Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 1 

The Politics of Remembering and Forgetting: Native Title Law and 
Reconciliation in Australia 

 
 

Francesca Dominello 
 
 

Abstract 
The post-Mabo era was to be the age of reconciliation and the end of unjust dispossession of Indigenous peoples’ 
lands. However, as the more recent cases in native title show this vision did not become the reality. In this paper, I 
will examine Mabo in its historical context. In particular I will examine the claim that Mabo was a product of the 
‘new history’ movement in Australia. This movement developed in response to the silence that had shrouded the 
history of colonial relations between Indigenous and non-Indigenous peoples for most of the 19th and 20th centuries. 
Through the writing of these histories, new historians have raised awareness of the history of colonization in 
Australia and the impact it has had on Indigenous peoples in particular. In the paper I will outline the ways in which 
Mabo is a product of this history. However, if Mabo did not bring to an end to the injustice and inequality facing 
Indigenous peoples in the context of land law in Australia, it is because of the traces of another history informing that 
decision and the events that followed it. In this paper I will refer to this history as the ‘old history’ of Australia. In 
this history Indigenous peoples are placed in a paradoxical position: they are inferior, but still seen as threat to the 
colonial enterprise. The paper will explore how this ‘history’ is repeated in Mabo and continues to inform the High 
Court’s approach to native title law. 
 
 
The post-Mabo era was to be the age of reconciliation and the end of unjust dispossession of 

Indigenous peoples’ lands. However, as the more recent cases in native title have shown, this has 

not become the reality. In this paper Mabo will be examined in its historical context. As part of 

the reconciliation movement, Mabo has been identified by some as a product of the ‘new history’ 

movement in Australia (Attwood 1996a). This movement developed in response to the silence 

that had shrouded the history of colonial relations between Indigenous and non-Indigenous 

peoples for most of the 19th and 20th centuries. Through the writing of these histories, the new 

historians have raised awareness of the history of colonization in Australia and the impact it has 

had on Indigenous peoples in particular. The first part of the paper will consider how Mabo may 

be understood in terms of this history. However, if Mabo did not bring an end to the injustice and 

inequality facing Indigenous peoples in the context of land law in Australia, this failure may be 

understood in terms of another version of history, which in this paper will be referred to as the 

‘old history’ of Australia. In this history Indigenous peoples are placed in a paradoxical position: 

they are inferior, but still seen as a threat to the colonial enterprise. The second half of the paper 

will explore how this ‘history’ may assist our understanding of the limitations of  the Mabo 

decision and of the more recent High Court cases in native title law, especially with respect to 



2  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

their interpretation of the definition of native title in the Native Title Act 1993 (Cth) (‘NTA’). By 

contrast to the reconciliatory sentiment that underlies Mabo and the new history movement that 

forms part of its background, the third part of the paper will examine the more recent 

developments in the case law. The paper will conclude by arguing that Mabo may have provided 

the potential impetus for change in the context of land rights in Australia, but that there are still 

many obstacles in the way of this change.  

 

Mabo and the New History Movement 

In Mabo for the first time in Australian law a form of Indigenous native title was found, not only 

to exist, but also to have predated and to have survived the acquisition of British sovereignty. The 

Court’s formulation was grounded in the common law: the common law recognized that native 

title survived the acquisition of British sovereignty over the Australian territories as a burden on 

the radical title of the Crown to the land. The content of native title, however, would arise from 

the traditions and customs of the Indigenous peoples themselves. In order to facilitate the 

common law recognition of native title, the Court first considered it necessary to reject the terra 

nullius doctrine as forming no part of Australian law. Whether in fact it was necessary for the 

Court to ‘reject’ the ‘terra nullius doctrine’ remains to be seen, especially since there had been no 

direct authorities in Australian common law declaring the Australian territories to be ‘terra 

nullius’ in those precise terms (Ritter 1996). Even so, if the Court found that the ‘terra nullius 

doctrine’ had operated to deny any Indigenous rights to land, it may be because of the 

characterization of Australia at the time of first settlement as a land belonging to no one. This 

legal characterization had found support in a line of judicial pronouncements that declared the 

continent to be in effect ‘desert and uncultivated’ at the time of British settlement, and provided 

the framework in which colonization was legitimized (Deane and Gaudron JJ in Mabo, 1992, at 

102-4). Thus, even in the absence of direct authorities claiming the Australian territories to be 

terra nullius, the authorities that supported the ‘discourse of terra nullius’ (Ritter 1996, p. 13) may 

have led the Court to come to the conclusion that the ‘terra nullius doctrine’ must be overcome in 

order for native title to be recognized in Australian law. 

 

Notwithstanding this error, when the authorities treating Australia as ‘desert and uncultivated’ (in 

effect ‘terra nullius’) were translated to the Indigenous inhabitants, the effect was that they were 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 3 

deemed to be still living in a state of nature: with no laws, no organized society and no culture. 

By contrast, the Court’s rejection of the ‘terra nullius doctrine’ was in effect an acknowledgement 

that the Indigenous inhabitants did belong to organized societies with their own laws and 

customs. In this way the apparent change in the law can be explained in terms of changed 

perceptions of Indigenous peoples. Ultimately, this change in perception depended on a change in 

values. For Brennan J the common law of Australia could not remain ‘frozen in an age of racial 

discrimination’ (Mabo, 1992, at 42), but could be modified to reflect changed contemporary 

notions of justice and human rights, as manifested in part by international law and the common 

law as it has developed in other common law countries. Thus, from a legal perspective we can 

understand the decision in Mabo as finally aligning Australian jurisprudence in relation to native 

title law with developments in international and Australian domestic law (most notably the 

rejection of the terra nullius doctrine by the International Court of Justice in Western Sahara 

(Advisory Opinion) and the enactment in Australia of the Racial Discrimination Act 1975 (Cth) 

(‘RDA’)). We can also understand the High Court’s decision in Mabo as bringing Australian law 

into line with developments in countries such as Canada and the United States. It had already 

become evident after Blackburn J’s judgment in Milirrpum v Nabalco that Australia was lagging 

behind in this area. Notwithstanding the extent to which jurisdictions elsewhere had extended 

legal recognition to traditional titles to land, Blackburn J in Milirrpum rejected the claim for 

native title in that case on the basis that ‘the doctrine does not form, and never has formed, part of 

the law of any part of Australia’ (Milirrpum, 1971, at 141).  

 

However, even at the time of the decision in Milirrpum there was an evident disjuncture between 

Blackburn J’s final determination and his own perception of the Indigenous claimant groups in 

that case. Indeed Blackburn J accepted the evidence that showed the claimants: 

 
had a subtle and elaborate system highly adapted to the country in which the people led their lives, 
which provided a stable order of society and was remarkably free from the vagaries of personal 
whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is 
that shown in the evidence before me (Milirrpum, 1971, at 267). 
 

The evident discrepancy between fact and law in this case is clear:  

 
the Indigenous claimants were found to be socially organized with their own system of laws and 
government that predated the British arrival, yet there was no legal acknowledgement of that fact. 



4  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

It was only in Mabo that this gap was finally bridged through the legal recognition of native title 
in that case (Dominello 2008a, p. 172). 

 

But while the decision in Mabo reflects a change in the perception of Indigenous peoples and is 

overtly critical of the colonial practices, policies and laws that contributed to their dispossession 

in the first place, these developments can be understood more broadly in terms of the work of the 

new historians in the latter half of the 20th century. For instance in Mabo Deane and Gaudron JJ 

declared: 

 
If this were any ordinary case, the Court would not be justified in reopening the validity of 
fundamental propositions which have been endorsed by long-established authority and which have 
been accepted as a basis of the real property law of the country for more than one hundred and 
fifty years … Far from being ordinary, however, the circumstances of the present case make it 
unique (Mabo, 1992, at 109). 
 

Arguably, if Mabo was no ordinary case then it should be seen as more than just a simple 

‘correction of a local anomaly’ (Nettheim 1993, p. 18), bringing Australia into line with the 

developments that had occurred elsewhere in the common law world. While it may be true that 

Mabo was not a ‘judicial revolution’, but a mere ‘cautious correction to Australian law’ 

(Nettheim 1993, p. 2), there was something much more profound motivating the Court in Mabo 

‘to change the law’ in a way that may only be explained by reference to its broader historical 

context. Thus, it is one of the contentions of this paper that in order to fully understand the 

Court’s decision in Mabo we must look beyond the pre-existing legal framework that the Court 

drew upon to support its decision, and acknowledge its broader historical context – and, in 

particular, the writing of Australian histories from the late 1960s onwards – as contributing to the 

impetus for change (in law and in society) that culminated in (among other things) the Mabo 

decision.  

 

There are four significant ways in which the new history writing of the time may be seen as 

important to the decision in Mabo. First, it is important to acknowledge the role of 

anthropologists such as WEH Stanner who made the call to break the silence surrounding the 

history of dispossession in Australia in the late 1960s (Stanner 1969). In a similar vein, the Court 

can also be seen as actively engaging in the process of breaking the silence surrounding the 

history of colonial relations in Australia. This was conveyed most forcefully in the joint judgment 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 5 

of Deane and Gaudron JJ through their ‘acknowledgement of, and retreat from … past injustices’ 

(Mabo, 1992, at 109) experienced by Indigenous peoples in Australia – the dispossession of their 

lands. This sentiment directly echoes the sentiment of the new historians – a ‘sense of dis-ease’ 

about the silence that had shrouded colonial history in Australia, and a motivation to come to 

terms with this history in order to overcome it (Attwood 1996a, p. xxix). For new historians ‘the 

continuing colonial crime’ was to keep locked the ‘cupboard of our history’ (Smith 1981, p. 26). 

The forgetfulness surrounding the history of dispossession was the ‘moral issue central to the 

nation’s existence’ (Smith 1981, p. 17) and continued to pose ‘a central problem for the integrity 

and authenticity of Australia’ (Smith 1981, p. 45). Similarly for Deane and Gaudron JJ there was 

a recognition in their judgment that ‘[t]he acts and events by which that dispossession in legal 

theory was carried into practical effect constitute the darkest aspect of the history of this nation’; 

and that only by overcoming this history (through rejection of the terra nullius doctrine) could a 

‘diminished’ nation find salvation (Mabo, 1992, at 109). Just as the new historians had 

recognized that Indigenous peoples had been exposed to serious injustices through colonization, 

so too had the Court, and in Mabo the Court took the opportunity to do something about it.  

 

Secondly, insofar as the new historians have engaged in the writing of colonial history, the work 

of Henry Reynolds has proved most influential – not least in the Mabo decision itself. Reynolds 

himself has acknowledged his own contribution to the decision in various places (Reynolds 1992, 

pp. 185-202, Reynolds 1993), and his influence is acknowledged by others (Ritter 1996, p. 29; 

Briscoe 1993, pp. 4-5; Hughes and Pitty 1994, p. 13). Most importantly there are references to his 

work in the actual judgments (Deane and Gaudron JJ, in Mabo, at 107, 142; Toohey J, in Mabo, 

at 181). And it has been argued that it was Reynolds’ analysis of the terra nullius doctrine as 

standing in the way of legal recognition of native title that compelled the Court to reject it in the 

first place (Ritter 1996, p. 29). In other words, if the Court made an error by perceiving the terra 

nullius doctrine as having operated to deny the recognition of native title in Australia, that error 

could be traced back to Reynolds’ research as he had been the one to launch the term ‘into 

mainstream public debate’ (Ritter 1996, p. 27). As Ritter has described it: ‘Reynolds turned the 

dispossession of Aboriginal People into a “legal” event, in the sense of an event recognised as 

traceable to the operation of a legal general rule’ (Ritter 1996, p. 29). 

 



6  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

More significantly, however, Reynolds’ work had revealed that there had not been a wholesale 

extinguishment of native title, but that in early colonial times the Colonial Office had recognized 

the Indigenous occupants’ legal interest in the land, and had tried to protect it in 1846 by an Order 

in Council – which in Reynolds’ view ‘was a clear and demonstrable recognition of native title: 

the right to use and occupy land held under traditional title’ (Reynolds 1987, p. 139). In this 

regard Reynolds’ analysis of legal history was at odds with Blackburn J’s conclusions in 

Milirrpum, and was crucial in raising awareness of the need to correct the law in this area. 

Indeed, if Reynolds’ view is accepted, then the law had always recognized Indigenous peoples’ 

native title rights and interests to their traditional lands: it was the settlers and successive 

governments, jurists and historians that had got it wrong.  

 

Reynolds’ historical work had found traces of earlier attempts to protect native title, although 

those attempts had failed until Mabo. But if Mabo was an attempt at recovering this lost history, 

it was also an attempt to recover Aboriginal history. In the writing of new history the new 

historians not only recovered long forgotten facts of colonial history, but created a space for the 

writing/speaking of Aboriginal histories. Thus, the third contribution of the new histories to 

Australian history writing that came to be reflected in Mabo was the valorization of Aboriginal 

history. This is most evident in the Court’s acceptance of the perception of Indigenous peoples as 

having their own laws and social systems as a basis for ‘rejecting’ the terra nullius doctrine and 

extending legal recognition to native title. Moreover, the content of native title was to emanate 

from the Indigenous claimants themselves. In this regard the oral testimonies of the claimants that 

related to proof of custom, otherwise termed ‘traditional evidence’, were accepted by the trial 

judge, and in turn by the High Court in the final proceedings, as supporting the claimants’ 

contentions concerning the survival and nature of their rights and interests to land (Keon-Cohen 

1993, pp. 195-7). Importantly, as in the writing of history, Indigenous peoples were seen as 

engaged in the process – as active agents in history and in law. 

 

This brings us to the fourth contribution made by the more recent history writing to the Mabo 

decision. According to more traditional approaches to historical methodology the writing of 

history entails maintaining strict delineations between past and present (and future): 

 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 7 

so long as scientific methods are adopted, it is possible for the historian and the archaeologist to 
show the past as it really was and to understand it on its own terms, and thus have independent, 
historical truth (Attwood 1996a, p. xvi). 
 

This approach assumes ‘a radical disjunction between past and present,’ treating the past as 

‘complete, unchanging and unchangeable,’ and as having an objective existence (Attwood 1996a, 

p. xx). By contrast, a cluster of ‘new’ historians have rejected the idea that it is possible to write 

history in terms of such strict distinctions between past and present. Instead, they take the view 

that ‘one always reaches the past “by starting out from the present,” and is “always concerned 

with the meanings of historical reality for us, now”’, for it is how the past is interpreted now that 

will shape the future (Attwood 1996a, p. xvii). According to this approach, the writing of history 

is performed within the historical context of the present, and its content is informed by the 

interpretive framework of the historian.   

 

The acceptance of Indigenous peoples’ accounts of history, both in historical works and in the 

law, illuminates how the historical record may be revised and how such revisions may influence 

change in the law. The acceptance by the High Court of the claimants’ evidence in Mabo 

supported their contentions concerning the survival and nature of their rights and interests to land, 

and located the source of those rights and interests in their traditional laws and customs. 

Moreover, by changing the law through acceptance of the pre-existing property rights of 

Indigenous peoples, and by rejecting what Brennan J described as the ‘barbarian’ theory of law in 

response to contemporary values (Mabo, 1992, at 39), Mabo not only represented a shift in the 

basis for interpreting Australian history by acknowledging the relevance of Aboriginal traditions, 

but took its place in the broader developing tradition of a history of reconciliation – the end of the 

age of racial discrimination in Australia: a sentiment also conveyed in the judgment of Deane and 

Gaudron JJ (Mabo, 1992, at 109). 

 

Admittedly, while the approach in Mabo conforms to the historiographical methodology of the 

new history movement, it is also true that in any event it is an accepted methodological approach 

of the common law to modify the law where its presuppositions no longer reflect current social 

standards – which is in effect the approach that was taken in Mabo. Reflecting on the 

methodology of the common law, Jeremy Webber has noted: 



8  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

 
It is a much more active process of probing for what is valuable in our past, cherishing what we 
take to be important, refining it, and basing our further growth and reflection upon it – all 
elements of a sophisticated grappling with precedent. Respect for precedent involves modesty – a 
sense that we can and should learn from our own community’s past – but it also involves a critical 
element, in which we actively engage our past, drawing lessons for the future. At times, reflection 
upon our past (including reflection upon where our community now seems to be moving) leads us 
to question prior assumptions. We can come to the conclusion that elements that once seemed 
central to our society are now out of step with, perhaps even antagonistic to, our most cherished 
commitments (Webber 1995, p. 25).  
 

Importantly, the focus of revision in cases such as Mabo is not merely an interpretive reading of 

the past, but demonstrates concern for what should be done in the present to chart ‘a future course 

that accords better with what we take to be good in our community’s experience’ (Webber 1995, 

p. 10). As Webber has pointed out, the issue in Mabo ‘was not about some action or defect of the 

remote past’: 

 
The defect was very much alive within the law, its application in question today. Often, people 
presume that Indigenous title is about dispossession long ago. Usually, however, the dispossession 
is 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 sojourners, subject to removal at the government’s whim. If dispossession occurred, 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 cases might be old, it was their present operation, at the end of the 20th 
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 present inhabitants . . . (Webber 
1995, pp. 25-6). 

 
Yet, according to the more orthodox view of history and law, dispossession would have already 

occurred in 1788 (in the case of New South Wales) or 1789 (in the case of Queensland where the 

proceedings in Mabo arose) with the acquisition of British sovereignty over the Australian 

territories, notwithstanding the changed circumstances of the present. Indeed, this had been the 

approach taken by Dawson J (dissenting) in Mabo. Needless to say if this view had prevailed the 

course of Australian history would have been undeniably different and, from a social justice point 

of view, all the worse for Indigenous peoples and for the nation as a whole.  

 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 9 

Thus, apart from the developments in the law that the Court relied upon to legitimize its decision 

in Mabo, the decision can also be understood in terms of the new history writing that had 

emerged in the decades leading up to the decision, providing versions of Australian history 

alternative to those that had consciously excluded the impact of colonialism on Indigenous 

peoples. The Court adopted a similar approach in its recognition of the impact of colonial laws 

and policies on the Indigenous inhabitants – which, as Brennan J put it, had made them ‘intruders 

in their own homes and mendicants for a place to live’ (Mabo, 1992, at 29). Thus, the Mabo 

decision demonstrates judicial acceptance of the changing ‘truths’ about Indigenous peoples and 

their societies, and acknowledgement of the significant role played by law, and state policies and 

practices, in undermining their continued survival in Australia. These were truths that had already 

become apparent through developments in the new history movement; but the significance of 

Mabo was that it also gave those developments legal effect. The rejection of the ‘terra nullius 

doctrine’ was the discursive means by which the Court sought to address the past injustices and 

discrimination experienced by Indigenous inhabitants, to acknowledge the pre-existing legal 

systems of the Indigenous inhabitants, and thus to secure a more legitimate foundation for 

Australian property law by acknowledging that native title had survived the acquisition of British 

sovereignty.  

 

For some this was an indication that Mabo signalled the potential transformation of the nation by 

providing a new foundation for the relationship between Indigenous and non-Indigenous peoples 

in Australia, based on equality of treatment of Indigenous and non-Indigenous property interests. 

This potential was itself a product of history and reflects acceptance of the ‘new Australian 

history as an interpretation of Australia’s colonial past [and Australia’s present and future]’ 

(Attwood 1996a, p. vii). In this way Mabo was not only a turning point in the direction towards 

reconciliation, but could also be located on the trajectory of the reconciliation movement in law 

and society. Mabo was itself a reconciliatory event, but was also the product of a history of 

reconciliation, or what has been termed the ‘new history of Australia’. Unfortunately, 

developments in the context of native title law have demonstrated that much more needs to be 

done in order to make the end of dispossession and discrimination a reality in the legal context. 

 

 



10  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

Mabo: Australia’s Past, Present and Future 

If the historians in colonial times had come to forget that colonial Australian history involved 

relations between Indigenous and non-Indigenous peoples, it was because at least by the latter 

half of the 19th century it had become accepted that Indigenous peoples were not subjects in 

Australian history, but objects of scientific study. In this ‘old history’ it was first naturalism and 

then Social Darwinism that came to dominate the way in which Indigenous peoples were 

perceived through the eyes of the European colonizers. Naturalism supported the creation of a 

hierarchical relationship between Indigenous and non-Indigenous peoples: perceived as hunter 

gatherers Indigenous peoples were thought to be still in a state of nature – assigned to pre-history, 

and therefore outside history altogether (Davies, 2002, 261-5). When Social Darwinism replaced 

naturalism it continued to perpetuate the hierarchical relationship between the colonizers and 

colonized. It was in this period that ‘race’ clearly became a classifying tool, used not only to 

distinguish between races, but to place different races at different levels on the scale of 

civilization, with Indigenous peoples at the bottom. Insofar as these theories came to inform the 

laws and policies relating to Indigenous peoples they would in turn legitimize inequality of 

treatment of Indigenous peoples, justify the removal of Indigenous children from their 

communities and make more land available for non-Indigenous usages. However, the ill effects of 

colonization on Indigenous peoples were not seen as the consequences of those practices and 

policies, but as the natural consequences of their inferiority and inability to match the western 

forces of civilization. Social Darwinism predicted the eventual demise of the Aboriginal race and 

when that did not become the reality, governments tried to ensure that it would through social 

engineering. The eventual failure of Social Darwinism would lead to the adoption of 

assimilationist policies based on anthropological perceptions of Indigenous peoples as capable of 

being absorbed within the broader mainstream Australian society.  

 

Throughout these periods of colonization the supposed inferiority of Indigenous peoples (and the 

corresponding superiority of the European colonizers) seemed irreconcilable with the threat that 

Indigenous peoples appeared to pose to the colonizing processes. A classic example of this 

paradox can be found in a statement made in 1937 by the second Chief Protector of Aborigines in 

Western Australia, AO Neville, during discussions of the growing ‘Aboriginal problem’ that was 

then facing the states and territories : 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 11 

the native population is increasing. What is to be the limit? Are we going to have a 
population of 1,000,000 blacks in the Commonwealth, or are we going to merge them into 
our white community and eventually forget that there ever were any Aborigines in 
Australia? (Commonwealth of Australia 1937, p. 11).1

 
  

Interestingly, it was the anthropologists, notably Elkin, who in the first half of the 20th century 

found that Indigenous peoples did in fact have a culture: ‘a social, economic, legal, political and 

religious organization by which they are able to adapt themselves to their geographical and social 

environment’ (Elkin 1934, p. 15). At the time, the anthropologists may have provided the 

scientific basis for the adoption of the policy of assimilation. Nevertheless, it is clear that it was 

their perception of Aboriginality that came to inform the High Court decision in Mabo, 

particularly in the Court’s recognition of native title and its corresponding acknowledgement that 

Indigenous peoples do have systems of laws and societies. Thus, while in its original context 

anthropological constructions of Aboriginality purported to advance the understanding that 

Indigenous peoples could be absorbed into white Australian society (in this sense Aboriginality 

was still seen in negative terms requiring further negation), in Mabo such a construction was 

applied in positive terms – as a positive recognition of difference. 

 

However, this construction of Aboriginality has not proven to be unproblematic. The problem 

with the anthropological construction, as with all the other colonial constructions of 

Aboriginality, is that Aboriginality is perceived as timeless and homogenous, reflecting the 

natural differences between Indigenous and non-Indigenous peoples. For the early 

anthropologists like Elkin, once the traits that were proof of Aboriginality were exposed to and 

tainted by British civilization, it was thought they were lost forever. This understanding has also 

come to inform developments in the native title context. 

 

Since Mabo there have been numerous High Court decisions in the area of native title. Of these 

the decisions in Yorta Yorta and Ward are two of the most significant as they set out the Court’s 

understanding of the definition of native title contained in the Native Title Act 1993 (Cth) 

(‘NTA’), which now governs this area of law. According to section 223(1) of the NTA ‘native 

title’ is defined as: 

                                                 
1 For an earlier account of this phenomenon see Morris 1992. 



12  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

the communal, group or individual rights and interests of Aboriginal peoples or Torres 

Strait Islanders in relation to land or waters, where: 

(a) the rights and interests are possessed under the traditional laws acknowledged, 

and the traditional customs observed, by the Aboriginal peoples or Torres 

Strait Islanders; and 

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, 

have a connection with the land or waters; and 

(c) the rights and interests are recognised by the common law of Australia. 

 

In Yorta Yorta Gleeson CJ, Gummow and Hayne JJ, in a joint majority judgment in the High 

Court, dismissed the claimants’ appeal against orders rejecting their native title claim over their 

ancestral lands that lie across the border of Victoria and New South Wales. The critical issue 

involved the effect of the ‘adaptation and change’ (Yorta Yorta, 2002, at 449) that had occurred to 

the claimant group and their relationship to the claimed lands as a result of colonization. The 

claimants’ argument was that their ‘society, whose laws and customs had adapted and changed 

over time, continued to exist and … continued to occupy the claim area, or large parts of it, from 

before European settlement to the date of the claim’ (Yorta Yorta, 2002, at 449). The resolution of 

this issue depended on the joint judgment’s interpretation of the word ‘traditional’ in section 

223(1)(a) as it relates to ‘the traditional laws acknowledged, and the traditional customs observed, 

by the Aboriginal peoples or Torres Strait Islanders’.  

 

In support of the claim it was argued that the reference to traditional laws and customs in section 

223(1) should be interpreted in the present tense so that they relate to ‘traditional laws currently 

acknowledged and currently observed’ (Yorta Yorta, 2002, at 424):  

 
Section 223(1) does not require that they be the same as those which existed prior to sovereignty. 
… A requirement of positive proof of continuous observance and acknowledgment by each 
generation of ancestors of the claimant group would impose an impossible burden of proof. Such 
an approach would not allow for adaptation and change. No judgment in Mabo v Queensland [No 
2] went so far (Yorta Yorta, 2002, at 424). 
 

The High Court disagreed. For the purposes of interpreting ‘traditional’ as it relates to the 

traditional laws and customs referred to in the NTA, the joint judgment took as its starting point 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 13 

the understanding that ‘the origins of the content’ of these traditional laws and customs ‘are to be 

found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed 

before the assertion of sovereignty by the British Crown. It is only those normative rules that are 

“traditional” laws and customs’ (Yorta Yorta, 2002, at 444). Moreover, their Honours found that 

the NTA requires ‘that the normative system under which the rights and interests are possessed 

(the traditional laws and customs) is a system that has had a continuous existence and vitality 

since sovereignty’ (Yorta Yorta, 2002, at 444). The continued existence of this ‘body of norms’ 

(Yorta Yorta, 2002, at 445) depended on an inquiry into whether the society of the claimant group 

had continued to acknowledge and observe those laws and customs. Thus, in the context of native 

title the change of sovereignty meant that ‘the only native title rights or interests in relation to 

land or waters which the new sovereign order recognised were those that existed at the time of 

change in sovereignty. Although those rights survived the change in sovereignty, if new rights or 

interests were to arise, those new rights and interests must find their roots in the legal order of the 

new sovereign power’ (Yorta Yorta, 2002, at 447). Thus, a native title determination requires us 

to conduct an inquiry 

 
about the relationship between the laws and customs now acknowledged and observed, and those 
that were acknowledged and observed before sovereignty, and to do so by considering whether the 
laws and customs can be said to be the laws and customs of the society whose laws and customs 
are properly described as traditional laws and customs (Yorta Yorta, 2002, at 447).  
 

However, the joint judgment did concede that ‘some change to, or adaptation of, traditional law 

or custom or some interruption of enjoyment or exercise of native title rights or interests in the 

period between the Crown asserting sovereignty and the present will not necessarily be fatal to a 

native title claim’ (Yorta Yorta, 2002, at 454; see also 443). How much adaptation or interruption 

would be acceptable was not entirely clear.2

 

 On the issue of adaptation the joint judgment found 

it was a ‘question’ of whether 

the law and custom can still be seen to be traditional law and traditional custom. Is the change or 
adaptation of such a kind that it can no longer be said that the rights or interests asserted are 
possessed under the traditional laws acknowledged and the traditional customs observed by the 
relevant peoples …? (Yorta Yorta, 2002, at 455).  
 

                                                 
2 But see, eg, Western Australia v Sebastian [2008] FCAFC 65 (2 May 2008).  



14  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

On the issue of interruption the joint judgment was of the view that a claimant group must 

establish that ‘acknowledgment and observance of those laws and customs must have continued 

substantially uninterrupted since sovereignty’ (Yorta Yorta, 2002, at 456). This was a necessary 

requirement as 

 
the rights and interests which are said now to be possessed must nonetheless be rights and 
interests possessed under the traditional laws acknowledged and the traditional customs observed 
by the peoples in question. Further, the connection which the peoples concerned have with the 
land or waters must be shown to be a connection by their traditional laws and customs. … Were 
that not so, the laws and customs acknowledged and observed now could not properly be 
described as the traditional laws and customs of the peoples concerned (Yorta Yorta, 2002, at 
456).  

 
The limitation of native title recognition to only those rights and interests that were in existence at 

the time of the change in sovereignty, and the requirement that the acknowledgement and 

observance of ‘traditional’ laws and customs be ‘substantially uninterrupted’ as proof of 

continued connection to ancestral lands, reinforce ‘old’ colonial constructions of Aboriginality – 

the essentialized image of untainted Aboriginality found in anthropologism and the image of the 

dying race found in Social Darwinism. On this approach the joint judgment in Yorta Yorta could 

not take into account the impact that colonization had on the members of the claimant group 

through which they survived; rather the impact was proof of their own demise. The approach 

could not really accommodate the idea that a society’s traditional laws and customs may have 

evolved over time to become the laws and customs that the group currently acknowledges and 

observes in relation to their land and waters. Indeed, according to the logic of the joint majority 

judgment, the claimants’ ‘society which had once observed traditional laws and customs had 

ceased to do so and, by ceasing to do so, no longer constituted the society out of which the 

traditional laws and customs sprang’ (Yorta Yorta, 2002, at 458). 

 

However, the emphasis that the joint judgment placed on the date of the acquisition of 

sovereignty as pre-determining the native title rights and interests that the Court could recognise 

as ‘traditional’ under section 223(1) of the NTA may also be understood as an inevitable 

consequence of some of the unresolved issues in Mabo. However much each of the majority 

judges in Mabo appeared committed to change the law in a way that would benefit Indigenous 

peoples they could not undo one fact of Australian history – the acquisition of the Australian 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 15 

territories by the British Crown. The legal consequences of this fact are still being felt today. In 

Mabo the rejection of terra nullius may have paved the way for legal recognition of native title, 

but this was not matched by the legal recognition of Aboriginal sovereignty. Indeed if the 

decision in Mabo had in fact involved a need to reject the ‘terra nullius doctrine’, the Australian 

territories would have been reclassified as either ‘ceded’ or ‘conquered’. In that case the 

settlement thesis upon which the classification of the Australian territories is based would have 

become obsolete and the sovereignty of the peoples in pre-existing occupation would have been 

acknowledged (although the existing laws could be subject to modification or replacement by the 

Crown or by Parliament) (Dominello 2008a, p. 176). In fact what did happen in Mabo was that 

the Court gave legal recognition to a concept of Indigenous property that had its origins in 

Indigenous customary laws (as evident in the Court’s insistence that the content of native title 

was to emanate from the Indigenous claimants themselves), but continued to take it for granted 

that within the native title regime Indigenous peoples must continue to look to non-Indigenous 

institutions for the protection of their native title rights and interests. In Mabo the Court may have 

given legal recognition to changed perceptions of Indigenous peoples, but the power to make this 

decision and the framework for deciding native title claims in the future remained squarely within 

the hands of Australian legal institutions – not Indigenous ones.  

 

Significantly in Mabo Brennan J had found that ‘Native title, though recognised by the common 

law, is not an institution of the common law’ (Mabo, 1992, at 59): an understanding that has been 

subsequently accepted by the Court in its interpretation of native title under the NTA. However, 

the corollary of this reasoning is that Australian laws have their origins in the English law. The 

effect of maintaining such a distinction based on the difference between the origins of Australian 

laws and native title has been to reclassify racial differences between ‘Australians’ and 

Indigenous peoples. Where once distinctions were drawn between the personal traits of the 

British (and now Australians) and Indigenous peoples, distinctions in the native title context are 

being drawn on the basis of the differences in the legal origins of their respective laws. However, 

if the Court has continued to draw these distinctions it has been seen as a necessary step to 

preserve the acquisition of sovereignty by the British Crown and the Australian legal system that 

originated from that act. In Mabo the Court itself held that the acquisition cannot be challenged in 



16  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

a municipal court (Brennan J in Mabo, 1992, at 31). In Yorta Yorta the joint majority judgment 

went even further: 

 
the assertion of sovereignty by the British Crown necessarily entailed … that there could 
thereafter be no parallel law-making system in the territory over which it asserted 
sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and … that 
is not permissible (Yorta Yorta at 422, 443-4).  

 
Whether the Crown requires such protection remains to be seen. Paradoxically what can be seen 

in the developments in native title is the perceived difference in origins of Australian law in 

English law, and native title in Aboriginal customary law, has left native title vulnerable to 

inferior treatment – the regrettable legacy of the colonial enterprise. This is nowhere more 

obvious than in Ward.  

 

The native title claim in Ward related to the region known as the East Kimberleys, and covered 

lands and waters in northern parts of Western Australia (the Miriuwung and Gajerrong claim) and 

adjacent lands in the Northern Territory (the Ningarmara claim). Because there were competing 

rights and interests in the claimed land, the issue of whether native title rights and interests could 

be subject to partial extinguishment, and the general principles applicable to the issue of 

extinguishment, were crucial. However, in order to determine those issues, it was first necessary 

to consider what exactly might be subject to extinguishment; that is, the nature of native title as 

defined by the NTA.  

 

On this issue, the Miriuwung and Gajerrong claimants submitted that the ‘occupation approach’ 

that Lee J had applied at first instance, should be adopted and that the ‘bundle of rights’ approach 

subsequently taken by the majority of the Full Federal Court should be rejected in this case. 

According to a ‘bundle of rights’ approach, native title rights and interests are severable from 

each other. As thus understood, native title as a ‘bundle of rights’ is susceptible to partial 

extinguishment, However, as a title based on occupation, it is not. 

 

In relation to the definition of native title in the NTA the claimants submitted that they  

 
through their predecessor community, occupied exclusively the determination area so that then, as 
now, they hold a right to exclusive possession. It is a “community title” which is practically 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 17 

“equivalent to full ownership”. This conclusion is justified by the concept of “belonging to 
country”, evidenced by the findings of fact, and is supported by the judgment of Brennan J in 
Mabo [No 2] (Ward, 2002, at 10-11).  
 

This argument was based on Lee J’s judgment at first instance (and on the decision of the 

Supreme Court of Canada in Delgamuukw v Queen (in right of British Columbia). Justice Lee 

had treated native title as a communal ‘right to land’ and had found in relation to the 

circumstances of this case that ‘the right … to “speak for” that land, in particular to “speak for” 

its use … justified the finding that there was possession, occupation, use and enjoyment of the 

traditional homelands of the applicant group’ (Ward, 2002, at 11). In this way the claimants 

posited native title as analogous to a title in fee simple – as proprietary in nature: 

 
Passages in the judgment of Brennan J in Mabo [No 2] support the view that the interest of a 
community in exclusive possession of land is proprietary because there are no other proprietors. 
An identifiable community that was in exclusive possession of land, which is an identifiable 
community today and which observes customs that are traditionally based, has proprietary title 
(Ward, 2002, at 12).  
 

The High Court, however, rejected this conceptualisation of native title. In a joint judgment 

Gleeson CJ, Gaudron, Gummow and Hayne JJ found that the change in sovereignty meant that 

the right to speak to country — ‘the right to be asked for permission to use or have access to the 

land — was inevitably confined, if not excluded’ (Ward, 2002, at 94). The change in sovereignty 

meant that new rights to control access to land were created. The rights of traditional occupiers to 

control access to the land may have been affected, but the joint judgment opined that ‘because 

native title is more than the right to be asked for permission to use or have access (important 

though that right undoubtedly is) there are other rights and interests which must be considered, 

including rights and interests in the use of the land’ (Ward, 2002, at 94). The joint majority 

judgment also stressed the requirement under section 223(1) of the NTA that the relevant native 

title rights and interests are only those ‘in relation to land or waters’: they are the ‘rights and 

interests which are “possessed under the traditional laws acknowledged, and the traditional 

customs observed”, by the relevant peoples’ and who ‘by those traditional laws and customs … 

“have a connection with” the land or waters in question’ (Ward, 2002, at 66). In this way, their 

Honours limited native title rights and interests to those arising out of the traditional laws and 

customs that demonstrated the claimant group’s connection to their lands and waters.  



18  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

 

Overall, the joint judgment preferred the ‘bundle of rights’ approach to the occupation approach: 

 
It draws attention first to the fact that there may be more than one right or interest and secondly to 
the fact that there may be several kinds of rights and interests in relation to land that exist under 
traditional law and custom. Not all of those rights and interests may be capable of full or accurate 
expression as rights to control what others may do on or with the land (Ward, 2002, at 95).  
 

In turn the joint judgment rejected the occupation approach: 

 
The fact of occupation, taken by itself, says nothing of what traditional law or custom provided. 
Standing alone, the fact of occupation is an insufficient basis for concluding that there was what 
the primary judge referred to as “communal title in respect of the claim area” or a right of 
occupation of it (Ward, 2002, at 94).  
 

It follows from a ‘bundle of rights’ approach to the content of native title that native title rights 

and interests can be subject to partial extinguishment (Ward, 2002, at 89). In fact, the joint 

judgment found that certain provisions of the NTA ‘mandate entire and partial extinguishment’ 

(Ward, 2002, at 63). On this basis, they opined that it was not appropriate to view native title 

rights and interests as ‘a single set of rights relating to land that is analogous to a fee simple’ 

(Ward, 2002, at 91). To do so ‘assumes, rather than demonstrates, the nature of the rights and 

interests that are possessed under traditional law and custom’ (Ward, 2002, at 92). 

 

Their Honours, however, did not seem to rule out altogether claims for rights of control over 

traditional lands arising from the right to speak for country. However, in terms of the ‘bundle of 

rights’ approach, such a right could only be one among many of the rights that comprise native 

title. In fact, a determination under section 225(b) of the NTA is required to state ‘the nature and 

extent of the native title rights and interests in relation to the determination area’; and for 

anything less than ‘a right, as against the whole world, to possession, occupation, use and 

enjoyment of land or waters’, their Honours opined that ‘it will seldom be appropriate, or 

sufficient, to express the nature and extent of the relevant native title rights and interests by using 

those terms’(Ward, 2002, at 82).3

                                                 
3 But see, eg, Neowarra v Western Australia [2004] FCA 1092 and Sampi v Western Australia (No 2) (2005) 224 
ALR 358. 

 When no such right of exclusive possession exists as native 

title, ‘it will be preferable to express the rights by reference to the activities that may be 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 19 

conducted, as of right, on or in relation to the land or waters’ (Ward, 2002, at 83). Thus, in their 

view now that native title is governed by the NTA, native title could no longer be understood in 

terms of the common law developments in this area which had been the approach of Lee J at first 

instance. Furthermore, the majority’s construction in Ward of the connection which Indigenous 

peoples have with the land – ‘country’ – as essentially spiritual led them to question whether 

native title could ever amount to the same entitlements as under the common law (Ward, 2002, at 

65, 93).  

 

Adopting the ‘bundle of rights’ approach, the joint majority judgment confined its enquiry to 

those rights and interests of the claimant group that might demonstrate their connection to the 

claimed area. In this regard, the Court, agreeing with the Full Court majority, rejected the 

proposition that control of traditional cultural knowledge was a native title right: the ‘recognition’ 

of this right would extend beyond denial or control of access to land held under native title 

(Ward, 2002, at 84). According to the joint judgment, a connection must be made between the 

rights and interests claimed and the land in question. That connection was missing in relation to 

these rights. Such rights might involve, for example, the restraint of visual or auditory 

reproductions of what was to be found there or took place there, and this would fall outside the 

definition of native title rights and interests in the NTA (Ward, 2002, at 84).  

 

Furthermore, the right to use the resources on the land was limited to a right to use the traditional 

resources of the land. Thus it was held that no native title right or interest in minerals was 

established (Ward, 2002, at 185-6).4

                                                 
4 Even if they had established traditional rights to these resources, the provisions in the Mining Act 1904 (WA) and 
the Petroleum Act 1936 (WA) had extinguished those rights, at least in relation to the claim over parts of Western 
Australia). 

 Moreover, the bundle of rights approach to native title 

supported the application of the ‘inconsistency of rights’ test for extinguishment. As applied to 

various parts of the claimed land, the joint judgment found that the claimants’ rights of 

controlling access to these areas and making decisions about them had been extinguished, 

although that did not necessarily extinguish all aspects of native title (Ward, 2002, at 190-8 in 

relation to the pastoral lease in the Northern Territory; at 138 in respect of the reservation of land 

for public purposes; at 157-70 in respect of mining leases). Notably, such a dissection of the 



20  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

claimants’ rights would not have been possible if the occupation approach had been adopted (Lee 

J in Ward, 1998, at 508-10, North J in Ward, 2000, at 516). 

 

It is evident from the joint majority judgment in Ward that a stark contrast between Indigenous 

law and Australian law effectively meant that common law property precepts could not be used to 

give substance to Indigenous peoples’ conceptions of property (Ward, 2002, at 65). In any event 

their understanding of the operation of the NTA appears to have precluded any alternative 

approach to native title based on common law conceptualizations of native title. However, it is 

also important to acknowledge how the joint judgment established support for its reasoning on 

the basis of the nature of the relationship between Indigenous societies and their traditional lands. 

Indeed, the joint majority judgment found that the relationship between Indigenous peoples’ and 

their ‘country’ was essentially spiritual, and this led them to question whether native title could 

ever amount to the same entitlement as a common law property title (Ward, 2002, at 93). Again, 

this was reminiscent of the ahistorical Aborigine of anthropologism that had been accepted by 

Blackburn J in Milirrpum v Nabalco as ‘the fundamental truth about the aboriginals’ relationship 

to the land’ (Ward, 2002, at 64). 

 

The reasoning of the joint majority judgment in Ward suggests that the spiritual nature of the 

connection that Indigenous peoples have to their lands precludes its construction and treatment as 

a common law property right (Ward, 2002, at 65). One may perhaps wonder why the Court found 

it necessary to draw such distinctions and not to rely solely on the terms of the NTA. However, by 

adopting this approach, the majority judgment appeared to accept a tacit distinction between the 

spiritual (Indigenous conceptions of property) and the economic (non-Indigenous conception of 

property).5

                                                 
5 See also Callinan J in Ward, 2002, at 395-7. 

 It would appear that such distinctions are reason enough to treat native title as an 

inferior property entitlement. The Court may have tried to construe this distinction as an 

inevitable consequence of the operation of the NTA, but it cannot really conceal its own role in 

continuing to perpetuate such differences. Indeed if non-Indigenous property rights are superior it 

is because they have been made so in the Australian legal context. The result is that Indigenous 

peoples are clearly being discriminated against on the basis of race and the perceived differences 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 21 

in their conceptions of property that arise from racial differences: there is nothing inevitable 

about it.  

 

Mabo and the (Post)-Colonial Legacy 

The decisions in Yorta Yorta and Ward show that there still has not been an end to the history of 

the dispossession and discrimination. Mabo could be seen as a product of new history writing, but 

it is equally true that the developments in native title law have seen a return to some of the old 

ways of seeing Indigenous peoples. It is no wonder that when native title claims have failed there 

are claims made that the terra nullius doctrine continues to pervade Australian law: Indigenous 

peoples may continue to maintain connections to their ancestral lands, but their presence on the 

Australian landscape continues to be denied. It may be that in Mabo that both ‘new’ and ‘old’ 

approaches to history coexist, but that ultimately it was the spirit of reconciliation that triumphed 

in that case. Regrettably, this spirit may have dwindled in the more recent case law.  

 

A significant aspect of the new history movement was to break the silence surrounding the 

history of colonial relations in Australia. An important aspect of these histories (although by no 

means their sole focus (Veracini 2003)) was to illuminate the injustices that Indigenous peoples 

have experienced during this history. The reconciliatory tone set by Brennan J in his appeals to 

bring Australian laws into conformity with contemporary notions of justice and human rights, and 

by Deane and Gaudron JJ in their appeals to correct the law and overcome a legacy of grave 

historical injustices for Indigenous peoples, accord with this historical approach. But they are in 

stark contrast to the judgments in Yorta Yorta and Ward. Notably at first instance in Yorta Yorta, 

Olney J was of the view that there was not  

 
any warrant within the Native Title Act 1912 [sic] for the Court to play the role of social engineer, 
righting the wrongs of past centuries and dispensing justice according to contemporary notions of 
political correctness rather than according to law. … [T]his case is not about righting the wrongs 
of the past, rather it has a very narrow focus directed to determining whether native title rights and 
interests … have survived to be recognised and enforced under the contemporary law of Australia 
(Yorta Yorta, 1998, at [17], [21]).  
 

Furthermore, by contrast to the judgment of Deane and Gaudron JJ in Mabo, with its 

acknowledgment of the impact of colonization and attempt to address and retreat from past 

injustices, in Ward such aspirations have been construed as beyond the reach of the courts to 



22  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

achieve. In Ward, in even stronger language than that used by Deane and Gaudron JJ in Mabo, 

McHugh J acknowledged that: 

 
at least on occasions the dominant class in a society will use its power to disregard the rights of a 
class or classes with less power. On any view, that is what the dominant classes in Australian 
society did – and in the eyes of many still do – to the Aboriginal people (Ward, 2002, at 231). 

 
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: 

 
redress cannot be achieved by a system that depends on 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 classes of 
rights conflict. And it is a system that is costly and time-consuming. At present the chief 
beneficiaries of the system are the legal representatives of the parties. It may be that the time has 
come to think of abandoning the present system (Ward, 2002, at 240-41). 
 

Until the system is changed, however, it is clear that the law of native title in Australia is 

governed by the statute (McHugh J in Yorta Yorta, 2002, at 467). 

 

Ultimately, the result in Yorta Yorta has seen a return to the silencing of Aboriginal history and 

the impact that colonial history has had on Indigenous peoples and of the need for remedial relief 

of this impact. In the High Court the joint majority judgment endorsed the trial judge’s 

conclusion that the claimant group’s adherence to traditional laws and customs was irrevocably 

severed sometime in the late 19th century. 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 testimonies of the claimants’ own connection to their traditional 

lands. The joint judgment also specifically endorsed the trial judge’s conclusion that an 

Aboriginal petition in 1881, protesting that ‘the government and white settlers’ had taken 

possession of ‘all the land within our tribal boundaries’, could be used as ‘“positive evidence 

emanating from the Aboriginals themselves” to the effect that the descendants of those who had 

originally occupied the land no longer continued to acknowledge their traditional laws or observe 

their traditional customs’ (Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta, at 450). The 

petition had originally been tendered by the claimants to demonstrate their history of survival and 

resistance, by showing that they had continued to struggle for land throughout the period of 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 23 

colonization. The distortion of the intention of the petition by the courts effectively turned the 

notion of Aboriginal agency against the Indigenous claimants themselves: as evidence of 

continued survival and struggle for land, the petition was (mis)-interpreted as proof of the 

extinguishment of their rights to their lands.  

 

The entire approach taken by Olney J has been criticized for giving preference to white man’s 

history – not only his version of that history, but the way that he tells that history through the 

written word, discrediting any oral version of that history (read Indigenous versions) that may 

contradict the written version (Paul and Gray 2002). Only Black CJ, dissenting in the Full Federal 

Court, warned of the dangers of accepting colonial accounts of Aboriginal people in colonial 

times (Yorta Yorta, 2001, at 262-3), and only Gaudron and Kirby JJ, dissenting in the High Court 

and echoing the approach of Black CJ, could accommodate the effects of colonization on the 

claimant group (Yorta Yorta, 2002, at 464-5). 

 

Justices Gaudron and Kirby, in their dissenting judgment in Yorta Yorta, disagreed with 

approaches taken at trial and in the Full Federal Court, insisting that they did not fully appreciate 

the intention of Parliament to acknowledge a history of dispossession and give protection to 

native title rights and interests in the NTA:  

 
So much was impliedly recognised in the Preamble to the Act which “sets out considerations 
taken into account by the Parliament”, including that Aboriginal people and Torres Strait Islanders 
had been “progressively dispossessed of their lands” (Yorta Yorta, 2002, at 463). 
 

The extent to which the approaches taken by the High Court in Yorta Yorta and Ward have been 

able to accommodate the effects of colonization on Indigenous claimant groups in other cases has 

varied according to the circumstances of those cases. Notably, in some recent cases reliance on 

the conception of the claimants’ connection to their ancestral lands as ‘spiritual’ has, to some 

extent, helped to address the impact of colonization and for some native title claimant groups has 

led to positive findings. For instance, in De Rose Wilcox, Sackville and Merkel JJ (confirming 

the Full Federal Court decision in Ward) found that:  

 
a spiritual connection and the performance of responsibility for land can be maintained even 
where Aboriginal people have been hunted off the land or it has become impracticable for them to 
visit. The Full Court said that physical presence is not essential in circumstances where it is no 



24  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

longer practicable or access to traditional lands is prevented or restricted by European settlers (De 
Rose, 2003, at [418]).  
 

Their Honours further noted that this approach was not dissented from in the High Court on 

appeal in Ward. Similar conclusions were made in Daniel in relation to the continuing connection 

of both claimant groups to their lands: despite the substantial impact of European settlement that 

had affected the continued occupation on the land, Nicholson J in that case found that the 

Yindjibarndi and Ngarluma peoples had maintained a strong sense of connection to their lands 

(Daniel, 2003, at [421]-[422]).  

 

However, it is to be remembered that the acknowledgement of a spiritual connection to land does 

not fully accommodate the connection that Indigenous peoples have to their ancestral lands and 

that it is the land itself that has the spiritual significance for them. At most casting the connection 

between claimant groups and their lands as ‘spiritual’ has only mitigated some of the effects of 

colonization on these groups. It should not be forgotten that the reaffirmation of difference in 

Ward – stemming from the perceived differences in origin of Australian law and native title – has 

merely cast Indigenous property precepts as different and inferior to common law property 

precepts as well as common law conceptualizations of native title: native title as a bundle of 

rights is not the same as the full ownership of land. Arguably, the adoption of the occupation 

approach would have been more in line with the claimants’ own understanding of their 

relationship to their traditional lands, since on that approach the land itself would be the focal 

point of any enquiry into native title (North J in Ward, 2000, at 515). 

 

Stressing the spiritual nature of the connection that Indigenous peoples have to their traditional 

lands may further confine native title to ‘personal’ or ‘domestic’ rights and interests (as opposed 

to ‘economic’ or ‘trading’ rights) and in this way may limit the success of claims that would help 

Indigenous peoples to engage in commercial exploitation of any natural resources that may be 

present on their traditional lands. For instance in Daniel Nicholson J found that the only native 

title rights and interests that had survived the acquisition of sovereignty were those: 

 
not exercisable otherwise than in accordance with and subject to traditional laws and customs for 
personal, domestic and non-commercial purposes (including social, cultural, religious, spiritual 
and ceremonial purposes) (Daniel v Western Australia [2005] FCA 536 at [4]).  



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 25 

 
Notwithstanding that native title rights and interests can include hunting, fishing and gathering 

rights and interests under section 223(2) of the NTA, the decision in Yorta Yorta, by confining 

native title rights and interests to those that were in existence at the time of the acquisition of 

sovereignty, may make it all the more impossible to recognise the existence of rights to trade in 

resources. This problem had already been foreshadowed in the High Court decision in Yarmirr v 

Northern Territory (in relation to fishing rights) and in Ward (in relation to rights to minerals). 

Only in rare circumstances has a Court recognized the commercial rights of a native title claimant 

group, for example in Lovett on behalf of the Gunditjmara People v State of Victoria where North 

J recognized the claimants’ traditional rights to trade in eels.  

 

In most cases Australian courts have been unable to accommodate Indigenous forms of economic 

exchange. Indigenous practices have at best been misconstrued ‘as a type of primitive exchange’ 

and at worst re-constituted ‘as an absence of economic relations’ (Langton, Manzel and Palmer 

2006, p. 307). Indeed these cases illuminate another shortcoming of the native title regime. 

Australian courts have been prepared to say 

 
yes Aboriginal culture was of a type that was capable of supporting a system of laws about 
ownership and use of the lands but not so far to acknowledge that the system included trade in the 
resources in or on the lands, or even if Aboriginal people did trade in those resources it was only 
with each other and therefore not trade in the sense of western trade (McAvoy 2001, p. 4). 

 
In other cases, the effects of colonization have precluded a positive finding of native title 

completely. For instance, in Risk, the effects of colonization on the claimant group led Mansfield 

J to conclude (echoing the High Court majority in Yorta Yorta) that ‘the current Larrakia 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 existence and vitality since sovereignty’ (Risk, 2006, at [13]). By contrast, in Bennell v 

Western Australia Wilcox J was able to distinguish the facts in that case from those in Yorta 

Yorta. Finding that the Noongar people held native title over the claim area situated in the Perth 

region, he noted that ‘unlike the Yorta Yorta people … the south-west community did not suffer a 

cataclysmic event that totally removed them from their traditional country. Families were pushed 

around, and broken up … [h]owever, people continued to identify with their Aboriginal heritage’ 



26  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

(Bennell v Western Australia, 2006, at 265-6). However, on appeal, the Full Federal Court 

disagreed with this approach. Justices Finn, Sundberg and Mansfield found the requirement in 

Yorta Yorta that ‘acknowledgment and observance of … laws and customs must have continued 

substantially uninterrupted since sovereignty’ itself contained an acknowledgement of the effects 

of European settlement on native title: ‘European settlement is what justifies the expression 

“substantially uninterrupted” rather than “uninterrupted”. It explains why it is that the common 

law will recognise traditional laws and customs that are not exactly the same as they were at 

settlement’ (Bodney v Bennell, 2008, at 109). But that was as far as the Full Court would go to 

accommodate the effects of white settlement. The Full Court found that: 

 
if … there has been a substantial interruption, it is not to be mitigated by reference to white 
settlement. The continuity enquiry does not involve consideration of why acknowledgment 
and observance stopped. If this were not the case, a great many Aboriginal societies would be 
entitled to claim native title rights even though their current laws and customs are in no 
meaningful way traditional. Yorta Yorta … would have been decided differently … (Bodney 
v Bennell, 2008, at 109). 

 
The question that remains is whether the results in these cases are the inevitable consequences of 

Mabo: was Mabo only intended to address some but not all of the effects of colonization that had 

contributed to the dispossession of Indigenous peoples’ lands? Clearly the acceptance of the idea 

of extinguishment of native title, the framing of conditions on which native title could be 

extinguished and the limits placed on the availability of compensation for past acts of 

extinguishment, suggest that there were certain events in history that the Court found could not be 

undone. But it is also to be remembered that each of the judgments in Mabo took a different 

approach to these issues. As for the requirement for a continued connection to the land as proof of 

native title, the majority judgments in Mabo differed again. Notably it was only Brennan J (in the 

often referred to ‘tide of history’ passage) who clearly postulated the requirement that to retain 

native title, a claimant group must still have a connection to their ancestral lands through 

continued observance and acknowledgement of their ‘traditional’ laws and customs (Mabo, 1992, 

at 60). Moreover, according to Brennan J’s formulation such a connection (so far as practicable) 

must have been ‘substantially maintained’ (Mabo, 1992, at 59). By contrast, Toohey J focused on 

the nature of the traditional title as ‘rooted in physical presence. That the use of land was 

meaningful [in relation to a society's economic, cultural or religious life] must be proved but it is 

to be understood from the point of view of the members of the society’ (Mabo, 1992, at 188). His 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 27 

approach appears to be focused on proof of continuity of the community over time and suggests 

that it might be sufficient to maintain native title even if the group has lost its traditional customs 

(Webber 1995, p. 19).  

 

It may be important to point out here that the different views on these issues that were being 

expressed in 1992 when Mabo was decided may need to be understood within the broader 

historical context of that decision and more specifically within the interpretive framework of each 

judge. Moreover, the differences in approach in Mabo meant that there were alternative 

approaches available to future courts on how to resolve these differences. If the law was to 

continue to develop in the spirit of reconciliation, those approaches that offered the most 

protection to native title should have been followed. Given that these approaches were not 

followed in cases like Yorta Yorta and Ward, one explanation could be that the NTA now 

precludes their application. However, it is equally true that there was no unanimity in these cases 

either on the question of how the Act should apply. Both cases specifically related to the nature of 

the content and proof of native title. In Ward Lee J at trial had continued to postulate the common 

law understanding that native title was proprietary in nature, notwithstanding the provisions in the 

NTA. In Yorta Yorta Gaudron and Kirby JJ’s interpretation of the definition of native title in the 

NTA still enabled them to follow Toohey J’s formulation in Mabo of the standard of proof 

required to be met in order to succeed in a claim for native title. In their view ‘adaptations, 

alterations, modifications or extensions of laws previously acknowledged’ could fit within the 

definition of ‘traditional laws acknowledged’ in s 223(1)(a) of the NTA (Yorta Yorta, 2002, at 

264). Moreover, while Gaudron and Kirby JJ found that the continuity of a community was 

important in determining whether current practices are part of its traditional laws and customs, 

they also found that: 

 
the question whether a community has ceased to exist is not one that is to be answered solely by 
reference to external indicia or the observations of those who are not or were not members of that 
community. The question whether there is or is not continuity is primarily a question of whether, 
throughout the period in issue, there have been persons who have identified themselves and each 
other as members of the community in question (Yorta Yorta, 2002, at 264). 
 

Most notably in response to the stringent standard of proof that had been applied by Olney J at 

first instance (based on Brennan J’s approach in Mabo), Gaudron and Kirby JJ found that ‘[t]here 



28  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

is nothing in … the definition of “native title” or “native title rights and interests” which requires 

that “traditional connection with the land ... [be] substantially maintained”’ (Yorta Yorta, 2002, at 

466). The same argument could be made in response to the joint majority judgment in the High 

Court: there is nothing in the definition of native title in the NTA which requires that traditional 

connection with the land be ‘substantially uninterrupted’.     

 

Evidently, the NTA can be read in ways that could provide native title with more protection than 

it has been offered in Yorta Yorta and Ward. Thus, to understand why native title has not been 

adequately protected it may be necessary to look beyond the current law and at the wider 

political, social and historical context in which developments in this area of law have taken place. 

The lingering effects of old colonial approaches to history and Indigenous societies are 

particularly relevant here. The more recent developments in native title law may be lamented as 

just another example of the eternal return of colonialism in Australia. Indeed the conservative 

backlash in response to Mabo, and then subsequently in relation to Wik, most clearly 

demonstrates how old colonial constructions of Aboriginality are still prevalent in certain 

influential quarters of Australian society (Attwood 1996b; Marcus 1996). This backlash had its 

greatest influence on the native title regime, most notably through the amendments to the NTA in 

1998 that have further contributed to compounding the inferior status of native title in Australian 

law (Tehan 2003, p. 555). The unprecedented attacks on the High Court for their decisions in 

Mabo and Wik may also help to explain the more cautious approach of the High Court in cases 

such as Yorta Yorta and Ward, confining the recognition of native title to the much more fragile 

conceptualisation spelled out in those cases. It is also important to acknowledge the extensive 

resources poured into defending native title claims by public and private bodies alike, and the 

frequency with which claims are met with the response that native title has ceased to exist (or 

never existed in the first place). In Ward, the defendants devised arguments that were even more 

restrictive in scope than those that were finally accepted by the joint majority judgment, in an 

effort to convince the Court to reject the native title claim completely. Though the joint judgment 

did not accept these arguments, Callinan J (in dissent) did. Reminiscent of the old version of 

Australian history Callinan J opined: 

 
The first non-indigenous people who occupied this country brought with them their common and 
statutory law which had long included a doctrine of adverse possession and settled notions about 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 29 

the use and occupation of land. These were closely connected ideas: land was to be used and 
enjoyed, and those who possessed, used and enjoyed the land should own it …  
 
Those early non-indigenous settlers also 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 appeared that 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 inevitable when those who were the more powerful had a well 
settled, long-standing body of property law in written texts, statutes and cases, and those whom 
they dispossessed depended for the assertions of their rights to occupy and use the land upon 
traditional oral customs and practices. …  
 
The problems for the indigenous people were compounded by the difficulty of finding any 
conceptual common ground between the common and statutory law of real property and 
Aboriginal law with respect to land. It seems likely that the first settlers would have regarded the 
two as incompatible, that whatever the Aboriginal peoples possessed by way of title to land was 
too foreign, fragile and elusive to withstand and survive the common law. Mabo (No2) was a 
brave judicial attempt to redress the wrongs of dispossession. But … “recognition” of native title 
… has no parallel in the common law. The Court has endeavoured to find a way of recognising, 
and to a degree protecting, that anomalous interest without unduly disturbing the law of Australian 
property. The results of this enterprise can hardly be described as satisfactory (Ward, 2002, at 395-
7). 
 

Furthermore in Yorta Yorta Callinan J accepted an interpretation of the word ‘traditional’ in the 

definition of native title in the NTA that confined native title rights and interests to those that were 

in existence at the time of the acquisition of British sovereignty, but limited the scope of their 

potential for adaptation and change since that time. Justice Callinan went so far as to say:  

 
The extent to which longstanding law and custom may evolve without ceasing to be traditional 
may raise difficult questions. The matter went uncontested in Yanner v Eaton, although for myself 
I might have questioned whether the use of a motor boat powered by mined and processed liquid 
fuel, and a steel tomahawk, remained in accordance with a traditional law or custom, particularly 
one of alleged totemic significance (Yorta Yorta, 2002, at 493). 

 
The extensive litigation in cases such as these shows how contentious native title continues to be 

for those who perceive their interests to be ‘under threat’ by a native title claim. It also shows 

how much resistance there can be to engaging in negotiation in native title cases, as an alternative 

to the adversarial processes of litigation, notwithstanding the provisions for agreement-making 



30  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

under the NTA. Indeed in Ward Western Australia decided to hold off engaging in negotiations 

for an agreement with the Miriuwung Gajerrong traditional owners until after the High Court’s 

decision on appeal (Yu 1999, p. 25-6). In light of the High Court’s decision (by contrast to that of 

Lee J at first instance) this proved to be an effective strategy, since the government’s leverage 

increased as the claimant group’s native title rights and interests were diminished. Even in the 

case of Yorta Yorta an agreement (though limited in its scope by comparison to what would have 

been the outcome if the native title claim had succeeded) may have been reached between the 

Yorta Yorta Nation Aboriginal Corporation (‘YYNAC’) and the State of Victoria (Seidel and 

Hetyey 2004), but New South Wales has not engaged with such a process at all. Moreover, the 

general public response to native title claims also appears to be one of resistance as evidenced by 

media reports that Wilcox J’s decision in Bennell v Western Australia would have meant the 

closure of public access to beaches. Instances such as these show how divided we are as a nation 

on the issue of native title and how far we still need to go to adopt the spirit of – let alone achieve 

– reconciliation in Australia in this area of law.  

 

However, it may be more accurate to interpret the High Court’s approach in Yorta Yorta and 

Ward as exalting certain anthropological perceptions of Aboriginality – the image of Indigenous 

peoples living in a tribal state untouched by civilization, the timeless Aborigine. It may be no 

coincidence that this image of Aboriginality, the one that has been most valorized in the 

Australian popular consciousness, is also the one that has found most protection in native title 

law. And to a certain degree it is this image of Aboriginality that is favoured among certain 

historians – even those who subscribe to new historical methods and practices. This has been 

most patently clear in the tacit support that has been given by some to the limitations that have 

been placed on native title recognition – most notably the requirement that there be continuous 

association with the land based on past traditions (Webber 1995, p. 19; Attwood 1996a, p. 

xxxvii).  

 

Of course, even when Mabo was decided it was never envisaged that it would provide a solution 

for all Indigenous peoples. In fact it had been predicted that only 5% of the Indigenous population 

would benefit from the decision (Aboriginal and Torres Strait Islander Commission 1993, p. 16). 

Indeed the opposition between ‘real’ Aborigines (whose native title has survived), and 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 31 

dispossessed Aborigines, whose native title rights have been extinguished and can no longer be 

revived, had already been foreshadowed in the context of the statutory land rights that pre-dated 

Mabo. It is no coincidence that the former are statistically more likely to be found in the north of 

Australia and the latter in urban centres. For instance, in the statutory schemes Aborigines from 

the Northern Territory are referred to as ‘traditional’ Aborigines (Aboriginal Land Rights (NT) 

Act 1976 (Cth)), but in more settled areas such as New South Wales, the land rights regime is 

aimed primarily at dispossessed Aborigines (Aboriginal Land Rights Act 1983 (NSW)). However, 

as the more recent land reforms in the Northern Territory (Northern Territory National 

Emergency Response Act 2007 (Cth)) and Queensland (Aboriginal and Torres Strait Islander 

Land Amendment Act 2008 (Qld)) have shown, such regimes still fail to address the dispossession 

of those Indigenous peoples in urban centres, nor have they availed to protect Indigenous 

communal title to land (Watson 2008). 

 

In conclusion, it may appear from the more recent history of native title law that Mabo has turned 

out to be a lost opportunity to right the wrongs of dispossession and establish equality of 

treatment for Indigenous conceptions of property. Maybe that opportunity was never there to 

begin with. As more of the shortcomings of the native title regime become apparent so too does 

the need for additional remedial action (Pearson 2003; Dominello 2008a; Dominello 2008b). 

Crucial to these developments will be how Indigenous peoples are perceived and how aspirations 

for the nation are conceived. Whatever form that action may take, it is to be remembered (as the 

new historians have indeed reminded us) that any course of action taken now will continue to 

have ramifications into the future.  

 
 

References 

Domestic cases 
Bennell v Western Australia (2006) 153 FCR 120. 

Bodney v Bennell (2008) 167 FCR 84. 

Commonwealth v Yarmirr (2001) 208 CLR 1. 

Daniel v Western Australia [2003] FCA 666. 

Daniel v Western Australia [2005] FCA 536. 

De Rose v South Australia (2003) 133 FCR 325. 



32  Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 

Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474. 

Mabo v Queensland (No 2) (1992) 175 CLR 1. 

Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606. 

Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244. 

Members of the Yorta Yorta Aboriginal Community (2002) 214 CLR 422. 

Milirrpum v Nabalco (1971) FLR 141. 

Neowarra v Western Australia [2004] FCA 1092. 

Risk v Northern Territory [2006] FCA 404. 

Sampi v Western Australia (No 2) (2005) 224 ALR 358. 

Ward v Western Australia (1998) 159 ALR 483. 

Western Australia v Sebastian [2008] FCAFC 65 (2 May 2008). 

Western Australia v Ward (2000) 99 FCR 316. 

Western Australia v Ward (2002) 213 CLR 1.  

Western Sahara (Advisory Opinion) [1975] ICJR 12. 

Wik Peoples v Queensland  (1996) 187 CLR 1. 

Yanner v Eaton (1999) 201 CLR 351. 

 

Domestic legislation 

Aboriginal and Torres Strait Islander Land Amendment Act 2008 (Qld). 

Aboriginal Land Rights Act 1983 (NSW). 

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). 

Mining Act 1904 (WA).  

Native Title Act 1993 (Cth). 

Northern Territory National Emergency Response Act 2007 (Cth). 

Petroleum Act 1936 (WA). 

Racial Discrimination Act 1975 (Cth). 

 

International legal material 

Delgamuukw v British Columbia (in right of British Columbia) [1997] 3 SCR 1010. 

 

 
 



Cosmopolitan Civil Societies Journal, Vol.1, No.3, 2009 33 

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http://www.alta.edu.au/pdf/JALTA/(2008)%20JALTA%20Typeset%20Articles/(2008)%20The%20Abuse%20of%20Indigenous%20Land%20Tenure_N%20Watson.pdf�

	the assertion of sovereignty by the British Crown necessarily entailed … that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignt...
	if … there has been a substantial interruption, it is not to be mitigated by reference to white settlement. The continuity enquiry does not involve consideration of why acknowledgment and observance stopped. If this were not the case, a great many Abo...