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

Francesca Giorgia Dominello


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.


Indigenous Peoples; History, Native Title, Reconciliation.

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Aboriginal and Torres Strait Islander Commission. 1993, First Report 1993.

Attwood, B. 1996a, 'Introduction: The past as future: Aborigines, Australia and the (dis)course of history' in Attwood B. (ed), In the Age of Mabo, Allen & Unwin, Sydney, pp. vii-xxxviii.

Attwood, B. 1996b, 'Mabo, Australia and the end of history' in Attwood B. (ed), In the Age of Mabo, Allen & Unwin, Sydney, pp. 100-116.

Briscoe, G. 1993, 'Land reform: Mabo and Native Title", reality or illusion?', Pacific Research, vol. 6, no. 3, pp. 3-6."

Commonwealth of Australia. 1937, Aboriginal Welfare: Initial Conference of Commonwealth and State Aboriginal Authorities, Canberra, 21-23 April 1937.

Davies, M. 2002, Asking the Law Question: the Dissolution of Legal Theory, Lawbook Co, Sydney.

Dominello, F. 2008a, 'In a world without a sovereign' in Verschuuren, J. & van Schooten, H. (eds), International Governance and Law, Edward Elgar, Cheltenham, pp. 168-190.

Dominello, F. 2008b, 'Beyond Symbolism: Aboriginal Sovereignty and Native Title', Journal of the Australasian Law Teachers Association, vol. 1, pp. 141-151.

Elkin, A.P. 1934, 'Anthropology and the Future of the Australian Aborigines', Oceania, vol. 5, pp. 1-18.

Hughes, I. and Pitty, R. 1994, 'Australian Colonialism after Mabo', Current Affairs Bulletin, vol. 71, no. 1 June/July, pp. 13-22.

Keon-Cohen, B.A. 1993, 'Some Problems of Proof: The Admissibility of Traditional Evidence' in Stephenson, M.A. & Ratnapala, S. (eds), Mabo: A Judicial Revolution, University of Queensland Press, St Lucia, Qld., pp. 185-205.

Langton, M., Manzel, O. & Palmer, L. 2006, 'The Spirit of the Thing: The Boundaries of Aboriginal Economic Relations at Common Law', The Australian Journal of Anthropology, vol. 17, pp. 307-321.

Markus, A. 1996, 'Between Mabo and a hard place: race and the contradictions of conservatism' in Attwood, B. (ed), In the Age of Mabo, Allen & Unwin, Sydney, pp. 88-99.

McAvoy, T. 2001, 'Recent developments in native title seminar', Paper presented at Native Title Representative Body Legal Conference, Townsville, 28-30 August.

Morris, B. 1992, 'Frontier colonialism as a culture of terror' in Attwood, B. & Arnold, J. (eds), Power, Knowledge and Aborigines, La Trobe University Press, Melbourne, pp. 72-87.

Nettheim, G. 1993, 'Judicial Revolution or Cautious Correction?', University of New South Wales Law Journal, vol. 16, pp. 1-26.

Paul, M.; & Gray, G. (eds.) 2002, Through a Smoky Mirror: History and Native Title, Aboriginal Studies Press, Canberra.

Pearson, N. 2003, 'The High Court's Abandonment of The Time-Honoured Methodology of the Common Law" in its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta', Newcastle Law Review, vol. 7, pp. 1-14."

Reynolds, H. 1987, The Law of the Land, Penguin, Ringwood, Vic.

Reynolds, H. 1992, The Law of the Land, 2nd ed. Penguin, Ringwood, Vic.

Reynolds, H. 1993, 'What is Native Title', Wiser, vol. 1, no. 1, pp. 25-30.

Ritter, D. 1996, 'The Rejection of Terra Nullius" in Mabo: A Critical Analysis', Sydney Law Review, vol. 18, pp. 5-33."

Seidel, P. & Hetyey, J. 2004, 'Summary of the Yorta Yorta Nation Aboriginal Corporation/State of Victoria Co-operative Management Agreement', Indigenous Law Bulletin, vol. 6, no. 4, pp. 15-17.

Smith, B. 1981, The 1980 Boyer Lectures: The Spectre of Truganini, Australian Broadcasting Commission, Sydney.

Stanner, W.E.H. 1969, The 1968 Boyer Lectures: After the Dreaming, Australian Broadcasting Commission, Sydney.

Tehan, M. 2003, 'A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act', Melbourne University Law Review, vol. 27, pp. 523-571.

Veracini, L. 2003, 'Of a contested ground" and an "indelible stain": a difficult reconciliation between Australia and its Aboriginal history during the 1990s and 2000s', Aboriginal History, vol. 27, pp. 224-239."

Watson, N. 2008, 'The Abuse of Indigenous Land Tenure as a Tool of Social Engineering', Journal of Australasian Law Teachers Association, vol. 1, pp. 163-170.

Webber, J. 1995, 'The Jurisprudence of Regret: The Search for Standards of Justice in Mabo', Sydney Law Review, vol. 17, pp. 5-28.

Yu, P. 1999, 'Possibilities for Regional Agreements in the Kimberley in the wake of the Miriuwung Gajerrong decision', Indigenous Law Bulletin, vol. 4, no. 21, pp. 24-26.