See especiallyAttwood, 'lntroduction: The Past as Future', above n 19, xxxi-xxxvi, and Attwood, 'Mabo, Australiaand the End of History', aboven 20, 101-5. al Keating,above n l. a2 'Post-structuralism Paul Patton, and the Mabo Debate:Difference, Society and Justice' in Margaret Wilson and Arula Yeatman(ed), Justice & Identity: AntipodeanPractices (1995) 153.
15 peoplesthemselves. Indigenous lawyer and activist,Noel Pearson,has come to similar conclusionsabout the nature of native title as sui generis.a3
The Deleuzian theoretical framework utilised bv Patton resembles the
Foucauldian approach in its rejection of the notion of linear history. Instead it illuminates the complexity of the social field and of the eventswhich take place within that field as multi-dimensionalaffays of 'lines of flight'.aaMabo can be understoodas such an event, especially with respect to the reactions it generated.For supportersthe decision in Mabo may have been reason for celebration, for others, like Hugh
Morgan,4sit was causefor alarm, while there were others still, like Irene Watson,46 who remained skeptical about whether anything at all had really changed.The debate that emerged in the wake of Mabo and continued to rage after Wik Peoples v
QueenslanÍ7 will be discussedin ChapterIV. As the discussionwill show, the debate centredon the changethat Mabo had cometo representfor the nation.For conservative critics far from being a positive change for Australia Mabo was perceived as threat to the nation, not only in relation to establishedeconomic and legal interests,but also in relation to Australianhistory and the well-being of the Australianpsyche that depends on that history.Mabo poseda threatto the unity to the Australiannation, by singly out a group of Australiansfor specialtreatment. It poseda threatto Australianhistory by undermining Australia's honourablepast in British traditions. In these respectsthe conservativecritics not only challengedlhe Mabo decision,but the Court that made a3 Noel Pearson,'The Concept of Native Title at Common Law' in Land Rights: Past,Present qnd Future - ConferencePapers (1996) I 18. aa See Gilles Deleuze and Félix Guattari, A Thousand Plctteaus: Capitalism and Schizophrenia (Brian Muassumi, trans, 1996 ed) 3-5 [trans of: Mille Platearr¿ volume 2 of Capitalisme et Schizophrénie]; Patton,above n 44,153-5. os Morgan, aboven 2. ou watson, aboven 3. 47 1too6¡187 cLR | ('wik').
l6 that decision.These criticisms were aimed at the legal basisfor the decisionas much as they were at its moral basis.In effect their criticisms of Mabo reassertedthe colonial
'new power of the old order, reinventedas the right history',48and in its corridors echoes of the terra nullius doctrine - the reassertionof negative perceptions of indigenouspeoples - resounded.
'new' In many respectsany failure to realisethe Australiapost-Mabo could be located in these debates,especially when the great impact the debateshad on the ') enactmentof the Native Title Act 1993 (Cth) ('NTA and its subsequentamendments in
1gg84eis acknowledged.If one acceptsthe analysisin ChapterII - law is producedby the discoursesthat circulate within it as much as outside it - then the links between the debatesand the developmentsin native title law post-Maboare obvious.If it is further acceptedthat discourse is a product of power, then the greater influence of the conservativecritics in the native title context may explain the developrnentsas they unfolded in that context. Their influence meant that the terra nullius doctrine was resurrectedin other ways in order to obstructthe post-Maåovision. Thus, the rejection of the terra nullius doctrine in Mabo did not amount to its final demise as was originally envisaged,nor would its effectsno longer be felt. However,the influence of conservatismmay only partly explain these developments.If there was a failure to producethe new Australia of the post-Maboera, this failure could be locatedin Mabo itself.
The tensions that can be found in the discoursesthat informed the Mabo decisionand that were reflectedin reactionsto the decisionin its wake revealMabo as aE Leonie Klamer, Hugh Morgan, Ken Baker, Gerard Henderson, Geoffrey Blainey and most recently, Keith Windshuttle are often cited as espousing this view of Australian history. See generally Attwood, 'Mabo, Australia and the End of History', aboven 20. ae Natiye Title AmendmentAct IggS (Cih).
T7 a complex social phenomenon.Central to its complexity were competingimages of
Aboriginality. The focus of Chapter V will be to identiflz the problems still facing indigenousclaimants in native title casesin the High Court. The view of this writer is that Mabo did not go far enough. By contrastto the exaggeratedcontention that Mabo was revolutionary, this Chapter will explore the limitations of the decision and of subsequentnative title decisions.It could have been worse; the High Court did at least affrrm the common law's recognition of native title when it could have rejectedthe claim in Mabo altogether. To that extent Mabo did reflect changed perceptions of
Aboriginality and the place of indigenouspeoples in Australia, as the analysis in
ChapterIII will show. However,just as the conservativesmay have over-exaggerated the scopeand effect of Mabo,sothe prediction that the overthrow of terra nullius would in fact cure the law,sl failed to make allowancesfor the survival of colonial attitudes within (and outside)the decision.The fact that native title was itself an inferior form of title is testimony to the survival of old historical perceptionsof Aboriginality - as inferior - within Mabo itself. Moreover, even the space created in Mabo for self- determinationis revealedas illusory when it is consideredthat power remainsin the hands of non-indigenousinstitutions such as the High Court to make native title determinationsand that no significantpower hasbeen passed on to indigenousclaimant groups:native title may havebeen given recognition,but Aboriginal sovereigntyis still to establishits recosnition.
As will be seenin ChapterV, the survival of thesecolonial attitudeswas made possibleby the Court's perceptionof its own institutionalhistory, of the broaderhistory
so Seebelow ChapterIV. '' Seebelow ChapterIII.
l8 of Australian law, and of the Court's own functionswithin the inherited body of law
and within the Australian legal system.And it is from its position of power as the judicial arm of govemment in Australia that the Court was able to construct and
maintain a relationshipof inequality between itself and the laws it administers,and
indigenouspeoples and their laws. The result is a systemof laws in which indigenous
interestsare still accordedinferior treatment,which translatesdirectly as a relationship
of inequalitybetween indigenous and non-indigenouspeoples.
Thus,in ChapterV the scopeof analysisis broadened.Mabo, and developments
in native title more generally, will be examined in a broader historical context: particularly that of the institutional history of the High Court, and its place within the broaderhistory of Australian law. In Deleuziantems, as understoodby Patton,Mabo was indeed a complex social event in its own tight.t'There is, on the one hand, an
elementof deterritorializationand a possibility of positive social changearising frorn
Mabo, both for indigenouspeoples and for Australia, which could have provided the foundation for a new relationship between indigenous and non-indigenouspeoples enablingthem to achievea mutual accommodationwithin the sameterritory. Yet, on 'there the other hand, as Deleuze and Guattari wam, is still a danger that you will reencounter organizationsthat restratify everything, formations that restore power to a signifier, attributionsthat reconstitutea subject's3- and in the contextof Mabo, it was the High Court itself that restratif,redpower in favour of non-indigenousproperty interestseven as it openedup a spacefor recognitionof indigenousinterests. The result is a mix of contradictoryand unequalexertion of forceswithin the decision itself. On
t'Patto.t, aboven 42,155. 51 .- , " Deleuzeand Guattari, aboven44,9.
t9 the one hand the decisionresponded to the need to remedy a historical \¡/rong in the light of a changed perception of its victims. On the other hand the High Court constructed an impenetrable history of Australian law which continues to refuse to recognise any form of indigenous autonomy, thus enabling the constitutionally establishedinstitutions of law and govemment to maintain control over them. And it is from its own position of power that the Court, like other Australianlegal institutions, canpick and choosewhat aspectsof indigenouslaws can and cannotbe recognised.
Moreover, the Court continuesto legitimise its position, and the privileged statusof Australian law vis-à-vis indigenouslaws, in a way that perpetuatesa parallel contrastbetween images of Aboriginality and images of what it is to be Australian, thereby effectively reconstituting the subject - the Aborigine as opposed to the
Australian.In this way the High Court has re-establisheda binary oppositionbetween them. Thus, even while Aboriginality has been used successfullyto make gains for indigenouspeoples, the full benefits of these gains have been underminedby the conception of Aboriginality as lacking when measured against the 'Australian' standard.The perceiveddifferences between Aboriginality and Australian-nessare still enough to outweigh equal treatment in favour of inferior treatmentof indigenous peoplesin Australia.
In order to establishand maintain strict delineationsbetween Aboriginality and
Australian-nessthe Court has had to stressthe unity of origin betweenEnglish and
Australianlaw - origins that Aboriginal customarylaws do not share.In Mabo itself, a
'skeleton concern to protect the unity of the Australian legal system - the of
20 principle'54inherited from Englishlaw - hasmeant that indigenouspeoples' native title rights might sometimesbe convenientlyexcluded. In later High Court decisionssuch as
WesternAustralia v Wardss andMembers of the Yorta Yorta Aboriginal Community v
Victorias6the understandingof native title as not forming part of the common law of
Australia has contributed further to its inferior treatment.In Yorta Yorta the Court went
as far to suggestthat any incorporation of native title in the common law of Australia was construedas a threat to the very foundations of the Australian legal systemsT- the
assertionof sovereignty by the British Crown over the Australian territories. So much
for undermining British legal traditions! Constructingnative title in this way has
reinforcedthe cultural divisionsbetween indigenous and non-indigenous peoples in law
and in society, particularly a cultural understandingof indigenous peoples as non-
British. And, the continued invocation of British sovereignpower has ensuredthe
continued assertionof non-indigenouscontrol over indigenous peoples' claims for
native title and has underminedany autonomythat could have been exercisedin the
nativetitle context.
Ultimately in casessuch as Ward and Yortø Yorta Aboriginal customarylaw
has been constructed as outside the Australian common law. Arguably, this
constructionhas substantiallyexcluded the Court's resortto the common law in native
title cases,and has thereby impededthe claimants'success in their native title claims.
As Parliamentlegislated in relation to native title, and the High Court increasingly
drew back to what would seem to be a subordinate role, its withdrawal has
convenientlycurtailed the humanitarianstrain within Mabo and its willingnessto draw
toMabo (199'7) t75 cLR 1, 29-30(Brennan J). tt lzooz¡213 cLR | ('tltard'). s6 lzooz¡214 cLR 422('Yorta Yorta'). t'lbÅqq3-q (GleesonCJ, Gummow and Hayne JJ).
21 upon developmentsinternationally. Instead, the Court has now drawn only upon the
NTA.
As the discussionin ChapterV will reveal, supportersand critics alike over- exaggeratedthe decision in Mabo, not only in relation to the promise it held for indigenous self-determination, but also for the potential for change it representedin relation to indigenous/non-indigenousrelations. As MurrandooYanner succinctlyput it:
The farmersin their hysteriathink they're goingto losetheir land. Our peoplein their errorthink they'regoing to get their land.They're both wrong. So you win nativetitle on a pastorallease, and then what happens?The pastoralistopens the gateand says, 'Murrandoo,go do your danceand songand catcha turtle - and closethe gatewhen you leavetomorrow'. Native title is not sovereignty.It's not landrights ... it getsus to thetable, that's a11.58
But even when at the table indigenouspeoples' bargainingpower is still significantly diminished. The extent to which traces of old and new historical discoursescan be found within Mabo, showshow incompletethe shift from old to new history hasbeen - at least insofar as thesediscourses assisted to shapethe result in that case.In spite of what supportersand critics have said about Mabo tracesof old historical perspectives on Aboriginality prevailedand continueto dominatein thepost-Mabo era.
And yet, at the time that the NTA was being negotiatedthere were still some indigenouscommentators and political activistswho were preparedto acceptthe High
Court's fomulation in Mabo, and evenwilling to compromisetheir interestsfurther in order to achievea resolutionof the issuesin the statutoryenactment.sn E,ren at the time
s8 Quotedin Duncanlvison, PostcolonialLiberalism (2002) 148. to For an outline of the history of the enactmentof the Native Titte Act 1993(Cth) seeMaureen Tehan, 'A Hope Disillusioned,an Opportunity Lost? Reflectionson Common Law Native Title and Ten Years of the Native Title Act' (2003) 21 Melbottrne University Law Review 523,539-43. See also Noel Pearson,'The High Court's Abandonmentof "The Time-HonouredMethodology of the Common Law" in its Interpretation of Native Title irt Mirriuwung Gajerrong and Yorta Yorta' (2003) 7 Newcastle Law Review1,2-5.
22 of Wik which found that native title could coexistwith other non-indisenousleasehold titles there was still hope for the new Australia and for a new relationshipbetween indigenous and non-indigenous peoples. Arguably, insofar as Wík appeared to emphasisecoexistence between the different property titles it representeda high water mark in the movement towards the positive changethat had been envisagedas a result of Mabo. But the Howard Govemment elected In 1996 was to adopt a policy of practicalreconciliation in relationto indigenousissues, abandoning the earlierpolicy of selÊdetermination.In that context,the amendmentsto the NTA in 1998and subsequent decisions in the High Court, most notably Ward and Yorta Yorta, would further dampen any hopes for continued change leaving some commentatorsto lament what appearedto them to be the etemalretum of colonialismin Australia.60
Chapter VI will focus on renewing hope. The altemative approachesto be exploredinclude a renewedattention to potential common law approacheswhich the
High Court's interpretationof the NTA appearsto have excluded;61alternative avenues available to address dispossessionsuch as the Land Acquisition Fund; and, the potentialof negotiatedagreements as an altemativeto native title litigation.62
In light of this discussionit will becomeapparent that more thanjust what the currentlegal systemcan offer is neededto overcomethe obstaclesfacing indigenous peoplesin the native title context.Moreover, more than just changeto the native title regime is neededto bring about long term changesto indigenouspeoples in Australia where they can achievea level of autonomyand self-determination.The problem for
uo See generallyDavid Ritter, 'The Weltgericht of Yorta Yorta: "Die Weltgeschichte ist das Weltgericht"'(Paper presented at the Native Title RepresentativeBodies Legal Conference,August 2001). 6' seábelo* chaptervI(A). ó2See below Chapter VI(B).
23 indigenous peoples continues to lie in their inferior treatment: treatment that historically has its genesisin the various representationsof Aboriginality as inferior beings.
But if we are to see the final death of terra nullius does that entail dismantline the Australian legal system as Watson contends?In the final section of ChapterVI proposalsfor changeto the Australianlegal systemwill be outlined and discussed.The focus will begin by examining different proposals that have been advanced by indigenous spokespeoplefor changeto Australia's institutional structures.In particular
Larissa Behrendt's proposalsfor change as identified in her book Achieving Social
Justice (2003) will be outlined and discussed.Most significantly her proposals for changeto the Australianlegal systeminclude the promotionof legal pluralism in which indigenouslaws and sovereigntywould be recognised.Whether this reform of the
Australian legal system will mean its final doom remains to be seen. Importantly, however,Behrendt has acknowledgedthat more thanjust reform of the legal systemis required.She has envisagedthe need to transformthe Australian national identity and educatethe population about Australian colonial history. It may well be that each
elementof this transformativeprocess is requiredin tandem.
Consistently with this model for change other significant ideas will be
canvassed.In particular, ideas developedfrom a post-structuralperspective will be
adopted and adaptedto deepen the critique of the present Australian responseto
indigenousissues. For Foucault,one strategyto addressthe effects of power was to
turn power againstitself.63 In this context this could be achievedby offering alternate
u3 Mi"h"l Foucault,'Space, Knowledge, Power', in Paul Rabinow (ed), TheFoucault Reader(1984) 239, 245.
'tA ways of seeingthe world - the institutionalstructures of the state,ourselves and those around us - that would no longer perpetuatethe images of indigenouspeoples as inferior, undeserving,or a threat.
Identifying the ways that the state's institutions have the potential to accommodateand offer protection to indigenous laws and devising ways to reform and introducenew institutionalstructures is an important stepin this process,but will only get us so far. So long as indigenouspeoples are perceivedas a threat to Australia's institutional structures,reasons will still be found for refusing to protect their interests.
It therefore becomes necessaryto reconceptualisethe Australian national identity in ways that include indigenouspeoples as Australian so that their interestsmay finally be conceived as commensurate with the national interest. The transformation of the
Australian national identity is possible when it is consideredthat identity is neither fixed, nor static. Australia's multicultural society is alreadya blend of differencesof which Aboriginality forms a part. Additionally, however, if we are to acknowledge
Aboriginality sovereigntyand follow a policy of self-determinationthat will promote a status of autonomy for indigenouspeoples, this would require acceptanceof their claims to prior occupation and possessionof the continent. It would also require recognitionthat the legitimacy of the nation will continueto be open to questionuntil acceptanceof indigenouspeoples prior claims are acknowledged.This would require nothing less than addressingAustralian colonial history that has stood in the way of suchacceptance as a meansby which to end that part of history.
Identifying the structuraland conceptualobstacles in the way of change and addressing these obstacles by reforming Australia's institutional structures, reconceptualisingthe Australian national identity and coming to terms with history,
25 would provide the basisfor a new discursiveframework in which Behrendt'sproposed institutionalchanges could be accommodated.It would ultimately involve engendering a sense of commonality among the peoples inhabiting Australia and within their institutions that dependsupon acknowledgementand respectfor cultural differences.
As a grossly disadvantagedminority group in Australia, indigenouspeoples need the support and assistanceof the non-indigenouspopulation to promote and introducechange - changethat would mean lesseningthe control that non-indigenous bodies have over indigenous peoples' lives. Whether that can be achieved and sustained;whether it is enough- only time and experiencecan be the judge of that.
26 II THE 'NE\ry HISTORY' AS A DISCOURSEOF POWER
According to Bain Attwood, Mabo v Queensland(No 2)' wasnot only a turning point in the directiontowards reconciliation, but could alsobe locatedon the trajectory of the reconciliationmovemenl. Mabo was itself a reconciliatoryevent, but was also
'new the product of a history of reconciliation,or in Attwood's terms the history of
Australia'.2
In this way Mabo signalled the potential transformationof the nation by
providing a new foundation for the relationship between indigenous and non-
indigenouspeoples in Australia. This potentialwas itself a product of history and, in
'new particular for Attwood, reflects acceptance of the Australian history as an
interpretationof Australia's colonial past fand Australia's presentand future].'3 The
'new Australian history', altematively labelled 'Aboriginal history', in this context
relatesto the historical discourseof the last forly yearsand includesits manifestations
in anthropologyand archaeologyas well ashistory.
Basically Attwood has presentedthe 'new history movement' in Australia as
the antithesiso-f the former approachto history (also including anthropologicaland
archaeologicalapproaches to the past). Broadly speakingthese movements can be
locatedin the generalarea of Aboriginal Studies.However, if the more recentwork that
Attwood has referred to is labelled 'new' history, then presumablye converso the
earlierwork shouldbe desisnated'old historv'. The markersof differencebetween the
'new' and the'old' relateto historicalmethodology as much asto historicalcontent.
' (1992)175 CLR 1 ('Mabo'). ' See generally, Bain Attwood, 'Introduction: The past as Future: Aborigines, Australia and the (dis)courseof History' in Bain Attwood (ed),In theAge of Mabo (1996)vii. 'Ibid xxxi.
27 'new Of the contributions to Australian history that the history' movement has made, there are four in particular that deservemention here and will be discussedby contrast to the 'old' history. The first relates to the differences in historical methodology,and will be discussedbriefly below.a Secondly,and most importantly,
'the the new historiansbroke what WEH Stannerin 1968 describedas greatAustralian silence's that shroudedAustralia's history in relation to the horrific impact that the colonisationof Australia had had on indigenous societies.They did so by actually providing a history of the silence.6Thirdly, in place of the silence,the new historians have provided alternative versions of the history of Australia with colonial relations as their focus. Thesehistories, which will here be reviewed only briefly, are also part of the broader historical work in which indigenous peoples themselveshave been engaged.TFourthly, through the rewriting of Australian history as it relates to indigenouspeoples in Australia, certainnew historianshave been able to identify the ways in which inequality of power has operatednot only to produceand perpetuatethe social conditionsof oppression,but more subtly to shapethe discoursesof knowledge relating to indigenous peoples.These in turn have penetratedother institutions of power, such as those of law and politics, in their identifìcation of and responseto indigenousproblems.s The outline of theseaspects of the new history movement will provide the backgroundto ChapterIII where Attwood's basic claim that Mabo was a productof this movementwill be explored.
* Seebelow Part A. 5 WEH Stanner,The 1968Boyer Lectures;After the Dreaming (1969) o Seebelow Part B. 7 Seebelow Part C. 8 Seebelow Part D.
28 A HistoricalMethodology
In terms of historical methodology,an important contrastbetween old and new history is the understandingof the relationshipbetween the historian and the past.As
Attwood has explainedit:
Historical and archaeologicalscholarship have been dominatedby a conventional epistemologywhich assumesthat the pastbelongs to anotherrealm of time which is separatefrom the present,and that consequently,so long as scientif,rcmethods are adopted,it is possiblefor the historianand the archaeologistto show the past as it really^was andto understandit on its own terms,and thus have independent, historical truth.' 'new' By contrast,in more recent times a cluster of historianshave rejectedthe idea that it is possibleto write history with strict distinctionsbetween past and present(or future) in mind. Instead they take the view that 'one always reaches the past "by startingout from the present,"and is "always concernedwith the meaningsof historical reality for us, now"' for it is how the pastis interpretednow that will shapethe future.l0
Importantly, it is in this context that Attwood has identified an intersection betweenthe methodologicalapproach of these'new' historiansand the epistemological practices of Aboriginal oral tradition. The 'old' historians assumed 'a radical disjunctionbetween past and present,'treating the past as 'complete,unchanging and unchangeable,'and ashaving an objectiveexistence.ll
By contrast,history in the (Aboriginal) oral tradition assumesa conjunctionbetween past and present, that the past is something which is fluid and shifting and so [amenable] to intervention, and has an inevitable subjectivity as people seek to establishmeaning for the past in the contextof their present.In the fomer there is an emphasison the discontinuity and on the foreignnessof things past, in the latter an emphasison continuity and on the essentialnature of things.''
e 'Introduction: Attwood, The Pastas Future', aboven 2, xvi. ro Ibid xvii. " Ibid x*. '' Ibid.
29 For this reason,the particular significance of the historiographical shift for Aboriginal
'old' history is that, whereasthe history privileged 'objectivity', and thereforegave
'new' priority to documentaryevidence, the methodologyof the history movementis able to draw also on the individual and group experience preserved through the narrative sources of oral testimony, which enables their inclusion as history. The 'old' methodologyof the history is not so accommodating.It is through oral (and now written) history that indigenouspeoples convey their traditions- and more importantly in the context of this thesistheir experiencesof colonisation- which in turn provide 'old' alternativehistories to versionsof that history.
Moreover the inclusion of indigenousoral historiesas history also highlights a political dimension of the writing of history. Insofar as the old history paradedas objectivehistory andrelied on the written historicalrecord only, this in fact assistedthe exclusion of indigenous histories, especially in their oral form. However, once 'truth' indigenoushistories are acceptedas history, the assumedobjective comesunder challenge, and apparentpolitical consequencesensue. Generally in the context of
Australian history writing this has been most recently illuminated in the 'history wars'13that followed the decisionsin Mabo and Ihik Peoplesv Queenslanc{,taandthe controversiessurrounding the stolen generationslsand the Hindmarsh Island bridge affair.16Events such as thesehave given rise to a renaissanceof the old methodological
'new approachto the writing of history in the form of the right history'. The resulting
'' 'Introduction' See generally Robert Manne, in Robert Manne (ed), WhiteyvashOn Keith l4/indschuttle's Fabrication of Aboriginal History (2003) l, and Stuart Macintyre and Anna Clark, History I(/ars (2003). 'o çsee¡187 cLR 1('wik'). " Human Rights and Equal Opportunity Commission, Bringing Them Home, Report of the National Inquiry into the Separationof Aboriginal and Torres Strait Islander Children from their Families (1991). '" Seegenerally Margaret Simons, The Meeting of the llaters (2003).
30 debates themselves illuminate the contentiousness that still surrounds not onlv historicalmethodology, but historicalcontent as well.lT
If, as somenew historiansclaim, history writing is not an objectiveexercise, but a process of interpretation in its present context (unfortunately stigmatised by the derogatory label of historical revisionism), this interpretive technique is not to be confused with replacing objectivity with subjectivity. Rather, adopting the approach taken in philosophical hermeneutics,it can be arguedthat interpretationis never in fact free or arbitrary, but is situatedin a tradition - an interpretive community. As Feldman has argued,affirming Gadamer'sapproach to interpretation:
the traditionsof one'scommunity help to shapethe interpreter's'horizon': 'the rangeof vision that includes everythingthat can be seen from a particular vantagepoint.' Furthermore,the notion of an interpretivecommunity tnderscores that we are historical '[W]e beingswho live in tradition: arealways situated within traditions... [whichare] alwayspart of us ...' Thus,tradition is not a thingof the past;rather it is somethingin whichwe constantlyparticipate. As Gadamernotes: 'Tradition is not simplya permanent precondition;rather, we produceit ourselvesinasmuch as we understand,participate in theevolution of tradition.and hence further determine it ourselves.'18
Communaltraditions may constrain,but they also open us to 'meaning,understanding andtruth'. As Gadamerhimself stated:
This formulation certainly does not mean that we are enclosedwithin a wall of prejudicesand only let throughthe narrow portalsthose things that can producea pass saying, 'Nothing new will be said here.' Instead we welcome just that guest who promisessomething new to our curiosity. But how do we know the guest whom we admit is one who has somethingnew to say to us? Is not our expectationand our readinessto hearthe new also necessarilvdetermined bv the old that has alreadvtaken possessionofus?re
In the Australian context the oral tradition of indigenous history, and the alternative perspectives that indigenous peoples offer in relation to Australian r7 Seebelow Part C. 18 'Diagnosing StephenFeldman, Power: Postmodemismin Legal Scholarshipand Judicial Practice' (1994) 88 Northwestern University Law Review 1046, 1062. The internal quotations are from Hans- Georg Gadamer,Truth and Method (JoelWeinsheimer and DG Marshall, trans, 1989ed) 302,282,293 ftransof: Wahrheitund Methode: Grundzügeeiner philosophischen Hermeneutikl. re Hans-Georg Gadamer, Philosophical Hermeneutics (DE Linge, trans, 1976 ed) 9 ftrans of'. Kleine Schriftenl.
31 colonisation,may be that 'guest' who promises'something new' - a new interpretive community in which to understandAustralian history and national identity. The difficulty, however, may still lie with those unwilling to give up the old interpretive attitudes that possessthem, as the debatesfollowing Mabo demonstrate.20ln this regard,historiographical methodology and history writing may be more about power
'distortion, than about community - reflecting the suppression of difference or subordinationof the other'.2r
However,while Attwood may have rejectedthe methodologicalapproaches to history taken by the old historians, not all new historians have abandonedthe methodologicaltraits of the old historians,in particular the underlying belief in the possibility of objective history. Even when they seek to present a history that may challengethe accountsof history presentedby the 'old' historians, they may still employ the traditional methods.In this respect,while Attwood may have adopteda revisionist approachto historical research- that politicises the idea that there is no clear separationbetween past and present,since interpretations of the past can change according to differences of perspectiveand context in the present - not all new historianshave adopted this approach.Moreover, it is not entirely clearfrom Attwood's own work whetherhe has fullv abandonedall of the methodolosicaltraits of the old historians.However, while he may equivocatein relation to his own approachother historians have been more forthrisht in relation to their own oositions whether in
20 Seebelow Chaoter IV. t' 'Deconstruction Michel Rosenfeld, and Legal Interpretation: Conflict, Indeterminacy and the Temptationsof the New Legal Formalism' in Drucilla Cornell, Michel Rosenfeldand David Carlson (eds),in Deconstuction and the Possibilityof Justice(1992) 152,153.
32 stressingthe value of empiricalresearch22 or positing new historicalversions of history as truth.23Thus the battle over history and historicalmethodology continues.2a
The position taken by this writer, however, is that history does depend on factual evidence and requirespiecing together different sourcesof available data while at the sametime making allowancesfor discrepanciesand gapsin the historical record, in order to bring togethera plausible accountof the past. But to make senseof the factual evidencedepends on interpretation in the Gadameriansense. In this respect the writer does not acceptthe old methodological approachto history with its emphasison achieving objectivity - as if the facts of the past were simply waiting to be revealed by the knowing subject as truth. Rather this writer is of the view that history writing is 'horizon'. informed by the historian's This horizon doesnot only inform the way that history may be interpreted,but may alsoinform the emphasisthat a historianmay place 'make' on the events and the people who history. Moreover, even at the outset of embarking on a historical enterprise,the historian's decision to research into a 'ho/rzon' particular areamay be informed by a .25This choicemay evenbe a response
tt A Dirk Moses,Book Review,Australian Book Review No 276 (November2005) 13, 14. 'Introduction' " S.", G Osborneand WF Mandle, in G Osborneand MF Mandle (eds),t/¿w Histor: Studying"g, Australia Today (1982) 7. 2a Seebelow Part C. tt Henry Reynoldsis a notable eg.lnThe Other Sideof the Frontier (1981)he stated(at2-3): I beganthis researchbecause conventional Australian historiography seemed so inadequateto explain and illuminate the ... experienceof north Queensland.Nothing in my Tasmanian educationhad preparedme for the realitiesof race relationsin what fCharles]Rowley called colonial Australia. It was not just the unaccustomedviolence and hatredwhich often grew as lush as guinea grassbut the smaller more subtle things - expressions,phrases, jokes, glances; evensilences, which sprangup out oflocal historicalexperiences I knew little about.
In that book he confessedthat (at l): This book ... is ... aimed primarily at white Australians in the hope that they will gain an appreciation of the Aboriginal part in the history of the continent during the last two hundred years ... It is inescapablypolitical, dealing as it must with issuesthat have aroused deep passionssince 1788and will continueto do so in the foreseeablefuture. Many peoplemay find it an uncomfofable book. It will probably challenge myths and prejudices embraced by both black and white communities.
33 to events as they are unravelling in present times. In this regard history writing can havepolitical significanceand servepolitical purposes.
Having said that it is alsoimportant to be wary of competingversions of history and especially of interpretations of history that are so far-fetched that they do not resemblethe facts of the past at all. This proviso is an important one to maintain especiallyas it will be arguedin the next sectionwhen it is consideredthat until the writing of new histories in the late 20thcentury, it had been generally acceptedin the scholarlycircles of the 19tl'century that indigenouspeoples belonged to a differenttime
- as prehistoric or at least ahistorical - an idea that derived from a basic premise that indigenouspeoples were savagesliving in a perpetualstate of nature.Such ideashave obscuredthe effects that colonisation has had on the indigenous population and have madethe effectsof colonisationappear natural.
The effect of such perceptionsinitially was to effectively renlove indigenous peoples from the purview of history and into the social scienceswhere they were
studied as if they were animals. It has only been through the efforts of the new historiansto break the silence shroudingthe history of colonisationthat has made it
possibleto see how the effects of these discourseshave translatedonto indigenous
peoples'lives.
The Great Australian Silence 'old' The conventionalversion of Australianhistory presentedby the historians
'new' 'old' (at leastby the time that the historianswere writing aboutthis history in the
secondhalf of the 20tl' century) is that settlementof Australia was exactly that -
settlement- the peaceful annexationof the continent by the British Empire. The
Seealso Charles Rowley, TheDestruction of Aboriginøl Society(1970) l-9.
aÁ 3+ indigenous occupants were almost entirely irrelevant to this history. In the old historical narrative, as the new historians have argued,indigenous peoples were simply neverimagined as belongingto the sameperiod of time as the colonists.In this history they were constructedas outsideof history. This sectionwill draw on the work of the new historians to show how images of Aboriginality were constructedby the old historians (including in the areas of anthropology, archaeology- and for want of a better location - religion). Through the writing of thesehistories the new historians havebeen able to exposethe impact that colonisationhas had on indigenouspeoples in
Australia and the silence that had envelopedthis history since the late 19thcentury. In turn these historians have raised these issues as a moral concern for the rest of the nation.
In the period of first contact, the indigenous occupantswere imagined as belongingto anothertime - to the prehistoryof mankind.The impressionthat is left is one in which Cook and the colonists who followed him can be perceived as time
'discovery' 'settlement', travellers:by the processesof and they had travelledback in time to an age where man existed in a state of nature.But if, as was then the case, 'rights to placedepended on one's "time"',26it was the indigenousoccupants who were in the wrong place at the wrong time. The image of indigenouspeoples as existing in a state of nature would eventually underpin assertionsthat Australia was 'desert and uncultivated'and its inhabitantswere 'without laws' - effectivelyterra nullius.2T
It is quite clear those observationsof the indigenousinhabitants as apparently lacking organisational structures of society and governance supported such a
26 'Introduction: Attwood, The past as future', aboven 2, viii '' SeeChapter I above fn 3 I .
35 classificationsince they were consistentwith prevailingtheories of the time. According to these theories, which have collectively been named natural history but were in fact based on the flourishing scientific expositions of human evolution occurring at the time, human society was in a processof evolution originating from a state of nature.
Influenced by theories espousedby such theorists as Carl Linnaeus (and leading classical liberals like John Locke and Adam Smith)28the natural historians believed there were four stages of human evolution - hunting and gathering, pastoralism, agriculture and commerce. This categorisation also reflected rccial categories and promoted white superiority2eand, especially in the case of Australia, British supremacy.The indigenous occupants,readily classified as hunters and gatherers,were thought to be still in a state of nature and therefore to have no property rights, since they had no conceptof property as understoodin westernterms. According to Locke, 'property' 'mixing' for instance,the notion of was derived from the of land and labour 'absence made possible through the application of ,"uro.r.'o In this regard the of cultivation' on the Australian landscapecame to reflect the indigenouspeoples' own lack ofreason.
Furthermore,consistent with the basic proposition that the British colonists
'in' were history and the indigenousoccupants were not was the understandingthat only in the time of western civilisation was history made - it was made through progress.The markersof progress(and of history) cameto be associatedwith the uses that the colonistsmade of the land. Theseuses were describedas the antithesisof the ways that the indigenouspeoples occupied their lands.Ascribing the positive attribute
28 Seebelow Part D. 'o Fo. a brief discussion of the presumption of white supremacy underlying the natural sciences see MargaretDavies, Asking theLaw Question(2nd revised ed,2002) 261-5. 30 SeeJohn Locke, Two Treatisesof Government(1690), (Peter Laslett, 2nd revised ed, 1967)317 ,319.
36 of progressto the civilisation of the colonistswhile indigenoussociety was positedby contrast as the negative, as backward and thus non-progressive, was a powerful ideological means of continuing to justifo the colonists' place on the Australian landscapeand the indigenouspeoples' consequent displacement.
It was in the later half of the 1800sthat the theoriesof natural historv were replacedby theoriesbased on social evolution,initially derivedfrom CharlesDarwin's theories of natural selection but adaptedby Herbert Spencerto apply to society, and further scientifically refined by the structural-functionalismof anthropological study in the early 20tl'century. It was in this period that'race' clearly becamea classifuingtool, used not only to distinguish between races, but to place different races at different levels on the scaleof civilisation,with indigenouspeoples at the bottom. At times they were perceivedas indistinguishablefrom Australiannative animals.As the Melbourne- basedanthropologist Baldwin Spencerdeclared in 1927:
Australiais the presenthome and refuge of creatures,often crudeand quaint, that have elsewherepassed away and givenplace to higherforms. This appliesequally to the aboriginalas to the platypusand kangaroo.Just as the platypus,laying its eggsand feeblysuckling its young,reveals a mammalin the making,so doesthe Aboriginal showus, at leastin broadoutline, what early man must have been like ...''
Now that Aboriginality was understoodin evolutionary terms, and in particular in terms of categoriesof race, the colonistswere finally armed with a theory that could explain the irnpact of colonisation on the indigenous occupants- a theory which envisagedtheir fur1herdemise and the eventualcomplete eradication of the Aboriginal
'tace' - which in turn informedthe policiesof segregationand protectionat the time.
'' Sir Buld*in Spencerand FJ Gillen, TheArunta; A Studyof ø StoneAge People(1927) vli.
3l But while naturalism and social Darwinism drew on images of the ignoble savage- the uncivilised brute of nature - to support images of white supremacy,the rise of structural-functionalismas the theoretical framework of anthropology drew on imagesof the noble savage- the lost innocenceof modem civilisation - to postulate the unique nature of Aboriginality. It was the anthropologistswho would find that 'a indigenouspeoples did in fact have a culture: social, economic,legal, political and religious organizatronby which they are able to adapt themselvesto their geographical and social environment'.32Consequently the study of indigenous peoples would become dominated by the discourse of ritual and kinship, and by conceptions of the traditionalAborigine as imperviousto historical change.As Patrick Wolfe has argued
'Australia's anthropology's heterotopia par excellence is the Dreamtime, an ethnographicalinvention whose Edenic resonanceshave commendedit to a global irnagination'.33But if indigenouspeoples were seenas adaptable,their adaptabilitywas understoodas solely in terms of their own traditional culture.Aboriginality, from the perspectiveof structural-functionalanthropology, was timelessand homogenousso that once the traits that were proof of Aboriginality were exposedto and taintedby British civilisation,it was thoughtthey were lost forever.
This perspectivecame to dominateconceptions of Aboriginality especiallyonce it becamegenerally accepted that indigenouspeoples were not becomingextinct. They 'They did not die out. As JeremyWebber has observed: survived, often retaining a strongconnection with their heritagedespite the violenceof their encounterwith settler
'Anthropology " AP Elkin, and the Future of the Australian Aborigines'(1934) 5 Oceania1,15. 'Nation " Patrick Wolfe, and MiscegeNation:Discursive Continuity in the Post-MaboEra' (1994) 36 SocialAnalys¿s 93, 109.
38 society.'34Moreover, as a consequenceof these encountersAboriginality was being reproduced through children bom from mixed and often violent sexual relations betweenindigenous women and non-indigenousmen. However, the facts of survival, albeit in a context of violence and colonisation,were not admitted at the time. They servedonly as proof of the degenerationof Aboriginal societyand the potentialfor the remnant of that race to find a place in western civilisation. It would be anthropological thought that would devise the absorption theory - the basis for the policy of assimilation- accordingto which childrenof mixed descentwere consideredadaptable and hence capableof being absorbedinto white society: their mixed parentagewas testimony to the fact they were on the path towards civilisation. More pertinently exploration of Aboriginal brain sizes and intelligence supportedthis proposition in 'white scientific terms: indigenous people with blood' proved to have superior intelligenceto 'full blood' Aborigines.35
Aborigines still deemed to be living in their natural state (the full bloods), however, were not thereby protected from the onslaught of the colonialism of anthropology.Even while the rise of structural-functionalanthropology gave rise to
'culture', increasedinterest in indigenouspeoples' ways of life as it would also result in a correspondingdevastation of theseways of life as anthropologists(following the evolutionistsand followed in turn by the archaeologists)went about collectingas much information about the Aborisines as thev could before their inevitable demise.This
'desecration included of traditionalAboriginal burial placesand cemeteries,as well as
to J"re*y Webber,'The Jurisprudenceof Regret:The Searchfor Standardsof JusticeínMabo'(1995) 17Sydney Law Review5,13. 35 'After Andrew Marcus, the Outward Appearance:Scientists, Administrators and Politicians' in Bill Gammageand Andrew Marcus (eds),All that Dirt: Aborigines 1938:An Australian 1938Monograph (1982)83,86-8.
39 ... robbing bodies from morgues'.36These practiceswould lead to the exhibition of
collections of Aboriginal artefactsand remains in museums,to be preservedas relics of
the past. Some indigenous communities are still awaiting the return of their dead for
properburial on their traditionallands.
Yet despitethe variant images of the savageupon which the successivetheories
of Aboriginality depended, there were still similarities in approach between the
naturalists, the social Darwinists, the anthropologists and the archaeologists.
'from Aborigines were still constructedas the past', and the whole of the social
scientific enterprisedepended on this: Aborigines were looked upon as a source of 'into insights the universal nature of humankind'.37At the same time the study of
archaeologynurtured by museumsdrew on both natural history and anthropology in its
attempt to createa picture of human evolution, and insights into the historical trajectory
of mankind, through the collection of artefactsand the affangementof ethnological 'minerals, collectionswith fossils, flora and fauna to reveal the progressionfrom the
earliestforms of life, to bird and animal species,to the simplesthuman creaturessuch
as Aborigines,and finallyto ancientEgypt as the origin of Westerncivilisation'.38 In
fact, the whole scientific enterprise,and the claim to objectivity underpinning this
methodology,ensured that a temporaland spatialdistance was maintainedbetween the
investigatorand the object of study- the Aborigine.As Attwood has observed:
In this denial ofhistory anthropologistsalso excludedthe principal agentsofchange - Europeans and other settlers (and thus relations between Aborigines and these newcomers)- from their field of view (or, inasmuch as they consideredcolonial
'o 'Introduction', Bain Attwood, in Bain Attwood and John Arnold (eds), Power, Knowledge and Aborigines(1992) i, vli. '' Ibid. 38 Ibid uiii.
40 relations and the processesof acculturation,they maintaineda scholarly division betweenthis andtheir primaryobject of study).3e
As postulatedby AR Radcliffe-Brown, anthropologistand notable exponent of the belief that anthropologyshould be value-free,the ideal anthropologistwas one who:
treatsthe human native as the chemistdoes his substance... If he admits human sympathiesand interests,he impairs the validity of his work. He then becomesa humanbeing. The idealanthropologist must not judge "this is good,or this is bad", he mustonly recordand deduce.ao
Taking the more scientific approachmeant that intensive fieldwork by trained observerswould be necessary- by contrastto the methodsof the evolutionists,who 'the spun speculative accounts of early history of mankind' out of fragmentary information acquired at secondor third hand from missionariesor travellers. Through 'the their studies, anthropologistswould come into direct contact with natives', possiblyin dangerof oversteppingthe boundariesthey had setbetween themselves and the natives. By employing the scientific method, anthropologistscould seek to hold themselvesat a distancefrom the natives,and maintaintheir reasonby being objective.
Objectivity would be achievedthrough abstractionfrom their subjectivities;insulating reason from emotions and culture. Reason,acting as a barrier, would prevent them from becoming attachedto and subsumedinto their objects.Thus they would avoid 'going becomingtraitors to their cultureby native', whilst their reasonwould revealthe
'essence'of the objectsto them.al
Moreover, like the naturalistsbefore them, all thesescholars still subscribedto the idea of progresswhich was the mark of their superiorrace and civilisation. From the perspectiveof social Darwinism progress,taken to its logical conclusion,would
3eAttwood, 'Introduction:The pastas future', aboven 2, xiii. a0 'Some W Lloyd Warner, AR Radcliffe-Bowne and Rev FW Burton, Aspects of the Aboriginal Problemin Australia' (1928) 1 TheAustralian Geographer67,68. o' But seeabove Part A.
4l bring about the end of the Aborigines. This was not necessarilyinconsistent with the tenetsof anthropologyfor accordingto theseit was only if indigenousculture remained untouchedby outside influences that it could survive. Distance between indigenous
communities and the colonists would enqender tolerance and even ,",r.r.1"" o, indigenouspeoples who remained in th"ir-nutoral state. These images would even become icons of the nation. However, wherever civilisation came too close the indigenouspopulation was doomedto becomeextinct - whetherfrom the viewpoint of
social Darwinism which predicted their eventual demise, or from the anthropological perspectivewhich claimed that indigenouspeoples could be absorbedas whites in
white society. Combined social Darwinism and anthropology would minimise the 'real' actualnumber of peoplethat could be classedas authenticor Aboriginesand thus provide supposedlyobjective proof that the theoriesworked in practice.Moreover, by
diminishing the number of indigenouspeoples in this way, the horor that came with
colonisationcould alsobe diminished,if not ignored.
In this regard the hypothesesof the fate and significance of Aborigines
formulatedby social Darwinism and anthropologywere also supportedby historiansof 'one the time. As Henry Reynoldshas noted, the extinction of the Aborigines was of
the proofs of progress,a benchmarkto use while measuringthe triumph of civilisation
over savagery'.42In this respectthe fate of the Aborigine servedthe dual purposeof
testifying to the superiority of British civilisation, while also rationalising and
downplaying the original acts of colonisation as a processin which savagerywas
uprooted and replacedby British civilisation: any injustice that was committed was
nt H"*y Reynolds, 'Progress, Morality and the Dispossessionof the Aboriginals' (1974) 33 Meaniin Quarterly 306, 309.
4) 'redeemed (and continuesto be) by the just natureof the modernsociety that replaced indigenousones'.43 On the basis of this rationale,only the history of people of British stock was perceivedas relevantto the history of Australia- as it was only thesepeople who had a senseof history, for it was only they who had a progressivecivilisation derived from their British ancestry.
All this obscured the impact and effects that colonisation was having on indigenouspeoples. Instead, the differenceswere basedin nature:if the Aboriginal race was doomed to become extinct it was to die of natural causes.As exposureto the colonial forces becamemore obvious it became common belief that the indigenous peoples' own weaknesseswere to blame for their demise:they lacked immunity to disease,and if diseasedid not kill them they were known to kill each other through intra-racial conflict and infanticide. They were a morally weak and easily comrptible race of people not only in their habits but also in their spirit. If they could not save themselvesthen it was up to the superiorforces of British civilisation to preservethe remnant of a once noble race- or else stamp out what was more commonly referred to
'half-caste as a menace'.And, if that was not possible,the leastthat could be done was 'smooth to (euphemistically) the dying pillow'.
In theserespects also, it is importantto note that the perspectivesof naturalism, social Darwinism and anthropology, while based in scientific knowledge, were consistentwith missionaryviews on Aboriginality (albeitjust as contradictory).Indeed in somecases the religiousbeliefs of the anthropologistformed parl of the background of their studiesand conclusionsabout Aborigines: AP Elkin is a notableexample of an anthropologistwho blended Christian benevolenceand evolutionary theory in his n' Moses.above n 22. 14.
43 anthropologicalstudies of Aborigines. Overall Christian beliefs about these peoples and their fate were as varied as they were extreme. At the extreme was Christian
'heathens' evangelism, which justified the murder of in the name of Christ.aoMore 'biblical moderateChristians based their theoriesabout Aborigines on notions of one origin for all humans with the degenerationof some goups (or God's curse on them).'45 On the basis of this logic indigenous peoples were the degenerates;
"'degraded" and "filthy'', albeit with a soul and therefore not to be written off entirely.
At best, fthe missionaries] saw them as a "childish" race eagerlyawaiting the blessings of Christianityand civilisation . . .'a6
The approachof some anthropologistssuch as Elkin to the study of Aborigines fell within this more benevolent Christian approach which recognised the common humanity of mankind and taught that the souls of heathenscould be saved through conversion.This Christian ethic remained in Elkin's work. but was subordinateto adherenceto the primitivism of evolutionary theory, out of which came a concern for civilising Aborigines; Christian teachingwas to help in the process.aTIn this regard
Elkin's anthropologicalwork was to prove most useful in supportingstate policies aimed at civilising Aborigines by removing and assimilatingindigenous populations into the generalwhite communiti"r.otIn fact Elkin was most openlypolitical about the role that anthropologycould play in relation to Aboriginal policies,onbrt this aspectof his work remainedundetected. He was not seenas political as his views were not at oo For a discussionof the impact of evangelismon American Indians in the New World see David E Stannard,AmerÌcan Holocaust: Columbusand the Conquestof theNew ll/orld (1992)238-246. ot 'Is Myrna Ewart Tonkinson, It in the Blood? AustralianAboriginal Identity' in JocelynLinnekin and Lin Poyer (eds),Cultural ldentity ønd Ethnicity in the Pacific ( 1990) 191, 203. ou Peter Biskup, 'Aboriginal History' in G Osbourne and WF Mandle (eds), New History: Studying Australia Today(1982) ll, 16-17. ot Elki.r, aboven 32, l-2. a8 Seebelow Part D. oo Elkin. aboven32.2.
44 odds with the aspirationsof governmentofficials of the time: they could not percetve him as 'political' becausehe was no different from them. In this way anthropologyand the laws and policies aimed at indigenouspeoples became mutually supportivewith eachenjoying the benefitsof their association:anthropology would gain a reputationas a disciplinary science in Australia; and the laws and policies aimed at indigenous peoplewould be establishedon a legitimatesource.
And yet, anthropological research, especially based on humanitarian perceptions of Aborigines, would provide the foundation for changing attitudes to 'break indigenouspeoples and indeed on a granderscale provide the impetus to the silence' on Australia's treatmentof indigenouspeoples. Stanner, who was the first to
'the call for the break in great Australian silence', was himself an anthropologist.In essenceit was the anthropologiststhat would illuminate the sacrednessof the attachmentsthat indigenouspeoples had to their traditionallands, and at the sametime come to lament the loss that dispossessionhad engenderedfor indigenouspeople and for the nation as a whole - for which past practices and policies were deemed responsible.The dispossessionof indigenouspeoples' of their lands becamea moral concern for the nation and raised questionsabout whether the establishmentof the nation had in fact been groundedin legitimatefoundations. In this regardby the mid-
20th century there was a marked shift in perception of indigenous peoples in anthropologicalresearch as part of the rise of the new history movement more generally.
While such recosnition was and continuesto be important in the movement towardsreconciliation. and to someextent in more recenttimes has informed laws and policies in relation to indigenous peoples, such constructionsmay still rely on an
45 essentialisedimage of Aboriginality (particularlythat of the noble savage)which may hinder rather than advanceAustralia's coursetowards reconciliation - since indigenous peoples are still defined in their absence,and in terms of the colonising or defining culture.sOFrom the perspectiveof indigenousactivists such as Michael Dodson,as long as indigenous peoples are denied the right to self-determination,including the right to self-representation,the veil of silence continues to shroud the reality and diversity of indigenouspeoples' lives - past and present.slIn more recenttimes academicsin the social scienceshave engaged in work which reveals the diversity of indigenous societies,especially in the ways that they have continuedto be able to adaptto change over time (before and after the British arrival) and maintain their links to their cultures and traditio.ts.st The extent, however, to which such theories have so far been able to inform policies and laws that relateto indigenouspeoples is anotherquestion.s3 If there is a shortcomingin this regardit is a reflection of the dominantparadigm within the social sciencesthat still dependson essentialisedimages of indigenouspeoples which inform the legal treatmentof indigenouspeoples in Australia.sa
C The Writing of oNewHistories'
If in the old history indigenouspeoples were constructedas absentor irrelevant 'in' to history, the new historianstook on the task of locating them history as present; and by so doing they have been able to exposethe effects of history on indigenous societies.This brings us to the third imporlant contributionmade by the new history
s0Michael Dodson, 'The Wentworth Lecture: The End in the beginning:re(de)finding Aboriginality' AustralianAboriginal Studies7994lnumber 1, 2, 8. t' Ibid 5. s2 'Deep Attwood, 'Introduction: The Past as Future', above n 2, xv. See also Denis Byme, nation: Australia's acquisitionof an indigenouspast' (1996) 20 Aboriginal History 82,82-4. 53 In relation to nativetitle law seeespecially Chapter VI(A) below. to Byrne, aboven 52,100-2.
46 movement. By inverting the old history's silence on the impact of processesof
'new' colonisation on indigenous societies,the historians have been able to write altemativeaccounts of the historicalrecord, which are inclusive of indigenouspeoples.
The effect of suchhistory writing hasbeen to reconceptualisethe relationshipsbetween indigenous and non-indigenouspeoples in Australia. Most importantly, this partly encouragedand partly coincidedwith the willingnessof indigenouspeoples to engage with history through orally transmitting andlorwriting history. In this way indigenous peopleshave emergedas agentsof history, giving expressionto their own perceptions of the colonisationprocess and of their place and treatmentthroughout this pro""ss.ss
This, in turn, has had a tremendousimpact on the writing of history. Henry Reynolds' work in this areais notable,not only for its influenceon the writing of history but, in this context.for the influenceit hashad in the nativetitle area.s6
The new history's contributionsto the writing of thesehistories can only be briefly summarisedhere. Lorenzo Veracini has identified four successivewaves of
Australian historiography - what has been described thus far as the new history movement.5TAccording to Veracini the first wave (1960sto 1970s)established'a dialecticalopposition between Aboriginal absenceand Aboriginal presence'producing
'unequivocal an argument for both Aboriginal destruction and survival that dialecticallysynthesised the initial dichotomy'. During the secondwave (late 1970sto early 1980s),the focus was on the 'existenceof a strugglebetween Aboriginal passivity and Aboriginal challenge'. However, according to Veracini any dialectical tension t' So*" notable egs include the works of Ruby Langford Ginibi, Doris Pilkington, Sally Morgan and Kevin Gilbert. For a more complete list of authors see Australian Aboriginal Writers
A1 'superseded betweenthese positions was through the full establishmentof Aboriginal political resistanceas a recognisedinterpretative paradigm'. Thus, by the time of the third phase (late 1980s and early 1990s) the focus was on Aboriginal responsesto 'Aboriginal 'invasion', which againproduced a tension,this time between strategiesof confrontationand collaborationwith invaders'. Again, the two opposing conceptions were synthesised,and Aboriginal agency as an interpretive categorywas reaffirmed.ss
According to Veracini, Australia is now into a fourth phase of Australian historiography, commonly referred to as the history wars, which commenced in the 'dialectical 'shifted early 7990s.In his view this phasehas seen oppositions'having once again to be replaced by the tension between unsurrendered sovereignty and unilateral extinguishmentof native rights to land'. In this phasethe issue of whether genocide is an appropriateterm to apply to Australia currently informs the debatesin 'synthesis history. According to his analysis the current phase entails a of both
continuity of sovereignty and the processesof dispossession,allowing for the
assessmentof genocidal practices together with irreparablelosses of autonomy by
Aboriginal communiti"r'.tn This debatebetween survival and destructiontheories is
currentlyinforming decision-makingon the questionof native title recognition,6Owhile
stolengenerations litigation has been centredon historiesof genocideand the denial of
such.6l
tt rbid225. te rbidzz5-6. ó0 See especially Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLP. 422 ('Yorta Yorta'). ól Seeespecially Kruger v Commonwealth(199'7) 190 CLR | ('Kruger'); Williamsv Minister Aboriginal Land RightsAct 1983[2000] Aust Torts Reportsfl81-578; Cubillo v Commonwealth(2001) l12 FCR 455 ('Cubillo'). Cf Trevorroyvv Stateof SouthAustralia (No 5) 120071SASC 285 (l August 2007). See 'Bringing also Antonio Buti, Them Home the ALSV/A Way' (2004) 11(4)E Law - Murdoch University Electronic Journal of Law
48 But, Veracini's neat overview of the historiographicaltrends in Australia may obscurejust as it may enlighten.It would be a mistaketo assumethat the concernsthat arosein eachwave were overcomeby the concemsarising in subsequentwaves. In this respect it is important to note that the concerns arising in each wave are still relevant 'dialectical today. None of the various debatesthat have arisenfrom the oppositions'
Veracini has identified has yet been resolved, though it may be that the emphasis placedon theseconcems has varied andbeen modified over time. 'truth' Furthermore, developmentsin the native title area have also shown that may not be static or fixed in time, but can take on new meanings- meaningsthat may have not been initially intended, but may be employed for purposesother than what was originally intended.This is apparent,for example, rn Yorta Yorta62where the High
Court majority used the notion of Aboriginal agencyagainst the indigenousclaimants themselves.In that casethe Court endorseda (mis)interpretationof the factsby the trial judge who had found that evidenceemanating from the claimants(the petition their ancestorshad signed in 1881 in protest over the loss of their traditional lands), and tenderedon behalf of the claimant group as evidenceof their continuedsurvival and strugglefor land,was proof of the extinguishmentof their rights to their lands.63
The (mis)use of a history of Aboriginal agency in Yorta Yorta is just one illustrationof how that history can and will be usedagainst the very indigenouspeoples that sucha history may havebeen intended to serve.uoHo*errer, that may not meanthat the 'revisionist' approachto history can or should be rejected.Rather, it illuminates how thosewho do the interpretingcan put their own glosson events,depending on how
"' (2002)214 CLP*422. 63lbíd qso-z(Gleeson CJ, Gummow, Hayne JJ). 6oSee below Chapter V andChapter VI(A).
49 they frame the events and on what they are aiming to achieve. Relevant to such an
exercise is the context - the interpretive community - to which the interpreter
belongs;65but aboveall elseit is power that is the most determinantfactor.66
To that end, Veracini's identification of the various trends in Australian
historiography is significant, since it illuminates the difficulty of reducing a
'truth'. complicatedhistorical record to any single historical However, as pointed out
abovethat is not to deny that there are new historians,just as much as old historians,
who have tried to assert the histories they write as truth.67 One strategy that some
historians have adopted has been to construct the old historian approach as mythical
68 and to dispel its myths through the writing of alternative versions of history.
Indigenoushistorians have to some extent engagedin similar enterprises,providing
alternativeways of viewing the mainstreamversions of Australian history with the
potentialto subvertit6e. Thus, by discreditingthe old truths as myths, the new history
has generatednew truths about indigenous and non-indigenouspeoples and the
65 Seeabove Part A. 66 Seebelow Part D. 67See above Part A. ut S"", eg, Jan Pettman,'Learning about power and powerlessness;Aborigines and white Australia's Bicentenary'(1988) Race and C/assvol XXIX, no 3, 69. óe One notableeg is the CaptainCook stories.See, eg, DeborahBird Rose, 'The Sagaof CaptainCook: Morality in Aboriginal and EuropeanLaw' (1984) 2 Australian Aboriginal Studies24. See generally 'Aboriginal RosemaryHunter, histories,Australian histories, and the law' in Bain Attwood (ed), In the Age of Mabo (1996) 7,l,-6. In that chapterHunter providesnumerous egs of CaptainCook stories. According to her (at 4): 'Captain TheseCaptain Cook storieshighlight the different meaningsof the symbol Cook' for 'discoverer' Europeansand Aborigines.For Europeans,Captain Cook hasbeen the heroic ofthe eastcoast of Australia and the precursorto its 'settlement'.For Aborigines,Cook is a code for dispossessionand alienation.Captain Cook storiesare also a vehicle for Aboriginal truths that Europeanshave obscured or denied. One of these truths is that Aboriginal Law is older, more venerable and generally superior to the immoral Captain Cook law relied on by the European invaders. Another, of course, is that the land belonged originally and still rightfully belongs to the Aborigines, and so its forcible acquisitionby Europeanshas no legitimacy. (Citations omitted.)
50 relationshipsthat formed betweenthem, even though (as Veracini's analysisindicates) this history writing hasnot beenwithout tensionsor contradictions.
As the example of Yorta Yorta shows, in the context of native title law, the
'for' 'against' alternativeversions of history (the and native title versionsof history)70 must now competeto inform the decisionsthat are made in relation to native title claims. Yet, both history and law are still dominated by their own institutional 'truth' imperativesthat give rise to an assumptionof objective as a basis for legal and political action. In this regard both discoursesconsolidate themselves through the interdependencethey have on each other for legitimacy; and legitimacy in turn continuesto be dependentupon maintainingthe view that eachdiscipline has of itself as objective,neutral and non-political.But at what cost?
Not all of the diverseinterpretations that canbe ascribedto the historicalrecord can triumph in law and policy. Judges and policy makers can be selective in the 'truth' interpretationsof that they chooseto enshdnein law at any one time, but this choiceis obscuredby the appearanceof objectivity ascribedto the processesinvolved in the constructionof disciplinaryknowledge that in tum legitimisesthat choice.This obscurationis made possible through the exercise of power. Unfortunately in the context of Australiancolonisation indigenous peoples have exercisedvery little power in relationto issuesrelevant to them.
The new history movementhas been essentialin revealingthe shortcomingsof the old historical narrativeas outlined in Part B above.No less importanthas the new history been in linking the old historical narrativeto laws and policies as they relate to
70 'Stunted David Ritter and FrancesNA Flanagan, growth: the historiographyof native title litigation in the decadesince Mabo' (2003)l0 Public History Review21,24-8.
5l issuesrelevant to indigenouspeoples. Arguably it is only oncethe effect that laws and policies have had on indigenouslives is acknowledgedthat we can actually engagein bringing aboutpolitical and socialchange for indigenouspeoples.
D History,Power and Aborigines 'new' One of the most significantcontributions made by the historianshas been to reject the assumptionimplicit in the 'old' historical narrativethat colonial relations with indigenous peoples in Australia were grounded in natural differences (whether racial or cultural differences).Instead, some historians influenced by Michel Foucault's post-structuraltheory of the productionof knowledgeand powerTl(and Edward Said's adaptationof this theory in the colonial context)?2have understoodAboriginality as a constructof colonial discourses.t3Fu.ther-ore, relationsbetween indigenous and non- indigenouspeoples in Australia have been viewed as the product of the effects of an unequaldistribution of power, so that the exerciseof power by non-indigenouspeoples against indigenous peoples was legitimised by the ways that Aboriginality was perceived and constructed.For these new historians this relationship was not the product of naturaldifferences, but the product of power: for indigenouspeoples it was power that was experiencedunequally, with effects that are still being experienced today. Ultimately it was throughthe operationof the processesof colonial knowledge
'made and power, that indigenouspeoples were into the object of knowledge over
" See especiallyMichel Foucault, 'Truth and Power' in Michel Foucault,Power/Knowledge: Selected 'Intervista Intervieyvsancl Other I4/ritings1972-77 (Colin Gordan et al trans, 1980 ed) 109 [trans of: a Michel Foucault'1. 72 'Orientalism Edward Said,órientalism (1918). Seealso Edward Said, Reconsidered'(1985) Race and Ciøssvol XXVII, ro 2,l. 73 See especiallyBain Attwood and John Arnold (eds),Power, Knowledgeand Aborigines (1992). See generallyJeremy R Beckett (ed), Past and Present: The Constructionof Aboriginality (1988). See also John Lechte,'Ethnocentrism,Racism, Genocide ...'in Marie de Lepervancheand Gillian Bottomley (eds),The Cultural Constructionof Race(1988) 32 andWolfe, aboven 33.
52 which European Australians, as the dispensers of truth about their needs and requirements,[were ableto] gain control'.74
Thus, in the more immediate context of this thesis, revealing the power underlyingthe 'truth' of the discoursesabout Aboriginality is significantbecause of the impact such discourses have had in facilitating the control and management of indigenous populations, shaping their social circumstances,and thus creating the very conditionsfor Aboriginality. For one thing, far from remainingwithin the discourseof history, theories of Aboriginality penetratedand continue to inform laws and policies as they relateto indigenouspeoples. As Attwood has argued:
It would be a mistaketo seeAboriginalism as merely epiphenomenaland therefore unimportant;rather it is a hegemonij system of theory and practice which has permeatedcolonial structures of power."
In this way images (especially to the extent they are imagined) of Aboriginality circulateamong the various institutionsof power. On the one hand theseimages have enabled the institutions of power to determine Aborigines' terms of existence-
'racialising the aboriginal social body and so making Aborigines of the indigenous population'.76On the other hand insofar as laws and policies relating to indigenous peoplesdrew on and continueto rely on imagesor constructionsof Aboriginality as
'truth', the legitimacy of these laws and policies is establishedand maintained.
Nowhere was this more evident than in the discoursessurrounding Aboriginality that supportedthe terranullius doctrine.
7a Attwood, 'Introduction',above n 36, 75 Ibid iii. tu Ibid ii-iii.
53 The discourse of terra nullíus
Most significantly the new historians have identified the ways that colonial perceptionsof Aborigines and the discursive practices surroundingthe construction of
Aboriginality were inextricably linked to land. It was land that would feed the relationshipdynamic and provide the site upon which the relationshipdynamic played itself out (and is still beingplayed out).77
When the Australian territories were first occupied by the colonists, their presencemay have been bolsteredby a strong senseof entitlementderived merely from the fact that they were British. Yet they also came anned with contemporarydoctrines of law that supported their presence.These doctrines had in fact supported colonial expansionacross the globe, and in practiceoffered little protectionto the peopleswho had been in prior occupationof the new lands. Australian colonisationwas not to be any different. In someways the colonisationprocess has evenbeen consideredworse than what had happenedelsewhere, at least at the level of formal recognition.Unlike indigenous peoples in other places such as the United States, Canada,and New
Zealand,the indigenouspeoples of Australia have never been accordedany formal recognition as sovereignpeoples, whether as domestic dependentnations as was the casein the United States,78or throughtreaty-making processes as in CanadaTeand New
77 Seeespecially Wolfe, aboven 33,93-6. 78 'domestic The phrase dependentnations' was first usedby Marshall CJ in CherokeeNation v Georgia 30 US (5 Peters) I (1831). See generally Tony Blackshield.and George Williams (eds), Australian ConstitutionalLaw and Theorv:Commentat'v and Materials (4'nrevised ed. 2006) 219-25. 7e 'existing In Canadas 35 of the Coistitution Act i98Z recognisesand protects aboriginal and treaty rights'. The Canadianfederal government has also adopteda policy of negotiatedself-government for indigenouspeoples on indigenouslands. This policy covers a wide range of matters, although it excludes others completely from negotiation. See Canada,Department of Indian and Northern Affairs, Aboriginal Self-Government: The Governmentof Canada's Approach to Implementation of the Inherent Right and 'Relations Negotiation of Aboriginal Self-Government(1995) 5-7. See also Jeremy Webber, of Force and Relations of Justice: The Emersence of Normative Communitv between Colonists and Aborieinal
54 Zealand.so(That is not to say that colonisationhas not had (and continuesto have) devastatingconsequences for indigenouspeoples even in thosecountries.)
It is contendedhere that central to Australian colonisationwas the senseof
British superiority, the corollary being the indigenous peoples' inferiority best encapsulatedby their depictionas savages.It was throughthe image of the savage(and its variants)that the dispossessionof indigenouspeoples was justified as the colonists used such images to legitimise their own place on the Australian landscape,and correspondinglyto legitimisethe forceddisplacement of indigenouspeoples.
It has been well documentedthat the perceptionsof indigenouspopulations held by the British explorersof New Holland in 1770and the foundersof the British colony of New SouthWales in 1788were heavily influencedby the work of leadingjurists and philosophersof the time. These scholarsincluded political philosopherssuch as John
Locke and Adam Smith, who have come to be regardedas the foundersof classical liberal theory of the Enlightenment,as well asjurists such as Emmerich de Vattel and
Sir William Blackstone.Their theorieshave not only informed the political structureof liberal societies,but have had a direct influenceon the developmentof laws pertinent to nation states,and alsoof the law of nations,namely international law.
However,while the basic conceptsunderlying liberalism (liberty, individualism and equality)may havebeen well-known to the British when they first laid claim to the
'The Peoples'(1995) 33 OsgoodeHall Law Journal 623;Webber, Jurisprudenceof Regret',above n 34, 1-9. 80 Seethe Treatyof l(aitangi (6 February1840). At one time dismissedas having little or no legal effect, it has since the 1980sbeen recognisedas a fundamentalcharter. See especiallyNew Zealand Maori 'The Council v Attorney-General[987] 1 NZLR 641. Cf JD Sutton, Treaty of Waitangi Today' (1981) 17 Victoria University of Wellington Law Review 17. On the earlier history see Grant Morris, 'James Prendergastand the Treaty of Waitangi' (2004) 35 Victoria University of Iüellington Law Review 177; 'Treafy-Making Tom Bennion, in the Pacifìc in the Nineteenth Century and the Treaty of Waitangi' (2004) 35 Victoriø University of IItellington Law Review 765.
55 Australianterritories, they were not extendedto the indigenouspopulations. Evidently this was not in the contemplation of the first British explorers or of the settlers that followed them.For one thing, the ideal of equalitycould be extendedonly to thosewho were deemed to be the same, and indigenous peoples who appearedno further advanced in civilisation than hunter gatherers fell well short of deserving to be accordeda statusof equality with the colonists - who, in a world where economic advancementwas a symbol of progressand civilisation, had the means and desire to createwealth.sl In this regard liberal theories complementedtheories in natural history.
If those theoriesplaced indigenouspeoples on the lowest scaleof civilisation, liberal theories took this construction one step further to question whether indigenous peoples had ever taken fulI possessionof their lands. As hunter gatherersindigenous peoples were thought to have no use for (and therefore no entitlement to) the land, unlike the colonistswhose use of the land through advancedmethods of agricultureand animal
'the husbandrywould be a sourceof wealth - in an era when whole earth was open to the industry and enterprise of the human race, which had a duty and the right to develop the earth's resources'8'Thir approachto property rights was reflected in
English property laws, based ultimately on an orderly system of tenure in which ownershipwas private and potentially exclusive,and on rules of inheritanceby which private ownershipwas handeddown from one generationof individuals to the next.
The conceptionof property ownershipreflected in theselaws was the antithesisof the way that propertywas conceivedunder indigenoustribal laws - to the extentthat they appearedto have 'no interestin the soil becausethey wanderedover it as wild animals,
t' Cf LT Hobhouse,Liberalìsm (1911) 26-7. " Milirrpu* v Nabalco (1971) 17 FLR l4l,20O (BtackburnJ).
56 becausethey were unableor unwilling to defendit, or becausethey failed to improve it throughtheir labour'.83
This distinction in practice would become crucial in the battle over land betweenthe colonistsand the original occupiers.Only rarely did colonistseven try to enter agreementswith indigenouspeoples for use of their lands. Two noteworthy exampleswere the Batman-KulinTreaty of 1835 and the unwritten treaty betweenthe indigenouspeoples of Tasmaniaand GeorgeAugustus Robinson made in the 1830s.
The first was deemedinvalid by GovernorBourke; the secondonly resultedin broken promises that were fatal to the indigenous peoples of Tasmania.8aOccasionally benevolencewas shown towards indigenouspeoples in the sensethat the colonists would exchangesmall tokensof recognitionof the indigenouspeoples' occupationof their lands in order to gain accessto those lands,ssbut the exchangesusualiy were unfair and more beneficial to the colonists. Mostly, however, the land was taken violently by force andwithout compensation.
Yet, at first the intentions of the first explorers appearedhonourable insofar as they were conciliatory towards the original occupantsof the land. It has been well noted that part of the Admiralty's instructionsto LieutenantJames Cook before Cook embarkedon his adventureof the southernhemisphere in the Endeavourin 1768 was, 'with consistentlywith internationallaw, to acquireterritory for Britain the Consentof 'if the Natives'. On the other hand, it was prescribed that you find the Country uninhabited Take Possessionfor His Majesty by setting up Proper Marks and
t' Webber,'The Jurisprudenceof Regret', aboven34,13. 8oCommonwealth of Australia, Royal Commission into Aboriginal Deaths in Custody, National Report, Volume2 (1991)14. 85Malcolm D Prentis,A Study in Black and White: The Aborigines in Australian History (2ndrevised ed, 1988)77.
57 Inscriptionsas first discoverersand possessors'.86It appearsthat it was on the latter
basisthat Cook claimedthe easternseaboard of the continentin the nameof the Crown.
'consent He had been unable to obtain the of the natives' and so in the altemativehe
claimedthe territory as 'uninhabitedland'. His own observationsof theseinhabitants as
'Wild Beasts'supported such a classification.8T
Once settlement of the colony was established in 1788, the process of
colonisationwhich Cook's gesturesinitiated was to have dire consequencesfor the indigenouspopulations, progressively as the colonial frontier moved acrossAustralia.
'to This was in spite of the instruction given to GovernorPhillip endeavourby every possible means to open an intercourse with the natives, and to conciliate their
affections, enjoining all our subjects to live in amity and kindness with them'88
Moreover,white offendersagainst indigenous victims were rarely punished,despite the
further enjoinder that Phillip should 'cause such offenders to be brought to punishment
accordingto the degree of the offence'.8eAdmittedly, the motivation behind these
instructionswas hardly purpose to that 'our altruistic, since their stated was .ensure
intercoursewith thesepeople may be tumed to the advantageof this colony'.e0
According to the legal thinking of the day, conveyedparticularly in the work of 'with Blackstone(influenced by Smith and Vattel), acquisition of the territories the
8u Al.* Castles,An Australian LegctlHistory (1982)21-2. 8t Ho*.,r"r, accordingto an alternativeaccount of the history of first contact between Cook and the indigenousinhabitants of NS\il in 1710, Cook and his landing parties were often repelled by these inhabitantsfrom landing which in tum contributedto his inability to obtain the'consent of the natives'. See Anne Pattel-Gray, The Great White Flood: Racism in Australia (1994) 15; Nigel Parbury, Sur-vival: A History of Aboriginal life in New South Lltales(1986) 44;Hewy Reynolds,The Law of the Land (1987) 76-80. See also Heather Goodall, 'New South Wales' in Ann McGrath (ed), ContestedGround: AustralianAborigines Under the British Crown ( 1995)55 , 63. 88 Historical Recordso/Australia, SeríesI vot I (1914) 13-14 (Govemor Phillip's Instructions25 April I 787). se Ibid. no Ibid.
58 consentof the natives' could have led to their legal classificationas 'conquered' or
'ceded' 'uninhabited colonies. However, the actual acquisition of the territories as
el lands' resulted in their classificationas 'settled'. The legal consequencesof this classificationon indigenouspopulations have beenprofound. The classificationof the territoriesas 'conquered'or'ceded' would have meantthat the pre-existinglaws of the indigenous sovereign and the indigenous peoples would have remained in force, although they would still have been subject to modification or replacementby the
Crown (in the exerciseof prerogativepower) or by the British Parliament.However, the actualclassification of the territoriesas 'settled' implied an absenceof pre-existing law, thus providing the conditionsfor the receptionof English law into the colonies.e2
In effect then, at the level of international law at least, the legal classification of the
'settled' Australianterritories as \ryascongruent to the classificationof the territoriesas terranullius, or in otherwords, a land belongingto no one.
The classificationof the Australianterritories as terranullius would come to be interpretedas a failure to recognisethe pre-existenceof Aboriginal sovereigntyand laws. The fact that in Mabo the terra nullius doctrine was overturnedbut the settlement thesisupon which this doctrinedepended was not, is consideredto underminethe legal legitimacy of the establishmentof the Australian nation.This is further exacerbatedby the correspondingfailure to give legal recognitionto Aboriginal sovereigntiesand laws
'consent more generally:obtaining the of the natives' is still forthcoming.n'Ho*"u"r, whether it was in fact the case that Australian domestic law had ever classified
n' Wiiliatn Blackstone, Commentarieson the Laws of England (5'h revised ed, 1773) Volume I, Introduction,sect 4, 106-8. n'Ibid 107.Although the absenceof Aboriginal laws was by no meansself evidentat first settlementand was the subjectof notablelitigation. SeeChapter I abovefn 31. e3 Seebelow. ChaprerVI(C).
59 Australia as terra nullius is a matter of continuing controv"try.no Mabo is generally understoodto stand for the proposition that it was necessaryto overtum the doctrine of terra nullius in order to give recognition to native title - and, whatever the terminology used, it certainly overturned the Blackstonian equivalent of the doctrine. Yet it may be that the question had never been seriously considereduntil Milirrpum v Nabalcoes and, subsequentlyrn Mabo. As David Ritter has arguedit may not have been the doctrine of terra nullius as such that precludedthe legal recognitionof indigenouslaws, but rather what may fairly be called the'discourse of terra nullíus'e6 that informed the legal treatmentof indigenouspeoples throughout this period.
According to Ritter's analysisof the law in Australia, as recentlytaken up by
Michael Connor in his book TheInvention o.f Terra Nullius (2005),the doctrineof terra nullius was a doctrine that had emergedat the international legal level. There were no direct authoritiesin the Australian common law declaringthe Australian territoriesas terra nullius in thoseprecise terms. Furthennore, in the early colonial period therewere no casesestablishing a nexus betweenthe doctrine of terra nullius and the absenceof any common law recognition of native title. But in the absenceof such a nexus. the discoursesurrounding the natureof Aboriginal societywas to an extentreflected in the existing authorities, with their repeated invocation of Blackstone's description of 'desefi and uncultivated' territories. Most notably in Cooper v Stuarte1the Privy 'practically Council opined that at the time of settlementAustralia was unoccupied
ea 'The David Ritter, "Rejection of Terra Nullius" in Mabo: A Critical Analysis' (1996) 18 SyctneyLaw Retietu 5; Michael Connor, The Invention of Terca Nullius: Historical and Legal Fictions on the Foundationof Australia (2005). " (t971)l7 FLR 141. ou 'The Ritter, "Rejectionof Terra Nullius" in Mabo', aboven 94,12. " (1889)14 App Cas286.
60 without settledinhabitants'.e8 While theseauthorities did not expresslyreject or accepr the recognition of native title (that was not a question that had been asked for determination) they were consistent with the contemporary 'truths' circulating about
Aborigines. As Ritter has acknowledged,these accepted'truths' about Aboriginal
'discourses culture (what he has describedas of power'eeechoing Foucault's theory on powerlknowledge)100may explain why the common law failed to recognisethe rights of Aboriginal peoplesto their tribal lands.Among thesediscourses Ritter has identified the contribution that law played in the expropriation of the original owners:
Whenthe courtsaddressed the existenceof the indigenouspopulation at all, Aboriginal peopleswere described as 'wandering... withoutcertain habitation and without laws'; 'not in sucha positionwith regardto strengthas to be consideredfree andindependent tribes'; without sovereignty;and wastefulof arableland. The Aboriginal peoplethat werefound on landwere seen as 'physically present, but legallyirrelevant'.r0r
Moreover,while thesejudicial pronouncementsdemonstrated law's complicity in the dispossessionof indigenous peoples, the discoursesof power surrounding
Aboriginality would provide law and colonial (and later govemment) policies with legitimacy in other areas effecting indigenous peoples.These laws and policies in practicewould strike at the very core of the indigenouspeoples' way of life, disrupting not only their relationshipto their traditional lands, but also their relationshipswith each other. These laws and policies will be discussedonly briefly in order to give a broaderoutline of the way that imagesof Aboriginality legitimisedthe methodsused to undermineindigenous peoples in Australia.
n8 tbid z9r. no 'The Ritter, "Rejectionof Terra Nullius" in Mabo', aboven 94,10. r00 Seealso, Robert A Williams, TheAmerican Indian in í(esternLegal Thought(lgg0) 6. 'o' 'The Ritter, "Rejection of Terra Nullius" in Mabo', aboven 94, 12.The internal quotationsare from MacDonaldv Levy (1833) 1 Legge39,45; Rv Murrell (1836)I Legge12,13; Rv Bonjon(Unreported, 'Mabo, Supreme Court of New South Wales, Willis J, 18 September 1841); Gerry Simpson, InternationalLaw, Terra Nullius and the Stories of Settlement'(1993) 19 Melbourne UniversityLaw Review195, 200.
6l Løws and polícíes in the colonial era
Colonisation in Australia can be broken down into six main periods: dispersal, segregation,protection, assimilation, self-determination,and reconciliation. These periods correspondto the main official policies that have been put in place in relation to indigenouspeoples in Australia since 1788, although they were not necessarily implemented at the sametime by different govemmentsacross the country. While each period may be marked by different laws, directly or indirectly serving different purposes, most of them are characterisedby common practices - most notably dispossessionand the placementof indigenouspeoples in institutions.
In the early periods of colonisationas it moved acrossAustralia's expansive territories,the dispersalof indigenouspeoples was more often than not a bloody affair marked by numerousmassacres of indigenouspeoples as the colonial frontier spread acrossthe country. Some historianshave describedthe frontier violence as a war,tO2 and although the killings were illegal (insofar as murder is illegal) they were often ignored and even sanctionedby colonial governments.Indigenous peoples' assaults againstthe colonistswere not similarly ignored,but were enoughto justify the killing of any indigenousperson in the way of colonial settlement.Indeed, from accountsof the massacresin the initial periods of colonisation(and as late as the 1920s in the
Northern Territory) it seemsprobable that an underlying motivation was a sensethat
'ot 'Blacks Seegenerally Reynolds, The Other Side of the Frontier, aboven 25. Seealso Gary Foley, for Australian Independence'Aboriginal and Islander ldentity, vol 3, no 3 (Perth) July 1977,5; Henry Reynolds, Dispossession(1989) 11-2, 44-6; Royal Commission into Aboriginal Deaths in Custody, aboven 84,14.
62 indigenouspeoples deserved what they got becauseof their treacheryin resistingthe l03 colonial expansion.
The reactionto the Myall Creekmassacre in New South Wales in 1838 stands out particularly as seven of the white male offenders were found guilty and hanged for killing and burning 28 indigenouspeoples. In this instance,however, it has beennoted that, by contrastto other massacres,what competedwith the image of the treacherous
Aboriginesdeserving retribution was an image of the Aborigine as innocentvictim - at
'tribe' the trial the case of the prosecution was premised upon the view that the was 'outrages' innocent of any warranting murder. The whole of the controversy
surroundingthe Myall Creek massacre,however, shows the full range of attitudes that were being expressedin relation to indigenouspeoples at the time. The dominant
attitude which espoused their inferiority and was indifferent to their plight, for a moment was overcomeby a more humanitarianattitude that espousedthe equality of 'that mankind - murder was murder whateverthe colour of the victirns'.104As Prentis has noted, the point was also made at the time that indigenouspeoples' resistanceto colonisationwas rightly basedon resentmentat the loss of their lands.l0s
But the dominantattitude would becomeeven more deeplyentrenched after the
Myall Creek trial, as the massacreof indigenous peoples continued - this time uncheckedby the authoritiesand in many ways becomingmore sinister,as the deaths were causedless by shooting and more through poisoning.'ouYet, as much as this attitude was based on the superiority/inferiority dichotomy of non-
'ot 'Frontier Bu..)rMorris, Colonialism as a Culture of Terror'in Bain Attwood and John Arnold (eds), Power, Knowledgeand Aborigines (1992)12,18. roa Prentis,above n 85, 68.But seeMorris, above n 103,79-81. ro5 Prentis,above n 85, 68-9. 'oo Ibid 70. But seeMorris. aboven 103. 8l-7.
63 indigenous/indigenouspeoples echoing the theories in natural history it was also a reflection of the settler community's fear (whetherjustifiable or not) of resistanceby indigenous peoples - the 'treacherous' Aborigines - which in turn reflected an instability of power of the colonial forces(whether real or imagined).Thus, as colonial relationsplayed themselvesout on the land, the dispossessionof indigenouspeoples was justified not only becauseof their inferiority, but also becauseof the threat they posedto the colonists' authority.l0TAtrd evenmore quietly still, therewas the muffled voice of the colonists' conscience,expressed by those concernedby the plight of indigenouspeoples. These contradictory impulses would come to inform the laws and policies relating to indigenouspeoples and to varying degreescontinue to dominate even to this day.
Thus, even though the colonists saw themselvesas superior, that did not stop them from perceivingindigenous peoples as a threatto the continuedsettlement of the land, especiallyif the original occupiersgot too closeto the colonial settlements.In this respect indigenous peoples were constructed'outside', as not belonging to settler society; and much was done to construct and maintain this social positioning. The constructionof non-indigenouspeople - especiallythose of British stock - as 'in' society,and indigenouspeople as 'out' of society,would continueto be sanctionedby laws and policies throughoutAustralian colonial history. A notableexample is the way that indigenouspeoples were excludedfrom the establishmentof the nation at the time of Federation.'o8It has been well noted that it was iust at this tirne that indieenous
to7 Morris, aboven 103,14-5. '08 Wolfe, above n 33, 101-2. This exclusion was reflected ín the Commonwealthof Australia ConstitutionAct 1900 (UK) ('the Constitution').For instance,originally s 127 of the Constitutionhad provided that: 'In reckoning the numbers of the peoples of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.' This provision was repealed by
64 peoplesceased to be the 'first Australians',as they had been commonly referredto in the early colonial period in contradistinctionto the British colonists:l0eAustralian-ness, henceforth, would be epitomised as white and male and would often be used interchangeablywith Britishness,or at least exert the same discursivepower as the
l0 constructionof British superiorityhad during the colonial era.l
Extermination by massacreand diseasewas not the only way of moving indigenouspeoples out of the way to make the land availablefor colonialusages. In the
20tL century laws sanctioningthe institutionalisationof indigenouspeoples were in operation in most Australian statesand territories and were administeredunder official policies that shifted from segregationto protectionism and assimilation.At least to the extent that they are still startlingly over-representedin the criminal justice system, the institutionalisationof indigenouspeoples has continuedinto the 21't century.
The institutionalisation of indigenous peoples was put into practice by bureaucrats,police and missionaries.In the era of segregationwhich commencedin the early 1800s,indigenous peoples were removedonto reservesand missions. Accounts of the purpose of segregationvary through attempts to protect them from the colonial onslaught;rrrattempts to civilise and instil Christianvirtue in them so that they could at
'habits leastmimic the white man in of order,obedience, and industry';l12and attempts to remove them from the sieht of the white colonisersin order to sustainthe myth that
referendumin 1967.Moreover, indigenouspeoples were not entitledto vote at federalelections until the CommonwealthElectoral Act I918 (Cth) was amendedin 1962. 'oo 'Making Buitr Attwood, History: Imagining Aborigines and Australia' in Tim Bonyhady and Tom Griffiths (eds), Prehistory to Politics: John Mulvaney, the HumanitÌes and the Public Intellectual (1991) 98,99-100. 'Vy'hose "o Jan Pettman, Country is it anyway? Cultural Politics, racism and politics, racism and the constructionof being Australian' (1988) 9 Journal of Intercultural Studies1,3. Irr Prentis,above n 85,70. "2 Pattel-Gray,above n81 ,23.
65 Australia had in fact been an empty land (or at least had been emptied of indigenous people).113In the end the early missionswere unsuccessful. Missionaries and protectors were unable to prevent violence againstthe indigenouscommunities, nor were they able to restrainindigenous peoples from leaving the missionsand congtegatingon the fringes of towns. Altemative measuresto deal with what had becomemore evidently
'half the Aboriginal problem: what would becometermed as the castemenace' were needed.
However, the practice of segregation was not abandoned. In fact, the establishmentof separate'repositories' for indigenouspeoples, such as Palm Island, continuedas late as 1918. In the 19tl'centurythe policy of segregationsoon became
'protectionism' known as (and would cometo coexistwith the White Australiapolicy).
But with the adoption of protectionism,the questionof who was to be protectedwas somewhatcontroversial. The protectionera has come to be associatedwith the rise of social Darwinism, and the belief that contactbetween indigenouspeoples and more
'civilised' advanced peopleswould eventuallylead to the complete extinction of the former, due to their backwardness.The idea was to maintain reservesfor indigenous peopleswhere they would meet their final destiny. However, as poor as the social conditions were, indigenouspopulations still continued to exist as children born of illicit sexual relations between black women and white men remained with their motherson the reserves.This situationposed a moral dilemma- the indigenouspeople neededprotection from the ill effectsof white society,but moral white societywas also in need of protection from the unsightly view of the blacks. Moreover, it had been common from the very beginning for the coloniststo kidnap Aboriginal men, women
"'Ibid 21
66 and children andput them into servitude.rraIn this period the removal of children from their mothers would meet all of these challengesincluding the demand for cheap labour.
The proliferation of legislation enactedto sanctionsuch practiceserased any human qualities of indigenouspeoples; nor was any specific referencemade to their
'natives', own clan names.Instead, they were increasinglyreferred to first as and then in terms of blood lines (half castes,quadroons, octoroons and so forth).'ls But while this approachwas basedin science,it was only on the basisof skin colour that a child could be assessed,not on the quality of their blood. Indigenouschildren could only be subject to a sight test and even then it was more often than not left to the wide discretion of the superintendentsor police overseeingthe reserves.A very inexact scienceindeed!
The characterisationof Aboriginality by referenceto blood lines, and more recently on the basis of culture, provided the framework within which the indigenous population could be managedand controlledby reinforcing differencesbetween them and forging divisions betweenthem. Intersectingwith suchrace-based categorisations were distinctionsmade on the basisof genderand age.
Thus, if Aboriginal populationswere not to becomeextinct by natural means, their demise would be assuredby social engineering.This continuedto be the case during the era of assimilationwhich replacedprotectionism as the official policy in relationto indigenouspeoples in the late 1930s.
"n Ibid 19-21. rr5 'The SeeJohn McCorquodale, Legal Classificationof Race' (1986)l0 Aboriginal History 7.
67 The adoptionof the assimilationpolicy was to some extent an acceptancethat protectionismhad failed to producethe desiredresult - the eliminationof indigenous peoplesin Australia - although its adoption into practice in the post-WWII era no longer dependedon an eugenicbasis that had been discreditedwith the acceptanceof the atrocities in Nazi Germany.ll6Nevertheless, the interestsbehind the policy of assimilation were no different from protection, insofar as it too was adopted with a view to eliminating the presenceof indigenouspeoples from the Australianlandscape.
In that respectit would continue on the same course, even though numerouspieces of legislationwere enactedto indicatethe changein emphasis- from legislationaimed at 'protection'to legislationaimed at'assimilation'.117 Yet while socialDarwinism was predicatedon an expectationof the demise of indigenouspeoples, assimilation was clearly based on the absorption theory of structural-functional anthropology.
Indigenous people, in particular children of mixed parentage(half-castes, quarter castes,octoroons) could be absorbedinto the wider Australian community.Especially
'white' if their bodiescontained blood, they were consideredas having advancedon the scale of civilisation, and could be civilised. According to Paul Hasluck, speakingas
Ministerfor Territoriesin 1951:
"6 AruraHaebich, Brolcen Circles; FrctgmentingIncligenous Families 1800-2000(2OOO) 279. 'protection' "i By 191I all Australianjurisdictions except Tas, had passedsome form of legislationwith the emphasison segregationand restrictionof indigenouspeoples: Vic had been the first to enact such legislation:Aborigines Act I890 (Vic); followed by Aboriginals Protectionand Restrictionof the Sale of Opium Act 1897 (Qld); AboriginesAct 1905 (WA); Aborigines ProtectionAct 1909 (NSW); Northern Territory Aboriginals Act I9l0 (SA); and AboriginesAct l9ll (SA). The adoptionof the assimilation policy was also markedby the enactmentof variouspieces of legislationacross the country:Aborigines Protection (Amendment) Act 1940 (NSW); Natives (Citizenship Rights) Act 1944 (WA); Ilelfare Ordinance 1953 (Cth); Aborigines Act 1957 (Yic); Aborigines Affairs Act 1962 (SA); and Aboriginal and Torres Strait Islander Affairs Act 1965 (Qld). Although this list is by no means exhaustive. For a more detaileddiscussion ofthe legislationaffecting indigenous peoples during the erasofprotection and assimilation see Christopher Cunneenand Terry Libesman, Indigenous Peoples and the Law in Australia (r99s)29-4r.
68 Assimilationmeans, in practicalterms that, in the courseof time, it is expectedthat all persons of Aboriginal birth or mixed blood in Australia will live like white l8 Australians.l
But with assimilationcame the promiseof equality- that all indigenouspeople were to
'live like white Australians'.To that extent,however, the messageof the assimilation era to indigenouspeople was to stopbeing culturally distinctive:'to "fit in", Aboriginal people had to stop being Aborigrnal ... The place of Aboriginal people in the
Australian nation was to be on the terms of non-Aboriginal people'.lle Any cultural distinctivenessof Aboriginality continued to be ignored. Moreover, the promise of equality was not deliveredto indigenouspeople on the samebasis as that enjoyedby other Australians.At its extreme,indigenous people had to give up their Aboriginality in order to receive citizenship rights, as was the case in Westem Australia.l20
Accordingto the findings of the Royal Commissioninto Aboriginal Deathsin Custody:
While the policy offeredthe samerights and privileges, this was highly conditional upon Aboriginal people acceptingthe sameresponsibilities, observing the same customs,and being influenced by thesame beliefs, as other Australians.l2r
In this way indigenouspeople would come under the surveillanceof bureaucratsto
'performed ensure that they to the standards and cultural requirements of non-
Aboriginal society'."' Th" effect was to entrenchthe understandingof indigenous
'Other' 'not peoplesas and thus as part of this nation,this Australia'.t23
But as with all the other policies that had been introduced to manage and control indigenouspopulations, an impoftant function of assimilationwas to make even
r18 Paul Hasluck,Natit¡e lí/elfcu"e in Australia; speechesand Addresses(1953) 16. "o Cun"".r and Liebsman.above n 1.1 - 36. t2o 'Judicial Natives(Citizenship Rights) ¿ct tgiq¿ (WA). Seegenerally John McCorquodale, Racism in Australia: Aboriginals in Civil and Criminal Cases' in Kayleen M Hazlehurst (ed), Ivoty Scales: Black Australiaand theLaw (1987)30. r2r Royal Commissioninto Aboriginal Deathsin Custody,above n 84, 5l L 't' Crrn""n and Liebsman.above n 111- 36. '23 Royal Commissioninto Aboriginal Deathsin Custody,above n 84, 5l 1.
69 more land available for non-indigenouspurposes. Marc Gumbert has noted that the government's commitment to assimilation grew stronger as the value of what were previously regardedas valuelessreserve lands became apparcnt.r2a
However, not all Australiansembraced assimilation. While moral white society
'dirty had had a hand during the protectionera in moving indigenouspeoples - blacks'
- away from towns and into institutions, assimilation meant that indigenous people could now live amongstnon-indigenous communities and be integrated.The ensuing conflicts would result in a mix of the policies that had thus far governed Aboriginal life: segregation,the removal of children,and assimilationcontinued to coexist.
Accordingly, in this era, laws relating to Aboriginal people became more patchy. According to ChristopherCunneen and Terry Libesman:
Despitethe movesin official policy duringthe 1960sit wasapparent that a broadrange of legislationcovering Aboriginal and Torres Strait Islander people existed by the early I970s. In 1966 SouthAustralia had passedthe Prohibitionof DiscriminationAct makingthe refusalof servicein placesof entertainment,shops and hotels on the basis of race illegal. The CommunityWelfare Act of 1972called for the promotionof Aboriginal culture.At the other extremewas the QueenslandAborigines Act and the TorresStrait Islander Act whichbreachedinternational human rights standards.'2t
Thus, up to and including the period of assimilation,indigenous peoples were discriminatedagainst on the basisof race in most areasof life. Ownershipof property, association(including marriage) with other indigenous and non-indigenouspeople, employment,education, housing and health,and the criminal justice systemare only a few of the areas in which indigenous people were treated differently and less favourablythan peoplewho were non-indigenous,especially people of British descent.
The discriminationexperienced by indigenouspeoples reflected contradictory attitudes towards them. A senseof the superiority of the British colonists(now Australians)
''o Marc Gumbert,Neither Justice nor Reason(1984) 19. '" Crrrreenand Liebsman-above n lll - 41.
70 marked indigenous peoples as inferior; but as superiority was not enough to eliminate them, their continued existencewas perceived as a threat undermining the power of the colonising forces. Thus, whether they were constructedas inferior or as a menace, discriminatorylaws and policies would legitimisethe resultingdetriment to indigenous peoples,not leastby creatingabysmal social conditions for them.
Within the exerciseof this power there was some genuinehumanitarian concern for indigenouspeoples. Some may even say that without this concernthe plight of indigenouspeoples may have been even worse; but at most it produced only small victories and was never able to overcome the prejudice experiencedby them. In any event this humanitarian responsewas problematic, or at least ineffectual, insofar as it too conformed to and supported dominant attitudes towards indigenous people. This was most noticeablein the era of protectionism.Its aims were themselvesobscure: if it was aimed at the protection of indigenous peoples it was to protect them from themselvesand other influencesthat were consideredlow-life - illicit sexualrelations, alcohol etc. But even such motivation had underlyinga concem to protect the broader white society.Arguably in the end the policy of protectionwas administeredmainly for the protection of the white population.As Chief Protectorof the Northem Territory
'the Cecil Cook had stated, native actually has become an intruder in a white man's country.Politically the Northern Territory must alwaysbe govemedas a white man's country, by the white man for the white man'.126In some ways any humanitarian sentimentthat informed thesepolicies and laws obscuredthe intention of eliminating indigenouspeoples altogether. The distortionhas led to claims that such policies were at bestmisguided patemalism, rather than being viewed as cultural genocide.However,
126 Quotedin Andrew Markus, Got erning Savages(1990) 90.
71 it would seem that condoning acts of cultural genocide was one of the principal
intention. As AO Neville, the second Chief Protector of Aborigines in Western
Australia,remarked in 1937:
the nativepopulation is increasing.What is to be the limit? Are we going to have a populationof 1,000,000blacks in the Commonwealth,or arewe goingto mergethem into our white communityand eventually forget that there ever \ryere any Aboriginesin Australia?r27
Politically this issue is still unresolved,though legally the casesof Krugert2s and
Cubillorzeappear to have set insuperableobstacles in the way of any argument that the
'genocide' Australian policies might fall within the definition of in intemationallaw.
Even at the political level, the issue has been muffled by Prime Minister Howard's
refusalto apologiseto the stolengenerations for the practiceof forced child removal.
At least at the domestic level, recent legal reforms have evinced the
implementationof the Aboriginal Child PlacementPrinciple ('ACPP') by the statesand
territorieswhich requireschildren, when the needarises, to be placedwithin indigenous
communitiesand gives indigenousorganisations a limited role to participatein the
decision-makingprocess.''0 Mor" recentlyat the Commonwealthlevel theFamily Law
'tt Co-*on*ealth of Australia, Aboriginal IØelfare; Initiat Conference of Commonwealth and State Aboriginal Authorities,Canberra, 21-23 April 1937,11. (tggl) 190cLR l. 'to"' (zoot)112 FCR 455. ''o All Australian jurisdictions except WA have incorporateda version of the ACPP in legislation: Children and YoungPersons Care and Protection)Act l99B (NSW) s l3(1); Children and YoungPeople Act 1999(ACT) ss 14, 15(1); Children,Young Persons and Theit'FamiliesAct 1997 (Tas) s 9(2); Childrenand YoungPersons Act 1989(Vic) ss 112(l)(e),119(lXm) and(2);.Children's Protection Act 1988 (SA) s 5; Communityllelfare Act 1983(NT) ss 43,691'and Child ProtectìonAct 1999 (Qld) ss 6, 82. In WA the ACPP has been incorporatedas policy in the placementof indigenouschildren. The statisticsshow variationsacross jurisdictions in the numbersof childrenplaced accordingto the ACPP. In June 2004 of all the indigenouschildren in out-of-homecare 61.70/oin Vic, 63.4%oinQld,77.5o/o in WA,81% inSA,40.4YoinTas;68.60/,in theACT, and60.3%ointheNThadbeenplacedinaccordance with the ACPP. No availabledata was availablefor NSW. See Australian Institute of Health and \|/elfare, Child Protection Australia 2003-04, Table 6-2
12 Act 1975 (Cth) has been amendedr3rto require that decisionsrelating to custody and parental responsibility must take account of the child's right to enjoy his or her
Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and of any kinship obligations, and child-rearingpractices, of the child's Aboriginal or Torres Strait Islander culture.l32
More recently still, however, these reforms have been overshadowedby the Howard
Government'sauthoritarian response to child abuseallegations in remote indigenous communities in the Northem Territory which witnessed an unprecedenteduse of the military and police to occupy indigenouscommunities. The government'sreaction has 'a been describedas regime of coercive paternalism'.I33Moreover, such tactics are linked to undermining the land rights regime that has been in place in the Northern
Territory since lgl6.t34 Overcrowding in indigenous communities is seen as contributing to the problern of child abuse,and as justification to breakdown these I communitytownships. 3s
As theseexamples show the humanitariansentiment has progressively informed
Aboriginal policy-making, as it would in relation to policies relating to other socially disadvantagedand minority groups.Whether this sentimentin fact has producedand can produce positive outcomesfor indigenouspeoples remains to be seen.It would
The implementationand effectivenessof the ACPP acrossjurisdictions has not beenwithout critics. See Human Rights and Equal Opportunity Commission, above n 15, 441-50. The Report (at 560) recommendeda new national framework with the right to self-determinationas its starting point, and based on national minimum standardsof treatment for all indigenous children (at 581-9). The recommendationsare yet to be actedupon by the nationalgovemment. t3t Family La-wAmendment (Sharect Parental Responsibitity)Act 2006. t32 Family La'vvAct I975 (Cfh) s 6lF. See alsoIn the Marriage of B and R (1995) 19 Fam LR 594;In the Matter of: In Re CP Appeal No DN 880X of 1994No NA 25 and216 of 1996.But see StephenRalph, 'The best interestsof the Aboriginal child in family law proceedings'(1998) 12 Australian Journal of Family Law 140. r33 'An PatrickDodson, entireculture is at stake', TheAge (Melbourne),14 July 2007,g. t3a Aboriginal Land RightsQ{orthern Territory) Act 1976 (Cth) ('ALRA'). '3t Dodson,above n 133. Seebelow Part D(3).
-a t) seem there is a fine line between genuine concern to overcome the disadvantages experiencedby indigenous peoples and maintaining control over their experiences.
When the assimilationera appearedto have come to an end in the 1960s,the view of many was that it had endedon a positive note insofar as a level of formal equalityhad been achievedfor indigenouspeoples in areassuch as the extensionof the federal franchiseto indigenouspeoples in I962,and the referendumin ßAl which deletedthe discriminatoryprovision in s 127 of the Constitution,and by amendments 5l(xxvi) gavethe Commonwealththe power to make laws with respectto indigenouspeoples.l36
It seemedthat the time for greater changehad come, but whether positive change for indigenouspeoples could be sustainedwas anothermatter.
Towards self-determin ation
By the 1960s indigenous peoples had become more politically organised, although political activity had been taking place from a much earlier time - and if resistanceto colonisationmore generallyis taken into account,political activity had been aroundfrom the very beginning.'" Brt what was different at this time of history was that governmentswere beginning to listen to indigenouspeople in the formulation of laws and policies. This would becomethe era of self-determinationfor indigenous peoples,and a time when the White Australiapolicy would be abandonedin favour of a policy promoting multiculturalism which reflectedan acceptanceof the changein the
Australian social landscapethat had come with postwar immigration. But to what extent indigenous peoples' aspirations would be faithfully incorporated in law
t36 Contra Pattel-Grav.above n 81- 38-44. '" For a brief ftmo.y of first .ontu"t between the indigenous inhabitants and colonists see Loma Lippmann, Generationsof Resistance:Mabo and Justice (3'o revised ed, I 994) ch L
74 remainedto be seen.'38For one thing, theseaspirations (which included among other things land rights, recognition of Aboriginal sovereignty, and reparations for past dispossession)were still not the only influenceon law-making.True, the acceptanceof indigenous perspectives \¡/as consistent with changing attitudes towards indigenous peoplesat the intemationaland national levels: for example,the Racial Discrimínation
Act 1975 (Cth) had ratified the Conventionon the Elimination of All Forms of Racial
Discrimination.Moreover, the threatthat indigenouspeoples had consistentlyposed to the establishedorder which had repeatedlyled to changesin policies and laws to deal
'Aboriginal with the problem' was replacedat the official level by feelingsof guilt and
'new remorse for what had been done, reflecting a similar stance of the history' movement that began to flourish in the 1960s and 1970s.r3eMost notably Gough
Whitlam in 1912announced:
Australia's real test as far as the rest of the world, and particularly our region, is concernedis the role we createfor our own aborigines... More than any foreign aid program, more than any intemational obligation which we meet or forfeit, more than any part we may play in any treaty or agreementor alliance, Australia's treatment of her aboriginal people will be the thing upon which the rest of the world will judge Australia and Australians- not just now, but in the greaterperspective of history ... The aborigines are a responsibility we cannot escape,cannot share,cannot shuffle off; the world will not let us forgetthat.ra0
A year later Whitlam committed his government to political action in relation to indigenouspeoples:
If there is one ambition my Government places above all others, if there is one achievementfor which I hope we shall be remembered,if there is one causefor which future historianswill saluteus, it is this: that the GovernmentI lead removed a stain
'" Seebelow ChaptervI(C). ''o 'Introduction S"" abovePart B and below ChapterIII(B). Seegenerally Attwood, The past as furure', aboven 2, xxix-xxxi. '00 Gough Whitlam, 'It's Time for Leadership' (Australian Labor Party Policy Speechdelivered at Blacktown Civic Centre, Sydney, 13 November 1972), quoted in Gough Whitlam, The llthitlam Government1972-75 (1985) 466.
75 from our national honour and brought back justice and equality to the Aboriginal people.lal
Significantly such statements (and others subsequently made by other prominent figures in Australian political life) acknowledge to varying degrees the extent to which laws and policies have been unjust and discriminatory, and express a desire to right the wrongs of the past. Indigenous peoples are thus brought under the
'us' umbrella of what is Australian. This gives the appearancethat the dichotomy of 'them' and betweenindigenous and non-indigenousAustralians has been dismantled- indigenous peoples are Australians after all. Arguably it is the construction of indigenouspeoples as Australiansthat providesthe impetusfor somethingto be done in order to achieve justice for them. However, this deconstruction of the
Aboriginality/Australian-nessdichotomy on the one hand, and the constructionof the state'sresponsibility for indigenouspeoples on the other, both obscurethe unequal power dynamic that underlineseach of them. It is still up to the stateto determinethe terms and conditionsfor a just resolutionof the problems facing indigenouspeoples.
Moreover, it is still up to the stateto determinethe conditionsfor what is Australian and whetherindigenous peoples actually fit in or not. To that extentthis approach,and indeed the whole self-determinationenterprise, was paradoxical.As Ian Hughes and
RodericPitty arguedin 1994:
Since 1972 the Commonwealth Government has followed a policy of ... self- determination which is paradoxical in form. After two centuries of colonial domination, a powerful governmenttells the weakenedand disorganisedindigenous peoplesto take autonomousdecisions on their own behalf. Having been orderedto be autonomous,if fthey] decidefor themselves,then they are still doing as they are told. By trying to act autonomously, they are following the Government's instructions. And if fthey] do not obey the Government's policy, then they are being self-determining, in accordance with Government policy. 'Be self-determining' is a powerful directive
'o' Gough Whitlam, Address to Aboriginal ConsultativeCouncil, February 1973, quoted in Whitlam, The !í/hitlamGovernment 1972-75, above n 140,468.
76 which cannotbe disobeyed,because whatever indigenous peoples do can be claimedas obedienceto thepolicy.ra2
This gives the impression that even within the limited conf,inesof statepower a form of autonomy (albeit a paradoxical form) could be exercisedby indigenous peoples.
However, as it turned out this was not even the case:any exerciseof autonomy was still conditional on state acceptanceof such autonomy.Moreover, self-determinationhas mostly been viewed by govemmentsas intemal - as a restrictedright exercisableonly within the limits of the state.la3Indeed, the inclusion of indigenouspeoples in the category of Australians could not in the end assist them to gain recognition of their prior occupation of the Australian territories, whether through the recognition of
Aboriginal sovereignty or the treaty process - although such processesmay counter
similar problems of parody insofar as they depend on the Australian state for their
fulfilment.
Nevertheless,indigenous peoples may have had a better chancein the absence of other influencesand governmentpolicies and laws. For one thing, Whitlam was not
Prime Minister long enoughto follow through on his promises;and during the period under Prime Minister Malcolm Fraser indigenouspolicy changedagain, from selÊ
determinationto self-manasement.But the return to self-determinationunder Prime
Minister Bob Hawke would not producethe promise of justice either. Arguably, any
'Aboriginalism' considerationof indigenousaspirations was not entirelyuntainted by -
and in particularby the constructsof structural-functionalanthropology (the timeless homogenousAborigine of the Dreamtime),which by this time had become the lens through which Aboriginality was understoodin Australia and intemationally. To the
Ia2Ian Hughesand Roderic Pitty, 'AustralianColonialism after Mabo' (1994)71(1) June/Ju\y Current AffairsBulletin 13 , 14. to' Ctrnr"en and Liebsman. above n 117.195.
77 extent that law and policy were still influenced by discourseson Aboriginality, the significanceof any successby indigenouspeoples in having their aspirationsreflected in law hasbeen diminished.
It has been well documented how the discourse of structural-functional anthropologyinformed the policies and laws of this period.too In particular,it is at this point that we witnessthe introductionof a new way of categorisingAboriginal people for legislative purposes:as traditional owners (particularly for purposesof land and heritage rights)las - a perspectivewhich has slowly come to replace the earlier categoriesbased on degreesofblood.
However, not all Stateshave required proof of traditional ownership pursuant to land rights legislation. In New South Wales, for example,there is no need for such proof.lo6To an extentthis is in recognitionof the dispossessionof indigenouspeople in that State;but it also conformsto the structural-functionalistview in anthropologythat in settledareas there areby definition no longer any traditionalowners, by viftue of the extent of the contactwith non-indigenouspeople that has occurredin such areas.It is laws that rely on these assumptionsthat compoundthe idea that the 'real' Aborigine nowadayslives in the desert,and that on the eastemseaboard no 'real' Aborigines now remain. Moreover, such distinctions have unavoidably resulted in conflict between traditionalowners, and more newly arrivedresidents.laT
'ou Seegenerally Wolfe, aboven 33. ra5 Aboriginal Land Rights Commission,Second Report of the Aboriginal Lctncl RightsCommission, WoodwardReport/Parliamentary Paper No 69 (1914) vol 1, l. ta6 Aboriginat Land RightsAct 1983(NSW) ss 3, 4. '4t 'The PeterSutton, ReevesReport and the Idea of "Community"' in J Altman, F Morphy and T Rowse (eds),Land Rightsat Risk?Evaluations of the ReevesReport ( I 999) 39, 41. However,this problem is not only one experiencedin NSW, but extends to other jurisdictions as well. See Gaynor Macdonald, "'Recognition and justice": The traditional/historicalcontradiction in New South Wales' in DE Smith and J Finlayson (eds),Fighting Over Country: Anthropological Perspectives(1997) 65,73-8.
78 In any event,with or without such assumptions,land rights legislationhas been inadequateto provide indigenous peoples with land justice. Although indigenous claimants have had a certain level of success in the High Court pursuant to the
ALRA,I49the legislationis not without shortcomings.For example,that legislationwas initially introduced to overcome the result in Milirrpum v Nabalco, and in the spirit of the establishment and acceptance of the Aboriginal Tent Embassy in 7972, and stimulated a growing push for land rights among indigenous peoples. But the legislation was eventually to be underminedby subsequentgovernments succumbing to pressureexerted by the resourcesindustry. Indeed, the original 1976 legislation has itself beenwatered down in numerousways. Originally indigenouspeople had a power of veto over the mining of their lands, but in 1987 this was watered down by the introduction of a new Part IV in the Act at the behestof the Australian Mining Industry
Council.laeThis was not the first time, nor the last, that the mining industry would assertpressure on governmentsin this way. In 1984 the rnining industry engagedin a very successfulassault against Hawke's push for national land rights legislation,and also againstmoves in Westem Australia to introduceland rights in that state.On each of theseissues the political clout of indigenouspeoples was no match for the mining interests,which tendedto exercisetheir power by fear mongering and dominatingthe use of the media.lt0 Wh"r" once, during the protection era, indigenouspeoples were
'ot See, eg, Re Toohey; Ex parte Menelong Station (1983) 57 ALJR 59,11-2; Re Toohey;Ex parte Stanton (1982) 57 ALJR 73. Cf Margarula v Rose(1999) 149 FLR 444; Risk v Northern Territory of Australia (2002) 210 CLP.392. 'oo Nick O'Neill, Simon Rice and Roger Douglas (eds),Retreat from Injustice: Human RightsLaw in Australia (2norevised ed,2004) 619. 't0 See Cunneenand Liebsman, above n 111,138-41. Most recently amendmentsto the ALRAhave further undermined indigenous peoples' rights under the Act. While the amendmentswere not subject to the samelevel of media attentionand public scrutinyas in 1984 when the proposednational lands rights scheme was being considered,or in 1993 when the Native Title Act 1993 (Cth) was enacted and subsequentlyamended in 1998, these amendmentswill have far-reaching consequencesfor indigenous
79 constructedas a menacerequiring eradication,indigenous peoples in the era of self-
determinationwere (and continueto be in the post-Maboaftermath)lsl constructed as a
threat to the national interest, insofar as their interests in land are construed as interfering with the interests of economic developmentin mining - the last frontier of
dispossession.
In this way, the perceived cultural differences between indigenous and non- indigenouspeoples continue to undermineindigenous peoples' claims to land. Thus in this respectthe changein policy from assimilationto self-determinationwas still not ableto protector fully incorporateindigenous aspirations. Ultimately the difficulty may lie in the very fact that indigenous people do not have control over the way in which they are perceived.Thus indigenouspeoples' assertionsof their unique connectionto their traditional lands for the purposeof recognition of their land rights becomesthe basisfor argumentsagainst the recognitionof this connection,as it is still the antithesis of capitalisticuses of land. By construingindigenous ties to the land as a threat to capitalism, mining interestspaint a picture of indigenouspeoples as locking away
Australia's future by claiming rights to land. Again the historical context for indigenous peoples as the prior occupiers and unjustly dispossessedand exploited peoplesof Australia is overridden,by claims that indigenouspeoples are undeserving: whetherit is becausetheir social organisationdoes not fit the Westemmodel (they are
peoplesin the NT. Seegenerally Parliament of Australia,Senate, Senate Community Affairs Committee, Inquiry into Aboriginal Land Rights (Northern Territory) Amendmenr Bill 2006 80 a stone age people); or simply becausethey are perceivedas getting somethingfor nothing.ls2 As for the dispossessedAborigines, the very fact of their dispossessionis used to their disadvantage,not only becauseit excludesthem from most of the legislative avenuesfor claim as is the casein New SouthWales (and now the casein the context 'real' of native title),ls3 but becauseit is interpretedas showing that they are not Aborigines anyway. This perceptioncontinues to pervadelaw and policy especiallyin the area of land rights. This is so in spite of the scholarly evidenceof the Aboriginal capacity for adaptation, both before and after colonisation.lsaThese findings correspond to indigenous peoples' own accounts of survival of colonisation through adaptation.Evidently these studieshave not had a greatinfluence on shaping law and politics in Australia, particularly in the area of land rights where only traditional Aboriginesare readily acceptedas real Aborigines. In theserespects structural-functional anthropological perceptions of indigenous peoplesstill dominateAustralian law. Yet, their influencehas not extendedto securing expressrecognition of Aboriginal customarylaws. Anthropology may have identified indigenouscommunities as culturedwith their own laws and customs,but at the present time Australian courts and legislatureshave firmly rejected the idea that Australia should have a pluralistic legal system in which Indigenous legal systems operate alongsidethe Australianlegal system.rss Thus, despite any good intentions behind the policy of self-determination,it failed to promote the aspirationsof indigenous peoples. For instance,despite the r52 Seebelow ChapterIV(A). t" S"" especially Yorta Yorta (2002) 214 CLF. 422. t'n B.rme.above n 52. "t Sé" bélow ChapterVI(C). 8l recommendationsmade bv the Australian Law Reform Commissionin 1986,1sóthere has still been no express recognition of indigenous customary laws. Under the Hawke/KeatingGovemment the policy of reconciliationwas adoptedin conjunction with the policy of self-determination.lttHowerr.r any recommendationsto pursuethe policy of selÊdeterminationfurther, so as to promote a genuinelevel of indigenous autonomyhave been sidesteppedcompletely by the Howard Govemment'sadoption of the policy of practical reconciliation, which has seen the rise of a variant to the assimilation policy of the 1950s and 1960s.rs8Once again any recognition of indigenouspeoples as prior occupantsand owners of the Australian territories has been construedas a threat: this time as a threat to the unity of the nation.l5e In the 21't century much still needsto be done to overcomethe disadvantages 'workings that indigenouspeoples experienceas a consequenceof the of power'160 underlyingthe colonial relationshipby which the conditionsfor indigenouspeoples are createdand maintainedby non-indigenousbodies. Even within the narrow confinesof Australian law, indigenouspeoples are still unable even to control the processesby ls6 AustralianLaw Reform Commission,The Recognition of Aborigincil CustomcuyLaws, ReportNo 3l ( 1e86). ttt The initiativesintroduced by the Hawke/KeatingGovernment culminated with the releaseof Council for Aboriginal Reconciliation,Reconciliation: Australia's Challenge(2002). Among the proposedlaw reforms recommendedby the Council for Aboriginal Reconciliation('CAR') was the enactmentof legislationto put in place a processwhich would unite all Australiansby way of an agreement,or treaty, and which enableoutstandins issues ofreconciliation to be resolved. 'tt S"" Aboriginal and Torrà Strait Islander Social JusticeCommissioner, Socicil Jttstice Report 2001, (2002)28-9,206,221. rse Commonwealthof Australia, CommonwealthGovernment Response to the Councilfor Aboriginal ReconciliationFinal Report - Reconciliation: Australia's Challenge (2002) 10, 17, 19. The Howard Government'sideological stance on the policy of self-determinationand practicalreconciliation has not 'The been without critics. See Guy Rundle, Opportunist.John Howard and the Triumph of Reaction' (2001) 3 Quarterly Review Essay l; Michael Dodson and Simon Pritchard,'Recent Developmentsin IndigenousPolicy: The Abandonmentof Self-Determination'(1998) 4(15) IndigenousLaw Bulletin 4; and Andrew Markus, Race. John Howard and the Remakingof Australia (2001) ch 4. But see Judith 'The Brett, Treaty Process and the Limits of Australian Liberalism' (2001) AIATSIS 82 which they are defined. In the 1980s,a working definition was adoptedto reflect a level of self-determinationand self-representationconsistent with declarationsthat had beenmade at the internationallevel: An aboriginalor Torres Strait islanderis a personof Aboriginal or Torres Strait Islander descent,who identifies as an Aboriginal or Torres Strait Islander and is acceptedas such by thecommunity in whichhe or shelives.r6r This definition is supposed to give indigenous peoples a say in who is Aboriginal. Yet it remainsthe casethat they must still rely on a non-indigenouslegal systemto determinewho is and is not an indigenousperson. However, this does not have to always be necessarilyso.l62 That it remains the case exemplifies the much broader problems facing indigenouspeoples because of the failure to fully recognise indigenouscustomary laws and sovereignty.It may be that only with such recognition can theseproblems begin to be overcome.Ultimately, such recognitioncould address the very basis of the relationshipthat currently existsbetween indigenous peoples and non-indigenousbodies: the relationshipbased on the unequalexercise of power that continuesto leaveindigenous peoples disempowered. Conclusion In broad tenns the summary of the laws and policies in this Chapter simply illustrate an endemic problem in Australian legal treatmentof indigenous peoples: discriminatory treatment which has been legitimised by negative perceptions of indigenouspeoples circulating in and outsidethe field of law. However,more broadly speakingthe discussionin this Chapterhas resistedascribing such perceptions as truth rór Constitutional Section of the Department of Aboriginal Affairs, Report on a review of the administration of the working definition of Aborìginal and Torres Strait Islanders (1981). For a discussion of the history of this definition see John Gardiner-Garden, The Definition of Aboriginality (Research Note 18 2000-01) Parliament of Australia, Parliamentary Library 83 per se.Rather, by adoptingthe Foucauldiananalysis of truth as the productionof power the discussionhas illustrated how 'truths' about Aborisines were essentialto the colonising project and continue to be essentialin this way. For indigenouspeoples thesetruths have undeniablyshaped the conditionsof their social existenceand they will continue to do so as long as they are denied the means by which to control their own destinies:achieving full recognitionof the right to selÊrepresentationis just one of the outstandingissues that requiresredress in light of the discussionin this Chapter. As it is the reality of indigenouspeoples' lives were and continueto be distorted through the lenses of the social sciences in particular structural-functional anthropology.This becomeseven more problematicwhen this disciplinaryknowledge continuesto be enshrinedin law. The challengethat remains is to overcome this approachto the understandingof indigenouspeoples' perspectivesand experiences. This is not an easy task especiallyas there is so much resistanceto any alternative approachesthat are directedtowards reconciliation with the airn of putting an end to the discrimination.In many respectsas will be illustratedin the next Chapter,Mabo stood up to the challenge.In other respectsas will be illustratedin ChapterV, it did not. In the final analysisthe challengeis really overcoming fear - the threat that indigenous peoplesonce posed to the establishedcolonial order in Australia has taken on a new dimensionin the post-Maboera as will be illustratedbelow in ChapterIV - indigenous peoplesnow pose a threat to the establishedmoral order of Australia. As it will be argued in Chapter VI, addressingthis broader issue may require nothing less than reconceptualisingAustralian history and national identity in order to give legal recognitionto Aboriginal sovereigntyand laws. 84 III MABO: A RECONCILIATORY EVENT? Chapter II of this thesis outlined the contributions made to Australian historiography by the new history movement. There were four aspects of this movement that were identified as major contributions to the writing of Australian history. First, certain new historianshave reconceptualisedthe entire methodological processof writing Australianhistory, challengingthe traditional approachto history as linear and divisible so that the past is conceived of as separatefrom the present and future.l Instead,these new historianshave emphasisedthe importanceof the presentas a way of shaping our interpretationsof the past and shaping the future. This approach may be one way to assist a transformation of colonial history in Australia - predominantlybased on a traditionof racism and oppressionof indigenouspeoples - to one basedon a tradition of reconciliation:reconciling the past in the presentin order to preventfuither oppressionand discriminationagainst indigenous peoples now and into the future. Acceptanceand inclusion of indigenouslaws, traditions and historiesin a way that promotes the autonomy and well-being of indigenous peoples would undoubtedlybe a necessaryfeature of this processof reconciliation.2 Secondly, there has been historical work that contributesto the writing of Australian histories in a way that is inclusive of indigenouspeoples and colonial - relationsin Australia what has been dubbedby the new historiansas the breakingof the Australian silence in relation to all things Aboriginal.3 This inclusivenesshas achievedsome movement towards reconciliation in Australia,though much remainsto ' Seeabove Chapter II(A). ' Seebelow ChapterVI(C). ' Seeabove Chapter II(B). 85 be done,especially as a reactiveresistance and apathytowards reconciliation have also increasedin recenttimes. Thirdly, in breaking the great Australian silence,the new history movement has contributedto the writing of alternativeversions of Australianhistory. Thesenot only challengethe old historicalapproach to colonial relationsin Australia,but highlight the contentious nature of any writing of history by illuminating competing interpretations of the historical record, and therebyrevealing the writing of history as not necessarily 'true', but having an unavoidablepolitical dimension.oTh" alternativeversions have been greatly enrichedby the inclusion of aboriginal histories with the potential to transform the Australian national identity which is inclusive of indieenous perspectives. Fourthly, and for the purposesof this thesis,the most importantcontribution the new history movementhas been to exposethe discursiveframework shaping legal and political responsesto indigenous peoples in Australia.s Most notably, the new historianshave been able to show how constructionsof Aboriginality have informed and legitimised laws and policies relating to indigenouspeoples, and this has helped them to critique the contributionmade by theselaws and policiesto the oppressionand degradationof Australia's indigenous peoples. However, by the late 20tl' century positive legal changesfor indigenouspeoples were slowly taking shape. The High Court's decision in Mabo v Queensland(No 2)6 was heraldedby many as a turning point for indigenouspeoples and for relationsbetween indigenous and non-indigenouspeoples in Australia insofar as it renouncedthe doctrine of terra ' Seeabove Chaprer II(C). ' Seeabove Chapter II(D). ' (1992)175 CLR 1 ('Mabo'). 86 nullius which had come to be understoodas impeding the recognitionof native title in Australia.The recognitionof native title was itself consideredsignificant inasmuch as it was the first time that a court in Australia recognisedthat a pre-existing indigenous law had survivedthe acquisitionof British sovereignty.For somesupporters and critics alike this result was not only new but revolutionary.TWhile this may to an extent be true for property law in Australia, such reactions failed to appreciate the broader context in which Mabo could be located: the movement towards decolonisationin Australiathat precededMabo by at leastthree decades. In this regard Mabo forms part of a sequenceof events of that period. These included: developments at the international level such as the rejection of the terra nullius doctrine by the International Court of Justicesand legal developmentsin internationallaw and in other common law countriesmore generally;ethe political climate of the time in Australia (not only the specific politics surounding the Mabo litigation, but more broadly the extension of the Commonwealth franchise to indigenouspeoples in 1962and the specificreferendum in 7967,the introductionof the policy of selÊdeterminationin the 1970sin responseto a push for indigenousland rights after the failed attemptin Milirrpum v Nabalco'0 to recognisetraditional title to land,and the policy of reconciliationin the i990s in responseto the RoyalCommission into Aboriginal Deathsin Custody);rrthe legal developmentsin Australia such as the introduction of land rights legislation such as the Aboriginal Land Rights (Northern 'See, eg, Paul Patton,'Mabo, Freedomand the Politicsof Difference'(1995)Austtalian Journal of Political 'The Science108, 118; RD Lumb, Mabo Case- Public Law Aspects' in MA Stephensonand Suri Ratnapala(eds), Mabo: A Judicial Revolution(1993) o l,2l-2. WesternSahara (AdvisoryOpinion) ICJR ',^s:1Y:b:_(12?2) [1975] 12. 175cLR 1,41-3 (BrennanI),82-3(Deane '" andGaudron JJ), 183-8 (Toohey J). (1971)17 FLR l4l. " Commonwealthof Australia,Royal Commissioninto Aboriginal Deathsin Custody,National Report, (1eel). 87 Territory) Act 1976 (Cth), anti-discrimination legislation such as the Racial Discrimination Act 1975 (Cth), and heritage protection legislation such as the Aboriginal and Torres Strait Islander Heritage Protectíon Act 1984 (Cth); and successful litigation in the High Court for indigenous parties pursuant to such legislation earning the High Court the reputation of being a site of protest for indigenousrights.l2 Events such as these had made it more and more difficult to maintainthe position as it was pre-Mabo. Overarchingthe eventsof this time was the revisionof Australianhistory by the new historianswhich marked changedattitudes to indigenouspeoples and a willingness to transform the colonial relationship into a more equal and inclusive one. In many ways the result in Mabo representeda high water mark in this movement; but although its explicit recognition of pre-existinglegal entitlementsrù/as a fresh departure,it is within the context of the broader movernent,and particularly of the developments arisingfrorn the new history movementthat its significancemust be understood. The four contributions that the new historians have made to Australian historiographywill be used as a guide to illustratehow Mabo fits within this broader movement.In particular this Chapterwill respondto the view of some commentators thatMabo was itself a product of the new history movement.'' Thir contentionwill be examinedby identifying connectionsbetween Mabo and the new history movementin termsof the four contributionsoutlined above. '2 'Aborigines JohnMcCorquodale, in the High Court' (1983) 55 Australìan 104. 'Introduction: Quarterly " Bain Attwood, The Pastas Future:Aborigines, Australia and the (dis)courseof history' 'The in Bain Attwood (ed), In the Age of Mabo vii, xxxi-xxxvi; David Ritter, "Rejection of Terra Nullius" inMabo: A Critical Analysis' (1996) 18 SydneyLaw Review5,29-31. 88 A HistoricalMethodology First, in terms of historiographical methodology, Mabo conforms to the approachof the new history movement in the sensethat the trial judge, Moynihan J, charged with the duty of making determinations on the issues of fact raised by the pleadings accepted oral evidence related to proof of custom, otherwise termed 'traditional evidence'.laThis evidencein tum was acceptedby the High Court in the final proceedingsas supporting the plaintiffs' contentions conceming the survival and nature of their rights and intereststo land, and locating the source of those rights and interests in traditional laws and customs. As for the broader historiographical methodology of the new history movement, the Court's revision and subsequent rejectionof the past history of discriminationand dispossessionof indigenouspeoples, also conforms to the new history approachto the past, presentand future. Just as some new historians have subscribedto the theory that past, present and future are linked, and have embracedthe understandingthat the past can be re-interpretedin the present (for the sakeof the future),the reasoningin Mabo seemsto parallel such an approach. 'frozenin For BrennanJ the commonlaw of Australia could not remain an ageof racial discrimination',ls but could be modified to reflect changedcontemporary values: a necessarystep to ensurea future of equality for all in Australia.Deane and Gaudron JJ's reasoningsimilarly conformsto this approach.ló Moreover,by changingthe law through acceptanceof the pre-existingproperty rights of indigenouspeoples based on their laws and customs,and by rejecting the 'o 'Some BA Keon-Cohen, Problems of Proof: The Admissibility of Traditional Evidence' in MA S_tephensonand Suri Ratnapala(eds), Mabo: A Judicial Revolution(1993) 185,195-1. tt. Mabo (1992) 1i5 cLt. 1,42. '" Ibid l0g. 89 'barbarian' theory of law in responseto contemporaryvalues,lT Mabo not only representeda shift in the basis for interpreting Australian history by acknowledgingthe relevanceof Aboriginal traditions,but took its placein the broaderdeveloping tradition of a history of reconciliation- the end of the ageof racial discriminationin Australia. Admittedly, while the approach in Mabo conforms to the historiographical methodologyof the new history movement,it is also true that in any event it is an acceptedmethodological approach of the common law to modify the law where its presuppositions no longer reflect current social standards. Reflecting on the methodologyof the commonlaw JeremyWebber has noted: It is a muchmore active process of probingfor what is valuablein our past,cherishing what we taketo be important,refining it, andbasing our furthergrowth and reflection upon it - all elementsof a sophisticatedgrappling with precedent.Respect for precedentinvolves modesty - a sensethat we can and shouldlearn from our own community'spast - but it alsoinvolves a criticalelement, in whichwe activelyengage our past,drawing lessons for the future.At times,reflection upon our past(including reflectionupon whereour colnmunitynow seemsto be moving) leadsus to question prior assumptions.We can cometo the conclusionthat elementsthat onceseemed centralto our societyare now out of stepwith, perhapseven antagonistic to, our most cherishedcommitments. I8 Needlessto say there is no unanimity on this issue. Just as historians dispute the methodologyof the new history movementso also,there is dissensionamongst iawyers and legal commentatorsas to whether this reflective approachto precedentis an acceptableapproach and whethersuch formulationsaccurately reflect the common law approach.leFurthermore, it is not entirely clear that the Court in Mabo wholeheartedly abandoneda more cautious positivist approachbased on the declaratorytheory of law.20Having said all of that, however,it is importantto note that the focus of revision " rbid 39. 't 'The Jete*y Webber, Jurisprudenceof Regret:The Searchfor Standardsof Justicein Mabo'(1995) 17Sydney Law Revietv5,25. re Seebelow ChapterIV(B). 20 Seebelow Part C. 90 in cases such as Mabo is not merely the accurate reading of the past, but concem for what should be done in the present. As Webber has pointed out, the issue in Mabo'was not about some action or defect of the remote past': The defect \¡/asvery much alive within the law, its application in questiontoday. Often, people presume that indigenous title is about dispossession long ago. Usually, however, the dispossessionis much more recent, often happening in the present. That was certainly the case with Mabo. The Meriam people were still living on their land. They had maintained an unbroken occupation since time immemorial. The court had to decide whether they had a right to that land or whether they were mere sojoumers, subject to removal at the government's whim. If dispossessionoccurred, it would not be in 1788 or in 1879.It would effectively be now, in 1992,by virtue of the judges' action. While the previous casesmight be old, it was their present operation, at the end of the 20"' century that was in issue. The problem was not one of correcting an ancient injustice, but whether Australian law still took indigenous land, paying no heed to the presentinhabitants . . .2r Yet, according to the more orthodox view of history and law, dispossessionwould have already occurred in 1788 (in the case of New South Wales) or 1789 (in the case of Queensland) with the acquisition of British sovereignty over the Australian territories, notwithstanding the changed circumstances of the present. The Great Australian Silence Secondly,the very fact that in Mabo the Court did give recognitionto a form of native title, and in the processrejected the barbariantheory of law upon which the idea of terranullius depended,was itself a recognitionthat indigenouspeoples did belong to 'recognition organisedsocieties with their own laws and customs. In this way of indigenoustitle necessarilyinvolved a revalorisationof the hunter/gathererway of life, so that use of land can no longer be treated as worthless and primitive, liable to displacementwithout recourse':22an attitudeoften expressedin old colonial discourses in relation to indigenouspeoples in Australia. Moreover, the result in Wik Peoplesv 2r webber, aboven 18,25-6, t'Ibid 18. 91 Queensland!' which determined that native title could coexist with certain pastoral leases involved a significant deparfure from the old historical narrative in which indigenouspeoples were thought to exist as if they were from a different time and were therefore somewhereoutside of history. Rather the results in Mabo and Wik testify to the fact that indigenousand non-indigenouspeoples occupy the sametime and place. These results conform to the general endeavour of the new historians to locate indigenous peoples in history by identifying the means by which they have been excluded from it. Thus, just as indigenous peopleshave been accommodatedthrough the writing of new histories,they have now beenaccommodated in law as well. Moreover,the very limited nature of their legal accommodationshould not detract from the opportunity that Mabo opened up in Australia for indigenous peoples and colonial relations as a whole. While the approachto and understandingof history may differ among and between the many varied groups that constitute Australia's indigenous and non- indigenous populations, the recognition of native title created the opportunity to acknowledgeand sharea common history through an appreciationof the intersection between their histories based on an acknowledsementof mutual coexistence.This common history can be seen as contributing to the potential for reconciliation in Australia. Ultimately, however, if the Court had engagedin the processof breaking the silencesurrounding the history of colonial relationsin Australia it was conveyedmost forcefully in Deaneand GaudronJJ's joint judgment through their 'acknowledgement t3 ltoo6¡187 cLR | ('wik'). 92 of, and retreat from, past injustices'24experienced by indigenous peoples in Australia - the dispossessionof their lands. This sentiment directly echoes the 'sense sentimentof the new historians- a of dis-ease'2sabout the silence that has shroudedcolonial history in Australia andtheir motivation to come to terms with this 'the history in order to overcomeit. For new historians continuingcolonial crime' is to 'cupboard keeplocked the of our history';26the forgetfulnesssurrounding the history of 'moral dispossessionthat is the issuecentral to the nation's existence'27and continues 'a to pose central problem for the integrity and authenticityof Australia'.28Similatly '[t]he for Deane and Gaudron JJ there was a recognition in their judgment that acts and events by which that dispossessionin legal theory was carried into practical effect constitutethe darkestaspect of the history of this nation'; and only by overcomingthis 'diminished' history (throughthe rejection of the terra nullius doctrine)could a nation find salvation.tnTh" doctrine of terra nullius may have been rejectedby the Court in Mabo, but whether that has in fact brought an end to the dispossessionand reconciliationof Australia'shistorv remainsto be seen.30. C The Writing of 'New Histories' It was in an attempt to break the Australian silence on Aboriginal (and Australian) history that the new historianshave written altemative accountsof this history.In their tum thesehistories, particularly those written by Henry Reynolds,were to inform the judicial reasoningin Mabo. Reynolds,himself has acknowledgedhis own tn Mabo(1992) 175 cLR 1, 109. ?s Attwood,above n 13,xxix. 26 BernardSmíth, The 1980Boyer Lectures; The Spectre of Truganini(1981) 26. '' rbid11. tt Ibid45. " Mobo(1992) 175 cLR 1, 109. 30 Seebelow Chapter 5. 93 contribution to the Mabo decision in various places,3l and his influence is acknowledgedby others elsewhere.32Most importantly there are referencesto his work in the Mabo decisionitse1f.33 This brings us to the third way that Mabo reflects the developmentsin Australian historiography, and particularly its rejection of a unilateral wholesale extinguishment of native title rights in favour of an alternative version of history consistentwith Reynolds' research.3aReynolds has arguedthat in the period between1834 and 1850the Colonial Office had recognisedthe indigenousoccupants' legal interestin the land, and had tried to protect it by an Order in Council in 1846 'was which in Reynolds' view a clear and demonstrablerecognition of native title: the right to use and occupyland held under traditionaltitle'.3s According to Reynolds,the Imperial authorities believed that the Aborigines had rights. They said so a number of times, both in public and private. ... [G]rantsof pastoralleases were not intendedto deprivethe Aborigines 'of their former right' to hunt and gather. . . . The Colonial Office had not createdthese rights. It had recognized their existence.It intended to provide for their continuance. The rights did not derive from statutelaw, they were embodied in the common law and stemmedfrom the Aboriginal prior occupation of the continent. On all but enclosedand cultivated land the Aborigines could, as a right, continue to makeuse of the land as they had done sincetime immemorial.They could come and go as they pleased,hunt, fish, gather,reside. They had what were known as usufructuary 'interest' rights. Such rights were an in the land, a form of property which could be passedon by inheritancelike any other form of property. The owner of such an interest would expectcompensation if it was extinguishedby the Crown. '' 'What Hen¡r Reynolds,The Lavvof the Land (revised ed, 1992) 185-202;Henry Reynolds, is Native Title' (1993)| Iliset'25. 'Land " Ritter,above n 13,29. Seeaiso GordonBriscoe, reform: Mabo and'Native Title', reality or 'Australian illusion?' (1993) 6(3) Pacifc Research3,4-5; Ian Hughes and Roderic Pitty, Colonialism afterMabo' (1994) 71(1) June/JulyCurrent Affctirs Bulletin 13, 13. "ReferencestoHenryReynolds,TheLawof theLand (1987)aremade inMabo(1992) 175CLR 1,101, 142 (Deaneand GaudronJJ); 181 (Toohey J). In their concludingremarks in Mabo (1992) 175 CLR 1, 120,Deane and GaudronJJ alsoacknowledged that: in the writing of this judgment, we have been assistednot only by the material placed before us by the parties but by the researchesof the many scholars who have written in the areas into which this judgment has necessarily ventured. We acknowledge our indebtedness to their writings and the fact that our own researchhas been largely directed to sourceswhich they had already identified. 3o But seeBriscoe, above n 32. 3s Reynolds,The Law of theLand (1987) 139. 94 Aboriginal customaryrights were to continue on land leasedto pastoralists.The conclusionis irresistiblethat they alsocontinued to exist on Crown Land all over the continentand where there were no Europeanstheir rightswere unimpaired. ... 36 Thus, the decisionin Mabo draws its legitimacy not only from the traditionsof indigenouspeoples, but also from a history of Australia in which therc were attemptsto protect indigenous interests to land at an official level. Arguably, however, while this history is evidenceof one contemporaryview of the legal position, the custom of the colonistswas basically to ignore any such law.3t Moreover, the fact that the colonial failures to protect indigenous title may have been contrary to law might not itself have been sufficientto basethe result in Mabo. Even accordingto Reynolds' analysisof the legal position,the equivalentof a terranullius doctrinepervaded the law up until Mabo. And it has been arguedthat it was Reynolds' analysisof the terra nullius doctrinethat compelledthe Court to rejectit in the first place.38 Whetherrejection of the terra nullius doctrinewas actuallyrequired in order to give legal recognitionto native title is a matter of continuing controv"try.'n At times Reynoldshas seemedto write as if the influence of the terra nullius doctrinewas itself the key to the problem, so that once the doctrine was overturnedthe law would be cured of any defrciency.ooBut even the Court was equivocalon this issue,and on the extent to which responsibility for the dispossessionof indigenouspeoples could be imputed to the common law. As David Ritter has found, by the tirne of Mabo it had generallybeen accepted,consistently with Reynolds' analysis,that the early authorities '" Ibid 139-40. t' rbidr4r-i. '8 Ritter.above n 13-29. 3e Seebelow ChapterIV(A). a0 Reynolds, The Law of the Lancl (1987), above n 35, ll3. See also Valerie Kem.rish, 'Relmolds, Thompson and the Rule of Law' ( 1989) 7 Law in Context 87, 120; Victoria Gollan in Rozanna Lllley et al,'The Appropriationof TerraNullius' (1989)59 Oceania222,229. 95 'settled' 'desert that characterisedAustralia as or as and uncultivated' (elementsof 'discourse what he describesas the of turra nullius'),at had provided the legal justification for denying that indigenouspeoples had any common law right to their lands.However, this was not consistentlyacknowledged in the majority judgmentsin Mabo. For instance,Brennan J in one part of his judgment rejectedthe assumptionsin Cooper v Stuarta2(and casesto like effect) that the colony of New South Wales had 'peacefully been annexed to the British dominions' and had previously been 'practically unoccupied,without settledinhabitants or settledlaw'.43 Instead he argued 'the that facts as we know them today do not fit the "absenceof law" or "barbarian" theory underpinning the colonial reception of the coÍtmon law of England' .aaHowever, in a later part of his judgment Brennan J rejectedany complicity that the law may have had in the dispossessionof indigenouspeoples' lands: To treatthe dispossessionof the AustralianAboriginals as the working out of the Crown'sacquisition of ownershipof all land on first settlementis contraryto history. Aboriginalswere dispossessedof their land parcel by parcel,to make way for expandingcolonial settlement ... [I]t is appropriateto identifythe events which resulted in the dispossessionof the indigenousinhabitants of Australia,in orderto dispelthe misconceptionthat it is the commonlaw ratherthan the actionof governmentswhich mademany of theindigenous people of thiscountry trespassers on theirown lands.as Furthermore,while Deaneand GaudronJJ felt compellednear the conclusionof 'provided their joint judgment to reject the doctrine of terra nullius that had the legal basis for the dispossessionof the Aboriginal peoples of most of their traditional lands'46they had previously contendedthat the common law itself, as receivedat the time of settlement,had always requiredthe recognitionof indigenousproperty rights. o' Ritter, aboven 13, 12 '"'rt sssil,liÀpp ðå" zso. " Ibid 291. ao Mabo (tgg2) ti5 cLR 1,39. ot lbid 68-9. o6Ibid to9. 96 'in 'to Further,it had alwaysbeen possible theory' for the native inhabitants invoke the protection of the common law in a local court ... or, in some circumstances,in the courts at Westminster'47- although they did acknowledgethat: In practicethere is an elementof the absurdabout the suggestionthat it would have evenoccuffed to the nativeinhabitants of a new British colonythat they shouldbring proceedingsin a British court againstthe British Crownto vindicatetheir rightsunder a coÍtmon law of whichthey would be likely to know nothing.oE Such proceedings would have failed because of Crown immunity from suit - even Deaneand GaudronJJ concededthat.ae Yet, they still stressedthat: The personalrights under the [native]title werenot illusory:they could, for example, be assertedby way of defencein both criminal and civil proceedings... More important,if the domesticlaw of a British Colony recognizedand protectedthe legitimateclaims of the native inhabitantsto their traditionallands, that fact itself imposedsome restraint upon the actionsof the Crownand its agentseven if the native inhabitantswere essentiallyhelpless if their title was wrongfully extinguishedor their possessionor usewas forcibly terminated.5O While RosemaryHunter has arguedthat Deaneand GaudronJJ's claims were 'the absurdin their attemptto rewrite law retrospectively,claiming that the common law always recognisednative title',sl and that their approachmerely reveals how unconvincing(and artif,rcial)the declaratorytheory of law can be, their viewpoint does not seem so absurd when it is considered,as Ritter has remindedus, that 'no early Australian or English case ever statedthat becauseAustralia was "terra nullius" or "desert and uncultivated",Aborigrnal people possessedno common law right to their lands'.s2Justice Toohey to an extent acknowledgedthe limited relevance of terra nullius to this question,however, though only after he had taken pains to reject the ot lbid 93. o8 lbid. oo rb(d94. to lbid 9+-s. t' 'Aboriginal Ros"-ary Hunter, Histories,Australian Histories, and the Law' in Bain Attwood (ed),.úz t-heAge of Mabo (1996)1,14. " Ritter. aboven 13. 9. 97 'idea that land which is in regular occupationmay be terra nullius is unacceptable,in law aswell asin fact'.s3 Yet, despitethese apparent inconsistencies in assessingthe role played by law in supportingthe dispossessionof the Aborigines,it is clearthat in eachof the majority judgments there was a felt need to reject the doctrine of terra nullius, thus effectively accepting Reynolds' analysis. Ritter has argued, however, that there was no need for the High Court to embark on an excursioninto the merits of terra nullius as the doctrine had never really been part of the common law in Australia. According to him, the doctrine of terra nullius may have provided the justification for the acquisition of the Australian territories at the level of international law, but it had never been part of the common law of England or Australia.to It was therefore necessaryonly to decide whether the common law could accommodatenative title and to this question the common law decisionshad never given an unequivocal answer.Arguably, Ritter's analysismay be thought to dependon a nanow positivist view of law, which looks 'what simply for the law is' as ascertainedonly from what is expresslystated in the legal authorities: although the judicial decisions never expressly incorporated the doctrineof terra nullius, they can plausiblybe construedas implicitly supportingsuch a doctrine,or at least its precisefunctional equivalent.In fact Ritter appearsto concede thismuch.ss Notwithstandingthis debate,and the absenceof any direct authority expressly adoptingthe doctrineof terra nullius, the reality is that the common law caseswere at least complicit in supporting that doctrine as it had come to be understoodmore " Mabo(1992) CLR 1, 182. sn Ritter,above n 13,8,g,21.See also Coe v Commonwealth(No I) (lg7g)24 ALR 118. " Ritter.above n 13.9-10. 98 generally in Australia, especially in relation to the status of indigenouspeoples in Australia.As we have seen,the degreeof acceptanceof this complicity of the common law varied amongthe majority judgmentsin Mabo. The extentto which the Court was equivocalon this issue,itself raisesthe issueof how far the Court itself was conscious (as the new historians had been) of the discursive significance of the terra nullius doctrine in reflecting and shapinga particular image of Aboriginality - the backward 'barbanan' savage in timeless history, as assumed in the theory of law which was subsequentlyrejected by the Court. This brings us to consider the fourth aspectof the new history movement: the extent to which the Court was consciousof the discursive power of terra nullius, in the way that it not only informed conceptions of Aboriginality, but shapedindigenous peoples' experience of reality in law and society. D History,Power and Aborigines It was arguedin ChapterII abovethat the discoursessurrounding Aboriginality have informed and legitimised the laws and policies affecting indigenouspeoples in Australiawhich in tum have shapedindigenous peoples' lives and the social conditions in which they live. Whether the High Court in Mabo was also conscious of the discursivepower of constructionsof Aboriginality is not entirely clear. Inconsistencyin the statementsof the majority judges in Mabo suggeststhat they were and were not consciousof this discursivepower. Overall it seemsthat the rejection of the terra nullius doctrine at most led the Court to contribute to the 'Aboriginality', discussionabout the natureof ratherthan attemptinga critique of how Aboriginality is constructedin law (which might even have underminedthe Court's ability to make any decisionin the case).Thus the Court went so far as to replaceone perceptionof Aboriginality (no society/nolaws/no customs) with anotherperception of 99 Aboriginality (with society/with laws/with customs);but it then presentedthe latter 'truth', perception as rather than as itself an element in the discoursesof power surroundingthe constructionof Aboriginality. The degreeto which the majority judges have acknowledgedthe operationof colonial power, and in particular of the discoursessurrounding Aboriginality and colonial relations in Australia, is varied among them. It was Toohey J who on one 'the interpretationtook the most legalistic approachto theseissues, giving impression that the common law has always been thus' and so requiring little explanation for his decision.s6Justice Brennan may havebeen the most ambivalentabout the role that law and conceptionsof Aboriginality have played in this context,but he was also the one who focusedmost clearly on changedconceptions of Aboriginality as a basis for his decisionto extendthe conceptof equality to indigenouspeoples.5T Justices Deane and Gaudron,while also appearingambivalent on this issue,were explicitly consciousat leastof the d¡marnicsof inequalityof power underlyingthe colonialrelationship, and in particular of how the power of the doctrine of terra nullius transgressedlegal theory into the practiceof dispossessionand oppressionof indigenouspeoples in Australia.ss In this way they most nearly conform to the new historical analysisof the plight of indigenouspeoples as determinedby inequalitiesof power rather than facts of nature 'old' (as the historianshad tendedto assume).Moreover, through the expressionof remorse,or regret as Webber refers to it,seDeane and GaudronJJ were able to locate indigenouspeoples on the nationallandscape; as BrennanJ did by using the notion of equality.Nevertheless, their emotionalplea for a retreatfrom pastinjustices in order to 'o Webber,above n 18,11. si Mabo(1992) r75 cLR t,39-43. s8rbid l09. te Webbe..above n 18.10. 100 'nation' restore a diminished nation60see-s to rely on a discursive use of and 'Australian-t1ess', without any consciousanalysis of the discursivestrength of such notions. ParadoxicallyDeane and GaudronJJ have used the conceptof the nation to justi$'a retreatfrom injustice - it is the nation that will remain diminishedunless the dispossessionand devastationcomes to an end.But their reasoninginvites the question: who then arethe real beneficiariesof the rejectionof terranullius? Sucha questionmay not havebeen necessary if the terranullius doctrinehad in fact been stampedout by Mabo once and for all. The result tn Mabo was clearly of positive value to the claimants in that case, and benefìted from the new history movement. Most importantly, through reflection on the past,Mabo signalled a shift in the historical foundations of Australia, to incorporate the traditions of indigenous peoples,and a shift away from discriminationtowards reconciliation.Éut, whether Mabo could be of benefit to other indigenousclaimants in the future was another matter. As developmentsunravelled in the Mabo aftennath, it was clear that the doctrineof terra nullius still had discursivepower. This was true not only in relationto the legal and political developmentspost-Mabo,6t but also for the surrounding circumstanceswhich informed these developments.These will now be examinedin ChapterIV. 60 Mabo(1992) 175 cLR l, lo9 6r Seebelow Chapter V. 101 IV TH.E MABO BACKLASH The most obvious reflection of the new historv movement in Mabo v QueenslandNo 2l was the rejection of the terra nullius doctrine and the recognition of native title. Central to the actual decision, as articulated forcefully by Brennan J, were perceptions of Aboriginality and of Australian national identity. On the one hand, 'barbarian' Australian law could no longer tolerate the theory of law, which portrayed indigenouspeoples as having no laws or settledsocial organisation.t On the other hand, to the extent that Australian law still subscribed to this view. the Australian nation 'frozen remained in an age of racial discrimination' which could no longer be tolerated.3It was on this basisthat BrennanJ rejectedthe doctrineof terra nullius and replaced it with native title. Thus, the Mabo decision clearly reflected changed perceptionsof Aboriginality - from the dominantcolonial theory of Aborigines as too primitive to have a right to land, to the humanitarian theory grounded in the notion of equality (equality through the recognition of difference), which emphasisedthe Aborigines' unique relationshipto land and acknowledgedthis as a basis to which a legal title could be attached.The latter interpretation,of course,was more consistent with indigenouspeoples' understanding of their own attachmentto land - and in Mabo this was specificallybased on the evidenceadduced by the claimants. This changed perception of Aboriginality had wider implications for the Australian nation and the place of indigenous peoples within it. For Deane and GaudronJJ Aboriginal rights and intereststo land, though historically the subject of neglect and degradation,were now perceived as worthy of protection by Australian ' 6oez¡r75 cLR | ('Mabo'). t rbidzg. t rbidqz. 102 law. Simultaneouslywith the inclusion of native title (or the rejection of terra nullius from Australian law) came condemnationof the Australian nation for the past acts of dispossessionby colonial Australiansagainst the indigenousoccupants. Where once indifferenceto the plight of indigenouspeoples, or at leastprotection of white society in Australia, had been of paramountconcern, Mabo was consistentwith the chanse in moral outlook towards indigenouspeoples that had begun to inform official responses to indigenouspeoples by the early 1970s- Australia would be judged by how she treatedher indigenouspeoples.* Overall, in terms of the Australian historiography of the new history movement, the result in Mabo, when viewed in the best light, illuminates a positive intersection between indigenous and non-indigenoushistories. To the extent that indigenous testimonieswere acceptedby the Court, indigenouspeoples had been accordedsome recognitionas historical agents,and throughthe recognitionof their laws they achieved a level of protectionpreviously unknown to the common law. Australian law would now need to accommodatethe presenceof indigenous peoples in the Australian landscape.The extent of this intersectionof historieswas deepenedby Wik Peoples v Queensland.swhere the High Court found that native title had survivedthe granting of pastoralleases; indigenous and non-indigenouspeoples could potentiallycoexist on the onearea ofland. But questions remained. Had the High Court gone far enough to protect indigenouspeoples' native title rights and interests?Had it gonetoo far? How far could Australianlaw protectnative title? ' Seeabove Chapter II(DX3). ' (1996)187 CLR | ('Wik'). 103 For some supportersand critics alike, the result in Mabo was revolutionary. For Paul Patton,who has analysedthe decisionusing the conceptualframework of Deleuze and Guattan, Mabo was an example of their concept of becoming/deterritorialization.6 Like Michel Foucault in his theory of power/knowledge,Gilles Deleuze and Félix Guattarihave rejectedthe potentialfor a linear version of history, and like Foucaultin his theory of the fluidity of power/knowledge through the social field they have recognisedthe multi-dimensions and directions of movement within society, best 'lines encapsulatedin their conceptof of flight'.7 The intention here is not to explore Deleuze and Guattari's imaginative conceptual framework in detail, but to apply the basic conceptsto theMabo decision.According to Patton'sanalysis of theseconceprs, 'there societiesare definedby their lines of flight: is always somethingthat flows or flees,that escapesthe binary organizations'.8 The ideathat a societyis definednot by its linesof contradictionbut by its linesof flight or by the particularkinds of transformationwhich it undergoesat any point, implies a conceptionof societywhich is widely sharedamong post-structuralist theorists:society as process rather than structure, as essentially unfinished, in transition or in motiontowards a perpetuallyreceding horizon. If structuralismsinvolved a focus uponthe limitationsor constraintsto actionby socialagents, then post-structuralisms suchas this invariably point to thepossibilities of gettingaround or beyondsuch limits, evenif only in localand piecemeal fashion.e On this view of societyas characterisedby radical freedom,the possibilitiesfor change are in principle without limits; and the capacityto createsomething new is manifest.l0 'because For Patton,Mabo representedsuch a movement of the manner in which it o 'Post-structuralism Paul Patton, and the Mabo Debate:Difference, Society and Justice' in Margaret Wilson and Anna Yeatman(eds), Justice & Identity; AntipodeanPractices (1995) 153, patton, 'Mabo, 154;Paul Freedomand the Politics of Difference' (1995)Australian Journal of Political Science108, 108- 9. 7 See generally Gilles Deleuze and Félix Guattari, A ThousandPlateaus: Capitølism and Schizophrenia (Brian Muassumi, trans, 1996 ed) ch 1 [trans of: Mitte plateau.r, volume 2 of Capitalisme et Schizophréniel. 'Ibid 216. o 'Mabo,Freedom Patton, and the Politics of Difference,,above n 6, 109. 'o Ibid l l8. r04 breakswith the past and inauguratesa new field of political and legal possibilities,up to and including Aboriginal self-determination'.rtOnecan appreciatethis analysisof Mabo more especiallybecause the decisionrepresented the first time that indigenous property rights had been recognisedby the Australian cofitmon law. Moreover, it was recognition of a difference between the conceptions of property held by indigenous peoplesand those held by other Australians. V/ith that recognition came the potential to advancethe autonomy of indigenouspeoples: native title rights and interestswere basedon the laws and customsof the claimantsthemselves. The difficulty with this analysis,however, is that it may tend to isolateMabo from its own historical context, as located, among other contextual factors, in the new history movement, but also in remnants of the old history - which suggeststhat Mabo is not sucha break from the past after all.12This analysisof Mabo can also fall into the trap of mimicking a linear view of history, which post-structuralistslike Deleuze and Guattarihave tried to avoid altogether.However, Patton has alsobeen wary of adopting a linear approach.While he has identified Mabo as a break with the past, with the potential to bring about new legal and political possibilitiesfor Australia, he has also been aware of the presenceof reactionaryforces in society - as evidenced,in the broader context of Mabo, by the debatesthat eruptedafter the decisionin the period leading up to the enactmentof the Native Title Act 1993 (Cth) (NTA).13 Moreover, within the specific context of Mabo, Patton has shown awarenessof some of the limitations of the decisionitself, and has correctly concludedthat Mabo must be seen 'Post-structuralism " Patton, and theMabo Debate',above n 6. 154. r2 Seebelow ChapterV. '' 'Post-structuralism Patton, and theMabo Debate',above n 6, 155-9. 105 as a complex social eventin the Deleuziansense.la Moreover, it was a complex social eventin a very complex socialfield. One of the many tensionsin Mabo was the tension betweenthe old and new historiesthat were circulating externallyto the decision.To the extent that Mabo was a product of the new history movement, the criticisms levelledat it in its wake were very much a product of the old history - now commonly referredto as the new right history. As will be arguedin this Chapter,on the questionof the merits of the decision in Mabo, it was clear that for the conservativecritics the Court had sone too far. As the Keating Government began to make moves to enshrine the Mabo decision in legislation,conservative critics of the decisionbecame increasingly vocal in expressing their discontent over the decision and the threat it posed to establishedproperty interestsin Australia. Their strategywas to rally governmentto introducelegislation that would extinguishnative title in relation to any areasover which native title could be claimed. To support their position these critics challengedthe image of Australia conveyedin Mabo. The criticism only escalatedafter l4tik.By contrastto the sentiment of reconciliationand the imageof coexistencethat seemedto underliethe decisions,the conservativecritics soughtto challengethis moral basis,and to gain moral ground for themselves,by waming thesedecisions would plunge the nation into chaos:far from coexistence,these critics only saw a nation divided. The division was a product of history: for thesecritics the unity of the nation could be preservedonly by reasserting the basis of the Australian nation in British origins, not Aboriginal origins. For them, the inclusion of Aboriginal history was a perversionof the national narrative.Their antipathytowards indigenouspeoples, to be outlined in more detail in Part A, was 'o Ibid 155. 106 clearly obvious, especially in instanceswhen they invoked old colonial images of Aboriginality to support their arguments, to give more forceful expression to their general discontent,and to re-establishthe superiority of Western civilisation, upon which Australian society was founded. More subtle forms of racism were also displayed,especially when indigenouspeoples were referredto as Australians,only to 'privileged' be then disparagedas or as 'undeserving'. Most significantly, it was the High Court that had offended their senseof Britishness by departing from their version of Australian history as a celebration of British settlement.For them, the sentiment of remorsethat underlay the recognition of 'black native title - what has come to be popularly known as the armband' view of historyl5 - offendedthe senseof honour, upon which in their opinion the nation had been established.But they failed to seethe paradoxin their attackson the Court which had itself beenestablished according to British legal traditions.Nor could they seethat the Court had in fact followed in the stepsof the humanitarianBritish colonial officers who in an all-but forgotten history of the 19tl'centuryhad tried, but failed, to protect indigenousinterests in land.l6 Thus, the basesfor criticism extendedfurther than perceptionsof Aboriginality and the place of indigenousinterests. As will be seenin Part B, their argumentsalso attackedthe High Court itself as an institution,by claiming that the Court had extended its powers too far: it was not up to the Court to determinethe questionof native title, this was a matter for Parliament.On the one hand,such argumentscould be considered '' 'Drawing Geoffrey Blainey, up a Balance Sheetof our History', (1993) Quadrant, vol 37, nos 7-8, July-August 1993, 10. See also John Howard, Sir Thomas Playford Lecture, 5 July 1996; Commonwealthof Australia,Parliamentary Debøtes, House of Representatives,29 October 1996,5916 'Our (JohnHoward, Prime Minister). Cf GerardHenderson, History Need Mourn No More', TheSvdney Morning Herøld (Sydney),8 April 1991,17. 'o Seeabove Chapter III(C). 107 as expressinga seriousconcem for the legal and political cohesionof the country and its core institutions, for they raised the issue of how an unelectedcourt can make decisionswith far-reaching consequencesfor the rest of the nation. On the other hand. such argumentsexaggerated the actual effects of the Mabo. Insofar as the High Court went as far as it did to recognise a new indigenous form of property right, the Court was accused not only of undermining Australian property law as it had been understoodup to 7992,but also of betraying the British system of laws upon which Australian law was based. As it v/ill be outlined in Part C this criticism amounted to no less than accusing the Court of undermining the British history societyand valuesupon which the Australiannation had beenfounded. If Mabo was as radical or revolutionaryas thesecritics made it out to be, then there may indeed have been causefor alarm (dependingon one's point of view - or, more pertinently, one's aspirationsfor Australia). For instance,if the Court in Mabo had subjectedfreehold land to native title claims,or orderedthat compensationbe paid in relation to all acts of extinguishmentever since the acquisitionof sovereignty,the effect of such ordersmight indeedhave been too disruptiveand unworkable- though even such orders might still reflect a particular senseof justice, and might appease thosewho thought that the decisioncould and should have gone further towardsmore just resolutionof theseissues and a more inclusive Australia.Nevertheless, those who came out in defenseof Mabo did not always have the limitations of the decision in mind when they attemptedto addressthe conservativecriticisms. As it will be argued in Part D, the conservatives,whether it was a direct ploy or not, succeededin diverting attentionaway from the limitations of the decisions. 108 The fact of the matter is that Mabo was not a radical decision, especially becauseit was BrennanJ's judgment that cameto be interpretedas the decisiveopinion in that case. If critics of Mabo attackedthe decision becauseit was divisive and favoured indigenous interestsat the expenseof non-indigenousinterests, they failed to fully comprehendthe limited scope of the decision. Far from being favourable to indigenousinterests, the decisionconstructed a very fragile conceptof native title - still susceptibleto extinguishment and still not given the same protection as other interests in land despite the principle of equality upon which Brennan J's judgment is grounded.lTFurthermore, if the critics perceivedthe decisionas offending Australia's British origins, it was obvious that they had failed to appreciatethe extent to which BrennanJ, in particular, was cautiousto preservethe Court's inherited British legaL traditions,and to do so at the expenseof the interestsof indigenouspeoples. Indeed, as will be argued in Chapter V, the preservationof such traditions has actually been highly selective, since the Court has upheld English laws whose effect was disadvantageousto native title claimants,at the expenseof other English legal precepts which could havebeen more beneficialto them! The debatesthat followed Mabo and Wik were politically motivated.However, the methodsthat were used to expressthe feelings of dissatisfactionand outragefell back on negative perceptionsof Aboriginality and an image of Australia in which indigenousinterests could not and shouldnot be accommodated.In this regard,if Mabo was a triumph for the new history movement,it was to be short lived. The unravelling of events that followed, however, proved that the new historians who take the revisionistapproach to history had been right in at leastone respect:linear history is a " Seebelow ChapterV. 109 myth and, insofar as Mabo had been emblematic of Australian history taking a reconciliatoryturn, its path was obstructedby many later events.As for the discourses surrounding the construction of Aboriginality, the perceptions of indigenous peoples were as varied afterMabo as they had been before. 'new At the sametime, the historians' may have been wrong in other regards. Those, like Henry Reynolds, who claimed that the doctrine of terra nullius had been all that stoodin the way of legal recognitionof indigenousnative title,18 turned out to have been somewhat naive: for even after that doctrine was renounced there was no guaranteethat native title rights would be recognisedand protectedby Australianlaw. Thus a remnant of terra nullius would continue to casteits shadow over Australian law and society. A In the Wake of 'Terra Nullius'? The rejection of the idea of terra nullius as a matter of law did not mean the wholesalerejection of the wider rhetoricalpower of the idea in Australiansociety. The emphasisplaced on the rejectionof the'terra nullius doctrine' provided a basisfor the conservativecritique of Mabo. In the debatesthat followed, the decision the High 'overtumed Court was criticised for having the centuriesold legal doctrine of terra nullius'.Ie More recently,Michael Connor has argued,as Ritter had done for different reasons,that it was not necessaryto overturn the terra nullius doctrine.20Connor's argument has now been embraced by conservativecritics. Where formerly they criticisedthe Mabo decisionfor its activist subversionof the terra nullius doctrine.thev r8 Seeabove Chapter III(C). re 'Mabo, Hugh Morgan quoted in Bain Attwood, Australia andthe end of History' in Bain Attwood (ed),In theAge of Mabo (1996)100, 106. 20 Michael Connor, Invention of Terra Nullius; Historical and Legal Fictions on the Foundation of Australia (2005). 110 criticiseit now on the basisthat sincethere never was such a doctrine.the decisionwas basedon a fallacy. The argumenthas been used to cast doubt on the legitimacy not only of the Mabo decision,but also of the legitimacy of the NTA.2| Arguably, if the Court had taken the simpler route of determining the narrower question of whether native title existedor not, as Ritter has arguedwas possible,22exploration of the merits of terranullius could havebeen avoidedaltogether. As it is, the doctrineof terranullius still has discursivepower. The competingstrategies which it continuesto serve are a demonstrationof the Foucauldian fluidity of power. Moreover, they are demonstrative 'lines of the of flight' imagery employedby Deleuzeand Guattari,as showing how in the complex social field surroundingMabo the rejection of terra nullius in one context has been met by its resurrectionin another. Even after Mabo, the attitudesembodied in the idea of terra nullius still had discursive force, as critics of the decision invoked disparaging images of the indigenouspopulation in their attemptsto undenninethe decisionitself. At the heart of the criticisms of the High Court decision was concernthat vestedproperty interests would be jeopardisedby the recognitionof Aboriginal title to land. Those for whom this was the central concem,many from the mining industry, were unable to hide the thinly veiled racism underlying their complaints. Just as in the 19tl' cenfury the necessity for colonisation was legitimised by derogatory characterisationsof Aborigines, similar characterisationswere now resurrectedto deny the legitimate claims to land recognisedby the High Court in Mabo. The perceivedthreat posed by indigenous land rights to vested property interests reflected a construction of 'Is " SeeDavid Flint, it time to s;ueover Mabo?' , TheAustralÌan, (Sydney) 10 February2006,26. 'The " David Ritter, "Rejection of Terra Nullius" in Mabo: A Critical Analysis' (1996) 18 SydneyLaw Review5,29-31. 111 indigenouspeoples' interestsin land as undeservingof legal protection. Images of indigenous peoples' inferiority were generated to support these claims. As Henry 'a 'the Boschput it, Aborigines were StoneAge people' who were most backwardone per cent of the population'.23And, it would seemthat as a StoneAge people is was inevitablethat: aboriginalculture was so much lesspowerful than the cultureof the Europeans,that therewas never any possibility of survival.... fT]hisstatement has nothing to do with individualmorality. Human nature is the sameregardless of race... The necessityof choiceforces us, in the end,to acceptthat culturesare not equal,that somecultures will expandand grow ... The indisputablefact ... is that throughouthuman history many cultureshave died out becausethey were not strong enoughto survive in competitionwith morepower cultures.2a 'because According to this logic, it was also inevitable that the Europeanshad the ships, the navigation skills, the weapons,the technology,the wealth, the people, the ambition; the future of Australia was going to be either a French or an English future, not an aboriginalone ...'25 This is not to say that any consistentlogic ran through these arguments.As Markus has argued,the criticislnswere asmuch contradictoryas they were racist.26Fo, evenwhile somecritics questionedthe stateof advancementof Aboriginal culture,and found it necessaryto disparageAboriginal culture by the resurrectionof evolutionary theory, and of binary oppositionbetween the inferiority of indigenouspeoples and the 'Europeans', advancedstatus of therewere other critics (and often the sameones) who arguedthat by giving legal recognition to native title through the common law, the Court had isolatedindigenous Australians for specialtreatment at the expenseof other 'Free Speechand Mabo', TheSydney Morning Herald (Sydney),31July 1993,30. "]H"nwBosch, 'Between "'Morgan quotedin Andrew Markus, Mabo and a Hard Place:Race and the Contradictionsof Conservatism'in Bain Attwood (ed),In the Age of Mabo ( I 996) 88, 92. 2s Ibid 90. 26 Markus. aboven 24. gg. 112 Australians and at the expenseof the unity of the Australian nation." Mobo was 'real perceived as the end to the country's territorial integrity, and to the sovereignty and unity of the Australianpeople'.28 Thus, the mining magnateHugh Morgan wamed 'the tha| Mabo carried seedsof territorial dismembermentof the Australian continent and the end of the Australian continentas we have knownit'.2e According to the logic underlying this criticism, indigenouspeoples were in fact just like other Australians, and so the problem with Mabo was that it gave rise to a difference in treatment of property rights in Australia when they should all be treated the same. This type of argument seemed more palatable than the more blatant expressions of racism that appearedin the press.It is this type of argumentthat won favour with the current Prime Minister and informs the Howard Govemment'spolicies on reconciliation.30While on its face such an argument appearsto be non-discriminatory by its adherenceto the formal equality principle, its practical objective is a return to the statusquo prior to Mabo: that is, a retum to a situation in which the law protects only the propeny interestsof the establishedorder from which indigenousAustralians had historically been excluded.Their exclusionsimply obscuresthe inequalityto which they havebeen subjected.Furthermore such argumentsobscure the premise,on which the appealto the unity of the Australianpeople often turns out to depend,that locatesthe origin of that unity exclusivelyin Australia'sBritish past,not Aboriginal past.3r Yet, although the place of indigenouspeoples in Australia was obscuredby appealsto Australian unity, it becamemuch clearer when critics territorialisedtheir '' 'Mabo, Morgan quotedin Attwood, Australiaand the end of History', aboven 19, 90. 28 Geoffrey Blainey quotedin Markus, aboven 24, 89. " Morganquoted in Markus,above n 24,90. 30 SeeCommonwealth of Australia,Commonwectlth Government Response to the Councilfor Aboriginal ReconciliationFinal Report- Reconciliation:Australia's Challenge(2002) 10,11 '' ,19. Seebelow Part C. 113 dissentin order to conveythe sensethat indigenouspeoples were being accordedunfair privileges and were undeservingof land rights. For example, during the Mabo debates the broadcasterAlan Jonesmade the comment: For sometime now, a smallgroup of Australians- our indigenouspeople - havebeen seekingthe spoilsof Australia'shard-won gains out of proportionto their numbersor their entitlement ... No other Australian seeks or qualifies for such largesse. Aborigines,important Australians that they are,still only constitutea mere1.5 per cent of the population.Yet, they alreadyown 15 per centof Australia... Many Australians havenever had a cent from government.Many struggleto afford any sort of title to anything... Thesepeople are being asked to work andpay taxesso that other,heavily subsidisedAustralians, who apparentlyhave greater legal rights than they, can receive extraordinarybenefits funded by someoneelse. It is not only unjust. It is un- Australian." Apart from the insidious way such statements present indigenous peoples as undeservingAustralians, they elide the real conditions of capitalistAustralia: on the one hand the unproblematic fact that a huge amount of wealth is held by only a minority in Australia (and not by indigenouspeoples), and on the other the huge amountof wealth that has been generatedfrom the exploitationof indigenouspeoples and their lands. However, there have been more direct ways that criticism against the recognitionof land rights has been territorialisedin order to heightenthe fear and the threatthat indigenousland claims have posedto the economicinterests of the nation. During the campaignagainst the national land rights movementin the 1980s,mining 'TV interestsorganised advertisementsshowing apa.r of black handsbuilding a brick wall acrossa map of WA and putting up a notice: "Keep out - this land is parl of Westem Australia under Aboriginal claim"'.33 In the 1990s similar argumentswere raisedagainst Mabo and native title as supposedlylocking away Australia's economic " Alan Jonesquoted in Markus, aboven 24,90-1. "Jan Mayman quoted in Chris Cuneen and Terry Liebsman, Indigenous Peoples and the Law in Australia(1995) 139. 114 future, especiallyin relation to mining. It was fearedthat this would mark the end of proglessas understoodin conventionalterms in Australia as vast tracksof land would come under the control of indigenous peoples and removed from capitalist developmentforever. Such opinions dependedon constructionsof indigenouspeoples as from a different time. Indeed,they were a Stone Age people who lacked history, 'Australia including an economicone. As one financial analystwarned: could go back to being a StoneAge culture of 20,000 people living on witchery grubs'.34For these critics, grantingland rights to indigenouspeoples was akin to Australia's financialruin. At one extreme, even the backyards of Australian family homes were said to be under the threatof nativetitle claims.3s During the debate over Wik Prime Minister John Howard appearedon national TV and used the Wik decision to justify his proposal to abandon altogether the provisionsin the NTA whichgave indigenousclaimant groups the right to negotiatein relation to ceftain future acts to be carriedout by govemlnentson claimed native title land.36Holding up a map of Australiahe commented: Let me showyour viewers that this shows78 percent of the landmass of Australia- colouredbrown on the map.Now, the LaborParty and the Democratsare effectively sayingthat the Aboriginalpeople of Australiashould have the potentialright of veto overfurther development of 78 percent of theland mass of Australia.sT Statementssuch as thesewere not just exaggerations,they were clearly false.But what they do show is how little regardis paid to indigenouspeoples' pre-existing title to land: if regard was given to their title to land and the various clan territoriesas they were at the time of British colonisation,the map of Australiawould look very different 'Mabo,Australia 11Quot"¿ in Attwood, and the end of History', aboven 19, I13. " Aboriginal and TorresStrait Islander Commission, Rebutting Mabo Myths (lgg3) 1,2. 3ó Australian National University, Centre for Aboriginal Econãmic Policy Research,Issue Brief 22, July | 99 7 ll5 indeed! Moreover, accordingto Bain Attwood theseattacks on land rights and native title repeated the old historical narrative of Australia in which British colonisation dependedon indigenousdispossession legitimised by perceptionsof indigeneityas the 'Other'. etemal As Attwood has analysedthe conservativeresponse: For Australia'sfuture, the (Aboriginal)past cannot be presentand the presentcannot be the (Aboriginal) past, any more than Aborigines can be both Abonginal and Australian since the conventionalnarrative has imagined (modern) Australia in contradistinctionto the (antique)Aboriginal one.38 And in theseways the spirit of the terra nullius doctrine was resutrected.This was no more obvious than in a speechmade by Howard to the LongreachCommunity Meeting in Queenslandto discussthe Wik 10 Point Plan: We knew the right to negotiatewas a licencefor peopleto comefrom nowhereand makea claim on your propertyand then sayuntil you pay me out, we're going 'Well not to allow you to do anything with your property. let me say I regard that as repugnant,and I regardthat as un-Australianand unacceptable and that is going to be removedby the amendmentsthat are alreadyin the FederalParliament. You won't haveto put up with thatan¡rmore ...3e Notably in this addressHoward linked his own interestswith the interestsof the Australian bush, but in his idealisationof the Australian bush indigenouspeoples are not featuredat all, but by implication arein fact constructedas coming from 'nowhere'. 'bush' It is the peopleof the only who have legitimateproperty rights. They come from somewhere,the bush, and thus their rights are beyond question.Indigenous peoples 'nowhere' coming from do not have any rights to the land. B TheHigh Court UnderAttack Aside from reacting againstthe decision on grounds of race or nationalism, somecritics attackedthe decisionas contraryto settledproperty law, which had vested 38 'Mabo,Australia Attwood, and the end of History', aboven 19, l l3. 'n 'Address Joho Howard, to Participantsat the LongreachCommunity Meeting to Discussthe V/ik 10 Point Plan, Longreach,Queensland', reproduced in ParliamentaryJoint Committeeon Native Title and the Aboriginal Torres Strait Islander Land Fund, Parliament of the Commonwealth of Australia- CERD and theNative Title AmendmentAct I99B (2000\ 278. ti6 all beneficial ownership in the British Crown at the time of the acquisition of sovereignty.As Peter Durack argued: It is the disturbingfeature of the casethat six out of the sevenjudges have been preparedto changethe foundationsof the land law in Australiaafter that law hasbeen settledfor two hundredy"a.s. oo On this view, the High Court was quite clearly changingwhat had been settledlaw. The dissentingjudgment of Dawson J in Mabo basically agreedwith this contention.For him, therewas an alternativeway of resolvingthe issuesbetween the partiesthat was 'established' consistentwith legal precedent.In this regard Milirrpum v Nabalco,al which had rejected a claim similar to the Mabo claim, was resuffected as the correct statementof the law in Australia, and in particular as demonstratingthat native title did 'never not form, andhad ... formed,part of the law of any part of Australia'.42 At worst these criticisms amounted to an outright attack on the High Court, assertingthat the judges in the majority had usedtheir powers illegitimately,usurping the power and functions of Parliamentand trespassingin the political realm. Again Milirrpum representedthe correct approach:the Court should have left the task of determiningthe existenceof communalnative title to the legislature,and not embarked on such an adventureitself. Of particular concem to some critics was Brennan J's resoft to changedcommunity values to legitimise the recognition of native title and 'an justify the rejection of age of discrimination', as slmbolised by the terra nullius doctrine. Many critics questionedthe source of these statementsabout community 'the values.For instanceMorgan on one occasionclaimed that: only public record ... of Justice Btennan's investigations into contemporary Australian values' were no 'The P"t". Durack, Consequencesof the Mabo Case' in Peter Durack, Ron Brunton and Tony Rutherford (eds),Mabo and After (1992) 1, 5. ot FLR 141('Milirrpum'). o'rbidz4s.1tott1l7 1t7 'over conversationshe held with his son,Fr Frank Brennan, a glassof cleansingale.'43 'values' Moreover, the asserted were repeatedly challenged in the Mabo aftermath through extensivesurveys of Australian popular attitudesto the decision.aa As much as these critics were convinced that the law had been settled so that native title could never gain recognition by Australian common law, they regardedthis as a questionthat had equallybeen settled by history. For thesecritics the legal basisof the decisionin Mabo was questionablebecause it dependedon a version of Australian history at odds with the orthodox view. According to this orthodox view the dispossessionof the Aborigines\ryas not a consequenceof violenceperpetrated against them by'colonial frontiersmen,the racism of the colonial order,and the role playedby government'.45Again reminiscentof the discoursesof the old history,they continuedto 'unable view Aborigines as to mount anything but local and sporadicresistance to British settlement'.In their view "'more than any other factor the causeof aboriginal death and decline during the nineteenthcentury was disease",and that "vengeance killing ... exacted a far greatertoll on the Aboriginal population in the nineteenth centurythan any depredationsby the Europeans"'.46To the extentthat the High Court majority appearedto acknowledgeand condemn the dispossession,degradation and devastationof Aboriginal peoples,and the contributionthat law and statepolicies had to varying degreesmade to that pattern,the Court was now accusedof having engaged in the rewriting of history.The Court's relianceon this alternativeversion of history to changewhat appearedto be settled law, was criticised as iudicial activism. In this ot Morgan quotedin Markus,above n 24,91. aa 'Polls See Murray Goot, as science,polls as spin' in Murray Goot and Time Rowse (eds), Make a Better Offer; The Politics of Mabo (1994) 133; Larissa Behrendt, Acieving Social Justice; Indigenous Rights and Australia's Future (2003) 65-1. a5 'Mabo,Australia Attwood, and the end of History', aboven 19, 106. ou lbid. 118 'The respectone critic opined: law as it previouslystood was basedon a line of English decisions... Mabo ... lacksa senseof history ... The philosophyof the commonlaw is above all evolutionary in character.not revolutionary' .47 Evidently, thesecriticisms depended on the acceptanceof a positivist approach to history and law, according to which the content of both law and history can be objectivelyobtained by referenceto past recordsin a way that cannotbe penetratedby revision in the present.Accordingly critics were able to arguethat indigenouspeoples should forget the past: the past is in the past and cannotnow be changed.asYe¡ these samecritics could not appreciatethe inherent contradictionsin their arguments.On the one hand they continued to naturalise the devastation wrought upon indigenous communitiesby the processesof colonisation,on the other hand, implicit in their insistenceon the need to move on from the past was an elementof acknowledgement that somethingwrong had happened,but that nothing could be done about it now. Either way eachapproach served as a strategyfor viewing the past as if it were sirnply in the pastin a way that would serveto justif,zinaction in the present.Most importantly such an approachhas continuedto avoid responsibilityfor the past as if it is irrelevant to the present.At a deeperlevel this denialof the past,and responsibilityfor it, conveys a deeperconcem for the psychic well-being of the nation. Any feelings of guilt or shame for the treatment of indigenous peoples would undermine any pride for Australia's British history. However, accordingto Attwood, the conservativescould still find pride for Australia's pre-colonialAboriginal past, as long as it did not taint Australia'sBritish colonialpast and ongoingAustralian present.ae a7 Durack,above n 40,21,22. nt 'Mabo,Australia Seeg"n"rully, Attwood, and the end of History', aboven 19,107. nn tbid lo8-9. ll9 C For Queenand Country:Australian history, Australian honour Thus, more was at stake than just the determinatetheoretical framework from which these critics viewed historv and law. The new historv not onlv subverted the conservative understanding of Australian history at an intellectual level, but was threateningat a psychic level.sOThe battle arising from Mabo was a battle over morals.slAs Attwood has observed,the recognitionof native title and the rejectionof the terra nullius doctrine, and the apparent willingness to embrace the new history which thesesteps involved, representeda shift in understandingof the historical origins of the Australiannation: the foundationalevent of British colonisationis construedas an invasionrather than discoveryand settlement,and so the legitimacyof the British claimingof the land of Australia,if not their assertionof sovereignty,is broughtinto question.... [T]his new Australianhistory represents the comingof the British in termsof the dispossessionof Aborigines,and, moreover, asserts what the 'cult of disremembering'had denied:the violence,racial discriminationand neglectwhich accompaniedit. Thus it undermines the theoryof peacefulsettlement as well asnotions of Britishjustice, humanitarianism and egalitarianismwhich were central to the Australian nationhoodand identity constructedbv theearlier historv.52 For conservative critics the Mabo decision struck at the heart of their complacentbelief in an honourableAustralian past - a belief that was based on a British past, not an Aboriginal one. Already conservativeshad complainedthat too much emphasison Australia's cultural diversity not only'fails to give due recognition to the British contribution to Australia's heritage,fbut] it singles out the history and contributionof theAustralian Aborigines ... for specialattention'.s3 Accordingly, these 'the critics complainedthat free, prosperousand dynamicnation that our forebearsbuilt here ... and which we have inherited,is irremediablytainted by fthe imputationof the] to tbid 10+-6. 5r Markus, aboven 24,88-9. Ritter, aboven 22. s2 'Mabo,Australia Attwood, and the end of History', aboven 19, 103-4. 'The " Ken Baker, Bicentenary:Celebration or Apology', (1985) 38 IPA Review 175,177. 120 'this unlawfulness and immorality of settlement', and that version of Australia's foundationas illegitimate [is what] setsthe tone for the new history'.saAfter Mabo,the new history was criticised for having been internalisedinto Australian law in a way that undermined the conventional version of Australian history, namely that 'the first Europeansettlement in Australia was properly, lawfully, and peacefully constituted, not only in accordancewith British law, but also ... with internationallaw'.ss'Where othershad welcomedthe Mabo decisionas a sourceof celebration,the coming of age of a nation, and the basis of a new identity for Australia and a new relationship between its indigenousand non-indigenouspeoples, for these critics it was the source of an acuteidentity crisis as it underminedthe history, the society and the values upon which, according to their view of history, Australia had been established pursuant to enlightenedBritish traditions. It was indeed the end of Australia as they knew it and the endof Australianhistory as it wastraditionallv understood.s6 D In Defenseof Møbo The barrageof criticism levelled at the Mabo decisionwas matchedby those who supportedthe decision.Not only did these supporters,like Markus, reveal the contradictorynature and underlyingracism of the critical response,stbut in reactionto the attacks on the High Court and the legal basis of the decision itself, legal commentators,like Ritter, were able to exposethe ambiguity which in fact surrounded the Australian legal position on the recognition of indigenousnative title prior to Mabo.58By doing so they were able to put into questionthe authoritiesupon which the 5a 'Mabo,Australia Ken Baker, quotedin Attwood, and the end of History', aboven 19, 104. 'Mabo,Australia " Morgan quotedin Attwood, and the end of History', aboven 19, 104. 'o Ibid 116. 57 Markus, aboven24. 58 Ritter. aboven22. t21 supposedlysettled understanding of property law in Australia had been based.Other, legal commentatorslike Richard Bartlett, were able to show that the decision was consistentwith the common law relatingto indigenouspeoples as it was developingin countrieslike Canada and the United Statesof America.te As Sir Anthony Mason arguedin defenseof the decision: Far from beingan adventureon the part of the High Court,the decisionreflects what's happenedin the greatcornmon law jurisdictionsof the world and in the International Court, exceptthat in the case of Australia it's happenedlater than it's happened elsewhere.60 'judicial On this view Mabo was to be perceivednot as a revolution', but rather as an evolution.Its judicial methodwas consistentnot only with the evolving commonlaw at the intemationallevel, but also consistentwith the common law tradition in Australia insofaras the role of commonlaw judgmenthas alwaysbeen to keepthe law up to date with contemporaryvalues.6l Even for thosewho believed thatMabo signalleda change 'cautious in common law doctrine,this changewas at most a correctionto Australian law'62rather than a radical departurefrom previouslaw as some of its critics claimed. The accuracy of this rather modest assessmentbecomes more obvious when we considerdevelopments in other common law jurisdictions and the limitations of the Mabo decision.63While someconservative critics have chosento focus on the merits of overtumingthe terra nullius doctrineas a way to underminethe decision,that argument ignoresthe real substanceof the decision,which was to give legal recognitionto a pre- existingindigenous title to land. By underminingthe decisionin this way, thesecritics se 'Mabo: RichardBartlett, Another Triumph for the Common Law' (1993) 15 SydneyLaw Review lJï, 181-4. 60 'Putting Sir Anthony Mason, Mabo ínPerspective'( 1993)28 AustralianLawyer 23, 23. o' 'Values' See,eg, Sir GerardBrennan in Tony Blackshield,Michael Coper and GeorgeWilliams (eds), The Oxford Companion to the High Court of Australia (2001) 695. o'Garth 'Judicial Nettheim, Revolutionor CautiousCorrection?' (1993) (Jniversityof New South Wales Law Journal 1,2. 63 Seebelow ChapterV. r22 appearblind to the implication that by their refusal to recognisenative title, they are themselvesperpetuating a doctrineof terranullius.6a Underlying many criticisms of the Court was the perception that its decision had betrayedthe inheritanceof British settlementin Australia. One contradictory aspect of the criticism is that attacks on the High Court were attacks on an institution of authority itself derived from British legal institutions, and thus representedthe very tradition of institutional authority which the critics wished to uphold. By attacking the Court, the critics underminedthe very tradition which they sought to preserve.Nor did their criticisms acknowledge the extent to which the judgment of Brennan J, in particular, continued to maintain the links between the Australian common law traditionsand their Englishorigins.6s It was Brennan J who emphasisedthat Australian law 'can be modified to bring it into confonnity with contemporarynotions ofjustice andhuman rights', only as long 'fracture as any modif,rcationdid not the skeletonof principle.'66 The peaceand order of Australiansociety is built on the legal system.It can be modifiedto bring it into conformitywith contemporarynotions of justiceand human rights,but it carurotbe destroyed.Ó7 The skeletonof principle requiredprotection primarily becauseof its relevanceto the Australian legal systemupon which Australian societydepended. But it was a system that had its origins in an English system.The priority given to the protection of this systembetrayed the cultural bias of the decision not only in favour of the dominant Australianlegal system,but through it in favour of an Australiansociety which has its uo 'Terra Lorenzo Veracini, nullius and the history wars' On Line Opinion - Australia's e- journal of social and political debate 123 roots in England.Clearly it was not the case,as someconservative critics claimed,that the Court had forgotten that Australia'shistory was steepedin British traditions.Yet, by allowing the law to be modif,redeven to the extent that it did, the Court was perceived as having betrayed its British heritage. The truth was that the modification was only a secondaryconcern, to be overriddenso far as necessaryby solicitude for 'the skeletonof principle'. And, as will be seenin ChapterV, the Court's insistenceon maintaining these priorities has created a major stumbling block for further developmentof the law of native title in Australia. The preoccupationwith the criticisms that had been levelled at Mabo diverted attention away from the obvious limitations of the decision. On the one hand scaremongersexaggerated the effectsof the decisionby claiming that the backyardsof Australian family homes could becomethe subjectof native title claims. On the other hand critics tried to limit the effectsof the decisionarguing that it only relatedto the Meriam Islandsand not the rest of the continent.Both argumentswere clearly wrong on the faceof the decisionitself.68 One responseto the conservativecriticisms levelled at Mabo was that the High Court was cautious and did not go very far, and that significant issues were left unresolvedby the decision.Justice Brennan's judgment, which has been treatedas the leadingjudgment and which formed the basisfor the NTA, was particularlycautious in its approach.The tendency to rely on its limitations as a responseto conservative hysteriawas particularly unfortunatein that it necessarilyimplied that the limitations were to be regardedwith approval.If calmerassessments had prevailed,and the debate had not been hijacked, a focus on the limitations of the judgment might rather have 68 Seegenerally, Aboriginal and TorresStrait Islander Commission, above n 35. r24 beenthe stimulusfor more fruitful criticism. Suchcriticism was levelledat the decision especiallyby indigenouspeoples and their supporters6ebut was subsequentlyignored in the debate that followed and was silenced in the negotiations leading to the enactmentof the NTA. Somecommentators supported the decisionas neither limited nor extreme.For 'content instance,Jeremy Webber justified the decision on the basis that it drew its from a distinctly Australian experience'.70His argumentis thus in direct contrastto the conservative critique of Mabo as violating the foundation of Australian history and honour. Webber has used Gerald Postema'sanalysis of moral reasoningTlto illustrate two ways in which 'our moral conceptionsare rooted in the past'.]2On the one hand there are positive moral conceptions or commitments grounded in the past which we feel obligedto uphold: We drawon thepast, in otherwords, because it is oneway of keepingfaith bothwith ourselvesand with other membersof our coûrmunity.It is a way of maintaining consistency,constancy, fairness and respect,even if we havetrouble justifying the commitmentson any gtound other than the fact that they have, in the past, been importantto our livesor thelives of thecommunity.T3 On the other hand moral reflection on the past may not always be positive. Insteadit can give rise to regret: We reflect on our actionsin the past, we even acknowledgethat they were a part of ourselves,but we believe that they pointed in a direction that we now judge to be wrong. We thereforeseek to act in the presentin a way that gets us back on the right track, coming to terms with our past, rectifying its effects on the present ... and charting a future course that accords better with what we take to be good in our community'sexperience.Ta óe Seebelow ChapterV. 70Jeremy'Webber, 'The Jurisprudenceof Regret: The Searchfor Standardsof Justicein Mabo'(1995) SydneyLaw Review5, 18,20. !.7 'On " GeraldPostema, the Moral Presenceof Our Past' (1991) 36 McGill Law Journal 7153. " Webber,above n 10,10. " Ibid. to lbid. t25 In Webber's view, it was the High Court's reflection on Australia's past in this latter sensethat underlay the recognitionof indigenoustitle in Mabo.'The jurisprudencein Mabo is, above all, a jurisprudenceof regret.'7sFor WebberMabo was legitimate in part becauseit reflected a changein the moral structureof Australian society in relation to indigenouspeoples, but in part alsobecause the extentof the change'is still shaped 'to by the particularhistory of our society'.76We do not seek remakeutterly the past', 'what but to reaffirm appearsto be valuable about our community', even while 'putting our society on the right track'." Fa, from deservingcriticism as a radical rejection of the Australian colonial tradition, Mabo deserved commendationbecause it tailors its conceptualshift to the practical consequencesof that tradition. Webber appearsto have been motivated to defend the decision in this way becausehe had taken it for granted that Mabo was indeed a rejection of the old colnmon law position, and the installationof a new legal order.tsHe did not consider, as Ritter later did, that the colnmon law in Australia up until 1971 was ambiguouson the questionof whether indigenoustitle had survived British sovereignty.Indeed, he 'insufficient criticisedthe judgment of Toohey J on the ground that it was to statethe commonlaw as though it has alwaysbeen thus, for in Australiathat was manifestlynot the case'.7eLeavingthis aside,however, Webber's explanationechoes the new history insofar as he too has found that Mabo was the product of changedperceptions and moral outlook in relation to indigenouspeoples in Australia.However, his acceptance of the limitations of the decision as a way of defending it, has relied heavily on a t5lbid. to Ibid I 1. t7 Ibid. tt lbid 17. Te Ibid. t26 comparisonof the differing circumstancesof colonisationin Canadaand in Australia. In the former, therehas been a strongertradition of acknowledgedcoexistence between the settler and indigenous populations, an experiencewhich for Webber is more in tune with Postema's positive conception of moral reasoning, whereas in Australia the colonisationprocess was markedby grossviolations of the essentialelements required for continued indigenous survival by Australian colonists, which over time have been the cause for regret. Admittedly, for Webber, the treatment of each respective indigenouspopulation has evokedboth positive and negativemoral responses,but he concludes (not without some complacency)that the Canadian experiencehas merited more of a positiveresponse than that in Australia.s0 The problem may be that Webber has differentiated the common law on national lines. In particular the Canadianmodel has provided Webber (as it had the High Court) with the most suitable framework for recognition of indigenous title becauseof the way that it developedin Canada,the way that it has been adaptedin other parts of the world, and its adaptability to the Australian experience.Thus, although Australian law had historically denied indigenous rights, the growing awarenessthat this state of the law and the historical eventswhich producedit were wrong and requiredto be remedied- and the best foundationfor the remedy was the commonlaw (of Canada).81 However, while Webber has staunchlymaintained that Australian law had on the whole deniedindigenous rights to land beforeMabo, he was still able to frnd traces 'common of the law doctrine' reflectedeven in the Australianvariant, for example,in the instructions given to Captain Cook in 1768 to take possessionof 'convenient to lbid l9-20. strbid2t-2. t27 'with situations' the consentof the natives', or the cautiongiven to Govemor Phillip in 'any 1788 against unnecessaryintemrptions in the exerciseof their fthe Aborigines'] severaloccupations'.82 He was also able to give examplesof Imperial action taken to prevent settlementencroaching on Aboriginal intereststo land (with similarities to the Canadian experience) although the Imperial responsewas inconstant and ultimately .. R1 rnellectlve."- Clearly, if Webber is right, his argumentis a further illustration of how absurdit 'our' has been for conservativecritics to treat Mabo as having entailed a rejection of British history. In fact, Webber's analysis has revealed (as Reynolds' analysis had done) the extent to which the eventual recognition of native title reflected the earlier British attemptsto protect indigenousinterests in land.8aOf course,insofar as these historical events have provided a basis for recognition of native title rights, they may not be the kinds of historical eventsthat the conservativeswould wish to emphasise. Yet Webber'sanalysis is not self-evident,either. If conservativecritics have tendedtoo strongly to conflate our British and our Australian identity, merging the antipodean identity wholly within the former Imperial, Webber'sanalysis surely has postulatedtoo rigid a dichotomy between the Australian and the British traditions, attributing a sympatheticrecognition of indigenousentitlements exclusively to the British side of the dichotomy, and barbarismexclusively to the colonists,even though this barbarism has come to be seenas causefor regret by Australians.Even if this simple dichotomy was coffect, thereis no obviousreason why his analysisof how our moral conceptions 'Australian' relateto the past shouldbe focusedwith suchpriority on the past,or why t'rbíd22. tt rbid22-2. tolbid. Seeabove Chapter III(C). 128 'British' the past should be reduced to the level of a deus ex machina, belatedly imported from the wings to set things right after local wrongs are acknowledged. By emphasising the different elements of the 'Australian past' at varying degreesin this way, Webberhas been able to justiff the Mabo decisionas reflecting 'a distinctivelyAustralian experience'.85 It is not entirely clearwhat he meansby this, but 'Australian-ness' one must be wary of the use of such constructionsof as a rhetorical 'Australian-ness' deviceto legitimise the result in Mabo, as if the characteristicsof are self-evident.The problem arisesin at least two ways. First, what he has perceivedas 'Australian' in the decision is in fact a combination of 'British, 'Australian' and 'Aboriginal' aspects - the British aspects being the positive attempts by Imperial authorities to protect indigenous title that took place during early settlement; the Australian aspectsbeing the grossviolations and non-recognitionof Aboriginal title to land by the Australian settlersor colonists;and, the Aboriginal aspectsbeing the very elementsof the indigenous traditions that inform the content of indigenous native title.86Separating out these different elementsof Australian history in this way may obscuremore than enlightenthe complexitiesof Australianhistory. In particular,to see the British and Australiansas diametricallyopposed to one anotherin moral outlook towardsAborigines is to overlook the evidencethat the pressureto respectindigenous rights did not come only from Britain; that there were Australians(albeit only small numbers)who were concernedwith the plight of Aborigines and that this concerndid not simply arisein the 20tl'century.87Furthermore, Webber has failed to acknowledge tt Ibid 20. tu Ibid 18. 87 Seeespecially,R v Bonjon (Urneported,Supreme Court of New SouthWales, Willis J, l8 September 'Settlement 1841) discussedin John Hookey, and sovereignty' in Peter Hanks and Bryan Keon-Cohen (ed),Aborigines and the Law (1984) l, 5. Seealso R v Ballard or Barrett (Dowling, Proceedingsof the 129 the extent to which the treatment of Aborigines and their construction as an inferior race was legitimisedon ideologicalgrounds and in particularon the basis of the moral superiority of the English. If there were any early legal pronouncementson the stateof property law in Australia which could be interpreted as excluding indigenous title to land, these were decisions from both Australian and English courts.88Evidently, Webber's accounthas dependedon a strangelynaffow conceptionof the Australian history, and of what it meansto be Australian. Secondly,a closerreading of his analysisreveals that what was so distinctively Australian about the decision for the most part reflected an Australian past where there had not been any legal recognition of native title prior to Mabo - a past againstwhich he then has contrasted to the more liberal Canadian experience, and which he then 'Webber, adducesto justify the more limited responsein Australia.tnFo. the Mabo decision was beyond criticism becauseit reflected the Australian experience.If the decisiondid not go as far as the position in Canadathis for Webber appearedto be an inevitableconsequence of the fact that indigenousnative title had only belatedlybeen acknowledgedin Australia.However, if the decisionwas so distinctivelyAustralian, he has beenunable to explain the very differencesof opinion expressedin eachjudgment. For one thing therewere five judgmentshanded down in Mabo.ln particular,Dawson J dissented.The conservativecritics of the decisionwould arsue that his was the true Australian response in that it alone was consistent with their understandingof Australianlaw and history. However insofar ashis judgment,and thosewho extolledit, Supreme Court, Vol. 22, Archives Office of New South Wales, 213205,98-106, Decisions of the Superior Courts of New South Wales, 1788-1899 130 have continued either to deny the need for changealtogether, or to view the injustices of the past as part of an irredeemablehistory for which there is no point in today's generationtaking responsibility, Webber, echoing the historiographicalmethodological of the new history movement,would respondthat: without a willingnessto addressthat history,the presumptionsof the past continueto shapethe present,indeed dispossessions founded on thoseassumptions will continueto occurtoday.eo 'regret' It is true that V/ebberhas been able to find evidenceof as a motivation for five of the six majorityjudges inMabo.et However,he has failed to fully appreciate the extent to which this regret led to the formulation of different results in each of the separatejudgments. If 'regret', in turn, was the basis for the standardofjustice applied in each judgment, then the differences in the standardsapplied have also been 'Australian-ness' obscured.In focusing as he does on the of the majority decision, Webberappears unaware of thesedifferences. For the most part,he seemsto acceptthe result in BrennanJ's judgment (asmost have done)as providing what appearsto be the most Australian response.By emphasisingthe result in this judgment,he has failed to give enoughrecognition to the fact that there were altemativestandards of justice, as expressedin the judgmentsof Deaneand GaudronJJ and of TooheyJ. Their respective judgments have elementswhich appearrnore liberal than the result in Brennan J's 'Australian decision. Why then are they not given more credenceas reflecting the experience'? As much as Webberhas insistedthat we needto addressthe wrongs of the past in order to prevent continuedwrongs in the presentand future, he has also insisted eoIbid rs. o' Ibid 17. In Webber's view: 'Of the majority judgments,the notion of regretis absent(or at leastwell- hidden)only in that ofToohey J'. 131 there are limits on how far we can undo the past. He has justified these limits by pointing to aspectsof the pastthat he feelsjust cannotbe undone;and in doing so he is as much concernedto reflect a distinctive Australian experienceas he is with a comparison between Australia and Canada. For instance he found that past Aboriginal/non-Aboriginalinteraction has led to drastic changeto both sides,but that for some Aborigines this change has made it difficult to maintain or re-establish traditional connectionsto land.e2In his view there is little that can be done about this 'something judicially, for any remedyin this respectwould involve the creationof new ... ratherthan the protectionof a persistingrelationship with the land'.e3'Withouteven tryrng to question this proposition, he hasjustified it from the requirementlaid down in 'that Mabo itself to retain native title, a peoplemust still have some connectionto the land and perhaps also to their laws and customs'.e4However, he added only in a footnote that in fact each of the majority judgments offered different tests with respect 'at to connectionto land. It was Brennan J who required least some retention of 'tentatively' traditionallaws and customs',while Deaneand GaudronJJ and Toohey J, 'less 'suggest tentatively', that connectionto the land might be sufficient to maintain indigenoustitle evenif the grouphas lost its traditionalcustoms.'es JusticeBrennan's test of extinguishment- and in particular his opinion that leaseholdinterests extinguish native title becausethey entail Crown reversion,even where provision in the leasehas been made for continuedindigenous use of land - e2 'Introduction: Seealso Bain Attwood, The past as future: Aborigines,Australia and the (dis)courseof History' in Bain Attwood (ed),In theAge of Mabo (1996)vii, xxvii. n'w"bb"r, aboven 10,lg. 'o Ibid. e'Ibid frt 28. r)¿ appearstricter than the Canadianposition.eó For Webber,it is BrennanJ's position that 'Australian apparentlyaccorded with the experience'most; yet it is hard to seehow this could be, especiallyin caseswhere the leasesin questiondid explicitly make allowance for continuedindigenous use. The majority's position on compensationalso appears stricter than the Canadianposition.eT Webber justified thesepositions on the practical grounds that they reflect an unwillingnessto exposeto reconsideration(even by meansof claimsto compensation) the entirehistory of land grantsin Australia... Instead,the majorityopts to drawa line underthe past,accepting that the vastmajority of grantsprior to 1975were sufficient to extinguishindigenous title. ln this, they follow the balancestruck in an earlier, legislative effort to give effect to indigenoustitle, TheAboriginal Land Rights Q{orthernTerritory) Act 7976(Cth).e8 Evidently, what Webber has failed to acknowledgehere was that, particularly in relation to the effect of pastoral leases, there were two apparently competing 'Australian 'the experiences' and in this respect what Webber calls majority' effectively opted for the pragmaticresult at the expenseof a just result - a result that was not followed in the case of Wik, though Brennan J did there acknowledge the 'moral shortcoming' that his approachwould entail.eeTo Webber's credit he did at least questionwhether the majority's approachon extinguishmentand compensation 'necessary were concessionsto the effects of settlement'.100He also acknowledged, albeit only briefly, that Deaneand GaudronJJ had arguedfor more demandingtests for extinguishment and had also joined Toohey J in exploring the possibilities for compensation.l0lHowever, he did not explorethese conflicting aspects of the decision ou Ibid. o' rbid rg-20. e8 Ibid 20. ee øtik Peoplesv Queensland(1996) 187 CLR 1, 87-8, 97-8. See also Re l|/acmyiPeople's Native Title Application(1995) 129 ALR 118,166 (French J). too webber. aboven 10-20. 'o'Ibid. r33 in any great detail. It would appearthat if the respectiveapproaches of Deane and GaudronJJ or of Toohey J did not prevail, for Webber this is still in accordancewith the Australianexperience. It may be that supportersof the Mabo decision like Webber, in their effort to appeaseits conservativecritics, have too readily acceptedthe decisionwithout fully evaluatingits potential and the limits of its ability to provide a just solution to the vexed issue of land rights for indigenouspeoples. At most Webber challengedthe conservatives'fears over the loss of their 'moral' Australia,by providing an alternative 'moral' 'Webber version of a Australiain its historical context.However. insofar as has been able to placeMabo in its historical context,the emphasishe has given to the past in Australia in which land rights have mostly been ignored (by contrastto Canada where they have not) as a reason for acceptingthe limitations of the decision, is particularly disappointing.If the jurisprudenceof Mabo is one of regret,then what is regrettableis that the past may continue to haunt the present(and the future) in this way. It is even more regrettablewhen it is consideredthat there was in fact no unanimity in Mabo on the standardof justice to be followed, and that by upholding Brennan J's judgment as the one which most reflected the 'Australian experience', Webber has undermined the potential of the other majority judgments (the joint judgment of Deaneand GaudronJJ and the separatejudgment of Toohey J) to provide an altemative(and more just) approachto nativetitle in Australia. Conclusion The social eventssurrounding the Mabo decision were indeed complex. The post-Maboaftermath reveals the tensionstill existingbetween the discursivepractices and contentof the new and old histories.The knee-ierkreaction by the conservativesto 1aÀ lJ+ Mabo may itself havebeen an over-reaction,considering the limitations of the decision itself.l02 In any event, the reaction would escalatein the later controversiessurrounding Wik, the Bringing Them Home rcport on the stolen generationslO3and the Hindmarsh Island Bridge affair.t}a Moreover, the reaction would gain increasing support with the rise of Hansonismand the flourishing history *ars,lOt not to mention a Prime Minister (John Howard) who seemed to wholeheartedly embrace the sentiments that these movements represented.'06Itt the battle over truth about history, and the nature of Aboriginality and Australian-ness,that Mabo came to represent,the discursive power of terra nullius continued to exert pressure to undermine even further the result in Mabo. This had been the problem from the very beginning and continuedto be so. As discussed in the next Chapter, the NTA in tum was a compromise, particularly through the validation of past acts that may otherwisehave been invalid throughtlre operationof the Racial DíscriminatíonAct 1975 (Cth). However, the NTA was not a completevictory for the conservativeseither. They had rallied for legislation extinguishingnative title altogether.Instead they were left to cope with the provisions giving indigenousclaimants the right to negotiate.To this extentthe discursivepower of terranullius had beenweakened, but contraryto the High Court's view on the matter it had not been fully overturned.At best indigenouspeoples had secureda foothold inside the front door of the nation. As GarethEvans humbly obser-vedduring the final readingspeeches for the NTA: r02 Seebelow Chapter V. 'o'Hu*an Rights and Equal Opporhrnity Commission,Brìnging Them Home, Report of the National Inquiry into the Separationof Aboriginal and TorresStrait Islander Children from their Families(1991). 'oo Seege.re.ally Margaret Simons, The Meeting of the l|/aters(2003). tot S"" generally, Stuart Macintyre and Anna Clark, Hístory lítars (2004). '0ó Andrew Markus, Race. John Howard and the Remaking of Australia (2001) ch4. 135 We do o\ryeour indigenouspeoples, our Aboriginal and TorresStrait Islanderfellow Australians,a hugedebt for the destructionand dispossessionthat we non-Aboriginal Australianswreaked for over200 yearsof Australianhistory. I hopethat, by passageof thislegislation tonight, we haverepaid just a little of thatdebt.r07 As humanitanan concem for indigenouspeoples has becomemore pronouncedthrough changing conceptionsof Aboriginality and of the Australian nation, the treatment of indigenouspeoples has now becomea questionof moral duty. To the extent thatMabo reflects this jurisprudence of regret, its conservative critics needed to regain the superior moral position to secure their economic interests. Although the tension has now died down the battle for future rights and recognition for indigenous peoples will continue to turn on how truth is perceived, and on questionsof what should be done in order to advancea just Australia. Yet, as power/knowledgecirculates through the social field, it is important to acknowledgethat power is not sharedequally amongthe different social actors.It has been well noted that indigenouspeoples as a minority group have very little political clout at their disposalto assistthem to shapetheir own destinies,let alone to gain control of the way they are representedin mechanismssuch as the media.l08Thus in many ways it is up to the white electorateto make the change,and for indigenous peoples to appeal to the 'moral community' to do so.'OnHo*ever, as the Mabo aftermathshowed, there may still be reservationsas to how far indigenousaspirations can be incorporatedin law and policies. As Webber's position illustrates,even for those among the non-indigenouscommunity sympatheticto the plight of indigenous peoples,their own conceptionsof what is just, formed by referenceto what they think 'ot Co-.no.rwealth of Australia, Parliamentary Debates, Senate,16 December 1993,5502 (Gareth Evans, Leader of the Government in the Senate). 'ot 'From S"e Irene Watson, a Hard Place:Negotiating a Softer Terrain' (2004) 1 Flinders Journal of Law Reþrm 205,215, 2ll, 218. 'oe Seegenerally, Tim Rowse,After Mabo: InterpretingIndigenous Trøditions (1993) ch l. 136 is right for Australia, may get in the way of a solution that is just for indigenous peoples. Perceptionsof what is right for Australia may not always be right for indigenouspeoples in Australia. And, as will be seen in the next Chapter in the discussionof the developmentof native title law, without legal and political autonomy indigenouspeoples are left without the meansto control their own experienceand their senseof their own identitv. 137 V FROM MABOTO YORTA YORTAI Thus far the decisionin Mabo v Queensland(No 2)2 has been located in the new history movement3and to the extent that it has departed from the old historical narrative of Australian history it has been subject to much criticisma One of the main conservativecriticisms of Mabo was directed at the High Court for having undermined the foundation of Australia's history in British heritage and honour. Contrary to the conservatives' claims, this Chapter will show that the Court in Mabo and subsequent native title caseshas been very mindful of Australia's legal history, and of the origins of Australianlaw in British legal traditions.The main focus of this Chapterwill be to outline the impact that the Court's perception of Australia's British legal heritage has had on indigenouslegal issues,especially in the contextof native title. Insofaras Mabo was a complex event in its own right, there exists a tension within it between preservingAustralian law and the English law from which it has derived, and changing the law in order to give effect to a just outcomein that particular case.Ultimately, as the more recentHigh Court casesshow, deferenceto Australia's British legal heritage would standin the way of changebeneficial to indigenouspeoples. In this Chapter it is argued that as long as the Court continues to maintain a unity of origin between Australian and English laws, it continues to prop up an imperial-colonialrelationship between Britain and Australia that does not otherwise exist. It is arguedthat this approachis no longer appropriatein view of the many ways that Australia is now independentfrom Britain, and is particularlydisturbing when the I An earlierdraft of this Chapterhas been published. See Francesca Dominello, 'Becoming the highest court'(2003) 12 Grffith LawReview 263. ' (1992)175 CLR | ('Mabo'). ' Seeabove Chapter IIL ' Seeabove Chapter IV. 138 Court sustainsthe unity of origin between Australian and English laws in ways that appearalso to perpetuatethe relationshipbetween coloniser and colonisedin Australia. What is particularly problematic is that indigenouspeoples are still accordedan inferior status through the way that their laws are not recognised as having their own legal force, but are mediatedthrough and thus remain under the control of Australian law. As will be discussedin Part A. it is the continuedadherence to certainelements of the British legal heritage which have had the greatestimpact on indigenous native title claimants, and may help to explain the limitations that can be found in Mabo and in the casesthat have followed. The Court may have changedthe law by giving native title legal recognition, but this recognition \ryas a far uy from undermining the establishedproperty interestsof other landowners - in fact the Court has ensuredthat protection of these interests prevails wherever they may conflict with the native title interestsof indigenousclaimants. As will be arguedin Part B, what is crucial to the maintenanceof Australian legal control over indigenouspeoples' native title claims is the line that the Court continuesto draw back to its origins in British legal traditions,and in particular the acquisition of British sovereignty over the Australian territories. In this schema, Australianlaw is said to have its origins in English law, while indigenouslaws do not. Arguably, neither in fact is entirely true. To the extent that the Australia Acts marked the completeindependence of Australian law from English law, Australian law can no longer be said to have its foundationin English law, and to the extent that native title was recognisedby the Australian common law, it is a product of the processesof that system and in that respecthas its origin in the Australian common law. Even when the 139 Court in Members of the Yorta Yorta Aboriginal Community v Victorias attemptedto severall theselinks by locating the origin of native title exclusivelyin the statute,it 'intersection' achieved this by reinterpreting the between native title and the common law in a way that focused even more sharply on the original acquisition of British sovereignty. For indigenous peoples the effect of maintaining a strict demarcationbetween Australian law and native title basedon their differencesin origin is that their laws can neither be fully incorporated in and protected by Australian law, nor be free of Australian legal control: indigenous laws may not form part of the Australian common law, but Parliamentstill has power to make laws with respectto indigenouspeoples, and the High Court must still interpretthese laws. As it will be shown in Part C, the Court's conceptionof the different origins of Australian law and native title are also the source of its different conceptionsof property in these systemsof laws and in turn legitirnisesits inferior treatmentof nativetitle as a propertytitle in Australianlaw. This patternof emphasisingthe differencesbetween indigenous and non-indigenouspeoples in order to control and treat as inferior the interestsof indigenouspeoples mirrors the overall position of indigenouspeoples in Australian history. Insofar as this pattern is reminiscentof the old historicalnarrative in Australianhistoriography, this final section of the Chapterwill assessrecent claims that the more recent High Court native title caseshave demonstratedof the etemalreturn of colonialismin Australia. In terms of the legal developmentsin relation to native title, three important issuesarise out of the discussionin this Chapter.First, indigenousinterests to land are still subordinateto the interestsof non-indigenouspeoples. Second, the predicamentof 5(zOOz) 214 CLP. 422 ('Yorta Yorta'). 140 indigenouspeoples lies in an Australianlegal systemthat continuesto maintain control over indigenouspeoples' lives. Third, if indigenouspeoples' claims are to have any successunder these conditions, they must conform to the way that Aboriginality is conceivedby the High Court; and, as the more recentcases show, this conceptiondoes not in fact reflect indigenous peoples' own selÊperceptions,but merely images of 'old Aboriginality derivedfrom the historiographyof the history'. A Re-establishingHistorical Lines of Continuity In Mabo Brennan J found that: since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which govems Australia is Australian law. .. . Here [meaning the Court] rests the ultimate responsibility of declaring the law of the nation.o But then he qualified this freedom by insisting that departure from English precedent would not be possible where the departurewould fracturewhat I have calledthe skeletonof principle. ... The peaceand order of Australiansociety is built on the legal system.It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannotbe destroyed.' In determining whether this modification is possible it is necessaryto assesswhether the particular rule is an essentialdoctrine of our legal system and whether, if the rule were to be overturned,the disturbanceto be apprehendedwould be disproportionateto the benefit flowing from the overtuming.s That assessmentwas to be made bv referenceto the bodv of law lor at least its skeleton)inherited from England. Even with the abolition of appealsto the Privy Council markedby the Australia Acts in 1986, English law may still remain part of Australian law, as Brennan J's judgment in Mabo illustrates.The Australia Acts did not createa rupture in the law, oMabo (1992) ti5 cLr.t,29. t lbid 30. 8rbid. t4r even though the law had been changed.The Court becamethe highest appellate court in Australia with a responsibilityto declarethe law for Australia. It can now choose either to follow or to depart from a decision of the Privy Council - and when it exercises this choice, the resulting law is Australian law even if its source lies in English law.eBut even the acknowledgementthat the Court has a choicemay accordit too much independence.By becomingthe highestappellate court in Australiathe Court has also becomethe protector of the Australian legal system:a systemwhose origins remain in the English coiltmon law. To the extent that this system is perceived as requiring protection, the Court will continue to adhere to the tenets of English law. Thus, accordingto BrennanJ's view in Mabo, the Court has a responsibilityto declare the law for Australia in a way that does not undermine the legal systemof which it is a part. In this way protecting that legal system is paramount - modifuing the law to adhereto contemporarynotions ofjustice andhuman rights is of secondaryimportance. By rnaintainingcontinuity betweenAustralian and English law, Brennan J in Mabo reinscribedimperial-colonial relations between Australia and Britain. However, he was also consciousof the changesto that relationshipin the legal context:'Although our law is the prisonerof its history, it is not now bound by decisionsof courts in the hierarchy of an Empire then concernedwith the developmentsof its colonies.'Io 'the Despite this, to the extent that he found our law prisoner of its history', he felt bound to protectthe Australianlegal systemand to bind that systemto English law. It was only to the extent that adjustmentof the law to conform to contemporarynotions '' SeeBarns v Barns(2003) 214 CLP. 169, 203-5. to Mobo(1992) t7 5 cLr. 1, 29. r42 'fracture ofjustice and humanrights did not the skeletonof principle'll upon which the 'native Australianlegal systemdepends, that he was ableto give recognitionto title'. However, to the extent that his judgment maintains the historical link between English and Australian law, rather than simply modiffing the law to conform to contemporarynotions of justice and humanrights, it has re-establishedanother line of continuity in Australian legal history: coloniser-colonisedrelations as between the Crown and the indigenouspeoples.l2 While the Court can transformEnglish law into Australian law to form part of the fabric of Australian law, native title cannot be so transformed. To that extent native title remains foreign to Australian law, but unlike other foreign laws (including English laws) it does not have its own Court to offer it 'no protection- dual system of law, as such is createdby Mabo'.I3 JusticeKirby's observations in Wik lllustrate the difference in status between English law and 'established Aboriginal customarylaw - the differencelies in the fact that the Court by the Constitution,operates within the Australian legal system.It draws its legitirnacy from that system.Self-evidently, it is not an institution of Aboriginal customary law' .t4 The corollary is that the sourceof Australianlaw is English law: the sourceof native " Cf Kirby J's preferenceto'avoid that metaphor,which suggestsboth a morbidity and fragility in the foundationalprinciples of the Australian legal system which I do not detect,' in Fejo v Northern Territory (1998) 195 CLR 96, 150. However,in Commonwealthv Yarmirr (2001) 208 CLR 1, 68 ('Croker Island') Gleeson CJ, Gaudron, Gummow and Hayne JJ expressedconcern over the use of BrennanJ's notion of the 'skeleton of principle'by the majority in the Full FederalCourt below. See Commonyvecithv Yarmìrr (1999) 101FCR 111,301(MerkelJ). Accordingto thejoint judgmentin the High Court: It is ... not profitable to stay to considerwhat principlesof the legal systemare, or are not, part 'skeleton'. of its Rather,attention must be directedto the natureand extentof the inconsistency betweenthe assertednative title rights and interestsand the relevant common law principles. However, the result was the same on either construction. 't 'Colonialism' For a discussionof colonialism and the High Court seeFrancesca Dominello, in Tony Blackshield, Michael Coper and George Williams (eds), The Oxþrd Companion to the High Court of Australia (2001) 110. See also Ian Hughes and Roderic Pitry, 'Australian Colonialism after Mabo' (1994) 71( I ) June/July Current Affairs Bulletin 13. " WikPeoplesv Queensland('Wik') (1996) 187 CLR 1,214 (Kirby J). See also Yorta Yorta (2002) 214 cLR422,443-44. tnw¡k\ggq 187 cLR r,2r3. 1 Àa I+J title is Aboriginal customarylaw and there is no link betweenthe two. At most the 'an Court has identified intersectionof traditional laws and customswith the common law',15 but that conceptionsimply highlights the assumptionthat their sourcesare different. For the Court, the unity of origin that it maintainsbetween Australian law and English law cannot be paralleledby any similar unity between Australian law and Aboriginal customarylaw. Nonetheless,in the absenceof any legal systemof their own to protecttheir interests,indigenous peoples are left to dependon the High Court (and now the Natíve Title Act 1993 (Cth) ('NTA') and the High Court's interpretationof that Act). As Hughes and Pitty have observed: The very act of affirmingindigenous law assertsthe jurisdiction of the High Courtover the indigenouslaw of the continent.By assumingthe power to affirm the continuing forceof indigenouslaw in a severelyrestricted context ... theHigh Courtaffirmed its jurisdictionand authority over indigenouslaws. The Courtmay have contributed to the capacityof someindigenous peoples to live independentlyof the Australianstate by securingtheir accessto traditionalland, but by makingtraditional land ownership dependenton the Court itself, the judicial arm of the stateparadoxically asserts its jurisdictionover native rights.ró The formal recognitionof native title by the commonlaw could have advanced the developmentof legal pluralism in Australia: of two separateand distinct streamsof law flowing throughthe Australianlegal system,each having an equalstatus in its own right.rTSupport for this interpretationof Mabo derivesfrom the sui generis character ascribedto native title in the judgment of Deaneand GaudronJJ.l8 And, as BrennanJ observed, Native title has its origin in and is given its content by the traditional laws acknowledgedby and the traditionalcustoms observed by the indigenousinhabitants of " Fe¡o v Northern Territory (1998) 195CLR 96.128. 16 Hughesand Pitty, aboven 12, 14. 'Aboriginal " See generally Barbara Hocking, Law DoesRun in Australia',(1993) 15 SydneyLaw Review187. tB Mabo (1992)r75 cLR l, 89. 144 a territory.The natureand incidentsof nativetitle must be ascertainedas a matterof factby referenceto thoselaws and customs (emphasis added).re 'native Yet, elsewhere,Brennan J has concededthat title, though recognized by the common law, is not an institution of the common law'.20 For Noel Pearson,this 'recognition approach to native title has been constructed as a concept' which perpetuatesthe distance between the law which accords recognition and the material which it deignsto recognise.ttAs Paul Pattonhas put it, it is an exampleof Derridean undecidability: native title is 'both incorporated within and foreign to the common la:w'.22 Yet the difficulty with seeingthe relationship between them as undecidable, is that whateverundecidability we may perceiveat a conceptuallevel, in practiceit is still Australian law - and ultimately the Australian High Court - that decides the undecidable,and indeed decideswhat is and is not undecidable(at leastin relation to mattersbefore it¡.23i|-may be that as a matter of fact native title must be ascertainedby referenceto the laws and customsof indigenousclaimants; but, as a matter of law it is the High Court that determinesnative title claims and the conditionsthat need to be met by indigenousclaimants in orderto succeedin their claims. This is just one of the ways in which colonial relations in Australia are perpetuatedin the Mabo decision,insofar as the control for decidingnative title issues remains in the hands of non-indigenous legal institutions, and subject to non- indigenouslaws. This is nowheremore obvious than in the effect that the doctrine of 'n Ibid 58. 20 Ibid 59. 2r 'The Noel Pearson, Concept of Native Title at Common Law' in Land Rights; Past,Present and Future - ConferencePapers (1996) I 18, 120. " Paul Patton, 'Post-structuralismand the Mabo Debate:Difference, Society and Justice'in Margaret WilsonandAruraYeatman(ed),Justice &Identity: AntipodeanPractices(1995) 153, l6l. 23 Seethe discussionof agreement-makingbelow in Chapter VI(BX2). t45 extinguishmenthas on native title. As Luke McNamaÍa and Scott Grattan have observed: there appearsto be no evidencethat extinguishment- at least in the ways now recognisedas part of the Australiancommon law - was possibleunder Aboriginal laws.And yet, the ruleson extinguishmentform a crucialpart of the law of nativetitle. Indeed... theconcept of extinguishment'functionsto cancel out' theconcept of native title.2a The perpetuationof colonialism is also evidentin the Court's insistenceon extending legal recognition only to native title, and not to any other indigenous customary laws, so that theselaws remain unenforceablein Austr alian law.2sFor Toohey J this limited solution was at least logically explicable,since he continuedto apply the orthodox Blackstonian doctrine that the whole of the English common law immediately became applicable at the time of settlement, but held that the common law thus received alreadyembodied a special solicitudefor indigenousproperty rights.26 For BrennanJ, on the other hand, the limit was paradoxical. If, as Brennan J found, the rules 'settled' applicableto a colony with an existingpopulation are analogousto thoselaid 'conquest' 'cession',21 down by Blackstonefor casesof or thatought logically to mean that the whole of the indigenous legal system survives annexation,not merely its property rights. 'intersecting' The different sourcesof the laws havejustif,red their differential treatment.Thus, while English law may still sharethe samestatus as Australianlaw in Australia, native title does not. Instead it has an inferior status: it cannot be qincorporated' completelyand to the extentit is inconsistentwith the common law it is 'o 'The Lrrke McNamara and Scott Grattan, Recognitionof IndigenousLand Rights as "Native Title": Continuity and Transformation'(1999) 3 FlindersJournal of Law Reform 131,146. 2s SeeCoe v CommonwealthQ,lo 2) (lgg3) I l8 ALR 192; I|tatker v New South lltates (1994) 182 CLR 45; Bulun Bulun v R & T TextilesPty Ltd (1998) 157 ALR 1931,and WesternAustralia v tltard.(2002) 213CLR 1. tu Mobo (1992)175 cLR l, 183-84. '' Ibid 35, 48-9. t46 void. And even though it has a status of inferiority derived from a relationship of inequality,both the Court and the legislaturehave beenreluctant to translatethis into a requirement of protection within the legal framework of a fiduciary relationship. In any event,the limitations in Mabo, exacerbatedby the outcomesof subsequentcases and 'equal the provisions of the NTA, have eliminated any possibility of protection' for native title and compoundedits inferior status.A wide swatheof native title is found to have been extinguished,2sand once extinguishednative title cannotbe revived; and no compensationcan be paid for past acts of extinguishmentprior to the enactmentof the Racial DiscríminationAct 1975 (Cth) ('RDA'). And to the extentthat native title may coexist with other titles to land, native title survives,but will be extinguishedto the extent of any inconsistencywith non-indigenoustitles. The test for extinguishmentin Mabo may have been depended on a clear and plain intention of the Crown to extinguishnative title. After WesternAustralia v Ward,2ehowever, it is clear that a test based on inconsistencyof abstractlegal rights is enough to extinguish native title, notwithstandingthat the land is not being usedconsistently with theserights. As for the 'bundle contentof native title, in Ward the Court has endorseda of rights' approach, 'occupation' rather than an approach,which militates againstany claim to exclusive possessionof land. Moreover,both in Ward and Yorta Yorta,the Court has emphasised the traditional aspectof native culture in a way that limits both the kind of rights that can be claimed and the kind of people that can claim them. And, in Iilard and Yorta tt S"", eg, Ví/ilsonv Anderson(2002) 213 CLR 401; Yorta Yorta (2002) 214 CLR 422; Riskv Northern Territory of Australia [2006] FCA 404; and Jango v Northern Territory of Australia (2006) 152 FCR 150, in all of which the native title claims wholly failed. For egs of partially successfulclaims see Commonwealthv Yarmirr (2001) 208 CLR | ('Croker Island'); WesternAustralia v í|/ard (2002) 213 CLR 1; Daniel v WesternAustralia [2003] FCA 666; Neowarra v WesternAustralia [20041FCA 1092 Sampi v 7[/esternAustralia (No 2) (2005) 224 ALP. 358 De Rose v South Australia (No 2) (2005) 145 FCR 290; andBennell v WesternAustralia (2006) 153FCR 2e 120. lzooz¡213 cLR | ('ward'). 147 Yorta the High Court has decidedly rejected any reference to the common law in determiningnative title claimsunder theNTA.30 T\e NTA has in many ways contributed to compounding the inferior status of native title law in Australia. Born from compromisesstruck in the Parliamentbetween politicians, commercial interests and indigenous groups, the Act sought to marry the 'twin 'to goals' identified by Keating, aiming both do justice to the Mabo decisionin protectingnative title and to ensureworkable, certain, land management'.3lWhether this was achieved through the compromises struck during the negotiation process remains to be seen.At least Keating did not (as Hawke had done in relation to the national land rights movement a decadeearlier)32 succumb completely to the push by mining intereststo have the decisionoverturned by legislation:native title was indeed to be enshrinedin the NTA. But it was to be enshrinedonly as a specialmeasure, not 'special necessarilyas a right. The fact that measures'are perceivedas a departure fi'om a long-term ideal of equality,with the consequentinsistence that suchdepartures 'a must be only of a temporary nature, necessarilyimplies narrow, assimilationist model of racial equality, which assumesthat when a stateof equality is reached,there will be no need for land rights'.33In reality it thereforemilitates againstany genuine acceptanceof cultural diversity. As part of the compromisesthat were struck, indigenousgroups agreedto the provisionswhich validatedpast acts of extinguishmentoccurring since the enactment of the RDA, and made provision for compensationwhere native title was extinguished 30 Seebelow ChaprerVI(A). '' Commonwealthof Australia,Parliømentary Debates, House of Representatives,16 November 1993, 2.377-8(Paul Keating, Prime Minister). " Seeabove Chapter II(DX3). " Beth Gazeand Melinda Jones,Law, Liberty and AustralianDemocrøcy (1990) 435. 148 as a result of that validation. In exchangefor this concessionby indigenouspeoples, a 'future acts' regime was enshrinedin the NTA, providing indigenouspeoples with a 'right to negotiate'in relation to mining projects and compulsoryacquisitions of land 'right for the benefit of third parties.It was the to negotiate'that would fuel the later debatethat cameto be focused on Wik. Even before Wik, many features of the NTA were proving unworkable and not fully protectingindigenous interests. After Wik,however,the problemsreached a crisis 'future point, especially in relation to the act' regime as it affectedmining projects and pastoralindustry.3a It was ostensiblyin responseto Wik that the Howard Govemment 'the 'bucketloads introduced Ten Point Plan', promising of extinguishment'35- a blatant expressionof supportfor the position of the mining and pastoralindustries and a complete disregard for the affected native title claimants.The resulting amendments to the NTA36have been summarisedas significantly reducing the area of land and waters over which native title rnight exist; reducing the need for consultationwith native title holdersabout mining and governmentactivities on their land; substantially 'right eliminating the to negotiate'in respectof pastoralleases, particularly in respect of primary production activities; and imposing more stringent conditions, both substantive and procedural, on native title claims.37 Indigenous groups have subsequentlycriticised the Howard Govemment for its failure to consult them throughoutthe negotiatingprocesses, and have voiced their dissent,claiming that, in contrastto what happenedin the caseof the NTA as it was enactedin 1993,they had 'o 'A Seeg"tt".ully MaureenTehan, Hope Disillusioned,an OpportunityLost? Reflectionson Common LawNative Title and Ten Years of the Native Title Act'(2003) 27 Melbourne UniversityLaw Retiew " Ibid 554 fn 285. 36 Natir" Title AmendmentAct IggS (Cth), amendingNative Title Act 1gg3 (CTh). " Tehat, above n 34, 555. See also LarissaBehrendt, Acieving Social Justice: Indigenous Rightsand Australia's Future (2003)48. 149 not consented to the amendmentsenacted in 1998. For indigenous groups the amendmentswere a clear deparfure from Wik, which had enshrined the principle of 'shared land use and coexistence'.38Moreover, while Mabo and Wik stood as symbols of the transformation of indigenous and non-indigenous relations, the amendments 'destructive were perceived as a lost opporfunity of the most valuable resource ... trust'.3eBut it was not only in Australia that the amendmentswere condemned.The amendmentshave subsequentlybeen criticised by the internationalcommunity; indeed, the Howard Governmenthas not escapedcriticism in respectof othermatters as well,aO and some commentatorshave argued that the NTA is now (if not before) inconsistent with the provisionsof the RDA.4l B The British Sovereignand IndigenousLaws Evidently, the culmination of events from Mabo to the NTA amendmentsin 1998has compoundedthe inferior statusof native title law in Australia.The difference in the treatment accordedto English law (now Australian law) and to Aboriginal customarylaw can be traced back to the moment when the British Crown acquired sovereigntyover New South Wales in 1788.While this was a legitimateaction under internationallaw, it meant little to indigenouspeoples; as BrennanJ found in Mabo in relation to the Meriam people,when British sovereigntywas acquiredover the Murray Islands in 1879'they would not have appreciatedits signihcance'4z- but its significancewas to be profound,as the nativetitle debatehas shown. Tehun,n 34, 555. 3e" Aboriginal and Torres StraitIslander Social Justice Commissioner, Native Title Report (199S)9. o0 Se. g"n"rally, Behrendt,above n 37, 150. al RichardBartlett, Native Title in Australia (2000) 53. n' Mabo (1992) 175 CLR l, 25 (BrennanJ). 150 Ultimately, the way in which native title is constructed- as different, but inferior - is underpinned by the Court's emphasis on the acquisition of British sovereigntyand its consequencesfor the exerciseof the Court's jurisdiction. 'The acquisitionof territory by a sovereignstate for the first time is an act of state that cannotbe challenged,controlled or interferedwith by the courts of that state.'43As a statementof principle this position illustratesthe continued adherenceof the High Court to the English common law. The Court's continued refusal to question the acquisitionof Australian territoriesby British sovereigntyis a mere reflection of the Court's continued perception of itself as an English court and 'bound by courts in the hierarchyof an Empire ...'44 The result of theseinhibitions may be comparedto the position in the United States,where the SupremeCourt felt completelyunrestrained by its own links to British legal traditions when it recognisedIndian tribes as 'domestic dependentnations' tn CherokeeNation v Georgiaas and íØorcesterv Georgiaaí. However, the suitability of the American approachfor Australian conditions was emphaticallyrejected by Gibbs J in Coe v CommonwealthNo I)o', and his argument was reaffirmedstill more emphaticallyby Mason CJ in Coev Commonwealth(No 2)a8. In stating the Court's position on the non-justiciability of the question of sovereignty in Australia, Brennan J quoted from Gibbs J's judgment in NSI4| v Commonwealth;aebut the source of this principle in fact lies in English precedents. o3Ibid31 (Brennan J). onIbid2g (BrennanJ). " 30US (5 Peters) I (1831). ou31 US (6 Peters) 515 (1832). o'lt9lo¡24ALRr18. o8lreel;u8 ALR193. oe ltOls¡ 135CLR 337,388('Seas ancl Submerged Lands Case'). t5l JusticeBrennan cited with approval Diplock LJ's assertionin Post Office v Estuary Radio Ltdso that: It still lies within the prerogativepower of the Crown to extendits sovereigntyand jurisdictionto areasof land or sea over which it has not previouslyclaimed or exercisedsovereignty or jurisdiction.For suchextension the authorityof Parliamentis not required.sl That was the end of BrennanJ's citation,but Diplock LJ continued: The Queen'scourts, upon being informedby Order in Council or by the appropriate Minister or Law Officer of the Crown's claim to sovereigntyor jurisdiction over any place,must give effectto it andare bound by it.s2 'Queen's To include the High Court in this context as one of the courts' is to 'an reaffirm that it is decidedlynot institution of Aboriginal customarylaw'. But is it 'Queen's' really a court, especiallynow that appealsto the Privy Council have been abolished?If it is, does it have to be one and not the other? The answer - as the judgment of GleesonCJ, Gummow and Hayne JJ in Yorta Yorta madeclear - lies in the Court's own adherenceto an Austinian conceptof sovereigntythat exalts British sovereigntyto the exclusionof any traditional indigenouslaw-making bodies that may have existedat the time that sovereigntywas acquired.53Furtherïnore, in Yorta Yorta the axiom that the Court cannotquestion the acquisitionof sovereigntyover Australian territoriesby the British Crown was invoked without further citation, as a consequence 'follows which simply from Mabo'.s4It has fully been absorbedinto Australian law, making it even more difficult to overturn in the future.ssBy assertingthis axiom, the Court may appearto have exercisedits independentcapacity to declarethe law for Australia. Yet we cannot ignore the line of authority from which the axiom was so ¡reoa12eB14o. " Mabo(1992) 175 CLR 1,31-32. s2 PostOffice v EstuaryRadio Ltd [196S12QB 740,i53. " YortaYorta (2002) 2t4 CLP.422,443-4. to rbid 442. ss Mabo(1992) 175 cLR t, 30. 152 derived,and which reinforcesthe dependenceof Australian law on its British colonial past. Yet the result in the end seemsquite odd. While adheringto English precedents on the question of sovereigntyin this way, so that British sovereigntycould not be subjectto any possibility ofjudicial disturbance,theMabo decisiongoes on to create an anomaly,so that in fact the overall result doesnot accordwith the English position on the establishmentof British coloniesat all. Insofar as the Court was able to give recognition to native title, according to English law that would have meant that the 'conquered' 'ceded', Australianterritories would have to be classifiedas either or and on either basis the sovereigntyof the peoplesin pre-existingoccupation would have been acknowledged(although the existing laws would be subjectto modification or replacementby the Crown or by Parliament).56However, the Court has constructedits own anomalouscategory whereby native title is recognisedbut the territoriesare still 'settled'. classedas The implication is that indigenouspeoples presumably did have laws, at least in respect of property in land, but did not have sovereignty.The contradictionshere may be the product of a poorly arguedcase (the plaintiffs in Mabo 'settled' concededthe point that Australia was a colony), but in its efforts to maintain historical consistency,the Court could have examined this questionmore seriously. (The claimantsnever askedthe Court to ovemrle terra nullius, either,yet the Court felt compelledto do so.) However,what makesit evenodder is that clearly by the time the Court decided Yorta Yorta, its analysisdepended on a recognition that the indigenouspeoples did have sovereigntyafter all: but only in a lost pre-historywhich the arrival of the British 56 William Blackstone, Commentarieson the Latvs of England (5'h revised ed, 1773) Volume I, Introduction.sect 4. 106-8. 153 broughtto an end.The incidentsof nativetitle must now be determinedas at the dateof the acquisitionof sovereigntyby the British Crown since this was the date on which indigenous sovereignty was brought to an end. Hence, the indigenous laws which dependedon that pre-existing sovereignty are incapable of formal legal change after that date. In any event, maintaining unity between British and Australian legal origins has not alwaysbeen on the High Court's agenda.There is no talk of 'unity' when it comes to assertingAustralia's legal independence,and also the High Court's view of its own independencefrom British legal institutions. The Australia Act which marked the culmination of this independencewas enacted in two versions: one by the Imperial Parliament,the otherby the AustralianParliament. That both Parliamentswere askedto enact identical versions suggeststhat each version was considerednecessary to give effect to the provisionsin Australia.Yet, it is significantthat alreadyin Mabo Brennan J referredto theAustralia Act in its Australianversion, but not to the Imperial version- thus suggestingthat the objectsof the legislationalready lay within the power of the Australian Parliament,without need of assistancefrom Britain. Moreover, while his judgment in Mabo has preservedan English skeleton in the closets of Australian judges, it would seemthat this willingness to preservethe links betweenEnglish and Australianidentity doesnot extendto otherAustralian domains.sT " In the context of immigration seeNolan v Minister for Immigration and Ethnic Affair (1988) 165 CLR 178;Re Patterson;Ex parte Taylor (2001) 207 CLP.391;Re Ministerfor Immigration ønd Multicultural Afairs; Ex parte Meng Kok Te (2002) 212 CLP. 162; Shaw v Ministerfor Immigration and Multicultural Affuirs (2003) 218 CLR 28 andKoroitamana v Commonwealth(2006) 227 ALR406. See alsoBropho v l4/esternAustalia (I990) 17I CLR I. 154 That the Court, in applying lhe Australia Act, would ascribelegal force to its Australianversion and not to its British version,was made clearerin Sue v Hill,ss and clearer still in Attorney-General (rf! , Marquet.seIn Sue v Hitt the Court interpreted the Austrq,liaAct (again in the Australian version) to confirm that: a British citizenis nowadaysa citizenof a'foreign power'.It concededthat Britain could not be regardedas a foreign power if its goveminginstitutions retained any power in Australia,but usedfhe AustraliaAct to demonstratethat this was no lonqer thecase.60 In particular, the British Parliamentmay no longer enact laws for Australia. The joint judgment consistingof GleesonCJ, Gummow and Hayne JJ cameto this conclusionby analysingthe Australia Act in its Australianversion, downplaying any significancethat the Imperial versioncould havein Australia. And so in one context affiliations with Britain are reinforced, in another rejected.Why this is so is open to speculation.Ten yearsbefore the Australia Act came into force, Murphy J had opinedthat Australia's relationshipwith the United Kingdom 'long had ceasedto be imperial-colonialand is now intemational'.61In Kirmani v Captain Cook Cruises(No I¡62he relied on this analysisto concludethat the Australian Parliamentis now free to legislateindependently of British law and indeed to excise from its legal regime any residueof British law. While not all judgesin Kírmani No 1) accepted his reasoning, a majority agreed with his conclusion; and it was this recognitionin the fullest senseof the Parliament'scapacity to legislateindependently of British law that underlay the Court's approachin Sue v Hill and Marquet. The tB Sre, Hitt (lggg) lgg CLF.462. " (2003)cLR 545 ('Marquet'). 60 'Australia Tony Blackshield, Acts' in Tony Blackshield,Michael Coper and GeorgeWilliams (eds), The Oxford Companion to the High Court of Australia (2001) 43,44. o' Bistricicv Rokov(1976\ 135CLR 552.565. ut lteas¡159 cLR ist çkrr-or¡ (NoI);). 155 contrastwith the Court's conceptionof its own law-making capacityis striking. The Parliamentis now unfetteredby its British antecedents,but the High Court is not.ó3 In the Court's strong conception of the independence of the Australian Parliament,as in its weaker conceptionof its own independencefrom English law, the Court has appearedto see independenceas an attribute peculiarly assigned to the institutions of govemment. Thus in Sue v Hill, Australia's independence is demonstratedsimply by a review of Australia's executive, legislative and judicial institutions. It may be that the Court's solicitude for the independenceof the institutions around which the legal system is organised has not extended to the substantivecontent of the legal system itself. However, even among the law's substantiveconcerns, native title may be especially vulnerable. The reluctance to fracture the skeleton of legal principle is not of course unique to this ur"u.6o Nevertheless,the fact that BrennanJ only went as far as he did to recognisenative title may convey an understandingthat the rights of indigenouspeoples are not necessarily commensuratewith the national interest and are in fact subordinateto it: and certainlv. the statutoryenactment and modification of the native title regime since that time has appearedto reinforce that understanding.As far as the joint judgment in Yorta Yorta was concernedthe statutory version was decisive, and in any event recognition of nativetitle was as far asthe commonlaw could so: the assertionof sovereigntyby the British Crown necessarilyentailed ... that there could thereafterbe no parallel law-makingsystem in the territory over which it asserted u' Even if this was not the caseParliament could still enactlaws to give legal recognitionto Aboriginal customary laws under the races power in the Constitution. But though Parliament has this power it has effectively resisted the enactment of comprehensive legislation implementing the Australian Law Reform Commission,The Recognition of Aboriginøl CustomaryLaws, ReportNo 3l (1936). uo The Court's repeated concern to preserve the fundamental safeguardsof a criminal trial is another obvious eg, whetherfor good (as in Ridgewayv The Queen(1995) 184 CLR 19) or for ill (as ín Bull v The Queen(2000) 201 CLR 443).Butsee abovefn 11. 156 sovereignty.To holdotherwise would be to denythe acquisition of sovereigntyand ... thatis notpermissible.6s Any incorporationof indigenouspeoples' sovereignty and laws has beentreated as an impermissible rupture to the legal foundations of the Australian legal framework66- the skeletonof principle inherited from England; and the acquisition of Australian territories by British sovereignty. However, more than just the Australian legal systemcould be put in jeopardy if theseinherited laws are not upheld.ln Yorta 'society Yorta the joint judgment held that the claimants' which had once observed traditional laws and customshad ceasedto do so and, by ceasingto do so, no longer constituted the society out of which the traditional laws and customs sprang.'67 Applying the circular logic of this reasoningto the British laws perpetuatedby Mabo, it becomesapparent that it is British societyin Australia - or perhapsAustralian society 'change' itself, to the extent that it has experienced or 'adaptation' in responseto Australia's evolution from British colony to independentnation - that could be destroyedif theselaws were no longer followed. This might be an alarmingprospect if we still assumethat Australian societyhas its origins in British society.However, on the Yorta Yorta logic one may also ask whether these laws are still valid for Australia consideringthat Australian societyno longer has its roots in British society (if it ever did) and that it is generallyaccepted, even by somemembers of the High Court,68that we now live in a multiculturalsociety. A more constructiveresponse might be to adapt the laws to accommodatethe circumstancesof Australian society and to do so by the recognition of Aboriginal o' Yorta Yorta (2002) 214 CLP. 422, 443-4. But see Bruce Kercher, 'R v Ballard, R v Murrell and R v Bonjon' (1998) 3(3) AustralianIndigenous Law Reporter 470. 66 SeeCoe v Commonweatth(No I) (1919) 24 1.J-Ftll8; Coe v CommonweatthQ{o 2) (1993) I 18 ALR 192; lI/alker v New South lltales (1994) 182 CLR 45; Yorta Yorta (2002) 214 CLP.422. 67 Yorta Yorta (2002) 214 CLR 422,458. 68 Seeespecially Masciantonio v The Queen(1995) 183 CLR 58,13-14 (McHugh J). 157 sovereignty. The resulting coexistence of Aboriginal sovereignty and British sovereigntywould not only bring our law into closer correspondencewith Australian history,which has its origins in both British and Aboriginal culture,but would assistin lifting the veil of denial that has shroudedthis history.6eTo maintain the statusquo will only continue to promote a climate of racism in Australia through the perpetuation of binary oppositions between indigenous and non-indigenous peoples that merely legitimisesindigenous peoples' inferior treatment.T0One way to overcomethis problem could be to give recognition to Aboriginal sovereignty,although this is not without I difficulty andpotential shortcomings.T When it came to the formal structures of state and federal government, the Court has been able to recognise any number of different kinds of sovereignties, comfortably treating them all as manifestationsof the Crown.lz More recently members of the Court have assertedthat the foundations of the Constitution are to be construed as lying in popular sovereignty.tt Y"t even this upheaval in the Constitution's foundation (and for that matter the Court's foundations) is not perceived as a rupture but only as a continuation. It may be that the intimations of popular sovereignty discernedin the Constitution cannot be matched by any intimations of Aboriginal sovereignty.After all, this sovereigntywas ignored in the establishmentof British u' 'Changing See,eg, Morven S Brown, Functionsof the AustralianFamily' in AP Elkin (ed),Mctrrictge 'Bond-Slaves and the Family in Austrcilia(1957) 82. Cf AnnetteHamilton, of Satan:Aboriginal women and the missionary dilemma' in Margaret Jolly and Martha Maclntyre (eds), Family and Gender in the Pacific: DomesticContradictions and the ColoniølImpact (1989) 236. Seeabove Chapter II(B). t0 'Understanding See Laksiri Jayasuriya Australian Racism' (2002) 45(l) Australian (Jniversities Review40. 7r Seebelow ChapterVI(C). '" AmalgamatedSociety of Engineers v Adelaide SteamshipCo Ltd (1920) 28 CLR 129, 152 ('Engineers Ç^ase').But seeMinisterfor Works(WA) v Gulson(1944) 69 CLR 338, 350-51 (LathamCJ). " See especiallyAustralian Capital TelevisionPty Ltd v Commonwealth(1992)111 CLP' 106, 138 (Mason CJ); Nationwide News Pty Ltd v llills (1992) 177 CLP. 1, 10-14 (Deane and Toohey JJ); McGinty v l\/'esternAustralia (1996) 186CLR 140,230 (McHugh J). 1s8 sovereignty in the first place - and continues to be denied every time British sovereignty in its various transformations manifests itself. Arguably, however, Aboriginal sovereigntycannot fully be erased,especially now that native title has been recognised. The line of continuum from British sovereigntyto popular sovereignty may be tracedback to the Imperial Act establishingthe Constitution,which accordingto Isaacs J in the EngineersCase'recited the agreementof the peopleof the various colonies,as they then were, "to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution here established".'14On this basishe found that'[t]he Crown, as that recital recognizes,is one and indivisible throughoutthe Empire'.7sClearly by maintainingthe indivisibility of the British Crown, he intendedto emphasiseunity betweenBritain and Australia. But unity with Britain - and with the British Crown for that matter - has become increasinglyinelevant in Australia. Intimationsof popular sovereigntydemonstrate its irrelevanceby focusing not on agreementto unite under the British Crown, but on popular agreementto unite as a nation. Popular sovereigntypostulates unity between Australia and its people.While thereis scopefor both interpretationsin the text of the Imperial Act, popular sovereigntyis not the sameas British sovereignty.Each would exercisedifferent power. Even IsaacsJ recognisedthat althoughthe Crown is 'one and indivisible ... its legislative, executiveand judicial power is exercisableby different 'unite agentsin differentlocalities . ..'76When the peopleagreed to in one indissoluble Federal Commonwealth' they were complicit (whether consciously or not) in the 7a EngineersCase(1920) 28 CLR 129,152. t'Ibid. 76lbid. r59 continued denial of Aboriginal sovereignty.To the extent that the High Court continues to find this questionbeyond its powers,it is not beyond the powers of the Australian people, whether through formal constitutional processesof treaty or referendum, or through community processesof reconciliation at the regional level, perhaps aided by formal agreements.This is not to say that any of theseprocesses are easy.To the extent that formal recognition requires formal support from the Australian peoples' representativegovemment, this has not exactly been forthcoming.Tl The High Court may consider the question of recognition of indigenous sovereignty as beyond its powers. Its refusal to do so - whether to prevent any fracture 'skeleton of the of principle' inherited from England or to preservethe acquisitionof British sovereignty over the Australian territories - indicates that the retention of these links to its British heritage are considerednecessary to preservethe Australian legal system and the Australian society to which it applies. Simultaneously,the Court is indifferentto the effect which this reasoninghas on indigenouspeoples and their laws. However, the way that the British Crown is constructedin this context servesits own particularpurposes in relationto indigenouspeoples. 77 SeeCommonwealth of Australia,Commonwealth Government Response to the Councilfor Aboriginat Reconciliation Final Report - Reconciliation: Australia's Challenge (2002) where the Howard 'a Governmenthas reaffirmed its opposition to a treaty by insisting that [at 19] legally enforceable instrument,as between sovereignstates would be divisive, would underminethe concept of a single Australian nation'. In 1995 the then Aboriginal Torres Strait Islander Social Justice Commissioner, Michael Dodson,had respondedto sucharguments by saying: thosewho fear that full recognitionof our uniqueplace in modernAustralia will be divisive, or that it violatesprinciples of socialequality, are dead wrong. There is a black, oppressed,imprisoned Australia dispossessedfrom its home but increasingly unwilling to tolerate this injustice. And there is another Australia which believes that it was the first and only Australia, and insists that our ancient cultures are, if anything, decorative curiosities. (Aboriginal and Torres Strait IslanderSocial JusticeCommissioner, Indigenous Social Justice. Volume One - Strategies and Recommendations, Submission to the Parliament of the Commonwealth of Australiaon the SocialJustice Package (1995).) See below ChapterVI(C). 160 First, the exaltationof the British sovereignhas made any potentialrecognition of Aboriginal sovereigntyeven more intractable:'the assertionof sovereigntyby the British Crown necessarilyentailed ... that there could thereafterbe no parallel law- making systemin the territory over which it assertedsovereignty.'78 Thus, by the time of Yorta Yorta, the time of the acquisition of British sovereignty has become the date when Aboriginal sovereigntyceased to exist. By extensionof this reasoning,only the indigenouslaws in existenceat the time when British sovereignty was acquiredwill now be recognised.This has been the effect of Commonwealth v Yarmiry'e and Ward, where the native title rights and interests were confinedto thosein existenceat the time of the acquisitionof British sovereignty and were still in existence.Moreover, in both cases this entailed dissecting the domesticuse of rights to the exclusionof economicrights as thesewere not deemedto have been in existenceat the time of the acquisition.Whether economicinterests will be protectedin the future may dependon the facts of the particularcase. However, the resultsin both caseswere a devastatingblow to the claimants' aspirationsto achievea level of economic autonomy through the recognition of their native title rights. In addition,the reasoningin Yorta Yorta allowsvery little scopefor adaptabilityof native title rights and interestssince the acquisition of sovereignty.In that case the Court found that the claimants' native title rights and interestscould only be recognisedif they could prove that the traditional laws and customs they currently observedin relationto their landsand waterswere substantiallythe sameas they were at the time of the acquisitionof sovereignty.sOThus the emphasison the role of the British Crown in 78Yorta Yorta (2002) 214 CLF.422, 443-4(Gleeson CJ, Gummow and Hayne JJ) 'n 1zoot12o8CLR 1('CrokerIsland'). 80Yortq Yorta (2002) 214 CLF.422,456 (Gleeson CJ, Gummow and Hayne JJ). t6l thesecases effectively serves to confinethe areaover which nativetitle can be claimed, the kinds of rights and intereststhat may be exercisedover that area,and the people who may actuallyclaim them. Secondly,the binary opposition createdby the Court's insistencethat the two systemsof laws have different sources,means that the two cannotintersect. Native title cannot be incorporated into Australian common law, and indigenous peoples are thereby denied any of the potential positive benefits available in the common law doctrines relating to native title. The difference is one of origin: the source of Australian law and sovereigntyis derived from British sovereignty,whereas indigenous laws have no such derivation. By adhering to this construction of the different laws, native title has been excluded from the common law. As the Court opined in Yorta Yorta, any continuing interaction betweenthe two now lies inthe NTA. In Ward the stark contrast between indigenous law and Australian law effectively meant that common law property precepts could not be used to give substanceto indigenouspeoples' conceptionsof property;8land this has meant that indigenouspeoples' conceptionsof property must always fall short of what would be consideredas property at common law, and may never be given the same statusand protection as common law property rights. If the underlying reasoningis circular, its effect in casessuch as Ward has been none the less devastating.In the end result in Iï/ard the Court took a 'bundle of rights' approach to native title as the Court understood this approach as arising from the NTA. This means that native title rights and interests can be separatedfrom each other and hence extinguished one by one, dependingon the 1evelof connectionthe claimant group has continuedto have with 8t Warcl(2002) 213 CLR l, 65 (GleesonCJ, Gaudron,Gummow andHayne JJ) r62 each of these fragmented rights since the acquisition of sovereignty. Arguably, the approachin casesltke Ward is neitherconsistent with indigenouspeoples' conception of property, nor commensuratewith the conceptionsof occupation and exclusive 'property' possessionascribed to such by the common law in other jurisdictions.s2 Ratherit hasbeen arzued: The constructionof native title as a bundleof rights and interests,confirmed in the Miriuwung GajerronglWard] decision... reflectsthe failure of the commonlaw and the INTAI to recogniseIndigenous people as a peoplewith a systemof lawsbased on a profoundrelationship to land.Native title as a bundleof separateand unrelated rights with no uniting foundationis a constructionwhich epitomisesthe disintegrationof a culturewhen its law-makingcapacity, that is its sovereignty,is neatlyextracted from it.83 On the one hand, there may be an element of the inevitable in the way that the Court maintainsits link to the British Crown and British legal traditionsas *" ,ou... of Australian law. So long as the legitimacy of the Australian nation is tracedback to the acquisitionof British sovereignty,the judicial emphasison the time at which British sovereigntywas acquiredcan be understood.Moreover, since the Australian colonies 'settled', were perceived (at least at that time) as there was no room for an acknowledgementof indigenous sovereignty,nor any requirementfor the received common law to incorporateany doctrinesof indigenouscustomary law. Thus, so long as the Court continues to focus on what happenedat the time of acquisition, the exclusion of indigenous customarylaws from Australian common law can also be understood. On the other hand, it is also true that the English common law, as receivedby the Australian colonies, could be adapted to suit the local conditions where the circumstanceswere exceptionalenough to warrant modification. Suchmodification in 82 Seeespecially Delgamuukw tt British Columbia l1gg7l 3 SCR 1010. o'Aboriginal and Torres Strait Islander Social Justice Commissioner,Native Title Report 2002,Parl PaperNo 4l (2003) 27. r63 order to incorporateindigenous customarylaws would not have been contemplated during the early period of colonisation;but now that therehas beenrecognition at least in relation to native title, it is difficult to seewhy the samerecognition should not be extendedto other aspectsof Aboriginal customary law, even though this might entail an acknowledgmentof pre-existingAboriginal sovereignty.The difficulty is especially great if one accepts the solution adopted by Brennan J (in Mabo), that for territories with an existingpopulation the processof 'settlement'should be assimilatedto thoseof 'conquest' 'cession'. and However, as a resultthe Australianterritories are still defined 'settled' as with no corresponding recognition of Aboriginal sovereignty notwithstanding pre-existing indigenous populations with their own pre-existing systemsof laws. If the common law can be modified to accommodatenative title, there is no reasonwhy it could not be similarly modified in other respects,although it now may be a questionthat only Parliamentand the Australianpeople can rectify. In light of the more recent native title casesit would seem that recognition of some fonn of Aboriginal sovereignty has now become imperative, as the symbolism of such recognitioncould serveto promotetechnical changes to the High Court's construction of native title in Croker Island and Ward. and to accommodatethe diversity and adaptabilityof indigenouspeoples' experiencesof colonisationthat casesTike Yorta Yortahave ignored.In short,recognition of Aboriginal sovereigntymay be the key that will unlock the door to Aborisinal histories that have been placed in the dark in the post-Mabo aftermath. C The Eternal Return of Colonialism in Australia? Even after the Australia Act, the Court is still to overcomethe constraintsof its British past, at least in the context of native title. Its approachto this past has had a 164 direct impact on its treatmentof indigenousland rights issues.Yet, there were aspects of the Mabo decisionthat showeda potentialmovement towards greater independence, in a way which might benefit indigenouspeoples. For Brennan J, the Court's new capacity to declarethe law for Australia had given the Court scopeto modify the law to adhere to contemporary notions of justice and human rights, as manifested in part by intemational law and the common law as it has developed in other common law countries,s4and more broadly through the influence of the new history movement in Australia.stIt was this scopethat assistedthe commonlaw recognitionof native title in Australia. Continuing to give effect to thesecontemporary notions ofjustice and human rights will be vital in any attempt to give fuller protection to native title, or move closer to reconciliationin Australia. Unfortunately this movement towards contemporaryunderstandings may have been curtailed with the enactmentof the NTA. When Yorta Yorta was first referred to the FederalCourt the primary judge, Olney J was of the view that therewas not any waffant within the Native Title Act l9l2 lsicl for the Court to play the role of socialengineer, righting the wrongs of pastcenturies and dispensing justice according to contemporarynotions of politicalcorrectness rather than according to law. ... fT]his caseis not aboutrighting the wrongs of the past,rather it has a very narrow focus directedto determiningwhether native title rightsand interests ... havesurvived to be recognisedand enforced under the contemporary law of Australia.s6 Furthermore,by contrastto the judgment of Deane and GaudronJJ in Mabo, with its acknowledgmentof and attempt to addressand retreat from past injustices,ín Ward such aspirationshave been construedas beyond the reachof the courts to achieve.In Ward, in a similar vein to Deaneand GaudronJJ in Mabo, McHugh J acknowledged that: 8a Seebelow ChapterVI(A). 8s See above ChaptersII and IIL 86 Members of the Yorta Yorta Aboriginal Communityv Victoria [1998] FCA 1606 [17], l21l (Yortø Yorta'\. r65 at leaston occasionsthe dominantclass in a societywill use its power to disregardthe rights of a class or classeswith less power. On any view, that is what the dominant classesin Australiansociety did - and in the eyesof many still do - to the Aboriginal people.87 Unlike Deane and Gaudron JJ, however, he questioned the role that the Court and the present legal system could play in remedying such injustice - observing that: redresscannot be achievedby a systemthat dependson evaluating the competing legal rights of landholders and native-title holders. The deck is stacked against the native- title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classesof rights conflict. And it is a system that is costly and time- consuming.At presentthe chief beneficiariesof the systemare the legal representatíves of the parties. It may be that the time has come to think of abandoning the present system.88 Until the system is changed, however, it is clear, especially after the High Court judgment in Yorta Yorta, that the law of native title in Australia is governed by the statute.seIn section223(l) of the NTA'native title' is definedas: the communal, group or individual rights and interestsof Aboriginal peoples or TorresStrait Islandersin relationto land or waters,where: (a) the rights and interestsare possessedunder the traditional laws acknowledged,and the traditional customs observed,by the Aboriginal peoplesor TorresStrait Islanders;and (b) the Aboriginal peoplesor Torres Strait Islanders,by those laws and customs,have a connectionwith the land or waters;and (c) the rights and interestsare recognisedby the common law of Australia. Notwithstanding that paragraph (c) makes reference to the common law for the purposesof defìning native title rights and interests,the joint judgment in Yorta Yorta interpretedthis provision asbeing governedby its contextin the statuteitself and hence as being subjectto the rest of section 223(D.e0In this way the judgment placed any statutoryemphasis on the common law back to the statuteitself: any referenceto the commonlaw independentlyof the statutemight suggestthat'native title'is now itself a 81[.rard(2002) 213 CLR 1,231. ssrbidz+o-qr. 8e Yorta Yorta (2002) 214 CLF.422,467 (McHugh). e0Ibid +39 (GleesonCJ, Gummow and HayneJJ). 166 common law concept,which would infringe the judges' understandingthat native title is not itselfpart of the commonlaw.el This reasoningis bizarre. Though the content and incidents of native title as understoodin Mabo were not to be determinedby the commonlaw, the recognitionof native title was a commonlaw processdetermined by commonlaw rules.Logically the reasoningin Yorta Yorta would mean that the common law would not have been able 'intersection' to recognisenative title at all. By insisting that the betweenthe legal system and native title is now to be found solely in the statute,the joint judgment has 'intersection' appearedto elide the betweenthe commonlaw and native title that made recognition of native title possible in the first place and to relegate any such 'intersection' 'intersection' to the distant past: that is, to a momentary at the very instant of Britain's acquisition of sovereignty.ezThe effect is to elide from present relevancethe very point where thereis a potentialfor convergence:wliere the common law is becoming Aboriginal customarylaw. The High Court's apparentresistance to any further developmentof native title law in accordancewith the common law might suggestthat it is doing all it can to eraseany detail that could be used one day to incorporatenative title into the common law. To ensurethat this day will never come, the joint judgment has removednative title completelyfrom the common law into the realm of statutoryinterpretation: any intersectionbetween the common law and native title is now to be locatedonlv bv referenceto the NTA.e3 Much criticism has been levelled at the High Court for removing any reference to the common law in native title cases. The criticism arises from a continued ntIbid 453. e'rbid+fi-q. e3Ibid ¿39. 167 perceptionof the common law as having the potentialto producejust outcomesin this context.The positiveaspects of the commonlaw developmentsabroad, and specifically of Mabo in Australi\ ate often cited as illuminating this potential for justice. On the other hand, this perception tends to ignore the shortcomings of the common law developmentsoverseas. Moreover, it underestimatesthe less than positive aspectsof the Mabo decision itself, in particular the point made here that even within the framework of the common law native title is still subordinateto Australianlaw. Thus the question whether the common law would be in fact more beneficial to native title claimantsthan the statuteis one of continuing controversy.no Importantly, however, sole reliance on the statute for determining native title rights and interests was not what Parliament intended when it enacted the NTA in lg93,esnor evenwhen it amendedthe Act in 1991.As McHugh J pointed out in Yorta Yorta, the assurancegiven to the Senateby SenatorEvans in 1993 was repeatedby SenatorMinchin 1997: namely(as SenatorMinchin put it), that the NTA'preservesthe fact of common law; who holds native title, what it consistsof, is entirely a matter for the courtsof Australia. It is a commonlaw right.')e6According to the ordinary canons of statutory interpretation,the fact that the legislation does not explicitly purport to overridethe common law would appearto attractthe presumptionthat Parliamentdid not intend to do so.e7Despite Brennan J's reluctancein Mabo to abandonthe Court's legal heritage,he did acknowledgethe Court's capacityto modify the common law. ea Seebelow ChapterVI(A). et Commonwealthof Australia ParliamentaryDebates, Senate, 16 December lgg3,5091 (GarethEvans, Leader of the Government in the Senate);Yorta Yorta (2002) 214 CLP.422, 461 (McHugh J). e6 Commonwealthof Australia, Parliamentary Debates, Senate,2 December 1gg7,10171 (Nicholas Minchin, Special Minister of State and Minister Assisting the Prime Minister); Yorta Yorta (2002) 214 CLP.422, 467-8 (McHugh J). nt S"e, eg, Hocking v Vï/esternAustralian Bank (1909) 9 CLR 739,146 (Griffith CJ). 168 Like other decisionsof the Mason Court, Mabo involved a departurefrom what Sir 'false Owen Dixon calledthe doctrine' of 19thcentury Benthamism, namely, that: the function of evolving the law ought not to be concededto the judiciary. If the judiciary, whetherconsciously or unconsciously,developed legal principlesor evenif thejudges extended the applicationof law inductively... this wasjudicial usurpation. It wasfor the legislaturealone to bring aboutany legalchange.e8 Yet, in this respect at least, Yorta Yorta reflects a return to Benthamite principles. The joint judgment in Yorta Yorta has sought to restorethe purity of the common law at all costs, treating native title as what Kitto J in Rootesv Sheltoneecalled 'deleterious foreign matter [in] the waters of the commonlaw'.100 According to the joint judgment tn Yorta Yorta any referenceto a body of the common law in the context of native title 'for was plainly wrong, thereis noneto which referencecould be made.'l0l In the specific context of natìve title this apparentdeference to parliamentary enactmentmay be seen as a direct reaction to the criticism levelled at the Court after Mabo that the Court had actedillegitimately when it usurpedthe role of Parliamentby changingthe law. Arguably, however, this approachis also consistentwith the more generalapproach that has beentaken in relationto indigenouspeoples since at leastthe time to Federation,that it is for parliaments(first Stateand then the Commonwealth) and not for the courtsto make laws in relationto indigenouspeoples. This was the kind of argumentthat Blackburn J had relied upon in Milirrpum v NabalcoIo2to reject the land claim by the Yirrkala peopleand, that DawsonJ, dissentinginMabo, had relied upon to rejectthe Meriam peoples'native title claim. ot 'Concerning Sit Owen Dixon JudicialMethod' (1956)29 AustralianLaw Jotrnal 468,411. eegsaq n6 cLR383. 'oo lbid 387. tot Yorta Yorta (2002) (2002) 214 CLR 422,453 (GleesonCJ, Gummow and Hayne JJ). 'o'1t9lt¡r7 FLR r4l. 169 Broadly speaking,the assumptionthat Parliamentshould be the only legitimate 'intersect' body to with native title, may itself reflect the continuing influence of Benthamite principles, or of the not unrelated British doctrine of parliamentary sovereignty(the resurgenceof which has been evident in many other recent High Court decisions).I03Alternatively, it may reflect the Court's strong view of Parliament's independence from British law, as compared with the Court's weaker and more equivocalview of its own independence.But none of theseexplanations would mean that the Court has also had to abdicate its interpretive role of giving effect to Parliament'sintention, and through that interpretativerole the Court itself also makes laws. Is it not the High Court, and not Parliament, that is having the final word in this very case? The Court's overall approachtn Yorta Yorta reflects its generalstance on native title: that the source of native title lies in Aboriginal customarylaw and not in the colnÍron law as it has developedin Australia.The joint judgment's affirmation that the NTA is the point at which Australianlaw and native title now intersect,and its rejection of any suggestionthat Parliamentintended a continuinginteraction between native title and the common law, has enabledit to maintain this division. Thus, the Court both affirms and limits the extent of Parliament'spower in order to avoid any danger of fracturingthe skeletonof principle - which in this instancewould be nothing less than the originatingfoundation of Australianlaw, the acquisitionof British sovereigntyover the Australianterritories. Having diluted any effect that the common law could have in a native title determination,the joint judgment was left to interpret the remaining paragraphsof 'o' S"" especiallyKartinyeri v Commonweatth(1998)195 CLR 337; Combetv Commonwealth(2005) 224 CLR 494 andNew South I[/ales v Commonwealth(2006) 8 1 ALJR 34 (' lírorkChoicesCase'). t70 section 223(l). This interpretationdepended heavily on a jurisprudential analysis, steeped in legal positivism, of the consequencesof the acquisition of British sovereigntyon the claimant group's native title rights and interests.According to this 'change' analysis the joint judgment acceptedthat there could be scope for or 'adaptation' in the ways that the claimant group acknowledged and observed their traditional laws and customs,but insisted that any such adaptationwould only be applicableto the laws and customswhich have been in continuousexistence since the British arrival. In reaching this conclusion the joint judgment placed significant 'traditional' emphasison paragraph(a) and especiallyon the meaningof the word as containedin that paragraph,finding that: 'traditional'in this contextmust be understoodto referto the body of law andcustoms acknowledgedand observedby the ancestorsof the claimants at the time of sovereignty.. . [A]cknowledgmentand observanceof thoselaws and customsmust havecontinu ed substantiallyuninterruptecl since sovereignty (emphasis added).r04 As arguedabove, this formulation continuesto postulatethe historical and conceptual paramountcyof British sovereignty.To that extent,this judicial rejuvenationof British sovereign colonial power is itself an act of colonisation. This understandingof 'traditional' excludesany allowancefor the effectsof the colonisationprocess itself on the Yorta Yorta people, or for how it has forced them to adapt to ensuretheir very survival. toa yortaYorta(2002)214CLR 422,456.Butcf alternateformulationsínMabo(1992)115CLR 1,70, 'It 192. Brennan J concluded: is immaterial that the laws and customshave undergonesome change since the Crown acquired sovereignty provided the general nature of the connexion between the 'modification indigenouspeople and the law remains'. Toohey J found that: of traditional society in itself does not mean traditional title no longer exists (citing Hamlet of Baker Løke v Minister of Indian Affairs (1979) 107 DLR (3d) 513). Traditionaltitle arisesfrom the fact of occupation,not the occupation ofa particularkind ofsociety or \¡/ayoflife. So long as occupationby a traditionalsociety is established now and at the time of annexation,traditional rights exist. An indigenoussociety cannot, as it were, surrenderits rights by modifuing its way of life.' Seebelow Chapter VI(A). r7l The joint judgment endorsedthe trial judge's conclusion that the claimant group's adherenceto traditionallaws and customswas irrevocablysevered sometime in the late 19thcentury. This conclusion was largely based on the claimant group's traditional laws and customs as reflected in the written work of Edward Curr. a 19th pastoralist,and not on the oral testimoniesof the claimants' own connectionto their traditional lands. The joint judgment also specifically endorsedthe trial judge's conclusionthat an Aboriginal petition in 1881, protestingthat'the governmentand 'all white settlers'had takenpossession of the land within our tribal boundaries',could be used as "'positive evidence emanatingfrom the Aboriginals themselves"to the effect that the descendantsof those who had originally occupied the land no longer continuedto acknowledeetheir traditionallaws or observetheir traditionalcustoms.'105 JusticesKirby and Gaudron,in their dissentingjudgment, disagreedwith the Court's interpretationof section 223(l), insisting that it did not fully appreciatethe intention of Parliamentto acknowledgea history of dispossessionand give protection to native title rights and interests: So much was impliedly recognised in the Preamble to the Act which 'sets out considerationstaken into accountby the Parliament',including that Aboriginal people and TorresStrait Islanders had been 'progressivelydispossessed oftheir lands'.106 According to their interpretationof the definition of native title under the NTA there 'traditional was nothing to suggestthat connectionwith the land ... [be] substantially maintained'.107 At first instance,lOsOlney J had applied Brennan J's formulation in Mabo, which requiredthat: tos yorta yorta (2002) 214 cLFt 422,450. 'ou Ibid 463. tot lbid 466. Seebelow ChaptervI(A). 172 The common law can, by referenceto the traditional laws and customs of an indigenouspeople, identify and protectthe native title rights and intereststo which they give rise. However, when the tide of history has washed away any real acknowledgementof traditionallaw andany realobservance of traditionalcustoms, the foundationof nativetitle hasdisappeared. A nativetitle thathas ceased ... cannotbe revivedfor contemporaryrecognition. loe Whether the fìrst affirmative part of this antithetical formulation provided scope for some autonomyfor indigenouspeoples themselves in determiningthe contentof their native title rights and interestshas been a matter for contention.ll0To the extent that 'tide Olney J adheredto the of history' limb of this formulation, it proved that any scopefor indigenousautonomy had indeedbeen washedaway.l" Not*ithstanding his 'emanating reference to evidence from the Aboriginals themselves',he patently failed to fully appreciatethe colonial context from which this evidence sprung. The entire approachtaken by Olney J has been criticised for giving preferenceto white man's history - not only his version of that history, but the way that he tells that history throughthe written word, discreditingany oral version of that history (read indigenous versions)that may contradictthe written version.l'' Only Black CJ, dissentingin the Full FederalCourt, wamed of the dangersof acceptingcolonial accountsof Aboriginal people in colonial times,r13and only Gaudron and Kirby JJ, dissentingin the High Court and echoing the approachof Black CJ, could accommodatethe effects of colonisationon the claimantgroup.ll4 Notwithstandingthe High Couft's insistencethat native title should now be treatedas governedby statute,a majority acceptedOlney J's findings at first instance. t08 Yorta Yorta l\9981 FCA 1606 [ 126]. 'o' Mabo (1992)r75 cLR l, 60. rro Seebelow ChaptervI(A). "' Cf Kirby and GaudronIJ inYorta Yorta (2002) 214 CLR 422,465-6. SeeBlack CJ inMembers of the YortaYortaAboriginalCommunityvVictoria(2001) 110FCR244,261-262('YortaYorta'). "t See generally Mandy Paul and Geoffrey Gray (eds), Through a Smoþ Mirror: History an¿l Native Title (2002). tt3 Yorta Yorta (2001) 110FCR 244,262-263. tta Yorta Yorta (2002) 214 CLF.422,464-5.See below ChapterVI(A). 173 As notedabove, according to thejoint judgment's conceptualisationof the definition of 'society native title under the NTA, they found that the claimants' which had once observedtraditional laws and customshad ceasedto do so and,by ceasingto do so, no longer constitutedthe societyout of which the traditional laws and customssprang.'1ls JusticeCallinan went so far asto sav: The extentto which longstandinglaw and custommay evolvewithout ceasingto be traditionalmay raise diffrcult questions.The matter went uncontestedin Yannerv Eaton,tró although for myselfI might havequestioned whether the useof a motor boat poweredby mined and processedliquid fuel, and a steel tomahawk,remained in accordancewith a traditional law or custom,particularly one of alleged totemic significance.llT Only Gaudron and Kirby JJ offered an altemative which accordswith Aboriginal self- determination.The questionof whethera communityhad ceasedto exist was not to be 'solely answered by referenceto externalindicia or the observationsof thosewho are not or were not members of that community' but rather was to be answered by inquiring 'whether, throughout the period in issue, there have been personswho have identifiedthemselves and eachother asmembers of the communityin question'.118 The shift in emphasisfrom the 'tide of history' to the meaning of what is 'traditional' under the NTA did not help the claimant group in Yorta Yorta. As some commentatorshave noted.the fate of the Yorta Yorta claim can be locatedin Australian historiography- the evolutionaryconception of socialDarwinism, which had predicted the inevitabledemise of the Aborigine when confrontedby British civilisation.llekl this regardthe result in Yorta Yorta has been criticisedas just anotherexample of the "t Ibid 458.See above Part B. "ó1r999¡ 20r cLR 35r. ttl YorÍaYorta (2002) 214 CLR 422,493. "8 Ibid 464. 'The "o See generally David Ritter, Weltgericht of Yorta Yorta: "Die Weltgeschichte ist das Weltgericht"' (Paper presented at the Native Title RepresentativeBodies Legal Conference, August 2001). r74 eternal retum of colonialism in Australia.'t0 However, it may be more accurateto interpret the result in Yorta Yorta as exalting the anthropology's structural-functional perception of Aboriginality, which extended only to those who exhibited the characteristicsof indigenouspeoples living in a tribal stateuntouched by civilisation: the timeless Aborigine. And, it may be no coincidencethat it is this image of Aboriginality that hasbeen most valorisedin the Australianpopular consciousnessthat has found most protection in native title law. In this way the result reflects the delineation between 'real' Aborigines (whose native title has survived), and dispossessedAborigines, whose native title rights have been extinguishedand can no longer be revived. It may well be that such a result had already been foreshadowedin BrennanJ's 'tide of history' metaphorin Mabo. This was the view taken by many, at the time Mabo was decided,and the issue was one which to some extent was to be addressedby the introduction of the Land Acquisition Fund in lggs.tzt It is also consistentwith the model that has been adoptedin the contextof statutoryland rights, 'traditional' where Aborigines from the Northem Territory are referred to as Aborigines,but in more settledareas such as New SouthWales the land rights scheme is aimedprimarily (albeitunsuccessfully) at dispossessedAborigines.'" Moreover,it is consistentwith other casesdetermined by the High Court in the context of native title, suchas CrokerIsland and Ward,where native title rights andinterests were confinedto thosethat existedat the time of the British acquisitionof sovereignty. Yet it is appropriateto reiteratethe point here that while the Court agreedwith the trial judge in Yorta Yorta that native title rights had ceasedto exist in the late 19tl' 'to Ibid. 't' S"" belowChapter vI(B)(l). t" Seeabove Chapter II(D)(3). t75 century, it was only in 2002 that a judicial declaration to that effect was made. Moreover, when the Court determined what rights and interests survived British sovereigntyin Croker Island and in Ward,it is to be rememberedthat thesecases, too, were decidedonly in 2001 and2002. For that matter,the whole notion of native title in Australian law was not recogniseduntil the Mabo decisionin 1992- the point being that the Court is trying to reflect a linear history of Australian law, starting with the acquisition of British sovereignty, which ignores the fact that much of this history is being written in thesevery decisions,and doesnot necessarilyreflect the circumstances that existed at the time British sovereigntywas acquired nor what has happenedsince. 'old' In this way, the Court is still taking the approachof the historians- that history is located only in the past, to be revealedby the objective observer.The whole legal enterprise based on precedent may depend on such an approach. However, such an 'new' approachneed not be accepteduncritically, particularly in view of the history's methodological approach to historiography - that interpretationsof the past are necessarilycoloured by the present interpretive context.l23In Mabo, the historical 'revisionism'; approachtaken by the Court was criticisedby conservativesas but the approachtaken in any of the more recentcases is equally open to the sameaccusation. 'revision' The differenceis that, in Mabo, the historical was conductedin a context of opennessto reconciliationand attemptingto addressthe issueof discriminationagainst 'revisionism' indigenouspeoples, whereas in the more recentcases the is conductedin the context of a reassertionof colonial attitudes,as a meansby which to confine the effects of native title recognition. In this way the Court has played right into the hands of the conservativecritics of Mabo and.tlik. r23 Seeabove Chapter II(A). t76 'tide 'have When BrennanJ draftedthe of history' passage,he may appearedto deemthe meaningof the phrase... asunambiguous and self-explanatory."toBut he did 'truths' not necessarilyintend to perpetuateold historical aboutthe historicaldestiny of Aborigines.For in the broadercontext of Mabo, the decisionitself was motivatedby an 'truths' intentionto dispelthese asmyths - in particularthe two propositions: that the territory of New South Wales was, in 1788, terra nullius in the senseof unoccupiedor uninhabitedfor legal purposesand that full legal and beneficial ownershipof all the landsof the colonyvested in the Crown,unaffected by any claims of theAboriginal inhabitants.r2s Accordingto Deaneand GaudronJJ: the two propositionsin questionprovided the legal basisfor the dispossessionof the Aboriginalpeoples of mostof their traditionallands. The actsand events by which that dispossessionin legal theory was carriedinto practicaleffect constitutethe darkest aspectof the history of this nation.The nation as a whole must remaindiminished unless and until there is an acknowledgementof, and retreat from, those past injustices.l26 Given that the doctrineof terranullius was rejectedand native title hasbeen recognised by the Court rn Mabo, one would have thought that the tide had finally turned. It would 'tide be ironic in the extremeif the of history' passagein BrennanJ's judgment is now to be usedto establishavariant of the terra nullius doctrine,thus providing a new legal basis for the dispossessionof indigenouspeoples. This is especiallyso, as BrennanJ had intendedto draw to an end the ageof racial discriminationin Australiathrough the rejectionof the terranullius doctrine.ltt It be"o*es evenmore ironic if theNTA is used in this way especiallyon the view of the statuteadopted by Gaudron and Kirby JJ. However, this seemsto be the result of the joint judgment in Yorta Yorta, which concludedthat sincethe Yorta Yorta community no longer constituteda society,their ''o Ritter,above n 119,3. t2sMabo (1992) 175 cLR l, l08. ''uIbid l09. "'rbid4r-2. 171 'their rights and interests can now only find roots in the legal order of the new sovereignpower.'128 Whether any rights and interestsconceived of on such a basis can in fact find expressionand protection in the Australianlegal systemremains to be seen. In more recenttimes the casesdecided bv the FederalCourt havehad mixed results.l2e Although the Yorta Yorta community has had some success with the Victorian governmentmore recently by securing an agreementin relation to parts of the claimant t'o area. As far as the High Court is concerned, however, the result in Yorta Yorta exemplifieshow the discourseof terra nullius still has discursivepower in the native title context:the claimants'society'no longer constitutedthe societyout of which the traditionallaws and customssprang',131 thus their societyin its traditional(and current) form was deemedto no longer exist. In many ways the result in this caseand in others before the Court rnay be explainedin old historicalterms: in termsof historiographical methodology,the preferencegiven to written historical records and not to the oral testimony of the claimants; and the retum of the great Australian silence not only through the silencingof the claimants'version of events,but also the preferencegiven to social evolutionary and structural-functionalapproaches to the understandingof Aboriginality, effectively removing that understanding out of the context of colonialism and back to nature. The silence was most notably expressedthrough a completedisregard of the effectsof colonisationon the claimantgroup. In this respect the alternativehistories of the new historians and of the claimants,in particular the t28 Yorta Yorta (2002) 214 CLR 422,447. ''o S"", eg, Risk v Northern Territory of Australia 12006l FCA 404; andJango v Northern Territory of Australia (2006) 152 FCR 150. Cf, eg, Daniel v WesternAustralia [2003] FCA 666; Neowarra v [4/esternAustralia [2004] FCA 7092; Sampi v [4/esternAustralia (No 2) (2005) 224 r''J.-P.358;De Rose v SouthAustralia (No 2) (2005) 145 FCR 290; andBennell v Vf/esternAustalia (2006) 153FCR 120. r30 Seebelow ChapterVI(BX2). t3t Yorta Yorta (2002) 214 CLF.422,458. 178 history of survival and resistanceof the Yorta Yorta peoplesthat the 1881petition had been tendered to represent (by showing that they had continued to struggle for land throughoutthe period of colonisation)have been effectively silenced. In Ward a return to arzuments based on the natural differences between indigenous and non-indigenouspeoples was employed by the Court to legitimise distinctions between indigenous and non-indigenous conceptionsof property in terms of superiority and inferiority. As Callinan J observed: The first non-indigenous people who occupied this country brought with them their common and statutory law which had long included a doctrine of adversepossession and settlednotions about the use and occupation of land. These were closely connected ideas:land was to be usedand enjoyed,and thosewho possessed,used and enjoyedthe land shouldown it ... Those early non-indigenous settlersalso brought with them a knowledge of agriculture and husbandry, and of domestic, commercial and official construction of a kind completely different from that of the indigenous peoples.To the undiscriminating, and perhaps insensitive and unimaginative eyes of the former it must have appearedthat much of this large continent was not in fact being used or enjoyed, or certainly not so in a way that was familiar. ... The different conceptions [about land] held by the new settlers, much the stronger of the peoples,were bound to prevail.This was inevitablewhen thosewho were the more powerful had a well settled, long-standingbody of property law in written texts, statutesand cases,and those whom they dispossesseddepended for the assertionsof their rights to occupyand usethe land upon traditionaloral customsand practices.... The problems for the indigenous people were compoundedby the difficulty of finding any conceptual common ground between the common and statutory law of real property and Aboriginal law with respectto land. It seemslikely that the first settlers would have regardedthe two as incompatible,that whatever the Aboriginal peoples possessedby way of title to land was too foreign, fragile and elusiveto withstandand survive the common law. Møbo Qr{o2)was a brave judicial attempt to redressthe wrongsof dispossession.But ... 'recognition'of nativetitle ... has no parallelin the cofiunonlaw. The Court has endeavouredto find a way of recognising,and to a degree protecting, that anomalous interest without unduly disturbing the law of Australian property.The resultsof this enterprisecan hardly be describedas satisfactory.r32 '3' Ward(2002) 213 CLR 1,395-7. r79 'The McHugh J expresseda similar view when he acknowledged: deck is stacked againstthe native-titleholders whose fragile rights must give way to the superiorrights of the landholderswhenever the two classesof rishts conflict.'133 While both judges have called for alternative approachesto be adopted in the native title context to resolve the irreconcilable differences between indigenous and non-indigenous conceptions of property, one may wonder whether any alternative could be any more beneficial for indigenous claimants so long as the attitude prevails that non-indigenous property rights must always trump indigenous property rights. JusticesMcHugh and Callinan in their respectivejudgments were in dissent in Ward. They found that the claimants' native title rights and interests had been completely extinguishedby the operation of pastoral and mining leasesover the claimant area. Although the majority did not go lhat far, it is still evident that in their view the incidentsof native title are subjectto Australian law and non-indigenoustitles to land havepriority over indigenousnative title - this is in fact a primary legacyof Mabo. The reasoningof the joint judgment suggeststhat the spiritual connectionthat indigenous peoples have to the land precludes its construction and treatment as a common law property right.l3a In this way a tacit distinction between the spiritual (indigenous conceptionsof property) and the economic (non-indigenousconception of property) underlines the majority judgment, just as such distinctions are expressly stated in Callinan J's dissent.It would appearthat such distinctionsare reasonenough to treat native title as an inferior property entitlement.The Court may have tried to construe this as the inevitable and hence natural consequenceof the differences between indigenous and non-indigenouspeoples, but it cannot really conceal the role it has '33rbid 240-r. ''o Ibid 65.See below Chapter VI(A). 180 played in continuing to perpetuatesuch differences:if non-indigenousproperty rights are superiorit is becausethey have been made so in the Australianlegal context.The result is that indigenouspeoples are clearly being discriminatedagainst on the basis of race and the perceived differencesin their conceptionsofproperty that arise from racial differences:there is nothins inevitable or natural about it. But McHugh and Callinan JJ are right at least in one regard: some things do need to change.If indigenoustitle to land has been accordedinferior treatment,it is syrnptomatic of the inferior treatment generally accorded to indigenous peoples in Australian society, in which Australian law forms a part. In the context of native title law the inferiority is perpetuatedthrough the construction of binary divisions between indigenous peoples and non-indigenouspeoples on the basis of race, not only in relation to differences in property conceptions,but right down to the different sources of their laws: Australianlaw has its sourcein English laws, indigenouscustomary laws do not. Arguably, as long asAboriginal sovereigntycontinues to be deniedrecognition, indigenouscustomary laws will remain under the control of Australian law, whether the common law or the NTA. Whether recognition of Aboriginal sovereigntywould make a differenceis a matter for contention.l3sBut somethingstill needsto be done. Currently,under the imposedcontrol of the British Crown, indigenouspeoples are not only deniedsovereignty, but aredenied their histories,and the statusofhistorical actors in Australian history and law: indigenoushistories and laws have been frozen at the time of the acquisitionof British sovereignty;they have againbeen cast outside history and law.136This seemsto be the upshot in Yorta Yorta.But it has beenthe High Court that has given preferenceto preservingthe British Crown at the expenseof indigenous r35 Seebelow ChapterVI(C). r36 Seebelow ChapterVI(A). 181 peoples'native title rights and has legitimisedthis distinction not only on the basisof racial differences,but on the perceived threat that protection of indigenous rights will hold for the Australian nation. Clearly the messagebeing sent by the High Court is that indigenous interests are incommensuratewith the national interest. But as has been argued in this Chapter, the Court's approachreflects a skewed senseof history and of Australianlaw. D Conclusion Yet, even within the scope of Australian law there is still scope for change.To the extent that the NTA expresslyrefers to the common law, the adaptability of that law 'contemporary to modification in accordancewith notions ofjustice and humanrights' should be used as a guide by the Court to statutory interpretation in the native title context - this too was a legacy of Mabo, albeit for Brennan J it appearsit was of secondaryimportance. To the extent that the N77 does not expressly endorsethe 'bundle of rights' approachadopted by the High Court in Ward,common law property preceptsmay be used analogouslyas a way of giving legal substanceto native title rights and interests.To the extent that the NTA doesnot expressly refer to native title rights and interestsas they were at the time of the acquisitionof British sovereignty,or require that these rights and interests be substantiallymaintained in order to be recognised,the view of Gaudronand Kirby JJ is to be preferredto that of the majority in Yorta Yorta. If their view were adopted,it might result in an interpretationof the NTA that advances,not obstructs,Australia's coursetowards reconciliationbased on the accommodationof indigenousland rights. To do anythingless is to regressback to our colonial past and repeatthe mistakesof that past by perpetuatingfurther injustices on indigenousAustralians. r82 At this stage the Court has reached an impasse. Its refusal to entertain the questionof Aboriginal sovereignty;its abdicationof its responsibilityto developnative title law by meansof the commonlaw, and its willingnessto interpretthe NTA in a way that merely exalts British sovereignty at the expenseof enquiring into the ways that native title may have survived colonisation,mean that it is time for other institutionsto intervene. To the extent that the High Court does not work alone, it now needs direction in order to set back on track and move forward. The next Chapter will explore three potential programs for change. First, the common law approachto native title will be examined as an altemative to the statutory interpretation approach adopted by the Court. Secondly, the benefits of the Land Acquisition Fund and negotiatedagreements will be evaluated.Thirdly, recognitionof Aboriginal sovereignty and customary laws as potential solutions and the means by which suchchange could be introducedwill be explored. 183 VI A FINAL RETREAT FROM INJUSTICE? In Members of the Yorta Yorta Aboriginal Community v Victoriat the High Court of Australia by majority declared that there was no common law to which it could refer to resolve the issuesarising in that cas".' Instead,the Court by majority found that if there was any intersectionbetween native title and Australian law it was to be found in the Natíve Title Act 1993 (Cth) ('NTA'):3 native title was now governedby the statuteand not accordingto the principlesof the commonlaw. The Court, however, did not abandonits role in interpretingthe statutorydefinition of native title. According to the interpretation that followed, a claimant group must establish that its traditional laws and customs, which are the basis of their attachment to their traditional lands, remain substantially as they were at the time of the acquisition of sovereigntyin order to prove its claim.a The result has been particularly unfortunate for indigenouspeoples as it could lead to being subjectedto discrimination: the drawing of distinctions betweenthem (and worse still their societiesmay be deemedto longer exist) according 'traditional' to how well they presentas aborigines. Moreover, in WesternAustralia v V[/ard,sthe statutory approachwas applied to 'bundle the contentof native title. In that casethe Court by majority took a of rights' approachto the content of native title that enablesnative title rights and intereststo be subject to partial extinguishment.6For indigenous peoples this approach could undermine their ability to protect their cultural heritage as well as undermine any fìnancialautonomy they may be ableto derive from a positive finding of nativetitle. ' (2002) 214 CLR422 ('Yorta Yorta'). 'Ibid 453 (GleesonCJ, Gummow and Hayne JJ). ' Ibid 439. 4 Ibid ¿s6. s WesternAustralia v Ward (2002) 213 CLR | (''tlard'). u Ibi¿ gg. 184 The overall effect of thesedecisions on native title claims has been twofold. 'substantial First, the effect of the maintenance'test appliedin Yorta Yortahasbeen to reduce the number of potential successfulnative title claims. In fact the claim in Yorta Yorta falled becausethe claimant group failed to satisfli this test. Second,the amount of 'bundle land over which native title may be claimed has been limited. The of rights' approachto native title in Ward has left native title even more vulnerable: land over which native title may be claimeddoes not have the samestatus nor protectionas a fee simple title to the land; and, the adoption of the bundle of rights approachrather than an occupation approach also militates against any claim to exclusive use and occupation of the land as understood Supreme Court in Canada in Delgamuuh,v v Queen ín right of Britísh Columbia.T By contrast to the occupation approach, the bundle of rights approach requires a court to examine each and every right claimed which can result in the partial extinguishment of these rights: a situation that cannot arise in terms of the occupationapproach. For native title claimantsthese decisions have been a devastatingblow signalling that there has not been an end to their dispossessionand discrimination, as had appearedto be the promise underlying the decisionin Mabo v QueenslandQr{o 2).e This Chapterwill considerways of addressingthe obstaclesstill in the way of a just resolutionof theseissuer.n Part A of the Chapterwill explore whethera common law approachto native title would be betterequipped to resolvethese issues. The focus in particularwill be on the commonlaw preceptsthat havenow beensuperseded by the Court's relianceon the statute.In Part B of the Chapterother altemativessuch as the ' 11997)3 SCRt0t0 ('Delgømuukw'). " (1992)175 cLR | ('Mabo'). ' 'The Seealso GarthNettheim, Searchfor Certaintyand the Native Title AmendmentAct 1998(Cfh) 199922 Universityof NewSouth Wales Law Journal 564,578-84. 185 Land Acquisition Fund and agreement-makingmore generallywill be consideredas potential altemativecourses to the litigation process.Ultimately, it will be arguedthat there are shortcomings with all of these approaches.The continuing problems for indigenouspeoples stem from the legal effects of the acquisition of the Australian territories by the British Crown. In Yorta Yorta the date of the acquisition of sovereignty has become the crucial date to determine what native title rights and interestsmay be claimed.This allows little scopefor their modification sincethat date, notwithstanding the changes that have occurred in Aboriginal communities through colonisation,especially in urban centres.It is also said that Aboriginal sovereignties ceased to exist at Lhat date. Arguably it is only in the absenceof a factor such as Aboriginal sovereignty,which might serve to uniÛznative title claims and claimants to land, that the Court has been able to adopt the approachesit has in Yorta Yorta and Ward. In Part C of the Chapter it will be argued that the only way to effectively overcomethe approachestaken in these caseswould be to give legal recognition to Aboriginal sovereignty and laws. In that part the nature of the sovereignty that indigenouspeoples envisage as possiblewill be outlined and the perceivedconceptual difficulties with its recosnitionwill be addressed. A The Time-HonouredMethodology of the CommonLaw Noel Pearsonhas been most forthright in his criticism of the High Court's disavowal of the common law in Yorta Yorta.to Although cognisant of the shortcomingsof the common law approach,he has arguedthat the Court's relianceon the statute has resulted in even more drastic limits being placed on native title r0 'The Noel Pearson, High Court's Abandonment of "The Time-Honoured Methodology of the Common Law" in its Interpretation of Native Title in Mirriutvung Gajerrong arrdYorta Yorta' (2003) 7 Nø,ucastleLaw Review l. r86 recognition. However, it is less than clear from his analysis how a common law approachcould have produced a more just outcome for the claimantsin the case. According to his reading of the common law there were two important principles that have been settled at common law which are not open to challenge.llFirst, that indigenoustitle to land survived the acquisition of sovereigntyas a burden on the Crown's radical title and could only be expropriatedwith legislative authority. Second, that indigenoustitle survivedon the basisof the'doctrine of continuity' ratherthan the 'doctrine of recognition': that is, its survival did not dependon explicit recognitionat 'what the time. But for Pearsonan outstanding question remained: is it that continues 'the after sovereignty?'I2For him it shouldhave been right to occupy and possessthe land under one's traditional law and custom' that continuesafter sovereignty.t' H" found support for the occupancy approachin Toohey J's judgment in Mabo and in the leading Canadianauthority D elgamuulau. However, this formulation is not without problems. Even in the original formulation advancedby Toohey J in Mabo,'occupancy by a traditionalsociety' at the time when sovereigntywas acquiredwas a necessarycondition of nativetitle: Toohey J 'now', 'at himself spoke of occupancy as well as the time of annexation'.I4Thus, at first instancein Yorta YorÍa,tsOlney J was able to reject the claim in spite of the fact that he acceptedthe approachof Toohey J, and more broadly that of 'the North American authority' to which TooheyJ referred.l6For Olney J, however,the insistence 'occupancy' 'a on was only the first step in number of distinct avenuesof inquiry', " Ibid g-10. t' Ibid p lo. '' Ibid. '.n-Mabo (1992)175 cLR t, tg2. '.',Members of the Yorta YortaAboriginal CommuniQv Victoria 1606FCA('Yorta Yorta'). 'o [l99S] UnitedStates v SantaFe Pacific Railroad Co 314 US 339 (1941). r87 'are including the need to prove that the claimantgoup descendantsof the indigenous peoplewho occupied... the claimed areaprior to the assertionof Crown sovereignty', and to prove'that the traditional connexionwith the land ... has been substantiallv maintained since the time sovereignty was asserted'.I7Thus, an insistence on 'occupancy' is not necessarilyinconsistent with an emphasison the additionalstringent requirements which at every level in Yorta Yorta werc held to defeat the plaintiffls claim. The majority of the High Court agreedwith Olney J's conclusionthat because 'the forebears of the claimants had ceasedto occupy their lands in accordancewith traditionallaws and customs'the applicationmust fail.18Thus the High Court majority, approachingthe question as one of statutory construction, reached the same result as Olney J had reachedat common law. In other words, the conceptof occupationas it was employedby Olney J (and based on overseas authorities) was not of benefit to the Yorta Yorta claimants. 'occupancy' particularlybecause is to be determinedboth at the time of settlementand at the time of the claim, with a need to demonstratesubstantial continuity between them. 'substantial Moreover, the application of the maintenance'test by the High Court majority in Yorta Yorta producedthe sameresult on appealas the applicationof 'tide BrennanJ's now infamous of history' passagein Mabo at first instancein Yorta Yorta.teAccordine to BrennanJ: where a clan or group has continued to acknowledge the laws and (so far as practicable)to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. '.'^ YortaYorta 1606FCA 'o ll998l [4]. YorteYorta (2002) 214 CLR 422,458. te YortaYorta [1998] I 606FCA I I 26]. 188 The common law can, by referenceto the traditional laws and customsof an indigenouspeople, identifo and protectthe native rights and intereststo which they give rise. However, when the tide of history has washed away any real acknowledgmentof traditionallaw and any real observanceof traditionalcustoms, the foundationof nativetitle hasdisappeared.z0 Maintaining connectionbetween present and pre-sovereigntyoccupation is also a feature of the Canadianapproach to Aboriginal title where it must be proved: (i) the land musthave been occupied prior to sovereignty,(ii) if presentoccupation is relied on as proof of occupationpre-sovereignty, there must be continuity between presentand pre-soveteigntyoccupation, and (iii) at sovereigntythat occupationmust havebeen exclusive.'' Moreover Lamer CJ in Delgamuukw adopted the Mabo requirementthat there must be 'substantial maintenanceof the connectionbetween the peopleand land', and although he concededthat the nature of the occupation may have changed,he stressedthat 'as long as a substantialconnection between the people and land is maintained' a claim could succeed.22 Both the Australianand the Canadiancourts may be criticisedfor endorsingthe 'frozen substantial maintenancetest particularly because it promotes a in time' approachto aboriginal title insofar as it does not lend itself well to accommodating changethat may have occurredwithin indigenouscommunities since the acquisitionof sovereignty.This is an especiallydifficult problem when that changehas beenwrought upon indigenouspeoples against their will as a consequenceof colonisationpractices and policies.2' On" can perhapsbe pardonedfor saying in relation to the Australian 20. Mabo 175cLR 1, 59-60. "' Delgamuukw[199'71 3 SCR 1010,1097. " Ibid 1098. t' Mor" recently this issue arosein Risk v Northern Territory of Australia [2006] FCA 404; aff d, [20071 FCAFC 46.In that caseMansfield J affirmed the High Court's decisionin Yorta Yorta. ln his summary of his reasonsfor decisionMansfield J noted (atpara [12]) some of the effectsof colonisationon the claimant group. Theseeffects led him to conclude(atpara [3]) that'the currentLarrakia society,with its laws and customs,has not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existenceand vitality since sovereignty.' Cf Lamer CJ in Delgamuukw v Queen in right of British Columbia ll991l 3 189 'washing approachthat the whole image of the tide of history away' nativetitle so that 'has it disappeared'is itself wishy washy.In any event it elidesthe historicalrealities of dispossession.Furthermore, the qualificationsometimes added (notably by Brennan 'as J in Mabo) that the connectionmust be maintained far as practicable'is potentially 'substantial contradictory: the concept of connection' seems to minimise the permissibledegree of adaptationand changeover time, while the qualification 'as far aspracticable' seeks to make allowancefor such adaptationand change.Precisely how this tensionis to be resolvedremains unresolved in both countries.But it does appear 'substantial that the courts have erred towards the test of maintenance' at the expense of making allowancesfor changesto indigenous culture over time in a way that might have been possibleon the basis of BrennanJ's qualificationin Mabo, especiallyas he clearlymade allowancefor changein the following passage: Of coursein time the laws and customsof any peoplewill changeand the rights and interestsof the membersof thepeople among themselves will change... [C]ommunal nativetitle survivesto be enjoyedby the membersaccording to the rightsand interests to whichthey are respectively entitled under the traditionallybased laws and customs, ascurrently acknowledged and observed.2a JusticesDeane and Gaudron were to similar effect in Mabo:'The traditional law or custom is not, however, frozen as at the moment of establishmentof a Colony.'2s JusticeToohey's judgment in Mabo can also be read as supportingthis view. To read that judgment (as Olney J did) as requiring substantialcontinuity of occupation,and substantialcontinuity of its dependenceon traditional laws and customs,is not to say that those laws and customs must themselvesremain unchansed.On the contrarv- 'To SCR 1010, 1103 where he comments: imposethe requirementof continuity too strictly would risk "undermining the very purposeof s 35(1) fof the ConstitutionAct 19821byperpetuating the historical injusticesuffered by aboriginalpeoples at the handsofcolonizers who failed to respect"aboriginal rights to land'. to_Mabo (1992)175 cLR 1,61. " Ibid l lo. 190 'occupancy Toohey J makes it clear that proof of by a traditional society' does not 'of include proof a particularkind of societyor way of life. ... An indigenoussociety cannot,as it were,surrender its rights by modifuing its way of life.'26 Nevertheless,in Yorta Yorta, there was an appellate consensusthat Olney J at first instance had not adopted a'frozen in time' approach,and that such an approach would have been *rong;" in Canada, the question whether Delgamuula,vimports a 'frozen in time' approach is a matter of continuing contro,r"tsy.t8 In Canada the 'in 'into purported aim of the common law is to protect the present-duy'" and the future, the special connection with land enjoyed prior to sovereignty.'3OHowever, it would seemthat protectingtraditional title is not the sameas preventingdispossession. To the extent that the substantial maintenance test has only limited capacity to accommodate change within indigenous communities since the acquisition of sovereignty,and thus has an increasedcapacity to result in their dispossession,it is arguedhere that courts which apply that test are in fact adopting a'frozen in time' approach. 'frozen There are two conceptual difficulties with the in time' approach, and equally with the more subtle inclinations towards that approachwhich continue to causeproblems in this area.The first is the emphasisplaced by such approacheson ascertainingthe natureand statusof indigenouslaws and customsand relationshipsto tu rbid tg2. 21 Members of the Yorta Yorta Aboriginal Commtmity tt Victoria (200 1) I I 0 FCR 244, 289 (Branson and Karz JJ)('Yorta Yorta'). 28 'The See Kent McNeil, Meaning of Aboriginal Title', in Michael Asch (ed), Aboriginal and Treaty Rightsin Canadø:Essays on Law, Equality, and Respect Difference(1997) 135, 151; John Borrows, 'Frozen for Rights in Canada:Constirutional Interpretation and the Trickster' (1998) 47 American Indian Law Review417. Seealso above fn 23. 2e Delgamuukwllgg'713SCR 1010, 1088. 30 'Delgamurkw MaureenTehan, v British Columbia' (1998) 22 Melbourne IJniversityLaw Review 763, 773. 191 land at the time of the acquisitionof British sovereignty.The secondis the implication 'native 'Aboriginal that the title' or title' which a claimant group seeksto establish must be shown to have existed at the time of the acquisition of British sovereignty,and indeedto have been in existenceprior to that time. Arguably the emphasison the time of acquisition as the deciding factor to determine whether traditional title survived is not sufficiently focused on what indigenous peoples are like now, but preserving an image of Aboriginality as it once was. In terms of Pearson'sanalysis the practical effect of the emphasis on the time of British sovereignty at common law may still 'real' 'fake' produce distinctions between and Aborigines where only the former deserveto have their native title rights and interestsrecognised. In this way, it shows 'limited up the nature of thesetitles for what they really aÍe: a right to land usage' anda poor reflection of the continuing unequal colonial relationship in Australia and in Canada.3l But it is equallytrue that this problemhas only beenexacerbated in Australia by 'traditional' the High Court's interpretationof the word in s 223(l)(a) in theNTA as re- 'substantial establishingthe maintenance'test that prevailedat common law. This has proven to be a problem not only in relation to native title claims, but compensation claims also.32However, if nativetitle is to be governedby the statutethe Court in Yorta Yorta couldhave qualified the commonlaw test to allow for more adaptivechanges. In fact Gaudronand Kirby JJ, in their dissentingjudgment, disagreedwith the majority's interpretationof the Act, insisting that it did not fully appreciatethe intention of '' 'Native Ian Hunter, Title: Actsof Stateand the Rule of Law' in MurrayGoot and Tim Rowse(eds), llake a BetterOffer: The Politics of Mabo(1994) 91,104. " Jangov NorthernTerritory of Austalia (2006)152 FCR 150. t92 Parliamentto acknowledgea history of dispossessionand give protectionto nativetitle rights and interests: So much was impliedly recognisedin the Preambleto the Act which 'sets out considerationstaken into accountby the Parliament',including that Aboriginalpeople 'progressively andTorres Strait Islanders had been dispossessedoftheir lands'.33 According to their interpretationof the definition of native title under the Act there was 'traditional nothing to suggestthat connectionwith the land ... [be] substantially maintained'.34Echoing the approachtaken by Black CJ, dissentingin the Full Federal Court,3sGaudron and Kirby JJ opined that any differences between past and present 'should practices constitute adaptations,alterations, modifications or extensionsmade in accordancewith the shared values or customs and practices of the people who acknowledgeand observethose laws and customs'.36In their view therewas alsoscope 'disperse for changewithin the social organisationof a claimantgroup to and regroup' and upon regrouping,continue to acknowledgetraditional laws and customs.3T This analysis shows that both the common law and statutory approachesto native title, at least as they were applied in Yorta Yorta, can produce the same (detrimental)results for claimants.It is equally true to say that theré is no consistent common law approachto the issueof continuity,nor is therejust one interpretationof the statute,as it relates to this issue. If thesealternative approaches gained majority support,the Yorta Yorta claim could have beenresolved in a mannermore in keeping with the ideal of bringing the dispossessionof Aboriginal landsto an end. 33 YortaYorta (2002) 214 CLR 422,463. 34 rbid q66. 3s Yorta Yorta (2001) 110FCR 244. tu Yorto Yorta (2002) 214 CLF. 422, 464. '' 'Law, Ibid 465. See also Ben Goldman, History, Colonialism:A¡ OrientalistReading of Australian Native Title Law' (2004) 9 Deakin Law Review41, 53-55,58. 193 The ambiguity in the common law approach relating to establishing the claimants' continuedmaintenance of their laws and customsin order to prove their continuing connectionto their lands doesnot lend strong support to the proposition that the common law is better equipped to deal with this particular issue. Arguably, however, it is in relation to the identification of the content of native title, and the implications for extinguishmentthat arise therefrom, that the Court has departedmost dramatically from the common law position through its interpretation of the NTA with negativeconsequences for native title claimants.This is most notably in the case of Ward where the Court applied the doctrine of partial extinguishment to the claimant area and put into question whether, under the NTA, it could make a finding that native title could amountto exclusivepossession - which underthe commonlaw would have beenpossible on the basisof occupancy.In this regardthere is more force to Pearson's general argument that the occupancy approachto native title is more in keeping with the remnantsof the promisesmade in Mabo: to addressand overcomethe outstanding issuesof discriminationand dispossessionin the nativetitle context. In Ward the High Court majority found that certain provisions of the NTA 'mandate entire and partial extinguishment'.38On the basisof this finding they opined 'a that it was not appropriateto view native title rights and interestsas single set of 'assumes, rights relating to land that is analogousto fee simple'. To do so rather than demonstrates,the natureof the rights and intereststhat are possessedunder traditional law and custom'.3eFurthermore the majority's constructionin Ward of the connection 'country' which indigenouspeoples have with the land - - as essentiallyspiritual led " NTAss 23C, 23G;Ward(2002)213 CLF*t,63. 3ellard (2002)213 CLF. l,92. 194 them to question whether native title could ever amount to the same entitlements as underthe commonlaw. The majority acceptedthat: The diffrculty of expressinga relationshipbetween a community or group of Aboriginal peopleand the land in termsof rights and interestsis evident.Yet this is what is requiredby the NTA. The spiritualor religiousis translatedinto the legal.This requiresthe fragmentationof an integratedview of the orderingof affairs and rights andinterests which areconsidered apart from the dutiesand obligations which go with them.The difficultiesare not reducedby the inevitabletendency to think of rights and in relationto the landonly in termsfamiliar to the corrìmonlawver.ao ll :t"Ut It is wrong to seeAboriginal connectionwith land as reflectedonly in conceptsof controlof accessto it. To speakof Aboriginalconnection with'country' in only those termsis to reducea very complexrelationship to a singledimension. It is to impose cofilmonlaw conceptsof propertyon peoplesand systemswhich sawthe relationship betweenthe communityand the landvery differentlyto the cofitmonlawyer.ar But their reasoning is not without difficulty. On the one hand they have presumedthat what constitutesproperty in law is self-evident - where it is not. On the other hand, while the Court has demonstratedreluctance to use common law concepts at all in order to understandand protect indigenousconceptions of land ownership,it has enforced a conception that is arguably even more foreign to indigenousconceptions to property. If indigenous conceptionsof property were reflected in the Court's interpretation of the NTA, the land itself would be the focal point of any enquiry into native title. This was the formulationthat had been acceptedby the minority judges in 'bundle ward,a2not the fragmented of rights' approachadopted by the High Court majority on appeal. And yet, the majority claimedto know the relationshipthat indigenouspeoples havewith the land, evenbetter than the indigenouspeoples themselves! Their Honours 'right acknowledgedthe spiritual importance of the to speak' for country but held that oo Ibid 65. o' Ibid 93. a2 [4/esternAustralia v Ilard (2000) 99 FCR 316, 515 (North I) ('Ilørd'). 195 'the right to speakfor and to be askedfor permissionto accesscountry ... is a core conceptin traditionallaw and custom... it is not an exhaustivedescription of the rights and interestsin relationto land that existunder that law and custom'.43 Moreover, the Court was reluctant to expressnative title rights and interests as necessarilyamounting to exclusive possession.ooWhen no such right of exclusive 'it possessionexists as native title will be preferableto expressthe rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters'.45 'bundle Their approachmirrored the of rights' approachthat had been taken by the majority of the Full Federal Court below. In the Full Court the majority had acknowledged the potential for partial extinguishment of native title if some of the 'bundle rights it conferredhave been extinguished,thereby reducing the of rights' that makeup nativetitle: In our opinion the rights and interestsof indigenouspeople which togethermake up nativetitle areaptly describedas a'bundle of rights'.It is possiblefor someonly of those rights to be extinguishedby the creationof inconsistentrights by laws or executiveacts. Where this happens'partial extinguishment'occurs. In a particularcase a bundleof rightsthat wasso extensiveas to be in the natureof a proprietyinterest, by partialextinguishment may be so reducedthat the rightswhich remainno longerhave that character.Further, it is possiblethat a successionof different grantsmay have a cumulativeeffect, such that nativetitle rightsand interests that survivedone grantthat broughtabout parlial extinguishment,may laterbe extinguishedby anothergrant.a6 Adopting this approachin the High Court, the majority confined its enquiry into the rights and interestsof the claimantgroup with respectto the claimedarea. In this regard the Court, agreeingwith the Full Court majority, rejectedthe proposition that control of 'recognition' traditional cultural knowledge was a native title right: the of this right a3 Ward (2002) 213 CLR 1, 93. oo But seeNeowarra v W'esternAustralia [2004] FCA 1092 and,Sampi v ll'estern Australia QtfoI Q0O5) 224 1J-P.358. as Ward (2002) 213 CLR 1, 83. o6 W'ard(2000) 99 FCR 316,349-350(Beaumont and von DoussaJJ). r96 would extend beyond denial or control of accessto land held under native title.47It would, so it appears, involve, for example, the restraint of visual or auditory reproductionsof what was to be found there or took place there. Furthermore,the right to use the resourceson the land was limited to a right to usethe traditionalresources of the land. Thus the High Court majority not only agreedwith the Federal Court majority that existing mining legislation had extinguishedany native title rights in minerals, but 'no added that in any event, there was evidenceof any traditional Aboriginal law, custom or use relating to' petroleum or minerals. On this basis it was held that no nativetitle right or interestin mineralswas established.as 'bundle The of rights' approachhas been the subjectof much criticism, not least 'substantial becauseit meansthat the maintenance'test and the problemsthat testposes for native title claimants as were identified abovebecomes applicable to each and every right and interest claimed. Lisa Strelein has identified additionalproblems with this approach: The characterisation... of native title as merely a collectionof personalrights, changes the nature ofthe inquiry on native title. It requires that each right or activity sought to be exercised is established through proof of continuity. This raises a number of concerns.First, it assumesThaT at the time a determination is made all rights are likely to be assertedor activitiescarried out are able to be identified. Secondit suggeststhat native title is a collection of rights without any underlying or unifying factor that connectsthose rights and those peopleto land. Finally, it invites a pre-conceivedidea of the bundle of rights that make up native title. 'a The languageof bundle of rights' ... narrows the extent to which the content of native title can differ from one assertionof native title to the next. The result ... is that 'the if an assertionof native title does not fit the mould of bundle of rishts we now know asnative title', then thereis no native title at all.ae a7 Ward(2002) 213 CLR 1, 84. ottbid t8s-t86. oo 'Conceptualising LisaStrelein, NativeTitle' (2001)23 SydneyLaw Review 95, 103-104. r97 Arguably, if the occupation approachhad been acceptedas informing the definition of native title, someof theseconcerns may have beenovercome, particularly as the occupation approachdoes not depend on the identification of all the rights and interestsof a claimant group. As was statedin Delgamuuh,u: Aboriginal title is a right to land and, as such,is more than the right to engagein specificactivities which may be themselvesaboriginal rights. Rather,it confersthe right to use land for a variety of activities,not all of which needto be aspectsof practices,customs and traditions which are integral to the distinctive cultures of aboriginalsocieties. Those activities do not constitutethe right per se;rather, they are parasiticon theunderlying title.sO Justice Lee who was the first instancejudge in Ward,st and North J who agreed with him in dissent in the Full Federal Court,s2adopted the reasoning in Delgamuulo,v.In their respectiveopinions, a finding of native title precludedany dissectionof native title rights in the way that now seemsto be requiredby the High Court's acceptanceof partial extinguishmentas envisagedby the NTA. As Lee J opined: 'right Native title at coÍrmon law is a cornmunal to land' arisingfrom the significant connectionof an indigenoussociety with land underits customsand culture. It is not a 'bundle mere of rights'. The right of occupationthat is nativetitle is an interestin land. 'partial Thereis no conceptat cornmonlaw of extinguishment'of nativetitle by the 'extinguishment' several of oneor morecomponents of a bundleof rights.It follows that therecannot be a determinationunder the Act that nativetitle existsbut that some or all 'nativetitle rights'have been 'extinguished'.53 In this regardboth Lee and North JJ followed the common law approachas it relatesto occupancyand found that native title had survived and there was no basis to limit it unlessthere was, accordingto the commonlaw formulation,a clear and plain intention 'bundle to extinguish native title. By contrastthe High Court's of rights' approach enabledit to dissectthe native title rights and interests.Most notably, the right to use and enjoy traditional resourceshas been limited to thosethat were used at the time of s_0. Delgamuukwllgg7l3 SCR 1010,1016. " lí/ard v WesternAustralia (1998) 159ALR 483('lítard'). s_lwara (2000)99 FCR 316. " ll'ard (1998)159 ALR 483, 508. 198 the acquisitionof sovereignty.This reasoningenabled the Court in Ward to limit this right to the use of ochre and exclude the use of other mineral resources such as petroleum.Such limitation may not havebeen possible under the commonlaw - as Lee J opined there was no such common law doctrine as partial extinguishment.In terms of the Canadian position it has been establishedthat once occupation or title is established,the rights that go with it are not limited to those deriving from custom and includerights to minerals.sa It is true that at common law the High Court had never referred to a doctrine of partial extinguishment. However, Brennan J in Mabo did refer to the possibility of 'to extinguishment of native title the extent' of any inconsistency with later dealings with the land.ss This could be construed as implying the possibility of partial extinguishment based on inconsistency.But it is very doubtful that Brennan J would have implied a constructionof the incidentsof native title in such a way as to limit its survival to the specific form it took at the time of sovereignty.Arguably BrennanJ's acceptanceof changeto traditional laws and customsextending to inclusion of those 'currently that are acknowledgedand observed'may have covereda broaderrange of resourcesused by the claimant groupsand of reasonsfor their use which appearsto be the position in Canadaas well. At least as far as the approachestaken in Ward are concemedthe common law approachdoes emerge as a betteroption than the High Court's approachworking solely to D"lgo*uukwl1997l3 SCR 1010,1084. InCanadatheresolutionof this,issuehasnotbeenentirely 'aboriginal satisfactory.On the one hand (at 1089), title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place'. On the other 'the hand (at 1091),any limitations to traditionaltitle is not to restrict use of the land to thoseactivities that have traditionally been carried out on it' (Lamer CJ). " Mabo (1992)175 CLR 1, 69. r99 from the statute. In this regard Pearson is right to be critical of the Court's interpretation of the NTA in that case as it has curtailed the occupancy approach otherwise available at common law. Native title claimantsin Australia are now left with the added burden of not only having to establish that they have substantially maintained the laws and customsof their ancestorsin order to establishtheir claims to their traditional lands, but are required to do so for each and every native title right and interest they claim. At least the latter complication could have been avoided if the occupancyapproach had been adoptedby the Court. However, too much focus on any benefits that could be derived from the common law may be at the expenseof identifying its shortcomings. Significantly in Yorta Yorta Gaudron and Kirby JJ may have rejected a common law approachto native title, but they were able to interpret the statutory definition of native title in a way that was in keepingto the spirit of theNTA.In that respectthey were able to recogniseand protect native title and avoided altogether the drawing of distinctions between indigenouspeoples based on how well they have maintainedtheir traditionallaws and 'substantial customswhich may be the inevitableby-product of the maintenance'test. Thus, rather than maintaining a common law approach as if this could somehow automaticallyensure an unfolding of justice, a focus on achievinga just resolution to the injustices of dispossessionshould be the focal point of any appraisal of the judgmentsin the area of native title law . It is finding a just resolutionof native title issuesthat shouldbe paramount. It is obvious that Australian law has not been able to deal adequatelywith the conceptof native title in a way that is mindful of past dispossessionand attemptsto avoid further dispossession.Reversion to the common law, while it could solve some 200 of theseproblems, would not eliminate all of them. The lack of clarity in someof the common law conceptsrelating to native title (such as the requirementfor proof of maintenanceof traditional laws and customsas proof of continuing connection to land) may compound, and even form part of the problem for native title claimants. Statutory amendmentscould help to send a strongermessage to judges to protect and recognise native title, but there is no guaranteethat such amendmentswould succeedto achieve this. Cognisant of the shortcomingsof the present legal system to addressthese problems,other alternativesavailable to indigenouspeoples should be explored.The most obvious would be to recognise the survival of Aboriginal sovereignties.In the absenceof such recognition the current systemhas made the time of the acquisition of British sovereigntyparamount, only to elide indigenouspeoples' histories (the effect of the substantialmaintenance test) and entitlementsto land (the effect of the bundle of rights approach) even further. Direct moves towards recognition of Aboriginal sovereignty, however, are not immediately forthcoming. A step in that direction and alternativecourse to direct engagementwith the legal systemwould be for indigenous groups and other stake holders to engagein agreement-making.In the next section the Land Acquisition Fund and agreement-makingmore generally will be explored as possiblealternate avenues to addresssome of the outstandingissues in this areaof law. B The Land Acquisition f,'und and Negotiated Agreements I TheLand AcquisitionFund Land acquisitionprograms whereby land is purchasedby the Commonwealth (and in some states)for the benefit of indigenouspeoples have been in existencein Australia in one form or anothersince 1968 when the first program of its type was introducedunder former Prime Minister John Gorton. In 1990 the Australian Torres 201 Strait Islander Commission ('ATSIC') assumedmost of the land acquisition and managementfunctions of the former programs. These were subsequentlytransferred to the IndigenousLand Corporation('ILC') in 1997. The ILC came into existencein 1995 under the Aboriginal and Torres Strait Islqnder CommissìonAct 1989(Cth) (now the Aboríginal and Torres Strait Islander Act 2005 (Cth) through which the Land Acquisition Fund ('LAF') would be administered.The ILC is managedby a board of directors,the majority being peoples of indigenousdescent. The establishmentof the ILC was a direct result of the Mabo decision. In particular its establishmentwas an acknowledgementof the fact that not all indigenous peoplesin Australia would benefit from the decision or from the provisions of the NTA, either because their native title had been previously extinguished or because,as a result of colonisationand dispossession,they could no longerdemonstrate continuous attachmentto their lands. In fact it had been predicted that only 5o/oof the indigenouspopulation would benefit from Mabo.s6 The establishmentof the ILC would fill in gaps left by Mabo by providing 'dispossessed' indigenouspeoples, namely, peoples,the opportunityto gain assistance through the LAF either for the acquisition of property and/or the management of indigenousowned property. The focus would be on land-basedbusinesses located in rural as well as urban areas.57Importantly, however, only indigenouscorporations are 'o Aboriginal and Torres StraitIslander Commission, First Report 1993 (1993) 16. "Indigenous Land Corporation, Draft Submission of the Indigenous Land Corporation to the ATSIC Review (2003) ,1 202 eligible to apply to the LAF, presumably to reflect the underlying group-basednature of Indigenousland ownershipsystems.ss Of all the programs like it, in quantitative terms the ILC has had the greatest successin the acquisitionof propertiesfor indigenouspeoples.te Other positive features of the ILC and which differ from previous land acquisition programsinclude: a) the provision of post-purchase support through its land managementfunction; b) the ability to acquireland in urban areas' c) the emphasiswithin the ATSIC Act on pturrrringprocess to guide ILC acquisitionsand management; d) having commercialpowers to createsubsidiaries; and, e) the ability to pursue long-term planning strategies due to the guaranteedi,lcome stream(ie not tied to the FederalBudget after June2004).60 However, by 2002 it had become apparentthat many of the recent purchasesby the ILC were not succeeding.Reforms such as the Property by Property Remediation Program were introduced in 2003 to ensure that capacity would be developed on eligible land holdings and that delivery of benefits to recipientsof previous ILC land acquisitions would be also supported.6'Any support, however, would depend on landholders agreeing to commit to a range of capacity developmentand property managementplanning activities.62This is keeping with the Howard Government's " JC Alt-u.t and MC Dillon, A Profit-RetateclInvestment Scheme for the Indigenous Estate, Discussion Paper No 21012004(2004) 4 203 'shared overall approachto indigenouspolicy based on responsibility' and 'mutual obligation'.63 In order to improve the accountability of the ILC the National Indigenous Land Strategy('NILS') was also revised.The land acquisitionand managementprograms now require applicantsto define a specific purposeand to set themselvesachievable milestones and outcomes. The ILC will not support any application that is not sustainableand viable in the long term, or is inconsistentwith the ILC's published Program Guidelines. The ILC may also monitor active projects to ensurethat they are sustainableand that real benefits are achieved.If not then the option is open to sell the properties. In addition to the land acquisition and land managementprograms the ILC may also make strategic investments which focus on emplolrnent, training and the delivery of social and cultural benefits. It may also consider joint arrangements involving outsideorganisations. By sharingthe responsibilitywith thesebodies it can also sharethe cost of such projects.Arguably, more responsibilityhas been given to indigenousclaimants at eachstage of the project to produceprojects that will be viable and sustainablein the long term and an application may fail on its merits. Someof the reforms are quite radical.The applicationprocess is now basedon four program streamsso that property may be purchasedto directly provide cultural, social,environmental and economicbenefits. Furthermore it movesthe ILC away from achievingsolely cultural benefitsand also away from the notion that land is only to be vestedin traditional owners.6aThe legal title to any land successfullyacquired under any of the programs is vested in the ILC. The applicant is given up to three years to " Ibid. un IndigenorrsLand Corporatton,Draft Submission,above n 57, 3. 204 managethe property and if this is performedsuccessfully then the ILC will grant the propertyto it. The passageof the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994 (Cth) establishing the LAF, however, was not without controversy.The Coalition Oppositionwas at first opposedto establishingsuch a fund for the purpose of purchasingland. This opposition was to some extent reflected in voter opinion on the subject.6'Th" Greenswere opposedto the Bill on the groundsthat it was paternalistic and needed a larger budget.66Indigenous representatives were divided in their support for the LAF especiallyin relation to the allocation of funds among indigenous communities. The inability to reach agreement almost led to a double dissolution of Parliament.6TThis prospectwas avertedwhen the Opposition 'backflipped' on the issue and decided to support the legislation that had been presentedby the then Labor government. However, there are still problems with the LAF particularly as it is generally acknowledgedthat its resourcescannot addressthe land needs of all 'dispossessed' peoples.6sThe ILC was much criticised at the time it was conceivedover this issue.6e However, it is to be rememberedthat the LAF is not the only avenuethrough which the issueof indigenousdispossession may be addressed.For one thing the ILC, cognisant of its own limitations due to its finite budget,does not seeitself as solely responsibleto addressthis issue,but seesits role as part of a broaderscheme involving the financial u' 'Mabo Si*ott" C Muller and Gary D Meyers, - through the eyes of the media (Par-tII): The land fund legislation'(1995) 2 DeakinLaw Review99, 103,105, 106. 66Ibid loz. ot Ibid I ro-115. 68 IndigenousLand Corporation,National IndigenousLancl Strategy, above n 61,9. o' 'Aborigines John Nebauer, condem¡ Land Acquisition Fund', Green Left Weekly (1994) 205 support of other organisations.However, the ILC's finite resourceswould make the application process very competitive and could mean that some applications are overlooked. In this regard the purpose for which the LAF was originally established- to addressthe issueof dispossession- may be jeopardised. However, if the purpose of the LAF is to addresspast dispossessionof 'degrees' indigenous lands, then the question arises whether of dispossession experiencedby an applicantshould become a considerationin the applicationprocess - to ensure that indigenous groups in more populated areas would receive a higher proportion of funding than those in more remote areas,and thereby to overcome the shortcomings of statutory land rights and native title that have tended to favour the latter and not the former.7OThis was one of the amendmentssought but rejected at the time the Bill establishingthe ILC was debated.There is still a case for such an argument, especially after cases such as Yorta Yortø which highlight the difÍiculties faced by indigenous peoples in areas with denser non-indigenous populations. Moreover, on a quantitativebasis indigenouspeoples in remote areas(in particularin the Northern Territory where over 42o/oof the land is owned by indigenouspeoples) appear to have benefited more fíom land rights legislation and native title than indigenouspeoples in more denselypopulated areas. But the argumentraises difficult ethical issues.How could dispossessionbe measuredby degrees?Dispossession in terms of loss of land could be addressedby returning the lost land (or equivalentparcels of lands in caseswhere the lapseof time has made it impractical to return the sameparcels of lands that were originally lost). to JC Altmatt, Native Titte Act 1993;Implementation Issues for ResourceDevelopers, Discussion Paper No 88/1995(1995). 206 l, l Such an approach would address disparity in the amount of real property that indigenouspeoples own acrossthe continent.But loss of land is only one aspectof the dispossessionand its consequencessuffered by indigenouspeoples. Moreover, while it is importantnot to forget that indigenouspeoples in remoteareas have accessto more land than their urban counterparts,it is well-documentedthat land ownership has not been able to overcomethe abysmalsocio-economic position of indigenouspeoples in remote areasthat still reflect the effectsof colonisationon thesecommunities.Tl In the broader context of colonisation it would not seem fair to disadvantageindigenous peoples in remote areas who could benefit from the ILC's programs to improve the managementand viability of indigenous owned land. But whether the budget available to the ILC can make a difference in rural areasremains to be seen. Yet, that should not mean that communities in remote areas should be given priority over communities in urban areas either. This was a problem that became immediately apparentonce the LAF commencedoperating. In 1995 ATSIC was still administeringthe LAF. Of the A$24m availablefor the purchaseof property, ATSIC voted to spendA$10m in the next two fiscal yearson the purchaseof property in the Northern Territory much to the dismay and anger to indigenousgroups outside the Northem Territory such as the New South Wales Land Council. ATSIC's decision subsequentlywas overturnedby the Federal Court.]2The entire episodeillustrates the " Joh¡ Reeves,Building on Land Rightsfor the Next Generation.Report of the Revier of the Aboriginat 'The Land RightsAct Q'IT)1976 (1998) 36-8 ; But seeJohn Taylor, Social,Cultural and EconomicCosts and Benefits of Land Rights: An Assessmentof the Reeves Analysis' in JC Altman, F Morphy and T Rowse (eds),Land Rightsat Risk?Evaluations of the ReevesReport (1999) 99,103-4. Amendmentsto the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('ALRA') in 2006 reflecr rhe recommendationsmade in the Reeves Report, but there is skepticism among indigenous commentators 'An as to whether these reforms will overcome these problems. See Patrick Dodson, entire culture is at stake',The Age (Melbourne),14 July 2007,9. '' See New South Iüales Aboriginal Land Council v Aboriginal Torues Strait Islønder Commission, (1995)131 ALR 559 (Hill J). Seealso Muller andMeyers, above n 65, t17. 207 deep divisions that exist among indigenous communities in Australia. But these divisions have to be understoodin the broadercontext of colonisation.If the resources were available to indigenous communities to pursue an adequatenumber of land acquisitionsacross the whole of Australia then the problem may never have arisen. ATSIC's position could be construed as nepotism. However, that fails to fully appreciateits motivation which in this instancewas to give indigenouspeoples in the Northern Territory maximum opporfunity to acquire land and convert it into inalienable freehold title under the ALRA before the sunsetclause preventing new claims under the ALRA cameinto effect in 1997. It would seemthat the most recentchanges to the ILC's programsreflect its role not merely as a funding body through which property may be transferredto indigenous peoples,but as a serviceprovider which, in conjunctionwith other organisations,can facilitate the managementof viable and sustainableproperties. This approachappears to reflect the understandingthat land acquisition is not enoughto addressthe problems experiencedby indigenouspeoples, and that if their position is to improve they may require assistancewhich is availablefrom the ILC at the very outsetof the application process.This approach appearsto accord with the promotion of indigenous self- determinationespecially as the programsare aimed at assistingindigenous groups to realisetheir aspirations(whether cultural, social, environmentalor economic)through tangiblemeans. However, it is just as easy to view the whole application process, and in particularthe more recentconditions that have beenplaced on gaining approvalfor the acquisitionand managementof land, as tinged by paternalism.This seemsespecially true when one considersthat the acquisitionof propertyby non-indigenouspeoples is 208 not met with the same(or any!) intrusion and surveillanceas acquisitionof land under the LAF. Thus, while the application processcan be viewed as trying to promote indigenouseconomic self-sufficiency,it may also be seen as allaying concernsthat 'something indigenous peoples are getting for nothing', and that they must prove that they are worthy of the benefits that are made available to them. Arguably, the fact that the conditionsfor the approval of an acquisitionare based on the policy of mutual obligation which has as its core the understandingthat government assistancedepends on the complianceof recipients further highlights this as a problem. Other aspects of the programs also appear tinged by paternalism: only indigenous corporations (and not individuals) can apply to the LAF and once the property is granted these corporationsare not permitted to sell, mortgage or disposeof their newly acquiredland. At the time the Bill establishingthe ILC was debatedit was suggestedthat individuals should be permitted to apply to the LAF and that once grantedproperty they shouldbe ableto disposeof it as they seefit.73 These suggestions were rejectedat the time. Other suggestions to overcome economic disadvantage experienced by indigenous communities include attracting private capital with the assistanceof govemments(and where possible investmentfrom indigenouscommunities such as drawing on ILC's funds).74However, whether the economic self-sufficiency of indigenouscommunities can be achievedby attractingmore private and government investmentremains to be seen.If thereis to be more investmentin indigenousland the focus must still be on addressingpast dispossessionand the consequencesof colonial '' HeatherMcRae et al,IndigenousLegal Issues(2003) 190. 7o Altman and Dillon, aboven 58, 2. 209 practiceson indigenouscommunities. Care must also be taken to promote sustainable communities.Moreover, care must be taken to ensurethat any economicinvestment is aimed at empowering these communities so that they are not left perpetually subordinateto meeting standardsand criteria imposed upon them in their quest for self- sufficiency and protection of their lands. There is a real dangerthat current government policy in this area,and in relation to indigenous land rights more generally, may hinder rather than enhancethis procesr.ts 2 Negotiatedagreements in the conturt of natìvetitle It was in responseto the decisions in tI/ilson v AndersonT6and Ward that the President of the Native Title Tribunal, Graeme Neate, came to the conclusion that 'negotiation and agreement-makingis clearly the way forward ...'71 rn supportof this approachhe referred generally to the various mechanismsin place in the Tribunal to assistin negotiatingagreements between claimant and non-claimantgoups. The types of agreementsexpressly provided by the NTA include o The resolution of native title determinationapplications (or claimant applications)and compensationapplications; o I range of mattersin relation to native title applicationproceedings in the FederalCourt which may involve mattersother than native title; 'Whether, o and on what terms and conditions, certain future acts (such as the grant of mining leases)can occur; o I range of matters which might be coveredby IndigenousLand Use Agreements('ILUA's) negotiatedand registeredunder the Act; r Access rights of members of native title claim groups over non- exclusiveagricultural leases for traditionalactivities ; " Seegenerally JC Altman et al, Land Rightsand DevelopmentReform in RemoteAustralia,Discussion PaperNo 26712005(2005) 210 o In appropriatecases, agreements about the surrenderof native title to the Crown (in right of the Commonwealth,a Stateor a Territory).78 Of all the types of agreementsthat are available under the NTA regime, ILUAs are proving to be the most popular. The increasein the popularity of agreement-making more generally is evidencedby the increasein the number of agreementsthat focus on comprehensiveor regional issues and anangementsmade both within and outside the NTA.1eAs Marcia Langton and Lisa Palmer have noted such arrangementsestablish frameworks for agreement-makingand tend toward promoting: the systematicinvolvement of Indigenouspeople in land and resourcemanagement and planning; and to develop greater lndigenous control over economic and social matters, including servicedelivery.so And, it would seem that agreement-makingwill continue to be the preferred option available to resolve native title disputes at least as far as the current government is concerned.8l However, moves away from litigation towards agreement-making- from the adversarialsystem to negotiation through mediation - do not necessarilyremove agreement-making(in the context of native title at least) entirely away from the influenceof developmentsin nativetitle litigation. For one thing it is to be remembered that these agreementmechanisms are enshrined in the NTA and, as is the case with ILUAs, may form part of the packageof documentsthat formalise the resolution of nativetitle determinationapplications and may be influencedby any court proceedings 78 'Modern Marcia Langton and Lisa Palmer, Agreement-makingand IndigenousPeople in Australia: Issuesand Trends' (2003) 8(1) Australian IndigenousLaw Reporter 1, 13, quoting Graeme Neate, 'Agreement-making 'W'estern after Australia v llard and I4/ilsonv Anderson where to from here' (Paper presentedat the Native Title Conference,Geraldton, 4 September2002). 'n rbid t4. 80 lbid quoting M Edmunds (ed), Regional Agreements;Key Issuesin Australia, Vohtme I, Summaries (1ee8)7. 8r 'A-G Arurouncesreforms to Native Title System', Native Title Newsletter (Canbena), Vol 4, August 2005,2. 2ll that have alreadytaken place in the caseat hand.Moreover, while it is true that ILUAs 'stand may be alone' agreementswhich deal with native title issuesindependently of the native title determinationp.o""ss,8' that still does not mean that the negotiation process, especially the leverage that the individual parties may exert during that process,is entirely independentof what has takenplace in the courtsin other cases.In these circumstancesit may be more appropriate to view the negotiations as being conductedin the shadow of the law rather than as independentof the law, as the final outcomesin the Ward and Yorta Yortalitieation reveal. The litigation in both caseswas followed by negotiatedagreements. In the case of the Yorta Yorta peoples a Co-operative Management Agreement ('Yorta Yorta Agreement') was made in June 2004 between the Yorta Yorta Nation Aboriginal Corporation('YYNAC') and the Stateof Victoria. In October2005 the Ord River SchemeNative Title Agreement('Ord River SchemeAgreement') was signed between the government of Western Australia, Miriuwung Gajerrong traditional owners and various private sector developers.The Agreementhas since been registeredwith the National Native Title Tribunal and is now called the Ord Final Agreement IndigenousLand Use Agreement (16 August 2006) ('Ord Final Agreement'). The Yorta Yorta Agreement is a great symbolic victory for the Yorta Yorta peoplesespecially considering the history of the Yorta Yorta native title claim in the courts. Significantly in this respect the Preamble to the Yorta Yorta Agreement '[t]he acknowledgesthat Statefof Victoria] recognisesthat the Yorta Yorta Peoplesare the traditionalowners of and have a unique relationshipwith and responsibilityto their 82 Langtonand Palmer, above n 78,14. 212 'flt]he country83and that Stateof Victoria acknowledgesthe cultural connectionof the Yorta Yorta Peopleto the DesignatedAreas,'84 a recognitionthat no Australian court was preparedto make. The agreementestablishes a sustainablepartnership between the 'recognition, Yorta Yorta peoples and Victoria based on mutual respect and agreed goals'.8sThe effect of the agreementis to createa forum for the Yorta Yorta peoples 'Designated and Victoria to co-manageparts of Yorta Yorta country (the Areas'¡.8óThe Yorta Yorta Agreementalso provides funding of approximatelyA$1.4m for training and employmentprograms for Yorta Yorta peoples. The Yorta Yorta Agteement is focused on promoting co-managementof the Designated Areas. To this end representativesof the Yorta Yorta peoples and other interestedparties, may influence decisionsmade in relation to the DesignatedAreas. Ultimately, however, all final decision-makingresides in the Minister. In this respect, as in many other aspectsof the agreement,the Yorta Yorta peoplesstill do not have the samelevel of legal recognition,nor the sameprotection of their lands, as would have come from a positive determinationof their native title rights. As Peter Seidel and Julian Hetyey havenoted: co-management [in the context of the Yorta Yorta Agreement] constitutes the application of Victorian Government Indigenous policy to the Yorta Yorta peoples in part of their country in Victoria. As laudableas that policy is, it cannotguarantee long term land justice for the Yorta Yorta in a way tha| a native title determination or legislation specifically dealing with the Agreement would so protect the inherent rights of the Yorta Yorta peoples.8T 83 'Summary Quoted in Peter Seidel and Julian Hetyey, of the Yorta Yorta Nation Aboriginal Corporation/Stateof Victoria C-operativeManagement Agreemenr.' (2004) 6(4) Indigenous Law Bulletin 15.15. 8o Ibid 16. st Ibid r5. tu Ibid 15, 16. The DesignatedAreas includeKow Swamp,Barmah StatePark, Barmah StateForest and other areasof public lands and waters located along the Murray and Goulburn Rivers in Victoria. st Ibid lz. 213 Moreover, while the prospect of more agreements with the Victorian governmentis promisirg,*t New South Wales has failed to engageat all with the process. Undoubtedly, despite the pressurethat was exerted upon the Victorian and New South Wales goveÍrments to enter into agreementswith the Yorta Yorta peoples, the final result in Yorta Yorta has given both Statesgreater leverage in any negotiations pertaining to agreement-making.A similar argument could be made in relation to the Ward litigation. The Ord River SchemeAgreement was signed after the conclusion of the native title claim tn Ward. The Agreement extinguishesnative title over 65,000 hectaresof land in the far north of Western Australia to make way for Australia's largest irrigation scheme.The Agreement also provides compensationto the traditional owners for the devastationand dispossessionthat followed the creationof the first Ord River Scheme in the 1960s that flooded parts of the Argyle pastoral station. The compensation packagewill also provide for the compulsoryacquisition of the land parcel necessary for the secondstage ofthe project. Like the Yorta Yorta Agreement,underlying the Ord River SchemeAgreement is an emphasison co-management:it is envisagedthat the Miriuwung Gajerrongpeople 'will have the opportunity to fully participatein the future developmentof the East Kimberley'.8eThis includes establishinga committee of representativesfrom the Western Australian Department for the Environment and the Miriuwung Gajerrong 88 In 2004 negotiations commenced in relation to the Aspirations Document for funding to improve the Yorta Yorta assetssuch as the Dharnya Tourist Centre, the Yenbena Education Centre and Yeilema 'Yorta Farm. See Henry Atkinson, Yorta Co-operative Land Management Agreement: Impact on the Yorta Yorta Nation' (2004) 6(5) IndigenousLaw Bulletin 23,24. 8o 'Historic Eric Ripper, Deputy Premier, Government of Western Australia, Native Title Agreement Paves way for Economic Development' (Press Release, 6 october 2005) I 2t4 people to jointly manage the 136,000hareserve. The aim of co-managementis to develop a managementplan to achieve sustainable environmental outcomes and to maintain and enhancethe traditional culture of the Miriuwung Gajerrong people on the reserve. The overall community benefits that will flow from the Ord River Scheme Agreement include the creation of job opporfunities in the agricultural, industrial and residential developmentindustries; A$24m over ten years to establish and operatethe new Miriuwung GajerrongCorporation; A$1lm for the Ord EnhancementScheme to address the recommendations of the Aboriginal Social and Economic Impact Assessment of Ord Stage One through improvement to Government services to Aboriginal people; and, A$6m to the Department of conservation and Land Management to fund joint managementaffangements with Miriuwung Gajerrong for new andpreviously unmanaged conservation a."us.nO However, it is important to note that in this case the Westem Australian goverrlmentheld off engagingin negotiationswith the Miriuwung Gajerrong traditional ownersuntil after the High Court's decisionon appeal.elIn light of the final decisionin that case this proved to be an effective strategy, since the govemment's leverage increasedas the claimant group's native title rights and interestswere diminished.On the other hand, it is important to acknowledgethe Ord Final Agreementwill deliver economic benefits to the Miriuwung Gajerrong traditional owners that were not immediatelyforthcoming from the actualdecision in Ward. e0 'Ord lbid. See also ATNS, Final Agreement IndigenousLand Use Agreement (16 August 2006)' 215 What can been seenfrom both outcomesin Yorta Yorta and Ward. however. is that they are still not as benefìcialto the claimantsas they would have been if their native title claims had been determinedsolely in their favour, and it is contendedhere that the decisions in both caseshave influenced the agreement-makingprocesses in each case.This contention is strengthenedwhen these agreementsare compared with 'Crescent the CrescentHead Native Title Agreement (hereafter Head Agreement') made betweenthe Dunghutti people and New South Wales in 1996. This agreement was significant for a number of reasons.Most significantly the agreementreflects an understanding of the Mabo decision and of the NTA that was favourable to the claimants The Crescent Head Agreement was the first recognition of native title on the Australian mainland. This was significant particularly as the claim related to land in well settled areas of New South Wales. Secondlv. the nature of the native title recognised in the Agreement amounted to being equivalent to full ownership of the land. According to Simon Blackshield this was a clear acknowledgementthat the definition of native title in the NTA did not incorporatethe 'bundle of rights' approach, and for that matter neither did the reasoning in Brennan J's judgment reflect that approacheither.e2 Thirdly, the Agreementas understoodby Blackshield'recognises the conceptof a fulI native title being impaired by competinginterests, as opposedto a bundle of rights being gradually whittled away by inconsistentinterests.'e3 Lastly, compensationfor the extinguishment/acquisitionof native title was assessedas nt 'Crescent Si..tonBlackshield, HeadNative Title Agreement'(1997) 3(88) Aboriginal Law Bulletin9, 10. n'Ibid. 216 equivalentto the value of ordinary freehold title in spite of its inalienability.e4The contrastin the way that native title was understoodat the time the CrescentHead Agreementwas madeto how it is currentlyunderstood is obvious. An interestine situation has now arisen in the context of native title. On the one hand there has been an obvious push to shift native title out of the adversarialsystem towards agreement-making.On the other hand, as Maureen Tehan points out: With the dilution of native title in its breadth of rights, its geographical spreadand application as a result of both the Native Title Amendment Act 1998 (Cth) and the recent High Court decisions,the impetus to negotiatehas been removed in some areas. Agreementsmade as risk-managementtools to take account of native title rights may not be so easily reached now that the possibility of native title existing is so ,gs ctlmlnlsned--- One might want to emphasisethat in this environment any resulting agreementswill be in the context of the law as currently understood,and not as it was presumedto be after Mabo.In this respectit is the native title claimantswho remain at a disadvantagewhen entering into agreementswith non-indigenousbodies. Ultimately, the greatest positive benefit that could come from agreement- making would be recognition of indigenousbodies as political entities.Arguably the incorporation of such recognition may provide the impetus for even broader recognition of indigenous aspirationson a national scale, which could amount to national recognition of Aboriginal sovereignty, the signing of a treaty and constitutionalreforms which amongother things would give recognitionto indigenous peoplesas the prior owners and occupiersof the Australian continent.euAs a starting point, Kevin Dolman has argued that agreement-makingunder the NTA should at least oo lbid. Seealso GeitaSebea v Territor of Papua (1941)67 CLR 544, 551. e5 'A MaureenTehan, Hope Disillusioned, an OpporhrnityLost? Reflectionson Common Law Native Title and Ten Years of the Native Title Act' (2003) 27 Melbourne UniversityLaw Review 523,570. Cf 'Agreement-making Neate, more importantthan ever' abovenJJ. e6 Seebelow Part C. 217 give effect to Prime Minister Paul Keating's'twin goals ... to do justice to the Mabo decisionin protectingnative title and to ensureworkable, certain, land management.'e7 'a But more than that, agreement-makingshould give native title holders say over what happens on their traditional country ... [and] over the indushial development that happenson their traditional country. Further ... it may also mean that native title holders have an effective say over the cultural, social, economic and political developmenton their traditionalcountry.'e8 However, thus far no agreementsbetween any indigenous and non-indigenous groups have gone as far as to recognisethe indigenous party as a political entity. And the fact that Australia lacks a history of accommodating different peoples through agreementmechanisms such as a national treaty could be precisely what impedes the recognition of indigenouspeoples as the prior and sovereignoccupants in Australia within these more localised or grass roots types of agreements.Addressing practicalitiesappear to dominate agreement-makingin Australia. As Stuart Bradfield hasnoted: Agreements currently ... are mostly resource agreements which have undoubted practical benefits, particularly for economic development, but recognise Indigenous peoples primarily as another stakeholder to be consulted. These agreementsprovide only implicit, or de facto recognition of lndigenous peoples' inherent right to govern themselveson their land - a right acceptedand mediatedin other settlersocieties via broad ranging agreement,settlement and treaty process.nn Similar problemshave been identified in relation to agreementsmade under the NTA. As Tehan has noted the effect of the amendmentsto the NTA in 1998 has senerallv e7 'Native Kevin Dolman, Title Mediation: Is it Fair' (1999) 4(21) IndigenousLaw Bulletin 8, 8 quoting Commonwealthof Australia, Parliamentary Debates, House of Representatives,l6 November 1993, (PaulKeating, Prime Minister). 'o?377-8 'Evaluating lbid, quoting Paul Burke, the Native Title AmendmentAct I99S' (1995) 3 Australien IndigenousLaw Reporter 333,334. on 'Agreeing Stou.t Bradfield, to Terms: What is a "Comprehensive" Agreement' (2004) 2(26) Lanct, Rights,Laws: Issuesof Native Title 1,12. 218 reduced indigenous participation in negotiations to one of process rather than substantiveagreement about accessand use of resourcer.toOOthe. commentatorshave found that the ILUA provisions in the NTA are largely oriented towards dealing with non-indigenousinterests wanting to use native title lands.lOlThis is a far cry from indigenouspeoples assertingcontrol over their lands. Rather as Tehan has found in the agreement-makingcontext there are still outstandingissues of imbalanceof power and 'fa]greements resourcesbetween the parties.to'It has been observedthat may fail to deliver promised benefits becauseof a lack of resourcesor a failure to address implementation issues,lO3or because the terms have been poorly negotiated.'lOa Instanceswhere some parties and governments remain unwilling to enter into good faith negotiations have also thwarted the agreement-making process.l0sDisparity between the standardsof organisationand cooperationwithin and between the parties, which rnay be exacerbatedby uncertaintysurrounding the contractualimplications of enteringinto agreements,has alsobeen identified as a problem.l06 Undoubtedly there has been a shift in attitudestowards indigenouspeoples representedby increaseduse of agreements.As Tehan has observedin jurisdictions such as Westem Australia there has been the greatestchange where pre-7992rigidity has melted into an embraceof agreement-making.'0tSorn" may view this changein attitude with skepticism especiallyconsidering the weakenednegotiating position of roo Tehan,above n 95,510. 'o' 'Negotiating Paoy Agius e/ a/, ComprehensiveSettlement of Native Title Issues:Building a New Scaleof Justicein SouthAustralia' (2002)2(20) Lønd, Rights, Laws.-Issues of Native Title l,12Ûn4. Seealso Dolman, above n 97.8-9. r02 Tehan.above n 95.564 fn 384. '03 Ibid 564-5fn 385. roo Ibid 565 fn 3g6. '05 Ibid 569-i o fn 421,422, 423. tOu SeegenerallyLee Goddenand ShaururaghDorsett,'The ContractualStatus of IndigenousLand Use Agreements'(2000) 2(l) Land, Rights,Laws: Issuesof Native Title 1. '"' Tehan,above n 95,564 ft 383. Seealso Dolman, above n 91,8-9 Bradfield aboven 99, 8. 219 indigenouspeoples in the broader context of native title law. However, it is also true that in jurisdictions such as the Northem Territory agreement-makinghas been a commonphenomenon since the enactmentof the ALRA.I1ï However,just as changesto the law have led to a greaterwillingness especially among non-indigenous bodies to enter into agreements,the potential for agreement- making to bring about fuither changesfor indigenouspeoples is also great. Agreements could accommodate any number of matters within them ranging from the more practical matters (such as economic and environmental protection for indigenous peoples and their traditional lands and reciprocal benefits to the non-indigenous parties), to more symbolic gestures(such as recognising indigenous parties as nations or at least as the first peoplesof a particularterritory)rOe and the practicalbenefits that may then ensue,such as giving indigenouspeoples the final say on what happensto their lands. In this way indigenous-staterelations could be transformedbeyond the 'between level of citizenship"o to a relationship peoples', with Australia a 'multi- nationstate'.lll Creatingautonomy for indigenouspeoples through such agreementscould help in their broaderclaims for political autonomyat the national level.l't Howe,rer,these developmentsare yet to come to fruition. In many ways Australia is still bound by its colonial past. This is both evident in the most recentdevelopments in native title law that has formed the background for agreement-makingin that context, and in ro8 Langton and Palmer, aboven78,2. '0e 'Aboriginal Pete, Yu, Rights and Governance:A Kimberly Perspective'(Paper presentedat the IndigenousGovernance Conference, Canberra, 3-5 April 2002) quoted in Bradfield, above n 99, I I fn 10. rr0 Patrick Dodson, Address to the ACTU Congress, Melbourne, 2l August 2003 220 agreement-makingmore broadly in Australia. The parties to the agreementcome to the negotiating table from an unequal footing: indigenous peoples from a history of colonisation and all of its attendantproblems, such as welfare dependency and community dysfunction, goveÍrments and industry from the position of minimising the risk and cost of development.ll3At this stageagreement-making has been left at the grassroots level, and while there is a greaterwillingness to negotiateagreements, this is still in an environment where indigenous peoples are still at a disadvantageand guidanceat the national level is still lacking. C SovereigntyRevisited There is still a very important outstandingproblem with all of the strategiesthat have been discussedthus far. Significantly all of the legal remedies that have been made availableto indigenouspeoples have been imposed upon them.While indigenous peopleshave had someinfluence over the legal and political processesthat affect them, this influence is a far cry from having control over the very matters that have the greatestimpact on their lives. This is a significant problem in the native title context. In the High Court no protection has been offered to indigenouspeoples as soveÍeign peoples,while the continuedinvocation of British sovereigntyhas servedto undermineany protectionthat could be affordedto native title claimants.As illustratedby the more recentnative title casesthis has resulted in the recognition of native title rights and interestsbeing confined only to those that were in existenceat the time of the British acquisition of sovereignty.This has negativelyimpacted on the successof a number of native title tt3 'Indigenous Jun Macpherson, Land Use Agreementsas a Risk ManagementTool: A View from the ResourceIndustry' in Australian Mining and Petroleum Law Association Year book (1999) 216. 221 claims and further support claims that terra nullius still pervadesAustralian law as it relatesto indigenouspeoples. Moreover,while awarenessof indigenouspeoples' interests might have led to a wider recognition of Aboriginal customary laws, the High Court has confined its protection to native title rights and interests only: it has consequently refused to recogniseAboriginal customary criminal laws in Walker v New South Wales,tlaand the right to protectcultural knowledgein Ward.In this regardthe recognitionof native title standsout as an exception, however, even in relation to native title, the passageof the NTA andthe amendmentsto it in 1998 demonstratehow indigenous property rights are still subject to discrimination. The NTA originated from compromises struck by the main players involved: but it was indigenous intereststhat have been compromisedthe most. If in more recent casesmembers of the Hish Court construenative title as fragile,ll5it is becauseit hasbeen made so. Moreover,neither the establishmentof the ILC, nor the provision of agreement- making under Ihe NTA, has adequatelyaddressed the shortcomingsof the native title regime. While there is potential in both to promote and realise indigenouspeoples' autonomyin relation to the managementand protectionof land eachstill has its own shortcomings.These developments in native title law reveal that thereis a real needto give legal recognitionto Aboriginal sovereigntyand laws in order to provide a s)rynbol of indigenousautonomy that can be worked towards.Arguably suchrecognition could counteractthe effects of the positivist conception of sovereignty that has being informing native title law thus far. However, such recognition could also have more t'o 1t994¡182 cLR 45. I ts Ward(2002) 2 I 3 CLR l, 240-l (McHughI), 395 -7 .(Callinan J). 222 'unfinished positive effectsto addressmany of the other aspectsof business'that still exists in Australia. The focus of this part will be to examine the steps that could be taken to achievethe recognitionof Aboriginal sovereignty.Particular attention will be glven to the suggestionsmade by indigenousactivists and scholarson this issue. The aspiration for autonomy in the decision-makingprocesses that most affect indigenouscommunities is one that is sharedby indigenouspeoples in Australia.This aspirationfor autonomyis most clearly expressedthrough calls for the recognitionof Aboriginal sovereignty and the implementation of policies and practices that would advanceindigenous self-determination.However, no one unified strategyhas been put forward by indigenousleaders to give substanceto such aspirations. On the one hand disillusionment with the system that continues to ignore indigenous claims to rights has led some indigenous leaders to call al ,n" establishment of a separate indigenous state as a way of realising indigenous sovereignty.However, the more moderateline, and the one that seemsto have the support of most indigenousleaders, has been to work within the pre-existingsystem, and to reform it to provide betterprotection of indigenousrights. Each strategywill be discussedin tum. First, the claims of the Aboriginal ProvisionalGovemment ('APG') advocatedby Michael Mansell for a separateindigenous state will be discussed. Second,a rights framework advocatedby Larissa Behrendtwill be discussed.Their work hasbeen selected as representativeof the two main approachesthat havebeen put forward by indigenouscommunities, but it is acknowledgedthat their work does not standalone and is part of a broaderand extensivebody of work in this ar"u."6 "6 Se" generallyLarissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia's Future (2003) 86-102.The aspirationsof indigenouspeopleshave been expressedin a number of documents 'The including The Baranga Statement (Northern and Central Land Councils), Baranga Statement' ZLJ Indigenous activist Michael Mansell of the APG has been most vocal in promoting the establishmentof a separatistindigenous state.l't Oth"t indigenous leadershave expressedtheir reservationsabout such measures,llsalthough some have rightly recognised that such claims reflect the aspiration of indigenous peoples for sovereigntyover the issuesthat affect themlle land then maybe eventhe final deathof terranullius).120 The solution proposedby Mansell may seem radical, but is understandable considering how the state, at its various levels, has contributed to indigenous disadvantage,and has shown persistentresistance to promoting indigenous autonomy - most notably by failing to give recognition to indigenous sovereigntiesor promote indigenousself-determination, and by refusalto negotiateatreaty. The statehas failed indigenouspeoples even at the most basic level by failing to provide elementaryrights protection to indigenous peoples, and often the bare necessitiesof life found in a modern state; education,housing, employnent and health services.It is therefore understandablethat indigenouspeoples who have only felt betrayed,excluded and 'Eva (1988) 29 Land Rights News 26, and the Valley Statement', Aboriginal Law Bulletin 224 impoverishedby the actionsof the statedo not have much faith in itl2l and have led some to conclude that the only way forward for them would be to break with the state (and even destroy it) in order to create a new begtnning where their hope for justice couldbe realised.l22 But is establishinga separateindigenous state realistic? It is to be remembered that indigenouspeoples only form 2o/oof the population. How could such radical changetake place and at what cost?This last questionnot only entailsthe problem of finding the resourcesto realisesuch a project,but alsothe human cost,especially in the current climate of anti-terrorism and the threat of retribution for apparentun-Australian acts. On the one hand it is arguable that the threat of retribution should not deter indigenouspeoples from pursuing their aspirationsfor an independentstate. The threat of retribution may even illuminate the dire need for more effective protection of indigenous rights; and that in turn may strengthen the argument for establishing a separatestate. On the other hand calls for a separatestate appearsomewhat counter- productive especiallyin the current climate. It might only lead to more indigenous incarcerationsin a non-indigenouscommunity ignorant as to why an indigenousstate is necessaryand indifferent to the plight of indigenouspeoples in jail. Nothing would change.In fact it could get worse. But evenif a separatestate could be formedwithout non-indigenousretribution, there are difficult theoretical and practical problems that indigenouspeoples would need to overcome. At a jurisprudential level, especially with reference to how sovereignty is understood in international law, it could be argued that only by t" rbidr22. t" 'Indigenous Irene Watson, Peoples'Law-ways: Survival against the Colonial State' (1997) 8 AustralianFeminist Law Journal 39"47-8. 22s establishinga separatestate could the sovereignty of indigenouspeoples be fully realised. On the one hand, as conservativemembers of the non-indigenouscommunity have construed the demand, it could directly challenge the sovereignty of the Australianstate: it would be the end of Australia as 'we' know it.l23On the other hand, this notion of sovereigntydepends on a very positivist expressionof sovereignty;and as Paul Pattonhas arguedit would apply to indigenouspeoples 'the sameeurocentric and monolithic conceptionof the appropriatepolitical form'l2a as indigenouspeoples have already experienceddue to their exclusion from active participation within the Australian state.Practical problems follow not only for the non-indigenouspeoples 'their' who might - in their tum - have to come to terms with losing country, but even for indigenouspeoples: for example,problems such as establishingboundaries for the new nation, and establishingthe institutional structuresand mechanismsthrough which the statewould function. Thesepractical problems could be overcomeby indigenous communities co-operating and working together to form appropriate bodies through which indigenoussociety would be managed.And non-indigenouscommunities may 'lose' 'their' not all of land. Mansell has made suggestionsin this regard such as 'whose establishinga nation land baseis at least all so-calledCrown land',I2sthough that would seemto imply a very strangepatchwork. But the Aboriginal nation in every other respect would be distinct from the Australian nation and some indigenous asoirationscould be realised: The right to control ourselves on our own land without interference from others is a basichuman right. To be and act as a nation of peopleindependent of whites ought not to be a controversialissue but an entitlement.To impose our own laws in our own '" Seeabove Chapter IV(A), l2o 'Post-structuralism Paul Patton, and the Mabo Debate:Difference, Society and Justice' in Margaret Wilson and Anna Yeatman(ed), Justice & Identity: AntipodeanPractices (1995) 153, 156. r25 Mansell,above n l1l ,17. 226 communities;to raiseour own financesfrom our own portionsof the continent;to have our own Olympicteam and our own diplomatsand passports is our right asa nationof people.Those rights are or shouldbe theaim of ourmovement.126 But indigenous communities are not homogenous.Not only is there bitter infighting within individual communities,there is also traditional animosity between communities(what Pearsonhas describedas'the realpolitikof jealouslocalism')127 and also distrust and jealousy among indigenous communities producedby the divisive processesof colonisation ('the realpolitik context of the colonial state').128These divisionsmay only be overcomeif eachcommunity was able to set up its own nation, but that really would be testingthe politics of the colonial state.Establishing separate nations may hold the promise of independence,but to achieve that may require cooperationbetween Australian and indigenous political bodies. Furthermore,the establishmentof separateindigenous states would also require their recognitionat the internationallevel, and the needto overcomeall the hurdlesassociated with that.l2eThe process could give rise to, and may not necessarilyovercome, similar problems currentlybeing experiencedby indigenousclaimants under the native title regime: the classificationof indigenouspeoples (traditional v dispossessed),to determinewhich indigenousgroups should be entitled to have their own nations. Moreover, even if Aboriginal sovereigntywas recognisedby Australian law, there is no guaranteethat it would not be treatedas subordinateto the sovereigntyof the Australiannation, as is the casein the United Statesl30and iust as native title has been treatedas an inferior form 't6 Ibid. t27 'Reconciliation Pearson, To Be OrNot To Be', aboven 118.15. '" Ibid. 'te See generally,Erica-Irene Daes,'Some Considerationson the Right of IndigenousPeoples to Self- Determination'(19930 3 TransnationalLaw and ContemporaryProblems 7. ''o S"" generally Tony Blackshield and George V/illiams (eds), Australian ConstitutionalLaw and Theory;Commentary and Materials (4threvised ed, 2006) 2lg-25. 227 of property title.l3l While recognition should ensure Aboriginal independenceof Australiancontrol, Australia's track record in maintainingcontrol over most aspectsof indigenouspeoples' lives would suggestotherwise. Calls for the establishmentof a separatestate may in the endjust fade away as no more than a utopian dream, but the aspiration for a separatestate does at least raise the profile of indigenouspeoples' aspirationsto be identified and treatedas sovereign peoples.But is this really the most productive way of achieving a better deal for indigenouspeoples? Larissa Behrendt in her book Achievíng Socíal Justice (2003) has in fact questionedto what extent indigenous peopleshave seriously consideredestablishing a separatestate, although she would agreethat such calls are consistentwith indigenous aspirationsfor sovereignty and selÊdetermination.l32Her analysis has led her to concludehowever, that sovereigntyfrom the indigenousperspective has taken on a different meaning from that which is nonnally understoodat the intemational level. 'Sovereignty', as indigenouspeoples use the term, doesnot entail the idea of a separate state of the kind that is usually recognisedat the intemationallevel. What the term connotesinstead is sovereigntyat the grassroots level: a form of sovereigntythat will provide indigenouspeoples, whether as groups or as individuals, with independence and autonomyin the decision-makingprocesses that impact on them the most. Even on 'sovereignty' this understanding, however, while may transform indigenous experiencesat the grassroots level, its transformativespirit may have to start at the top with the state. '3' Seeabove Chaoter V. 132 Behrendt,above n 116,96-106. 228 In this way sovereigntyis perceivedas the startingpoint from which indigenous self-determination and rights may be recognised and protected. Furthermore, 'sovereignty' as thus understood would help transform the relationship between indigenousand non-indigenouspeoples, and betweenindigenous peoples and the state, andmight evenunlock the grip the statehas on indigenouspeoples' lives. However, while Behrendt has envisageda transformation of Australian law and institutions, she has stopped short of claiming that recognition of indigenous sovereigntieswould in any way undermine the broader exercise of Australian sovereigntyexercised by the Australian state: The recognitionof Índigenoussovereignty is not a threatto the sovereigntyof the Australianstate but it doesquestion the legitimacyof that authority,accuses it of historicallyexcluding Indigenous people and of continuingwith that exclusiontoday. It seeksa fundamentallydifferent relationship, one that will changethrough a rangeof initiativesthat, in totality,can be characterisedas self-determination.r33 Evidently Behrendthas identified the need to rock the apple cart, but does not want to upsetit, nor evenrock it, too much. And she is not alonein aspiringto such an outcome.l3oBrt .h"ther striking such a balancein fact is possibleremains to be seen. Her analysisof the notion of sovereigntyis consistentwith her more generalapproach and her strong conviction that the necessaryreforms requiredby indigenouspeoples can be accommodatedwithin the Australian legal systemitself. It is not the purpose here to reiterate all of her suggestions.However, some of her main points will be coveredin order to give a generaloutline of her proposed(and admittedly tentative) solutions. r33Ibid 103. '3n See,eg, NAIHO Collective,'Sovereignty 229 'sovereignty' Unsurprisingly,her suggestionsbegin with a focus on notions of and 'self-determination'.These concepts may have different meanings,the realisation of which could lead to different outcomesdepending on the emphasisthat is given to each;t3sbut in one senseor anotherthey encapsulateall indigenousaspirations. Citing from various documents produced from indigenous peoples from time to time, Behrendt has distilled what these conceptsmean and how they may translate into the recognitionand protectionof indigenousrights.l36 In contrastto the current situation, control of the decision-makingprocesses would be in the handsof indigenouspeoples themselves.Moreover, it would result in increasedrecognition of indigenouspeoples' property rights and the protection of cultural practices and customary laws. And apart from thesespecific rights, equal protection of rights would also be guaranteed.t3TItt that sense indigenous aspirations for sovereignty and self-determination would be realised through a range of solutions that extend from the top (state recognition) down I38 (grassroots autonomy). The most important change (at least within the confines of this thesis) that Behrendthas proposedis in relation to law reform that would see the introduction of legal pluralism to Australian legal institutions and legal norrns.This model of legal pluralism would reflect indigenousexperiences and valuesand include the recognition of indigenoussovereignty and laws. However, there are problems that need to be addressedin making thesesuggestions. t3t 'Treaty Pearson,'Reconciliation To Be Or Not To Be', aboven 118. Cf Mansell, Proposal',above n 111. 136 Behrendt,above n I 16, ch 4. t" Ibid 109-115. '" Ibid 115-7. 230 Notably Behrendt has avoided altogether the more difficult issues of accommodatingaspects of indigenouscustomary laws that appearon their face to be incommensurate with Australian law (and international human rights standards) particularly in the areasof criminal law and marriage law,l3e and, for that matter, the dilemmasinvolved in establishingthe contentand substanceof the customarylaws that areto be accommodatedin the first place.laOln this regardshe may too readily side step some of the problems that plague indigenous communities - they too are sites of inequalityof power betweenindividuals and groups.lal Moreover, contemporary arg)ments for legal pluralism may not escape the problems associatedwith pluralism as a political movement. For example, Robert Paul Wolff has argued that in any attempt at inter-group pluralism, the establishedgroups will always be favoured over those struggling for recognition;and similarly that the more powerful groups will always be favoured over the weaker, so that legitimate interestslacking organisationalstrength will continue to be disadvantaged.la2Both points are relevant to the Australian experience and indeed to the experience of indigenouspeoples across the world who historically have not enjoyedthe conditions of equality with their non-indigenous counterparts due to their conditions of ''n This is an acute problem arising in the context of traditional customary marriagesparticularly where thereare allegationsof violence.SeeAmagulav llhite [998] NTSC 61 (7 January1998) and Ashleyv Materna [1997] NTSC 101 (21 August 1991).Cf Jamilmira v Hales 120041HCATrans18 (13 February 2004\. ta} lnNgatayi t, The QueenR(1980) 149 CLR 305, 13 Murphy J identifiedthis as a concern: The existenceof two systemsof law side by side, the prevailing one and aboriginalcustomary law, with their very different attitudes to guilt and responsibility, createsserious problems and the question of how far our law should apply to aboriginals and how far their law should be allowedto apply to them is controversial. 'n' This dilemma has been highlighted most recently with revelationsof high incidencesof domestic violence and child abusein remote areasof the Northern Territory. SeeNorthern Territory Government, Inquiry into the Protection of Aboriginal Children -fro* Sexual Assault aa l LJI powerlessness.There are lessonsto be learned from the experiencesof indigenous peoplesin other parts of the world, including the United States,New Zealand and Canada.Those lessons are not alwaysencouraging. However, that is not to deny that benefits can be derived from such reforms. In particular, as Sean Brennan et al have noted, the degree of recognition given to indigenousrights in suchcountries has led to a readyunderstanding (that is, more ready than has hitherto been achievedin Australia) of the relationship between cultural rights 'an and economicrights: appreciationof the connectionbetween land and aspirationsto self-govemment and economic self-suffici ency'.t43 In Australia development towards this approachis lagging behind. On the one hand increaseduse of agreement-making between indigenous and non-indigenousbodies may see a trend being set towards this approach.'ooO.t the other hand, as far as the case law on native title is concerned, movement towards this approachhas been further obstructedin casesllke Ward where 'spiritual' emphasison the nature of the Aboriginal connection to land was effectively used to deny its economicpotential in that In fact, a longstandingproblem in "use.'ot Australiahas been that indigenouspeoples do not have economicrights, particularly in relation to their land; as Behrendthas noted well, wheneverindigenous peoples are granted rights, in particular property rights, these rights tend to be construed as 'something for nothing¡t46- that is, as not supportedby recognition of any prior entitlement- which in turn masksthe greateconomic wealth that hasbeen accumulated by non-indigenouspeople at the expenseof the rights of indigenouspeoples in a way 'something that hasnever been construedas for nothing'. '03 SeanBrennan et al, (eds),Treaty (2005) 99. 'oo Seeabove Part B(2). las Seeabove Part A. ra6 Behrendt,above n 116,4l-8. L)L But while Behrendt has tried to appeasethe non-indigenousAustralians by reassuring them that their interests are not under threat, her analysis has failed to addressthe issueof how genuineconflict betweencompeting rights is to be resolved. In the context of land rights it may be that one solution is for stakeholders to engagein agreement-making,while also acknowledgingthe shortcomingsof such an approachas 'rights', well.laT More broadly speaking, the theoretical problem of which aÍe conceivedof as absolutebut must neverthelessbe reconciledwith other conflicting 'rights', absolute has no satisfactorysolution especiallyfor indigenouspeoples whose attemptsat achieving rights has been less than successful.Duncan Ivison has addressed this issue at length in his book Postcolonial Liberalism (2002). In his view a better 'capabilities strategymaybe to speak in terms of the we want individuals or groups to have - as opposed to the rights they apparently already possess- and then of the mechanismsand institutionsrequired for their effective exercise."osHolve,rer, he like indigenouspeoples has not abandonedthe rights frameworkin spite of all its failings. Yet, criticisms of pluralism that illuminate the problemsthat may arise due to the inequality of power between the players within such a system, are not reason enough to abandonit entirely. Inequality of power between state institutions is a problem that could plagueany model of govemment,and is a recurrentproblem within the presentsystem. An advantagethat a legal systembased on a model of pluralismhas over the presentone is that at leastit would addressa structuralproblem inherentin the presentone - the failure to give recognitionof indigenouslaws and sovereignty.This recognitionmay not overcomethe issueof inequalityof power, but it could be a stepin 'ot Seeabove Part B(2). '08 Duncan lvison, Postcolonial Liberalism (2002) 165. 235 that direction. At the least it would serve a svmbolic function - a reminder that indigenouspeoples' interestsshould not be ignored and can be accommodatedthrough reform of existing, and if needbe, the creation of new institutional structures. However, of more crucial concemto the successof introducinglegal pluralism to Australia are the conservatives'claims that such reforms are divisive and undermine the unity of Australia as a sovereignnation.lae This concernechoes another criticism of legal pluralism advancedby Wolff: namely, that its emphasison group and inter-group interests excludes any overriding conception of 'the public interest' or 'the common good'.150Behrendt has insistedthat the recognition of indigenoussovereignty (in her limited sense)could be achievedwithout undermining the sovereigntyof the Australian state;yet she concludedthat it might affect the legitimacy of that state.lslIn coming to 'we' terms with the past, have to come to terms with the way that the Australian state was illegitimately founded- most notably in the treatmentof Australian territory as tera nullius and the taking of possessionof the territory without the consentof the nativesin a way that was contraryto the internationallegal preceptsof the time. Now that terra nullius has been abandoned,the correct legal approachwould be that, as a corollary, Aboriginal and sovereigntyshould now also be recognised.tt2Yet that has not happened. Therefore, Australian law continues to perpetuateits illegitimate foundation. Accordingly, Behrendt may be right to suggestthat we need to changeour 'oe Seeabove Chaoter IV. 'to Vy'olf¡above n 152,49-51. r5r Behrendt,above n ll6, 103. 'tt This argument seemsto be based on Blackstone'sclassif,rcation of territories acquired by the British 'conquered', 'ceded' 'settled'. Crown as or See William Blackstone,Commentaries on the Laws of England (5th revised ed, 1773) Volume I, Introduction,sect 4, 106-8.The classificationof Australia as 'desert settled was based on the understandingthat Australia was and uncultivated', that is, terra nullius as understoodin international law. Arguably, now that the terra nullius doctrine has been rejected by the High Court in Mabo, the classification of the Australian territories as 'settled' should also be 'conquered' 'ceded' reconsideredYet to classifythose territories as either or would require a recognition of pre-existingindigenous sovereignty. 234 basic instrument of goveÍrment, the Constitution, as one of the measuresrequired to give recognition to the existenceof Aboriginal sovereignty that will in turn place the legitimacyof the nation on a more securefoundation.tt' B.rt whetherthis could be done while preserving existing notions of Australian sovereigntyis more debatable.There is a danger that if Australian sovereignty remains as it is, the units of indigenous 'domestic sovereigntycould at best take the form of depeirdentnations', as in the United States:they could only exerciselimited sovereigntywithin their own limits of subject and area, and (as in the United States) would still be subject to overriding control by the national legislature. However, insofar as Behrendt's own program of changeseeks to remove control of indigenous peoples out of the hands of the state in order to realise a fuller autonomy for indigenous peoples' it is arguable that such changewould not preserveAustralian sovereignty as it is now understood.The political entity that would result from such a changemight still have sovereignty,but it would be sovereigntyofa different kind. But if there has been a failure to give due recognition to Aboriginal sovereignty and include Aboriginal customarylaws within the Australian legal system,this failure reflects more than just a concernnot to undermine the unity of the Australian nation. It reflectsconceptions of Aboriginality as inferior, undeserving,or worse still, a threatto the nation. Once this is acceptedthen it becomesapparent that the structuralobstacles in the way of recognition of Aboriginal sovereignty and laws in fact derive their legitimacy from a particular conceptualframework in which 'non-Aboriginality', or at 'whiteness/maleness', least is set as the standardagainst which indigenouspeoples are measuredand found lacking. In this way binary divisionsbetween indigenous and non- t53 Behrendt,above n 116, 104, 141-5. 23s indigenouspeoples are createdand sustained.As hasbeen argued throughout this thesis such constructionsof the colonial relationship have createdand continue to perpetuate the conditions of inferiority for indigenouspeoples. In this regard if such recognition is to take place,it requiresa rethinking of the imagesof 'Aboriginality' and 'Australian- ness'upon which exclusionof indigenousinterests have historically been legitimised. For Behrendt, one of the ways to transform the perception of Australian national identity lies through introducing indigenous peoples and their perspectives, values and customs into Australian institutional life.ls4 In this regard, then, the problems associatedwith the inclusion of indigenouslaws and the transformationof national identity need to be worked through in tandem. As part of this strategy, Behrendt has focusedon the perception of institutions as neutral and unbiased,and has revealedthem to be biasedin a way that doesnot favour indigenouspeoples.rss What may enhanceher strategy, and perhaps make it more effective, is to look behind or beyond the link that she finds between conceptionsof Australian identity and the first Europeansettlers, to seethat the link has its foundationsin an institutional culture - not simply or even necessarilya culture of racism and violence, but a culture that is 'Anglo'. identified as It is a culture that draws its significance from the British institutionsthat we have inherited;and the senseof Britishnessthat runs through it, not 'Aussie' only at the level of popular culture (where identity, even when not British, is white), but at the level of institutional culture, is what leads to the inability of 'fit indigenouspeople to in'. ''o Ibid 131,r39. '5t Ibid l2o, n0. 236 Highlighting the racial and cultural bias that is present in Australian institutional structures because of the very fact that these structures are themselves racially and culturally basedmay help to open up the democraticsystem in Australia so as to include racially and culturally specific rights and introduce institutional change for the benefit of indigenouspeoples. If the Australian democraticsystem can itself be 'raced', seenas then why shouldit remain closedto the suggestionof including other racially based legal and political changes to the system? In a democracy, the institutional structuresneed to respond to and reflect the society of which they form a part. If Australia was in fact a monocultural society, then there could be conceptualand practical problems with introducing such changes.However, Australia has never been monocultural. In its current multicultural manifestation it cannot sustain only monoculturalinstitutions. Giving priority to the aspirationsof indigenouspeoples for inclusion into Australian institutionswould reflect an aspectof Australian society not only as it is currentlyexperienced, but also as it has in fact beenexperienced ever since the beginning of British colonisationwhen indigenous and non-indigenouspeoples besanto co-existon the samesoil. This line of argument is consistent with the transformational strategy that Behrendthas proposed,a strategywhich would expandand diversify the conceptionof Australiannational identity by shifting the emphasisto the multiculturalcomposition of the contemporaryAustralian population which will penetrateand transformAustralia's legal system.'tuIt within that multiculturalperspective, there should be a specialplace 'we for indigenouspeoples, it is on the ground that were here first' - an echo of the 'First perceptionof indigenouspeoples as the Australians'.Yet one shouldperhaps be 'tuIbid 139-r40. z5 I awarethat the chronologyimplied by the indigenousclaim that 'we were here first' has itself been imposedby the historical perspectiveof the settlerpopulation. Moreover, such a claim reflects the common law doctrine linking priority of rights to priority of possession:qui prior est temporepotior estjure. And yet acceptanceof claims to prior occupation and ownership by indigenous peoples of the Australian territories are crucial if we are to establish a social order in which past acts of dispossessionmay be redressedand surviving conceptionsof land 'ownership' accommodated.Acceptance of such claims support the argument so far that structurally indigenous legal interestscan and should be accommodatedwithin the Australian legal system to align Australia's institutional structuresmore closely to the constituencyof the population, and also promote the ideals of democracysuch as equality within such institutions.lsTArguably the present system is lacking in both regards,but that changeas envisagedby Behrendtis possible.lssThe problem remains with finding acceptanceof such claims. The structural obstaclesin the way of recognition and accommodationof indigenous peoples' claims exist due to the conceptual obstacles- the negative portrayalsof Aboriginality - in the way of acceptanceto such change.Thus, what is also neededis successfulpromotion of respectfor cultural differencein Australia so that it becomesaccepted as part of Australian cultural life. For Pattonthree things are necessaryin order to achievethis outcome: First, we must becomecapable of thinking of cultural differencesin positive terms,as specif,rcdifferences between distinct ways of life, none of which is singledout as the standardby which others are unilaterally judged. Second, we should expect and 157 In this regard Behrendt is right to advocate a model of government based on substantive equality which can account for cultural differencesrather than formal equality which cannot. SeeBehrendt, above n 116,125-1. r58 Seealso Ivison, aboven 148, l4l-4. 238 welcomemovement and cross-fertilisationbetween the differentforms of social life. Third we needto appreciatethe valueof suchdifferences within the largernetworks of communityand social life that makeup a modernnation state.rse The emphasison attributing positive value to cultural difference in these ways, may not be any different from the promotion of indigenouscultural identity as the basis for change which underpins Behrendt's own program for change. The difficulty remains that any assertionof difference attributable to the indigenous cultural identity as a basis for change is informed by assumptionsof the settler culture even while it seeksto transcendthem. Thus, while in theory a social order createdout of 'cross- fertilisation' is conceivable;it is not so easyto constructin practiceespecially as long as relations of power remain as they are. Even Behrendt has concededthe extent to which indigenousidentity is itself a product of colonial invention,at the sametime as she has reclaimed this identity as potentially transformative of the prevailing institutional structures.Thus by not addressingthis issuedirectly she has also run the risk of importing a romanticisedconceptualisation of Aboriginality (borderingon the 'the Rousseauesqueimage of noble savage') as the very basis for her suggested reforms.The difficulty with this approachis that, by maintainingAboriginality as the focal point for change,atrace of the colonial discoursessurrounding Aboriginality may remain; and it is difficult to seehow such a conceptcan now be usedas a positive force in a way that would free it from the negative associationsit has had in the past. Behrendthas soughtto entrenchthe conceptof Aboriginality within the discourseof Australian-ness;but it is difficult to escapethe cycle that perpetuatesits perceptionas 'Other' as developmentsin native title law clearly demonstrate.This may be an inevitableshortcoming and may not be possibleor desirableto overcomeespecially for 'se Patton.above n 124. 164-5. 239 thoseseeking a more culturally inclusive Australia. As someindigenous peoples have observed: 'both Aboriginal and non-Aboriginal people create Aboriginalities'. These constructions,however much we may wish to rejectthem, are the contextin which we live. They inform not only the way othersthink aboutand react to us,but alsothe lived experiencethat we have of ourselvesand of eachother. They have alsobecome the enemywithin.l60 To addressthis dilemma Michael Dodson has proposedtwin projects for indigenous peoples: at one level, we must understandthe motivationbehind the historicalconstructions of Aboriginality, and understandwhy they have had such a grip over colonising populations;simultaneously, we must continuouslysubvert the hegemonyover our own representations,and allow our visitorsto createthe world of meaningin which we relateto ourselves,to eachother, and to non-Indigenouspeoples.l6l Finding answersto the first questionmay not be so easy. Clearly, as this thesis has arguedin the contextof native title law the discursivedivision betweenAustralian-ness and Aboriginality continues to render indigenous peoples and their interests as subordinateto the interests of other Australians. Undoubtedly much psychic and material investmentsand benefits have resulted from maintaining these divisions. Achieving a level of understandingby non-indigenouspeoples of the extent to which Australiansociety is indebtedto indigenouspeoples for thesebenefrts and in particular questioning the means by which they have been produced (mainly through dispossessionand exploitation)may alsobe a necessarypart of this process. In respect of achieving the second goal it is important to keep in view the assumptionsupon which the hegemonicorder is founded,particularly the assumption that 'Aboriginality' and 'Australian-ness'are fixed categories- as existing prior to 160 'The Michael Dodson, Wentworth Lecture: The End in the beginning:re(de)f,rnding Aboriginality' AustralianAboriginal Studies1994/number 1,2, 6. The internalquotation is from Marcia Langton, lI/ell I Heard It on the Rødio, and I SatuIt on the Television (1993). tu'Ibid. 240 'Identities knowledgeand to subvertthat order.As Bain Atwood has observed: such as nationalities are both observed and constructed; they are neither natural nor given categories,but are createdby human imagination and actions.'162According to this understanding,the potential is there for the inclusion of indigenous interestsunder the 'Australian-ness' banner of as long as there is a willingness to make that shift in understanding.As a discursive construct,however, its content still dependsupon those who control and manageits meaning.In this respectthe problem of inequalityof power standsin the way of change.At this stage,it is still the dominant white culture that is 'Aussie', 'Other' identified as an identity createdby referenceto an which is imagined as its opposite: those (heteregeneous)characteristics of'Australians' which are not recognisedand accepted are displaced and projected onto the (Aboriginal) other, thus excluding, repressing and denying their presencewithin the Australians. In this process,there is 'the obviously an interdependence of the two categories - Australian' only has meaning in relation to the (Aboriginal) other. This other, while secondary and subordinate,is nonethelesscentral . . . to the existenceof the primary and superordinate Ió3 category of Australians. This is not only how the dominant white culture constructs itself, but it is also reinforced by those who are not so white, but who feel excluded from participating fullv in Australian cultural and institutional life. Questioning the fixed and unified perception of identities whether of individuals, groups or institutions and revealing them not to be so, may provide a framework for change.By contrastto the conservativevision of Australia as unified and cohesive such a framework reveals the extent of disunity already present in Australian society, not only in its institutional structuresbut in the racial tensions 'ut 'Introduction: Bain Attwood, The past as future:Aborigines, Australia and the (dis)courseof History' in Bain Attwood (ed), In the Age of Mabo (1996) vii, xxiii. See also Benedict Anderson,Imagined Communities:Reflections on the Origin and Spread of Nationalism (first published 1983,2006 ed); EJ Hobsbawn, Nations and Nationalism Sínce 1780: Programme, Myth, Reality (2"" ed, 1992). 'o'Ibid. 241 within the fabric of Australian society.Paradoxically, it is the persistentclaim of the conservativesthat that any form of recognition of indigenous rights would divide the nation that perpetuatethe racial divisions in Australian society. And it is through these racial divisions that control over indigenouspeoples continues to be made possible. This particular form of 'divide and rule' strategyis known all too well to indigenous peoples: It is an historical fact that from the very inception of British colonisation,the indigenouspeople of this countryhave beentreated as a separatesociety. However, when we projectthis fact in our aim of achievingsovereignty and of our strugglefor compensationfor dispossessionand for economicindependence that will allow us to run ourown affairs,people say 'You can'tdo that- it's divisive'.16a Transforming Australian institutions to reflect the cultural diversity in Australia could contribute to the overcoming of racial divisions and tensions; but as yet motivation to bring about such changeis still lacking. If such changeis to take place, the changeneeds to be perceivedas positive and not as negativeas seemsto be the mainstreamview. Thus, in order for this changeto take place it is necessaryfirst to breaka self-perpetuatingcycle - history. 'new The history as presentedby the 'old' historians,now right' historians continuesto deny the extent to which colonisationimpacted on indigenouspeoples' lives. In this denial of colonial history it is easyto seehow the problemsexperienced by indigenous peoples may be framed as entirely the responsibility of indigenous peoples' themselves.However, framed within the colonial context presentsanother story altogether.For activistssuch as Behrendteducation about this history is essential for changeat all levels of society.Reform of the educationsystem is one of the ways to r6a 'Aboriginal Paul Behrendt, Sovereignty: Australian Republic: A Catalogueof Questions and Answers' in Irene Moores (ed), The Voices of Aboriginøl Ausn'aliø: Past, Present,Future (1995) 398, 399. 242 'an provide understandingof Indigenous history, wisdom and perspectivesto all Australiansas well asproviding increasedaccess to Indigenouspeople'.16s Education is the key to providing indigenous peopleswith a way into Australian society and a way out of the cycle of poverty. Education may also help to explain their current status in society, and to transform public and institutional perceptionsof indigenous peoplesand thus contribute also to transform the Australian national identity. An understandingof history may contribute to the promotion of shared histories upon which the heterogeneity of Australian society may find common ground that may one day see acceptanceof legal pluralism in Australia. The focus in the end may be on making incremental changes,and following through and building on any changethat has already taken place, but still also aim for the greaterinstitutional changesthat Behrendt has identified. Simultaneouslythere is a need to continue to identify and critique events that perpetuatethe status quo. In this regardit is importantto rememberthat within the alreadyexisting systemthere is still scope to build networks of resistanceto the statusquo. And, part of this resistance strategywould be to considernew ways of configuring the institutional structuresof societyas Behrendtand othershave done.The leastthat can be done is continuein the call for change.It may be that only by gainingthe moral supportof broaderAustralian society that changewill take place. In this regard it is important for indigenousand non-indigenouspeoples to work together and continue to stressthe moral need for 'the change, and also keep in mind as Ivison has done that ultimate path of developmentis, of course,up to indigenouspeople themselves.'166 '65 Behrendt,above n 116, 138. 166 Ivison.above n 148.165. 243 vl1 CONCLUSION 'lines This thesishas exploredthe of flight' of Mabo v QueenslandQ{o 2)' and its aftermath. Among the many points of departure and arrival in Mabo, and in the developmentsthat followed, is a major resonancein Mabo itself that can be tracedto reconciliatory good will. In this regard, the new historians are right to locate the decisionin Mabo within the new history movement.In ChapterII of this thesis,four important aspects of that movement were identified and outlined. The first was a 'truth', historical methodologythat questionsthe possibility of objectivehistorical and posits an understandingof history writing as an interpretive enterprisewhereby the past can be understood in terms of its meaning and relevancefor the present. Linked with 'the this were the breaking of great Australian silence'; the writing of alternative histories; and the drawing of intersectionsbetween Australian historiography, law and policies relatingto indigenouspeoples in Australia.Aboriginality, asunderstood within 'truth' 'power', this movement,is a product of the intersectionsbetween and otherwise referredto as the'discoursesof power'. It is throughthese intersections that the social, economicand legal statusof indigenouspeoples in Australiamay be understood. Theseaspects of the new movementwere contrastedrespectively with aspects 'old' of what this thesishas referredto as the history presentedby the historians;and it 'new' was by reference to these aspectsof the history movement that the Mabo decision was analysedin ChapterIIL There are many featuresof the Mabo decision that reflect developmentsin Australianhistoriography, including the acceptanceof the claimants' oral evidence,and the Court's willingness to reinterpretthe past in a way that provided a foundationfor the recognitionof native title. The Court contributedto ' (1992)175 CLR | ('Mabo'). 244 'the the breaking of great Australian silence' by rejecting both the doctrine and the discourseof terra nullius, and acceptingthat indigenouspeoples had not only their own systemof laws, but their own history as well. Most importantly, the results in Mabo and Wik Peoples v Queensland2reflect an understanding that indigenous and non- indigenous Australians coexist in the same historical time and the same geographical space.The decisionin Mabo also saw acceptanceof alternativeaccounts, in particular thoseof Henry Reynolds,of Australiancolonial history and of early attemptsto protect native title as part of that history. As for the discursive power of images of Aboriginality, it was found that the majority judges in Mabo did not directly engage with this issue, but their decision itself reflects the influence of perceptions of Aboriginality conducive to the positive recognition of native title and rejection of the terra nullius doctrine. Nevertheless,the eventsthat followed have clearly demonstrateda shift back to negativecolonial attitudestowards indigenous peoples. This is evidentnot only in the surroundinghistorical context of the post-Mabo era as outlined in Chapter IV, but also in the legal developmentsof that era as outlined in ChapterV. The introductionto this thesisasked why it had taken so long for Australian law to recognisenative title, and why, evenafter this recognition,indigenous peoples are still being dispossessedof their lands.The answercan be found in the way that perceptionsof indigenouspeoples and their laws continue to be constructedbv the dominant hesemonic order. whether as inferior or as a threat to the nation. In this regard,the new historiansmay have overestimatedthe extent to which Mabo itself was a product of their movement.But so too, as this thesishas argued,have " (1996)187 CLR | (',Wik',). 245 conservative critics exaggerated the effects of the Mabo decision. One particular concernof thesecritics over the Mqbo decisionwas their belief that it underminedthe foundation of Australian history and law in British cultural and legal traditions. As the discussionin Chapter V illustrated, nothing could be further from the case.Rather, as was arguedin that Chapter,it was the Court's concernto preserveAustralia's legal heritage in British legal tradition that led to a reinscription of colonial relations in Australia: Australian law has its origins in English law, native title does not. By appearing to reinscribe this binary opposition, the Court in subsequentcases such as WesternAustralia v Warû andMembers of the Yorta Yorta Aboríginal Community v a Victoria has been led to insist that native title can form no part of the Australian coÍtmon law. Despite this conceptualseparatism, however, Australian law has retained control over the recognition of native title through the enactmentof the Native Title Act ('NTA',). It may be that the Court had no altemativeafter the enactrnentof the NTAbutto subordinateits role in decidingnative title casesto the Parliamentaryenactment. But it is still the Court that is left with the role of interpreting the statute; and it is through its interpretationof the statute that the High Court has been able to re-establishold historical perceptionsof Aboriginality. For instance,the result in Yorta Yorta, where the Court found that the societyrepresented by the claimant group has now ceasedto exist, is reminiscent of social Darwinism and its prophesy that indigenous people 'die' would in the face of Westerncivilisation. To the extent that the High Court has 'traditional' preservedthe Aboriginal person as a legitimatebeneficiary of the native title regime, the results in both Yorta Yorta and Ward do at least reflect the structural- '.(2002)213 CLR | ("ttrtard'). -(2002) 214CLR 422 ('Yorta Yorta'). 246 functionalist construction of Aboriginality. But while the structural-functionalist movementcontributed to the growth in concernfor the plight of indigenouspeoples, as to someextent reflected in the judgmentsof Deaneand GaudronJJ in Mabo, that level of concernhas dissipatedby the time we get to í4/ardand Yorta Yorta.Instead, the Court appears to be taking a strict structural-functionalist approach to indigenous peopleby constructinga strict binary division betweentheir laws and Australian laws. The two cannot be mixed. Yet like any binary division, this is unsustainable.A complete separationof the two would mean that indigenous laws were independentof Australian legal control; but this is far from the case. For while the High Court may have insisted that native title can no longer be governed by the common law, it has been reinscribed in the statute,and in that way continuesto be controlled by Australian law, just as in a previousera the social practicesof indigenouspeoples were subjected to the hegemonicconcepts of anthropologicaltaxonomy. As the native title regimehas evolved,the structural-functionalistconception of Aboriginality has prevailed. Within the casesthat have followed since Mabo, most notably Commonwealth v Yarmirr,s Ward and Yorta Yorta, the intersection that the Court has constructed between native title and the NTA has meant that only the 'traditional Aborigine' will have any success claiming native title, and only 'traditional' rights and interestsmay be claimed.As the Court has interpretedthe NTA, only indigenouspeoples displaying the characteristicsof Aboriginal people as they were imaginedto be at the time of the acquisitionof Britísh sovereigntywill have their 'traditional' native title interestsrecognised by Australian law. This Aboriginal person has become the benchmark asainst which the claims of native title claimants are ' (2001)208 CLR 1 ('CrokerIsland'). 247 'traditional' measured.Thus, the Aboriginal person has been deemed to have a different conceptionof property basedin spirituality, unlike non-indigenouspeople's conception of property as based in economics; and the difference filtered through the High Court's interpretation of the NTA has become the foundation for the fuither underminingof nativetitle. This is no more obviousthan by the Court's constructionof 'bundle the content of native title as a mere of rights' rather than as constituting full 'bundle ownership of land. The practical effect of the of rights' approachhas also undermined the understanding of native title as commensurate with exclusive possession. A bundle of rights approach means not only that the claims of indigenous peoplesare reduced to a fragmentedbundle of particular piecemealrights and interests, but that as to each of those rights or intereststhe Court must be satisfied that it was in existenceat the time of the acquisitionof British sovereigntyand has survived that acquisition.Any conferralof non-indigenousrights inconsistentwith a specificclaim to nativetitle rights or interestswould extinguishthat claim. 'substantial In Yorta Yorta the Court alsoapplied a connection'test which requiresclaimant groups to prove that they and their ancestorgenerations have maintainedsubstantial and continuousconnection to their landsfrom the time of the acquisitionof British sovereignty.Again, only thosetraditions, customs and laws that were in existenceat the time of British acquisitionof sovereigntyare relevant to this exercise.While someadaptation is acceptablethe claimantgroup in Yorta Yorta still failed to passthe test. As is evident in Ward and Yorta Yorta the High Court has been unable to accommodatecultural diversity of experiencesbetween indigenous and non-indigenous 248 peoples, and between indigenous claimant groups: the adoption of the 'bundle of rights' approachin Ward shows how the Court was unable to accommodateindigenous 'property' peoples' own understandingof their concept of in native title law; the application of the substantial connection test in Yorta Yorta has been unable to accommodatediversity in experiencesand responsesof indigenouscommunities living in Australia to the colonisationprocess. Both are examplesof how the rejectionof the terra nullius doctrine and recognition of native title have not yet put an end to the discrimination experiencedby indigenous peoples in the area of land rights. The rejection of the doctrine facilitated a shift in the discourse on Aboriginality that replacedone image of Aboriginality with another.Yet, while Aboriginality is no longer to be denigratedby law, the native title interestsof claimant groups have not been given equal legal protection in Australia law. This is evident in Ward, when one comparesthe treatment of native title in that case to the treatment of non-indigenous property titles, and also in Yorta Yorta, when one compares the treatment of the claimant group in that caseto other claimant groups. Thus, the claimant group in Yorta Yorta is worse off than the group in Ward, who is worse off than non-indigenous property owners.It is no coincidencethat the claimantgroup in IØarddisplayed more of the characteristicsof the traditionalAborigines as understood in structural-functional anthropologyas they display the characteristicsof Aboriginality that appearto be most deservingof protection - the now idealised Aborigine of the Dreamtime. And, the result in llard fits a more general pattern in the context of land rights where the rights of indigenouspeoples who are able to display thesetraditional characteristics are given better protection to those who do not. The problem that remains is most clearly illustrated by the result tn Yorta Yorta: as far as the High Court is concernedindigenous 249 communitiesmay exist, but their presenceon the Australian landscapemay still be legally denied- the doctrineof terra nullius in this regardstill has discursivepo\¡/er as indigenousrights to land may continueto be deniedin this context. Moreover, evidence of the existenceof native title rights and interestsmay emanatefrom the native title claimants,but in the Australian legal system these claims will be scrutinisedby the Court and there is no guaranteeof a remedy.The result may be even more disadvantageousto claimant groups if the Court adopts a traditional approachto evidence,as in Yorta Yorta, where the written records of the colonial era were preferred to the oral testimony of the surviving members of the claimant goup. Clearly, this meant that the evidentiary processwas skewed against the claimants and in the end result they were renderedinvisible. What seemsmost paradoxicalis that the more that a group has been subjectedto acts of colonialism since the acquisition of sovereignty,the rnore unlikely a legal remedy will be - any responsibilityfor the acts of colonialismis swept aside,or worsestill the claimantgroup is left with the impact of blame as in Yorta Yorta.Ultimately, the successor failure of nativetitle claims depends on the historical record - and history has not always been favourableto indigenous peoplesin Australia. In the final analysis,native title has becomeeven more subordinate,as a form of inferior title, than may have been envisagedby the High Courl in Mabo. The paradoxremains, especially after Yorta Yorta, that while native title is still an inferior form of title subject to non-indigenouscontrol, the High Court still appearsto be concerned(as BrennanJ was in Mabo) that any attemptto accommodateit more fully would rupture the fabric of the legal systemand of Australian society.In this regard, the Court has not moved very far beyond the protection era, when the mainspring of 250 official policy was the need to protect white society from the threat posed by indigenouspeoples: any interactiongave rise to a fear that indigenouspeoples might somehow take the country over - a strangeposition to maintain considering the very poor conditionsunder which indigenouspeoples live, and the fact that theseconditions arosefrom the very fact that they were perceivedas inferior. In ChapterVI of the thesisalternative possible ways of advancingreconciliation andbringing the dispossessionof indigenouspeoples to an end werereviewed. For example,the indigenousactivist, Noel Pearson,has responded to the more recentHigh Court decisionsby arguing that abetter approachto native title would be for the High Court to interpret the NTA through the lens of the common law, particularly as it has been developing in Canada:the NTA in fact includes in its definition of native title 'the rights andinterests ... recognisedby the commonlaw of Australia'.6His argumenthas been outlined and critically evaluatedin ChapterVI, which showedthat there is no guaranteethat a commonlaw approachcould provide betterprotection to nativetitle. Adopting the commonlaw approachas it hasbeen evolving in Canadacould overcome 'bundle the High Court's of rights' approachto native title: the Canadianposition has beenbetter able to accommodateindigenous peoples' conception of propertythrough 'substantial the notion of occupation.However, overcoming the connection'test establishedin Yorta Yorta is anothermatter as it appearsthat the SupremeCourt in Canadahas adopteda similar approachin Delgamuuh,uv Queenin right of British ColumbiaTto establishingAboriginal title asthe High Court in Australia.Whether the 'time-honoured methodology'of the commonlaw can overtimeovercome these obstaclesremains to be seenand may dependon other contingentfactors other than the o NTAs223(1)(c). '¡tsst13scR lolo. 251 law itself. If, asin Mabo, recognitionof nativetitle dependedon a willingnessto accept changedcommunity values about the nature of Aboriginality, then the key to the resolutionof the legal issuesstill facing indigenouspeoples may lie in promoting positive social attitudestowards them which may find gradual acceptancein law. However, that should not preclude law from playing apart to influence change that will be of benefitto indigenouspeoples. After all, for many that wasMabo's promise,in spiteof all its shortcomings.And in spiteof all the shortcomingsof native title law in Australia there is still the potential for more positive changesin the future. It is true that when Mabo was decidedit was acknowledgedthat not all indigenouspeoples would benefit from that decision, and this concem was raised again when the NTA was enacted.To addressthe shortcomingsof native title litigation alternativemeasures have been introduced. The two most significant reforms have been the introductionof the Land Acquisition Fund ('LAF') which was introducedto provide a remedyto indigenouspeoples -'dispossessed Aborigines' - who would not benefitfrom the nativetitle regime; and in view of the shortcomingsof the native title regimethe increasingemphasis on agreement-makingbetween stake-holders rather than engagingin litigation. Thesealtemative measures were alsodiscussed and critically evaluatedin ChapterVI. However, the analysisof thesealternative approaches revealed that while both representpositive developmentsin this area,neither has been able to fully addressthe shortcomingsof the High Court' s approachto native title. Despitethe obvious benefitsof each approachthere are also obvious downsides.In relation to the LAF there are benefitsthat could come with developingindigenous peoples' skills to manageproperty independently, but there 252 is a dangerthat this potential could get swampedby paternalism.The successof the LAF to achieveits aim may in the end dependon overcomingits greatestproblem: the lack ofresourcesto provide adequatereparation for past(and present) dispossession. Negotiated agreements,on the other hand, are increasingly seenas offering real benefitsto indigenouspeoples, especially because they help to establisha culture of agreement-making between indigenous and non-indigenous groups that has been lacking in Australia's colonial history. It is envisagedthat increaseduse of agreement- making could lead to greater things such as a national treaty and recognition of Aboriginal sovereignty. However, so far there has been little movement in this direction. There are still obstaclesin the way of successfulagreements in the native title context in any case.For one thing, there is the problem of unequalbargaining power. For another,while agreement-makingcould provide an altemative to litigation, that still doesnot mean that what goeson in the courlroomwill not affect the dynamicsof the agreement-makingprocesses: agreement-making may be conductedoutside the courtroom,but it is still in the shadowof the law and, as this thesishas shown,the law does not operate favourably for indigenous peoples. However, it is also true that agreementsmade in the shadow of High Court decisionsin native title casesdo not have to fuither compound the Court's approach in these cases.The more recent agreementbetween the Yorta Yorta Community and Victoria has shown that the Court did not have the last word in relationto that claim, althoughadmittedly the benefitsof the agreementfor the Yorta Yorta Community do not match the benefits that would have comewith a positive determinationof their native title claim to begin with. 253 All of these strategiesmay prove beneficial in the long term; but more still needs to be done. Conceptually it is clear, at least in terms of the High Court's approachto native title, that it is the Court's conception of its own history and that of Australian law that positions the British sovereignin the way of greater acceptanceof indigenousconceptions of property and law. It may be only in responseto the political recognition of some form of indigenous sovereignty that the Court's frame of mind could be induced to shift. The recognition of Aboriginal sovereignty, and the resulting recognitionof indigenouscustomary laws, have long been on the agendaof aboriginal peoplesin Australia; and the realisationof such a model was discussedin the final sectionof the thesis.However, the obstaclesin the way of suchrecognition still mirror those that prevent the full recognition of native title, and rest ultimately on conceptions of indigenous peoples as either inferior or undeserving. It becomes clear from the analysis in the final section that nothing short of reconceptualisingthe Australian nationalidentity can overcomethese negative portrayals in order to promoterespect for cultural difference.While the problems of achievingsuch a reconceptualisationhave herebeen identified, it has alsobeen shown that someroom for changecould be found in our understandingof history, so as to take accountof the experienceof indigenous peoples.In this respectthe work that has been done in the new history movementin raising awarenessof the history of colonial relations in Australian and influencing positive political and legal change for indigenous peoples in Australia has been significantstep forward, evenif it is still the casethat a lot more needsto be done. 254 BIBLIOGRAPHY 1. 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