Postcolonial Inroads into the Native Title Process

Abstract

This article explores the potential for postcolonial critical theory to provide insight into the implications of Australian native title law. Although the late development of native title law in Australia was thought to bring an end to colonial fallacies such as terra nullius, it has become increasingly clear that colonialism has survived in new guises. This paper will demonstrate how the insights of postcolonial critical theorists can be used to better understand this fact and to delve into the broader implications of existing native title processes. In particular, it draws on the process of registration and judicial determinations of rights and interests, which both involve a quantification of aspects of indigenous cultures in terms alien to indigenous peoples. This article proposes that recourse can be had to postcolonial theory to better understand some of the oft-forgotten implications of native title. Otherwise, without a better understanding of the implications of native title, even well-meaning parties to the process risk unwittingly perpetuating imperialist attitudes.

Keywords: postcolonialism, postcolonial critical theory, imperialism, native title, indigenous culture, terra nullius, Mabo, Yorta Yorta, Daniel v State of Western Australia, registration, right to negotiate