Delpero, Jackie (2003) The Tide of History: Australian Native Title Discourse in Global Perspective. Research Master thesis, Victoria University of Technology.

Abstract

Australian native-title law has many inconsistencies and contradictions. Emanating from the Mabo decision is the central contradiction that the Crown's acquisition of sovereignty in Australia was illegitimate but valid. This thesis attempts to identify the underlying structures beneath this and other contradictions and inconsistencies by tracing the features of a recent determination of a native title claim back through time. In 1994, the Yorta Yorta people of south-east Australia made a claim under the Native Title Act of 1993. The Court framed its determination of the claim within the metaphor of the 'tide of history'. To make his decision, Justice Olney reconstructed the Yorta Yorta people's ancestors as native inhabitants from within expansionist ideology. Within that ideology, the term 'native inhabitant' is synonymous with inferiority, incompetence and externality. This thesis argues that these representations justified the processes of cultural modification. Modification is a feature of colonisation that seeks to make natives resemble Europeans. This thesis argues that these processes are linked to dispossession and are the essence of the 'tide of history'. A feature of expansionist ideology is the sovereign imperative to maintain exclusive power to make, enforce and suspend law. This thesis argues that the sovereign need for exclusivity in Australia is central to the Native Title Act and the Yorta Yorta decision. To trace the 'tide of history', this thesis begins with the early Roman Church and follows its development as it pursued the Petrine mandate. It continues into the secular era of discovery and considers how the 'tide of history' manifested in North America and produced the Marshall judgements. It follows the 'tide of history' into Australia from the Crown's claim to discovery and considers its role in the Mabo decision and the Native Title Act. It analyses the Yorta Yorta people's claim for native title through the logic that underpinned the majority judges' reasoning. This thesis concludes that the 'tide of history' that washed away the Yorta Yorta people's native title is a product of European expansionist ideology. From within that ideology, the judiciary and the legislature imposed a two-way loss on the Yorta Yorta people, which enhanced the Crown's exclusivity, rendering benign the conception of the Crown's acquisition of sovereignty as illegitimate but valid.

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