The Law of the Land or the Law of the Land?: History, Law and Narrative in a Settler Society

© Blackwell Publishing 2004

History Compass 2 (2004) AU 082, 1–30

The Law of the Land

or the Law of the Land?: History, Law and Narrative in a Settler Society

Bain

Attwood

Monash University and the Australian National University

Abstract

This article considers the influence of a controversial historical work on thelaw, politics and society of a settler nation. It argues that the impact of HenryReynolds’s 1987

The Law of the Land

on legal consideration of indigenous rightsto land in Australia can be attributed to the fact that it is best described as juridicalhistory. As such, it told a lego-historical story that provided the High Court ofAustralia with a new way of interpreting its own traditional narrative, which hadlong denied Aboriginal people their rights to land, thus enabling it to make anew determination of those rights as well as resolve a crisis of legitimacy for thelaw and the nation. This article also contends that this history-making cameto be accepted by many settler Australians because it provided the nation witha newly redemptive, liberal myth narrative. It assesses the cost of a story of thiskind, asking whether such simple histories can have an enduring effect, especiallywhere their authors are reluctant to signpost the historical or literary form oftheir texts. Finally, it suggests that histories truer to the complexities of the past

might produce better political and social outcomes.

Over ten years ago the High Court of Australia ruled that Eddie Maboand his co-plaintiffs on the Murray Islands had a form of property rightsaccording to the common law of Australia called ‘native title’. It was thefirst time an Australian court had recognised indigenous rights to land,and this long-awaited and much-heralded judgment seemed to portendenormous changes in Australian law, history, politics and culture.

1

It iscommonly believed that the Court’s

Mabo

ruling was influenced by theresearch of Henry Reynolds, in particular his book

The Law of the Land

,published by Penguin Books five years earlier in 1987. ‘Henry’s historychanged the law’, one journalist has asserted. In a similar vein historianPeter Cochrane has remarked: ‘The majority decision of the High Courtin favour of land rights . . . made the work of Henry Reynolds a matterof national importance . . . It raised his work from academic audience tonational headlines. Few, if any, Australian historians have ever exercisedsuch clout through their work’.

2

The Law of the Land

has recently appearedin a revised edition,

3

and for several reasons it seems timely to reconsider

2

The Law of the Land

or the Law of the Land?

© Blackwell Publishing 2004 History Compass 2 (2004) AU 082, 1–30

it. Here I will examine how, why and in what sense Reynolds might haveinfluenced the law; and I will reflect on the implications of this for lawand policy regarding Aboriginal rights, as well as for the discipline ofhistory. The first part of this article outlines my theoretical framework andsketches the argument I will be advancing.

Narratives and nations

Following theorists of narrativity such as David Carr I assume narrative isa fundamental part of everyday existence, a creative human act in whichpeople seek to make sense of the world by making stories about it. Thisis true for communities, such as nations, as well as individuals. A good dealof story-telling, it can be argued, concerns the origins of things, amongthe most important of which are property. All nations engage in tellinghighly coloured stories about their origins but this seems to be especiallytrue of colonial societies. Most states have problematic beginnings andhave to undergo a transition from

de facto

coercive power to

de jure

authority, but this is more evidently the case for settler societies such asAustralia, perhaps because their original violence is more recent than thatof other nations.

4

In telling stories about the past, as Jacques Le Goff and Allan Megill havereminded us, we always approach it ‘by starting out from the present’ andso our (hi)stories are necessarily shaped by a present-day perspective and‘always concerned with the meaning of historical reality for us, now’.

5

Yet,only some historical work is determined by the purposes of their authors.

The Law of the Land

, I will argue, is an instrumentally presentist andpolitical work in which its author primarily tries to construct a past ratherthan reconstruct one. As I have argued previously, Reynolds was engagedin the task of what Eric Hobsbawm called ‘inventing tradition’,

6

trying tobreathe new life into a liberal tradition of humanitarian concern in relationto Aboriginal people; in studies such as

The Law of the Land

, I suggested,Reynolds was ‘seeking to recover other historical possibilities, in particularto resuscitate a moral tradition . . . in order to bestow continuity and hencelegitimacy upon [this and other] alternatives’.

7

More recently, Mark McKennahas argued that

The Law of the Land

‘uncovered what Australia’s history“might have been” – a history of “perpetual possibility” – rather than ahistory of what was’.

8

The Law of the Land

is best regarded as a work of juridical history ratherthan a work of academic history, however.

9

As far as I am aware, juridicalhistory is a term coined by a New Zealand political scientist, AndrewSharp. He defines it as history ‘told as if to a judge in a court of law’. Thisis to say that it is a way of ‘representing the past so as to make it available tolegal and quasi-legal judgments in the present’. To do this, Sharp points out,historians have to make their histories relevant to the legal rules ‘applicableto the case at issue’.

10


The Law of the Land

or the Law of the Land? 3

More especially, in the case of the historian who addresses the commonlaw, as is the case in matters of native title, he or she is not required tohistoricise the past (since the common law has little interest in the past asthe past), but must instead discern in the past seemingly timeless normsand principles, often called precedents, in order to help the law resolvecontemporary problems. Sharp explains:

The judge’s purpose in examining acts and omissions in the past is to find amongthem those that have constituted present just and proper relationships: what it isthat authorises and establishes them . . . Equally though, just and proper relation-ships may not currently be in place . . . and it is the judge’s job to attend to thediscrepancy between the distorted present and the authoritative past. One idealthat the judge may bear in mind is to restore the parties to the relationship oncerightly set up but subsequently wrongly distorted or destroyed by unauthorisedand destructive past acts and omissions . . . [ J ]udges look back in time to discover‘commissives’. These are . . . those acts (and, if it is insisted upon, omissions) . . . thathave either rightly constructed or wrongly distorted the legal present.

11

In helping the courts in this task historians are usually required to emphasisecontinuity rather than discontinuity across time. As a New Zealandhistorian, W. H. Oliver, has pointed out, this forces the historian to committhe sin of anachronism. Given these considerations, it is not surprisingthat Sharp and others

12

have concluded that ‘doing juridical history is[not] really doing history at all’, even though it can often ‘produce whatlooks like history’.

13

It might also be argued that

The Law of the Land

has come to bear astriking resemblance to myth.

14

This is largely because of the way inwhich it has been read or received in the public realm in Australia, but itis also a consequence of the fact that Reynolds not only addressed hisbook to the courts but to the wider public, whose perceptions regardingthe morality and legality of dispossession he wished to change. Todaysome historians hold that it is fallacious to distinguish between differentforms of historical narrative, and argue that any distinction between mythand history is untenable or false and so useless or even pernicious. I begto disagree. In the case of academic history its practitioners are usuallyinterested in the pastness of the past and are more or less committed torepresenting the complex messiness of that time. By contrast, myth-makers,like juridical historians and lawyers, have little if any interest in the alterity orotherness of the past. They are concerned with using the past to legitimatepresent-day action, and their histories resemble ‘thin’ rather than ‘thickdescription’. Paul A. Cohen has argued:

On the level of intentionality, the past treated as myth is fundamentally differentfrom the past treated as history. When good historians write history, their primaryobjective is to construct, on the basis of the evidence available, as accurate andtruthful understanding of the past as possible. Mythologisers, in a sense, do thereverse. Certainly, mythologisers start out with an understanding of the past,which in many (though not all) cases they may sincerely believe to be ‘correct’.

4

The Law of the Land

or the Law of the Land?


Their purpose, however, is not to enlarge upon or deepen this understanding.Rather, it is to draw on it to serve the political, rhetorical, and/or emotionalneeds of the present.

15

In actual practice, as Cohen notes, ‘the distinction between history andmyth, as alternate ways of relating to the past, is much less clear-cut’:although ‘truth-seeking’ remains an ideal for academic historians, thequestions we ask and the concepts we use to interpret the past ‘areprofoundly shaped by such variables as gender, class, country, ethnicity,and time’, and so ‘the

act

of seeking the truth tends to be highly relative’.Furthermore, the act of creating any narrative, whether it be history, mythor some other form, is one in which the story-teller seeks to imposeorder (or homogeneity) on the disorderly (or heterogeneous) past. In thissense, history and myth are not radically different operations. Cohen alsosuggests: ‘Even the most accomplished historians . . . in the process ofchallenging one mythologised past, inevitably fashion others’. Nevertheless,there are important differences in the degree to which myth and historyprovide an approximation of what the past

was

like. This is partly becausemeaning in myth is ‘governed overwhelmingly by the concerns of thepresent’, as Cohen notes. This is seldom true of academic histories.Consequently, only some works of academic history can easily be read orregarded as myth. Most importantly, readers of myth, like readers of juridicalhistory, approach such histories with different expectations to those theybring to academic history.

16

It also seems that myth can create outcomes that differ significantly fromthose produced by academic history, and that since nations, like any imaginedcommunity, rest on myth rather than history, one probably has to forge newmyths in order to overthrow dominant ones, especially in the case of the law.History does not and cannot perform this task so readily. AnthropologistJohn Morton has called this ‘the impotence of pure history’, arguing:

If steps are to be taken towards the future, if things are to get done, if history isto inform

practice

(which is its oft-noted justification), then there must be someother ingredient injected into the past. The ingredient cannot come from the pastitself, even though it may be inextricably entangled with history. It comes fromthe present, projects a future and gives history its

value

.

17

Many historians agree. Cohen, for example, notes that myth is ‘far more. . . influential’ than ‘the reconstructive work of the historian’.

18

In the caseof Australia, where the judiciary has long played a peculiarly strong role inthe determination of rights,

19

juridical history will also be more influentialthan history. Reynolds’s book has had considerable impact, I will contend,because it has the character of juridical history and myth.

In the light of these observations, it might be noted that Reynolds iscommitted to history and to seeking historical truth. He neither seeshistories as fictions nor rejects the notion of historical reality, devotinghimself instead to ‘telling the past as it was’. He has also criticised his


The Law of the Land

or the Law of the Land? 5

fellow academic historians who see ‘traditional history’ as ‘old fashioned,unreflective, unsophisticated’; urged them to stop fussing about matters ofepistemology and reflexivity and get on with the task of doing conven-tional history; and warned that any approach that seemed to collapse thedistinction between history and fiction could provide ‘further ammunitionto those who [seek] to discredit the role of the historian in contentiouspolitical issues’. Ironically, it is more than likely that it is Reynolds whohas discredited the role of historians in such matters because of his refusalto reflect properly on the nature of history and his histories, or/and hisreluctance to make clear his intent in works such as

The Law of the Land

.

20

Contextualising Reynolds’s

The Law of the Land

Henry Reynolds is not only regarded as the leading historian in Australiain the field of ‘Aboriginal history’, the study of the history of relationsbetween Aboriginal and non-Aboriginal peoples; after Geoffrey Blainey,he is Australia’s best known living historian.

21

Over the last twenty yearsor so his output has been prodigious. He has authored nine monographs–

The Other Side of the Frontier

(1981, 1982);

Frontier

(1987);

The Law ofthe Land

(1987);

With the White People

(1990);

Fate of a Free People

(1995);

Aboriginal Sovereignty

(1996);

This Whispering in Our Hearts

(1998);

AnIndelible Stain?

(2001); and, most recently,

North of Capricorn

(2003) – aswell as a memoir,

Why Weren’t We Told?

(2000). Although an academichistorian, Reynolds has addressed most of his work to a general audience,and his most popular books have sold in the tens of thousands. In thisrespect he is quite singular in the field of Aboriginal history.

22

In much of this research, Peter Cochrane has argued, Reynolds has workedas ‘a political strategist’, deploying history in various ways ‘to influence thepresent and shape the future’.

23

This, Mark McKenna has contended, hasbeen in keeping with the sympathy Reynolds expressed in the mid 1970sfor demands that ‘history should not only be relevant but politicallyutilitarian’, aiming ‘to right old injustices, to discriminate in favour of theoppressed, to actively rally to the cause of liberation’.

24

It seems to me thatthis is only true of some of Reynolds’s work, though I would agree thatit has increasingly become the case in the last decade. It is difficult to seehow this determined the interpretative core of his most important work,the famous trilogy (

The Other Side of the Frontier

,

Frontier

and

With theWhite People

), but relatively easy to see this in

The Law of the Land

as wellas

Aboriginal Sovereignty

and

This Whispering in Our Hearts

. One of theleading figures in Aboriginal history, the historian and archaeologist JohnMulvaney, noted in a review of

The Law of the Land that it was ‘a tract forthese times’; another senior scholar in Aboriginal Studies, the anthropologistLes Hiatt, described it as a polemic.25

The reason for this is not difficult to locate. In 1981 Eddie Mabo andseveral other Murray Islanders decided, at a conference on ‘Land Rights

6 The Law of the Land or the Law of the Land?


and the Future of Australian Race Relations’ at James Cook Universityin Townsville where Reynolds had worked since 1965, to pursue a claimto their homeland through the courts. ‘The question of Aboriginal andIslander land rights’, Reynolds recalls in the second edition of The Lawof the Land, ‘was a recurring theme of long discussions’ he had during thelate 1970s with Mabo, who worked at the university as a groundsmanand collaborated on an indigenous oral history project with Reynolds andhis colleagues. As the Murray Islanders’s case proceeded, Reynolds began toconduct research on indigenous rights to land or, in his words, he started ‘toquestion the concept of terra nullius’. The result was The Law of the Land.26

This brief account does not really pinpoint Reynolds’s main purpose inwriting The Law of the Land. In the new edition of the book he remarksthat ‘the major task of this book was to explain what native title was,where it had come from, and how it had taken root in Canada and NewZealand but not in Australia’ since at this time native title ‘was a foreign,exotic concept, little known or understood, even in the legal profession’.Yet, a reading of the first edition of the book suggests that Reynoldshad a more specific purpose: to lend support to the Murray Islanders’scase by challenging the decision handed down in the Northern TerritorySupreme Court in 1971 in Milirrpum v. Nabalco and the Commonwealth.27

On this, the first and only occasion an Australian court had addressedquestions regarding Aboriginal people’s right of possession in Australia,Justice Blackburn had ruled that Aborigines had no property rights,principally on the grounds that their interest in the land was not a pro-prietorial one; that Australian courts binding on his own had regarded theCrown as the owner of all the land; and that there was no doctrine ofcommunal title in English law as it applied to colonies classified as settledterritories.28 In The Law of the Land Reynolds repeatedly criticised Blackburn’sjudgment, seeking to demonstrate that the judge was wrong, not justhistorically but legally as well. As Rozanna Lilley noted at the timeThe Law of the Land was first published, Reynolds took on the task ofpersuading the courts that the Blackburn judgment should be overturnedbecause ‘Aboriginal rights in the land were in fact embodied in commonlaw’. In short, there are good reasons for concluding that The Law of theLand was written in order to advance one strongly held conviction, thatthe conventional account of Australian colonisation was incorrect, bothhistorically and at law. In other words, Reynolds set out to make historyin order to help the judiciary remake the law.29

Doing juridical history

In order to perform a task of this nature, it goes without saying, Reynoldshad to work within the law,30 accepting its authority and treating it as ‘thesolution rather than the problem’ (though as a liberal rather than someoneon the left this did not prove difficult).31 Thus, Reynolds held that the


The Law of the Land or the Law of the Land? 7

denial of indigenous people’s rights to land was not the fault of the lawper se but rather that of bad law:

We are the legatees of a past that was to a considerable extent chosen by ourforebears, not the past in general but a particular past, not the law in general buta self-serving version of the law deeply tainted by the racism of colonial society,as corrupted in its way as the legal systems in the slave colonies of the WestIndies.32

In keeping with this lego-historical task, legal scholar David Ritter haspointed out, Reynolds began his work as a juridical historian by turningthe dispossession of Aboriginal people into a legal event.33 That is, hefollowed the law in attributing the denial of Aboriginal people’s rights toland to a legal act,34 even though the law had no causal role in disposses-sion, rather than to the process of colonisation that really caused theirdispossession,35 which is what historians rather than juridical historiansmight be expected to emphasise. Aborigines, Reynolds argued, ‘lost allrights to property at the beginning of settlement’ in 1788 because thecountry was classified legally by the British as a settled rather thana conquered or ceded territory on the grounds that it was ‘desert anduncultivated’. (He advanced this interpretation even though there are nohistorical sources to support his argument.)36 Reynolds formulated thiscausal connection between a legal event (classification) and a historicaloutcome not on historical grounds but on lego-historical ones, that is, onthe grounds that the law had posited this relationship in its story-telling,so that it could be challenged. Let us be clear why Reynolds did this. Inlegal terms, the denial of Aboriginal rights to land was not so much anevent that happened in the legal past in the sense that the law caused thisdispossession, but more a discursive act that occurred in legal history, thatis, it happened in a historical narrative created by the law; thus, in orderto change the law’s history in both senses of ‘history’, one logically had tooverturn this narrative discourse, this act of story-telling or myth-making,by telling another legal story, another lego-historical narrative.37

Once Reynolds established the denial of Aboriginal rights to land as alegal event, Ritter points out, he proceeded to claim that this could betraced to the mistaken application to Australia of a particular legal rule,which he called ‘the doctrine of terra nullius’.38 Here, it can be argued thatReynolds, like a law judge, ‘created something jurisprudentially tangible’,namely the legal doctrine of terra nullius, in order that it could be reversedby the law and thus provide the means to tackle the ongoing injusticecaused by the denial of Aboriginal rights to land.39 The critical point isthat, while Aborigines had been treated as though they had no commonlaw right to their lands and many settlers had argued that they had norights to land because they were mere savages who wandered over theland as hunters and gatherers, there were never any judicial decisions tothis effect, let alone on the grounds that their country was a terra nullius.



(There were instead several legal decisions in which judges sought tounderstand and affirm the basis of the British Crown’s sovereignty in theAustralian colonies.)40 Rather, it was Reynolds, following the generalpractice of the law in such matters, who formulated the nexus betweena legal doctrine and the historical fact of dispossession. It can be arguedthat he was seeking to divine what was at the core of the law’s historicalnarrative regarding the British rights of possession and reached the con-clusion that it was something called ‘the doctrine of terra nullius’. This wasa brilliant stroke in both political and legal terms. However, as we shallsee, it is unsatisfactory as a historical argument about the process andevents that caused dispossession, and the role of the law in that.41

It is significant that Reynolds, like another academic historian, AlanFrost, chose to deploy terra nullius rather than another concept, ‘desert anduncultivated’, which the law had traditionally used in Australia to legitimateBritish sovereignty and rights of possession. Presumably Reynolds did sofor several reasons. Terra nullius was barely known at this time in Australiaoutside specialist academic historical circles (though after the Mabo decisionit became a powerful sign or signifier in popular discourse). The termcannot be found in any contemporary historical source relating to thequestion of indigenous rights to land in Australia in the eighteenth andnineteenth centuries, nor in any other British colony.42 This, perhaps,is unsurprising. As Ritter points out, ‘terra nullius is not a concept of the[English] common law’.43 Rather, it is a concept of international law anda rather obscure one at that.44

It seems that the term first entered Australian public discourse in 1978when an Aboriginal man, Paul Coe, took a case to the High Court ofAustralia in which he claimed that the British had ‘wrongfully proclaimedsovereignty and dominion over the east coast of the continent now knownas Australia’ and ‘wrongfully treated the continent now known as Australia asterra nullius’. Coe’s challenge was inspired by an opinion of the InternationalCourt of Justice in 1975 that the Western Sahara had not been terra nulliuswhen it was colonised by the Spanish in 1884 since its indigenous peoples,though nomadic, were socially and politically organised and had leadersable to represent them.45 It seems reasonable to suggest that Reynoldsprimarily adopted terra nullius because it was a way of bringing an inter-national legal discourse, which had demonstrated it could do the work ofoverthrowing a (hi)story denying rights to land to a people similar to‘Australian Aborigines’, to bear upon a parochial Australian jurisprudencethat had never acknowledged these.46 There can be little question that thiswas necessary for a favourable legal outcome in Australia, or that legaladvocates for indigenous rights to land in Australia, such as Reynolds,realised this, especially after the 1973 decision of the Canadian High Courtin Calder v. Attorney General of British Columbia, which, contra Blackburn,recognised aboriginal title. In the final chapter of The Law of the LandReynolds discussed both the Western Sahara and Calder cases and argued



that these decisions ‘may establish important precedents which will influencethe course of Australian jurisprudence’.47

There was at least one other advantage in deploying terra nullius: itsmeanings were ambiguous and contested.48 The term, it seems, has botha narrow and an extended meaning. According to international law, Ritterexplains, a territory ‘that was “res nullius” could be lawfully acquired by astate through simple occupation and was described to that effect as “terranullius” ’, a land belonging to no one; such uninhabited territory was‘always uncontroversially classified as “terra nullius” ’. However, ‘over time,various international law jurists expanded the categories of territory thatwere “terra nullius” to include certain kinds of inhabited territory’.49 Whetheror not inhabited land was included in the expanded version of terra nulliusdepended, according to the author of an oft-quoted text on the subject,M. F. Lindley, on ‘the degree of political development and other charac-teristics of the inhabitants’ of the territory in question. Most importantly,for Reynolds’s purpose, there was a range of opinion over what types ofinhabited land could be regarded as terra nullius and so room for argumentas to whether Australia should or should not have been treated as one.50

Perhaps Reynolds hoped that terra nullius might perform other usefulpolitical work. For example, it could be argued that he encouraged theegalitarian tendency in popular Australian nationalism to attack the hier-archical authority of ‘foreign’ higher learning by describing terra nulliusas an ‘obscure Latin concept’ and arguing that ‘[v]iews of Australia andthe Aborigines framed in Europe before settlement were fatally flawed bytoo little knowledge about the country and its people and by too great adependence on classical [Greek and Roman] authors and their half-mythicalaccounts of . . . people on the fringes of the ancient world that modernEuropeans had learnt about in Herodotus, Caesar, Thucydides, Tacitus andDiodorus’.51 There can be little doubt that Reynolds used the term met-aphorically to register the racism that Aborigines and their supporters sawas integral to the British colonisation of the continent and the dispossessionand destruction of its indigenous peoples.52 In reference to this Ritter issurely correct in arguing that terra nullius ‘emotively connoted the historicalreality of how Aboriginal people had been treated’. (After the High Court’sdecision, some took the term to mean that the British thought Aboriginesdid not even exist in Australia prior to the invasion.) In all this work,the fact that terra nullius was a term unfamiliar to most probably meant itcould readily be made to signify what its exponents wanted it to express.53

Let us consider in more detail the argument Reynolds presented in TheLaw of the Land. Having asserted that Aborigines were denied rights toland because of the application of the legal doctrine of terra nullius, hesought to demonstrate, first, that this was a mistake because Australia wasnot in fact a terra nullius; second, that Aboriginal rights to land shouldhave been recognised according to English common law and internationallaw; and third, that their rights to land had been recognised officially in



the 1830s and 1840s. This meant that the law was duty bound to rectifyits ‘mistake’ and recognise the existence of native title under Australiancommon law.

How did Reynolds do this? First, he demonstrated that the Australiancontinent was not a terra nullius in either the narrow or expanded meaningsof the term. The country was clearly occupied. Contrary to the observationsmade by Captain James Cook, Joseph Banks and others on the voyage ofthe Endeavour in 1770, when the eastern part of the continent was firstclaimed by the British, it was not virtually uninhabited. And, contrary totheir opinion and that of some later colonial observers, Aborigines wereneither nomads wandering aimlessly over the land nor a people withoutlaws but rather a sovereign people who regarded themselves as the ownersof the land.54

Reynolds then proceeded to make a more contentious argument: theseand other facts of Aboriginal possession actually satisfied the requirementsof both the English common law and international law for the recognitionof land title. Possession was all that was required. How a people used theland was irrelevant: ‘To prove possession it was not necessary to encloseand farm the land in the way of Europeans, nor was it necessary to live inone place. The fundamental requirements were to be present on the landand to manifest a will to ownership’. In keeping with these legal principles,Reynolds argued, indigenous rights to land were recognised in other Britishcolonies, such as North America and New Zealand, and so the sameshould have occurred in Australia. In making this argument Reynoldsdrew selectively on international jurists and common law commentators.As Mulvaney objected some years ago, Reynolds quoted ‘a number of sourcesfrom the eighteenth century which support his line, but he doesn’t examine– and this would be a major thing – how many people were saying otherthings, and how influential each camp was’. At the same time, Reynoldsneglected or downplayed the main reason why indigenous rights to landwere acknowledged in other British colonies, namely that it was necessaryor advantageous for the imperial power to do so.55

Having established to his satisfaction that Aboriginal rights to landshould have been recognised according to both English common law andinternational law, Reynolds moved to argue that they were recognised bythe British in the 1830s and 1840s, thus creating a precedent for nativetitle rights. This is what Sharp refers to as a ‘commissive’, in this case anact that should construct the law in the present. Here, Reynolds presenteda simple oppositional account in which the good imperial centre had a‘clear . . . commitment to land rights’ but was thwarted by a bad colonialperiphery in which ‘a majority of the settlers chose the old ways . . .eschewed reform, [and] denounced attempts to respect Aboriginal rights’,thus constituting what Sharp refers to as an ‘omission’ or ‘distorted past’.In doing this, Reynolds invested the senior figures in the British ColonialOffice, Lord Glenelg, Sir George Grey and James Stephen (and later, Earl



Grey) with all the moral virtues possessed by heroic characters in mythor legend.56

This picture of the Colonial Office has been challenged by severalscholars. Indeed, it seems that most academic historians have rejectedReynolds’s argument on this point. Reynolds treats Aboriginal rights toland as though it was a matter of prime significance to the Colonial Office,and argues that positive and normative legal principles, rules and doctrinesas well as humanitarian ideals governed the Colonial Office’s attitude tothese, more or less providing it with an unambiguous template that couldbe applied consistently to any political situation. This ignores the fact thatindigenous rights to land were seldom its chief concern but instead oneof many, and that its consideration of these was often influenced by itstreatment of other matters regarding colonisation. Its treatment of suchmatters, moreover, was not determined by the law and legalism or moralzeal and idealism, but influenced by the political context in which itsofficials had to make their decisions. Their approach was always temperedby the Office’s own political and administrative concerns as well as con-strained by the demands of colonisers and others. Thus, its officials alwayshad to consider what was possible as well as what they thought might beright. Consequently, Colonial Office policy was often uncertain, confusedand even inconsistent. The Office’s approach was also influenced by otherdiscourses than legal ones, most importantly philosophical and politicalconsiderations of race and levels of civilisation, which were informed bythe theory of stadial history. In these, assessments regarding Aboriginalsociety, particularly in reference to sovereignty, government and law, wereclosely connected to opinions about nomadic hunters and gatherers inregard to property, and all were to their disadvantage.57

In contending that the Colonial Office was committed to implementingpolicies that recognised Aboriginal rights to land, Reynolds places greatestweight upon the example of South Australia, where he focuses upon whathe deems to be the purposes and intentions of the Colonial Office ratherthan the outcome. In particular, he draws attention to the fact that itsofficials put some pressure on the South Australian Colonising Commis-sioners, telling them that Britain had ‘not the slightest ground for disputing’the Aborigines’ ‘proprietary title to the soil’. However, this ignores thatthey did nothing to protect this legally and little to prevent coloniststrampling on Aborigines’ interests in land. Here, Reynolds ignores thewider context in which the Colonial Office treated the colonisation ofSouth Australia, which includes its concern to uphold its authority relativeto the Commissioners rather than ensure Aboriginal rights. He also failsto scrutinise the language Colonial Office officials used. For example,they often spoke ambiguously of ‘rights’, ‘occupation’, ‘possession’ and‘ownership’ but never in a manner that suggests they believed Aboriginalpeople had rights of ownership of the kind the British privileged. Inreferring to Aborigines as the ‘owners’ of the land, moreover, they usually



spoke of them as ‘the original proprietors’ and ‘the ancient occupiers’ or of theirbeing in ‘prior possession’, just as they said that the land ‘was the undisputedproperty of the Aborigines’ or that it ‘formerly belonged’ to them, whichsuggests that they did not regard them as being the owners any longer orthat they assumed Aborigines would not be in the future. Most importantly,perhaps, they emphasised paternal protection of Aborigines by missionariesand other such guardians rather than legal recognition of their indigenousrights by government. In the end one must agree with McKenna that ‘inhis effort to render history useful in politics and the law, and to achievejustice for Aboriginal Australians, Reynolds has overlooked aspects of thehistory of the colonial administration of the frontier which do not suithis conclusions’.58

It is perhaps significant that one of the most telling legal argumentsReynolds mounted regarding native title in The Law of the Land relatednot to the action of imperial or colonial government but to their inaction,and so is not a matter that can be evidenced by historical sources. Thecontemporary common law doctrine of native title holds that the rightsto land of indigenous peoples ‘survive the sovereignty of the Crown’unless they are extinguished deliberately by the Crown. Hence, in theclosing chapter of The Law of the Land, Reynolds noted: ‘Once a righthas been acquired by custom it cannot be lost even by disuse or abandon-ment. It can only be abolished or extinguished by Act of Parliament andthe legislation must specifically extinguish the right in question’. Since‘land rights were not treated seriously and often simply ignored’, hesuggested, ‘they were probably not specifically extinguished . . . and maytherefore have survived’; forced dispossession could not ‘be taken as alegitimate means of extinguishing indigenous rights of possession’.59

In the closing sections of The Law of the Land Reynolds moved beyonda consideration of historical matters to address present-day political andlegal considerations in an unambiguous fashion. At the beginning ofhis book Reynolds sought to join past and present together and weakenthe distinction between them, writing of ‘the first and second land rightsmovements’ (that is, one in the 1830s and 1840s, and another in the 1960s,1970s and 1980s). However, he did this most of all in the final chapter,entitled ‘Land Rights, Then and Now’, and in the conclusion. He arguedthat when one looked back ‘on the debates and decisions of a centuryand a half ago it [was] impossible not to be struck by the continuity ofAustralian history, the abounding parallels and similarities’; and assertedthat while the problems dealt with in his book were ‘embedded in ourhistory’, answers lay there as well.60

Most importantly, though, Reynolds distilled in a very powerful man-ner a crisis of historical truth – and thus legitimacy – for the Australiannation, which had emerged by the early 1970s as a result of a popularcampaign for Aboriginal rights. The law was no longer regarded as impar-tial but rather biased and discriminatory and therefore unjust because it



was no longer seen to accord with the newly acknowledged facts of history,namely that indigenous peoples were the original or traditional owners ofthe land. As such, it could no longer perform its task of legitimating thecurrent social and political order.61 This crisis was of the utmost impor-tance. As Gyanendra Pandey has reminded us, it is a nation’s status as amoral community that gives it its ‘greater or less appeal and stayingpower’.62 In a section in his closing chapter, entitled ‘Land Rights in theCourts’, Reynolds asserted:

The law has . . . failed to come to terms with Australian reality. It takes no cognizanceof everything that has been learnt about Aboriginal history and society since1788. It cannot provide a realistic assessment of the history of white-Aboriginalrelations. It is still locked into concepts imported with the first settlers.

And again in the conclusion: ‘Terra nullius is still at the heart of theAustralian legal system. While it remains there the gap will yawn betweenjurisprudence and historical reality . . . Australia will continue to be animperial nation where the indigenous people are ruled by a legal systemwhich enfolds old injustice’. In doing this Reynolds appealed to Australiannationalism: ‘Australia’s reputation, or as they said in the nineteenthcentury, Australia’s honour, is at stake’. It was lagging behind other Britishsettler colonies who had ‘all done more than Australia to address ancientinjustice’. At the same time Reynolds suggested that a solution was availablein the form of a humanitarian tradition, thus offering a new moral under-pinning for the nation.63

From juridical history to law and myth

It is often claimed that The Law of the Land swayed the majority of theHigh Court in Mabo. Several of the judges refer to his work, after all.64

Reynolds has contributed to this view.65 In the second edition of his bookReynolds also characterised the High Court’s decision as being in accordancewith his argument: ‘[Mabo] represented a legal revolution, one which wasclosely related to the many of the themes dealt with in this book . . . Indoing so the Court answered many of the stringent criticisms of Australianjurisprudence advanced in The Law of the Land, and in the process con-firmed the arguments around which the book was crafted’. Both supportersand opponents of Aboriginal land rights subscribe to this account.66

Academic historians are also inclined to run this argument. It is gratifyingto think that one of our number has influenced the course of historicalevents. For example, Graeme Davison has asserted that ‘the Court hadrelied heavily upon the arguments first developed by Henry Reynolds inhis book, The Law of the Land’.67 More specifically, Reynolds claimed thatthe Court had rejected the doctrine of terra nullius, greeting the Mabojudgment in June 1992 by declaring in the Australian: ‘Terra nullius isdead’. (One of the newspaper’s sub-editors concurred: ‘This week’s High



Court decision . . . effectively quash[ed] the notion of terra nullius’.) Manyacademic historians have followed suit, as have some legal scholars.68

These claims ignore two matters, however. First, terra nullius as a legaldoctrine was irrelevant to the Court’s consideration of whether or notnative title existed in Australia. It was not even the subject of the submis-sions the plaintiffs’ legal counsel made in the case.69 As the legal scholarRichard Bartlett has reminded us, this is so because ‘terra nullius is not aconcept of the common law, and it had never been referred to in any caseprior to Mabo as justifying a denial of native title’. Instead, there weretwo legal questions at the heart of the case: should the English feudaldoctrine of tenure be construed in such a way that the Crown’s radicaltitle amounted to absolute beneficial title; and had native title in commonlaw jurisdictions only been recognised previously by the legislature or theexecutive. The doctrine of terra nullius was pertinent to the considerationof neither question.70

Second, it seems probable that the Court would have ruled in favourof native title in any case. Changing attitudes towards human rights athome and abroad had rendered the conventional story about the coloni-sation of Australia untenable, and so the law needed to relegitimise itselfand the nation by realigning its narrative with the new historical truths.71

(The new historiography of relations between Aboriginal and non-Aboriginal people written by a host of historians in the two decades priorto Mabo helped to sharpen the crisis of legitimacy facing the law, whichhad been brought about primarily by Aboriginal and non-Aboriginalcampaigners for land rights in the late 1960s and early 1970s.)72

What role if any, then, did The Law of the Land play in the High Court’sdecision or decision-making? I suggest that Reynolds’s story of terra nulliusplayed a vital role by influencing not its legal reasoning but the consider-ation of its own lego-historical narrative, which was necessary before a newdetermination of Aboriginal rights to land could be made. Before consid-ering how it did this, let us see why Reynolds’s work was able to performthis function. As the legal historian Rosemary Hunter observed several yearsago, Reynolds had written ‘the kind of history that the law [could] takenotice of ’. His historical positivism coincided with the law’s epistemologyby presenting ‘a sustained, carefully documented and compelling argumentagainst the previous political and legal orthodoxies regarding the Britishacquisition of Australia’.73 As Cochrane has put it, Reynolds produced new‘facts’ in conformity ‘with the conventions of evidence of Anglo-Saxonlaw’.74 More than this, though, The Law of the Land was an exercise injuridical history. It is this that mostly explains why the apparent fitbetween Reynolds’s argument and the High Court’s decision is so close.This brings us to a second reason why The Law of the Land was so useful.As we have already noted, Reynolds accepted the paramount authority ofthe law, rather than asserting the authority of history, and he argued thatbad law and/or white settlers and colonial governments were responsible



for the denial of aboriginal rights to land rather than law itself. By doingthis he provided the highest court in the land with an opportunity toredeem itself. Reynolds facilitated this most explicitly when he joinedhands with one of the High Court judges in the closing chapter of TheLaw of the Land: ‘The way out of this situation has always been availableto Australian jurists . . . Justice Deane ruefully admitted [in 1985] that “thecommon law of this land has still not reached the stage of retreat frominjustice” which American law attained in 1823’.75

For similar reasons, though more on the moral than the legal plane,Reynolds’s book struck a chord among many settler Australian readers.Like Claudia Orange’s influential account of the Treaty of Waitangi inNew Zealand history, it can be argued that The Law of the Land has anarrative form that is deeply familiar to British settler culture, that ofWhig history. As Paul McHugh has observed, ‘Whig history with itsnarrative momentum, its “tide of events”, grand sweeps, normative principlesand historical “laws” . . . [is] committed to notions of “principled” politics’.Reynolds’s emphasis on the redemptive capacity of the state also workedwell in a country in which Christianity still exerts a powerful influenceand which influenced the contemporary movement for Reconciliation.76

In all these respects ‘terra nullius’ was regarded as a good story and so it playedwell among many settler Australians.77 It worked in much the same wayas the narrative that (mis)represented the 1967 referendum for constitutionalchange regarding Aborigines. Both were conceived in part as a meansof healing what had come to be seen as a great flaw in the fabric of thenation, and both have been celebrated by liberals as a point of transitionfrom a ‘bad old racist regime’ to a ‘progressive new post-racist one’.78

In what sense did The Law of the Land give the High Court a storyline? Before considering this, let us recall why the law needed one.79 AsRitter and Jeremy Webber have argued, it was not enough for the Courtto reject Blackburn’s judgment in Milirrpum as a precedent and recognisethe doctrine of native title since a simple ruling that Blackburn’s judgmentwas legally wrong left the law in Australia without any satisfactory accountof why Aboriginal rights to land had not previously been recognisedunder Australian law. It needed a story to explain this ‘long history ofdenial’. This is what the law took from The Law of the Land, and the nameof this story is terra nullius.80 It provided the law with another way ofinterpreting its own narrative about British rights of possession andAboriginal dispossession, thus giving the Court the means to resolve itand the nation’s crisis of legitimacy. Ritter explains:

by ostensibly ‘rejecting’ the ‘doctrine of terra nullius’ the High Court was able toaccomplish two things: first the ‘doctrine of terra nullius’ provided a convenientscapegoat to explain why traditional Aboriginal rights to land had never beenrecognised under the Australian common law; second the rejection of terra nulliusresolved the crisis in Australian legal discourse, by reaffirming the apparent equityof Australian jurisprudence.



Thus, in Ritter’s pithy turn of phrase, ‘terra nullius was a stage edifice’. It wasaccepted so it could be demolished by a High Court intent on redeeming‘the good name of the Australian legal system’ and the Australian nationitself. Thus, The Law of the Land gave the (colonial) law and nation a newcharter and lease of life by providing them with a new story.81

This is particularly evident in two of the Mabo judgments, one byJustice Brennan, which is commonly regarded as the leading judgement,and another by Justices Deane and Gaudron.82 As Ritter points out, Brennanconducted an elaborate and lengthy discussion about terra nullius because,in order to address the Crown’s claim that on settlement it had acquiredabsolute beneficial ownership of all the land, the Court had to review thelegal theories accounting for the introduction of the common law inAustralia. To perform this task, which, again, is essentially one of storytelling, Brennan assumed the guise of a legal historian to explain how theBritish justified their acquisition of sovereignty over a territory alreadyinhabited by indigenous people. In this, Brennan more or less followedthe logic of Reynolds’s terra nullius story. Thus, he argued:

It was only on the hypothesis that there was nobody in occupation [that is, terranullius in the narrow sense] that it could be said that the Crown was the ownerbecause there was no other . . . [T]he rejection of the notion of terra nullius clearsaway the fictional impediment to the recognition of indigenous rights and interestsin colonial land.83

Brennan argued further that British possession of all the lands had beenjustified on the grounds that Australia was a terra nullius in the expandedsense of the term but that ‘[t]he facts as we know them today do notfit the “absence of law” or “barbarian” theory underpinning the colonialreception of the common law of England’. In a passage, which has sincebecome famous, he added:

it is imperative that in today’s world that the common law should neither be norseen to be frozen in an age of racial discrimination.

The fiction by which the rights and interests of the indigenous people weretreated as non-existent was justified by a policy which has no place in thecontemporary law of this country.

Thus, Brennan rejected terra nullius.84

For their part Deane and Gaudron seemed to make a bigger claim forterra nullius. They argued:

Inevitably, one is compelled to acknowledge the role played, in the dispossessionand oppression of the Aborigines, by the two propositions that the territory ofNew South Wales was, in 1788, terra nullius in the sense of unoccupied oruninhabited for legal purposes and that full legal and beneficial ownership of allthe lands of the Colony vested in the Crown, unaffected by any claims of theAboriginal inhabitants. Those propositions provided a legal basis for and justifi-cation of the dispossession. They constituted the legal context of the acts doneto enforce it . . . The official endorsement, by administrative practice and in judgments



of the courts, of those two propositions provided the environment in which theAboriginal people of the continent came to be treated as a different and lowerform of life whose very existence could be ignored for the purpose of determin-ing the legal right to occupy and use their traditional homelands . . . The acts andevents by which that dispossession in legal theory was carried into practical effectconstitute the darkest aspect of the history of this nation. The nation as a wholemust remain diminished unless and until there is an acknowledgment of, andretreat from, those past injustices.

Thus, Deane and Gaudron rejected terra nullius.85

Yet, Brennan, Deane and Gaudron’s rejection of terra nullius occurredin the course of their lego-historical storytelling – to be precise, in theirtelling a story to explain why Aboriginal rights to land had been deniedby the law and why that lawmaking should be rejected – rather than aspart of their judicial remaking of the law. In other words, their narrativeregarding terra nullius was offered in order to justify their judgment andpersuade their Australian settler audience that they had done the right thing,but this was immaterial to the legal reasoning entailed in their decision.

None of the other judges in the case thought it necessary to go to suchlengths in sparring with a narrative whose legal authority was illusory inorder to justify their legal judgments that native title did or did not existin the Australian common law. As Ritter notes, Justice Dawson dismissedthe relevance of terra nullius and Justices Mason and McHugh didnot mention it when they summarised the most important effects of theCourt’s collective judgment. In the only other lengthy majority judgmentJustice Toohey claimed it was unnecessary to address terra nullius because,Robert van Krieken argues, he saw ‘no reason to dignify the mere pre-sumption of the absence of indigenous occupation with the designationof a legal “doctrine” requiring “overturning” ’.86

Van Krieken has contended that the fact the other judges did not goto such lengths to counter the story of terra nullius suggests that there wasno need for the High Court to address a crisis of legitimacy. He thusconcludes that ‘the “rejection of terra nullius” is . . . more about Australianhistory and moral community than Australian jurisprudence’. However,this ignores the historical context in which the Court made its decision,which was one in which dispossession had come to be seen by many asimmoral and so unjust.87

There can be little doubt, moreover, that the Keating Labor governmentassumed that it needed a narrative of this kind in order to persuade publicopinion that it was right to apply the High Court’s judgment regardingthe Murray Islands to all of Australia. In legislating for native title PrimeMinister Paul Keating followed Brennan, and Deane and Gaudron inframing the matter in terms of the story of terra nullius. Keating chooseto construe the Court’s judgment as a historic decision because he saw itas providing a new foundational narrative for Australia. In the name ofReconciliation, Keating, guided by one of his speechwriters and advisers,



the historian Don Watson, regularly drew upon the most striking passagesin the Brennan, and Deane and Gaudron judgments to promote the nativetitle legislation the Labor government introduced, removing the term‘fiction’ from its legal moorings and anchoring it in its populist one.88 InAugust 1993 Keating told the nation in a televised address: ‘The Court’sdecision was unquestionably just. It rejected a lie and acknowledged atruth. The lie was terra nullius – the convenient fiction that Australia hadbeen a land of no one. The truth was native title’.89

From myth to history

The myth of terra nullius that Reynolds’s Law of the Land, the High Courtand the Keating government helped to produce had, like most myths, aring of truth about it. This helps explain why it was successful. Most ofall, it neatly symbolised the racism that led a colonial society to denigrateand disregard the land rights of Aboriginal people previously. More par-ticularly, however, it re-presented the story about colonisation that the law,government and many settlers in the Australian colonies had told sincethe beginning of large-scale colonisation in the mid 1820s. It was alsotruthful in that it encapsulated the fact that humanitarians were concernedabout the plight of Aboriginal people and made some moves to try andprotect their interests (rather than recognise their rights legally). In all thesesenses, the story of terra nullius, like myth generally, was not an arbitraryinvention but was in some senses true. It had, in Cohen’s terms, ‘genuinelinks to a genuine historical past’, providing a condensed and exaggeratedaccount of something that did happen. However, as I have argued, thistruth is rather different to the truths that academic history usually seeksto advance and in those terms it can be regarded as a lie.90

By choosing to promote this liberal myth, moreover, Reynolds wasunable to articulate another, more radical one, which much of his ownresearch, as well as that of other historians, tells us is much truer, namelythat indigenous people’s rights to land in Australia were denied becausethis is the nature of colonialism. It dispossesses indigenous people of theirland and uses its own law to try to disguise the violence of this.91 This isthe law of the land in colonial societies.92 In the case of Australia this wasall the more so because there were little by way of countervailing forcesto prevent the colonisers seizing what was not theirs.93

In The Law of the Land there are brief moments when Reynoldsacknowledges this historical reality. For example, he writes: ‘The Britishclaim [to Australia] survived less because of its intrinsic strength . . . andmore because no European power was in a position, or had the inclination,to challenge it’; and ‘The overwhelming sense of racial superiority, thetotal commitment to “development”, the demands of major industries andof capital in general all conspired to frustrate hopes for reform’.94 However,his juridical framework means that his discussion of these factors can be



no more than an aside. This is the cost one pays in assuming the task ofjuridifying the past in a colonial regime. It is difficult to be both ajuridical historian and a post-colonialising historian.

It might be argued that the story of terra nullius was a necessary mythfor a nation state seeking to confront the nature of its origins so belatedlyin its history (making). In other words, Reynolds’s colonial narrative wasas much as settler Australia could accept at a time when it was onlybeginning to grapple with the old historical truths that had been recentlyre-presented with such force. Whether this is true or not, there is now acrying need for another historical approach, one that is not only truer tothe historical reality of the past but also goes further in redressing theconsequences of that past in the present. Histories of the kind Reynoldspresented in The Law of the Land are not adequate to the task becausethey are simplistic. ‘For history to do effective work in the world overthe long term’, the American historian Richard White has suggested, ‘ithas to be true to the complexity of the past’. Academic history, moreover,needs to conceive of history and the relationship between past and presentin a more sophisticated and rigorous manner.95

In this case, we need historical work that will grapple with at least threeclosely related matters. First, we require accounts that treat racism moresatisfactorily by representing it as a structure closely related to settlers’seconomic, social and cultural interests and so deeply embedded in colonialsociety, rather than simply rendering it, as Reynolds does, as a body ofknowledge (perceptions, ideas, opinions and so forth) and so somethingthat can be readily overthrown, when it obviously has not. Second, werequire accounts that treat the humanitarians’s position as complex, shot-through with ambivalence and ambiguity, so that historians can understandpast and present settler investments and disinvestments in colonialism butprimarily the former. Third, we require accounts that reveal the limitsof the Australian past in respect of the treatment of Aboriginal people,thus allowing us to acknowledge that there is little to redeem it and soenabling us to recognise that few of the answers to continuing racialinequality lie there. By doing all this one would refuse Reynolds’s retro-spective utopia, a configuring of colonisation that almost implies therewas no colonialism and which treats moral and political choices as thoughthey are relatively simple matters and carry no cost for a settler society.96

By excavating the complex messiness of the past in the present rather thanevading it, one can produce histories that might have more useful politicaland social outcomes than ones that try to use the past in the service ofsimplistic contemporary political and legal narratives.

There is something else at stake here, of course. As W. H. Oliver haswarned in his recent memoir:

If it can be plausibly suggested that [historians] have got the history wrong, andif they decline to consider the possibility that they have, they may end up looking



as if they believe that any serviceable past will do. Their credibility is likely tosuffer, not just as to opinions about the past but also as aspirations for the future.97

White has pointed out in another context: ‘Those who do not share thehistorical shoppers’ tastes, and who know the historical shopping districtas well as they do, [can] dismiss what they bring back as selective andrevealing only of the historian’s own prejudices’. In Australia today it isall too evident that flaws in historians’ work on colonialism have helpedsome conservatives and others to undermine the interests of Aboriginalpeople.98

These observations should not necessarily be taken as an endorsementof Richard Evans’s recent call to reassert ‘history’s primary purpose ofexplaining and understanding the past rather than judging it’ (since thisprobably entails a false distinction in respect of historical practice).99 Instead,I suggest that historians should try to ensure that the former precedes thelatter in doing their work, rather than vice versa. Historians, moreover,should take care to respect another important limit as they go about theirwork. We live in an era in which texts increasingly cross over the bound-aries between the genre of history, essay, autobiography, biography, fictionand so forth, each of which have ways of producing knowledge andestablishing truth that are similar but also different. There remains, however,an unwritten pact between the authors and readers of history, whichdiffers significantly from that between the authors and readers of fiction,myth and other such forms. With works of history, the author undertakesto represent the past as truthfully to that time as he or she can, and readersread with that expectation in mind.100 By contrast, authors of historicalfiction and myth give no such undertaking and their readers have no suchexpectations. In The Law of the Land, Reynolds did not enunciate what hewas doing.101 Readers assume they are reading history rather than juridicalhistory or myth. Telling true histories not only requires stories that aretrue, but authors who declare the nature of the story they are telling soreaders can read their stories knowingly.

Notes

I wish to thank Marina Bollinger, Isabelle Merle and Liz Reed for the discussions we have hadregarding the matters explored here, and Alan Atkinson, Marina Bollinger, Tim Bonyhady, PeterCochrane, Joy Damousi, Robin Derricourt, Stephen Foster, Claudia Haake, John Hirst,Miranda Johnson, Mark McKenna, Liz Reed, David Ritter and Damen Ward for commentingon drafts of this article. I presented a version of this as a paper at Centre de Recherche et deDocumentation sur L’Oceanie (CREDO), Universite de Provence, in November 2003, andbenefited from the comments and questions of the participants in the seminar.1 It is difficult not to exaggerate the symbolic significance of this decision. By the same token,we should not overlook the fact that the High Court also ruled that native title had been andcould be legitimately extinguished in much of Australia, that compensation was not payable forthis expropriation, and that Aboriginal claimants had to be able to show that they havemaintained a continuing ‘traditional’ relationship to their land, which few can do. So-calledAboriginal radicals pointed this out at the time (for example, M. Mansell, ‘Australians and



Aborigines and the Mabo decision. Just whom needs whom the most?’, University of Sydney LawReview, 15 (2),1993, pp. 168–77). More recently, Hal Wootten has reminded us that by the timeof the High Court’s decision ‘almost all economically viable land’ was held under forms oftitle that ‘either extinguished [native title] altogether or prevailed over it’. He has argued that‘this situation developed as a result of a failure of political nerve, which left what should havebeen a legislative policy issue to resolution in the courts as an issue of existing legal rights’. SeeH. Wootten, ‘Conflicting imperatives. Pursuing truth in the courts’, in Proof & Truth. The Humanistas Expert, eds I. McCalmain and A. McGrath (Canberra, 2003), pp. 34–5.2 J. van Tiggelen, ‘A whispering in his heart’, Age, Good Weekend Magazine, 13 June 1998,p. 18; P. Cochrane, ‘Hunting, not travelling’, Eureka Street, 8 (8), 1998, p. 32.3 This is the third edition; a second edition was published shortly after the High Court’s decision.4 D. Carr, Time, Narrative, and History (Bloomington, 1986), pp. 4–5, 9.5 A. Megill, ‘Recounting the past. “Description”, explanation, and narrative in historiography’,American Historical Review, 94 (3), 1989, p. 647; J. Le Goff, History and Memory, translated byS. Rendall and E. Claman (New York, 1992), p. xx.6 Hobsbawm argued that ‘[a]ll historians, whatever else their objectives, are engaged in[the invention of tradition] inasmuch as they contribute, consciously or not, to the creation,dismantling and restructuring of images of the past’. See E. Hobsbawm, ‘Introduction’, in TheInvention of Tradition, ed. E. Hobsbawm and T. Ranger (Cambridge, 1983), p. 13. In consideringsuch histories J. G. A. Pocock has suggested that we are better to use terms such ‘formation’instead of ‘invention’ and ‘construction’. This is so, he argues, because ‘formation’ reflects the‘highly complex patterns of experience [that] are in involved in making [histories]’, whereasthe other terms do not so or do so less satisfactorily. See J. G. A. Pocock, ‘The treaty betweenhistories’, in Histories, Power and Loss. Uses of the Past – A New Zealand Commentary, ed. A. Sharpand P. McHugh (Wellington, 2001), p. 75. By using the term or concept of ‘formation’ andallying it with another, ‘experience’, Pocock is trying to draw our attention to connectionsbetween past and present, or between pasts and/or between pasts and the present, evident inhistory in both senses of that word. By contrast, terms like ‘invention’ have come to suggestthat history-making in the present is always disconnected from the past it re-presents, eventhough this was not the argument Hobsbawm and Ranger made in The Invention of Tradition(see Hobsbawm, ‘Introduction’, pp. 1–5, 8, 10). ‘Invention’ now seems to have been a particularlyinfelicitous turn of phrase.7 B. Attwood, ‘The past as future. Aborigines, Australia and the (dis)course of history’, in In theAge of Mabo. History, Aborigines and Australia, ed. B. Attwood (Sydney, 1996), pp. xviii, 142.8 M. McKenna, Looking for Blackfellas’ Point. An Australian History of Place (Sydney, 2002), p. 48.9 This is not the first time I have suggested Reynolds was working along these lines (seeAttwood, ‘Past’, p. 142). Other historians have since read The Law of the Land in much the sameterms. Cochrane describes it as a venture ‘into legal history’ (Cochrane, ‘Hunting’, p. 36) andMcKenna has characterised it as ‘an attempt to prove that the conventional view of Australiansettlement was both legally and historically incorrect’ (McKenna, Looking, p. 47). Soon after Iformed the opinion that The Law of the Land was an example of Andrew Sharp’s juridical history(see endnote 10), I discovered that a New Zealand historian, Damen Ward, had also arrivedat this conclusion, via the same Sharp route I had taken. See D. Ward, ‘A means and measureof civilisation. Colonial authorities and indigenous law in Australasia’, History Compass, 1 (2003)AU 049, p. 15 http://www.history-compass.com/article.asp?section=3&rep=1858&type=full.10 A. Sharp, ‘History and sovereignty. A case of juridical history in New Zealand/Aotearoa’, inCultural Politics and the University in Aotearoa/New Zealand, ed. M. Peters (Palmerston North,1997), p. 160; A. Sharp, ‘Recent juridical and constitutional histories of Maori’, in Histories,Power and Loss. Uses of the Past – A New Zealand Commentary, eds A. Sharp and P. McHugh(Wellington, 2001), pp. 31–2.11 Ibid., p. 36.12 Merete Borch also made much the same point several years ago. See M. Borch, ‘ “Conciliatingtheir Affections”. The development of official British attitudes and policy towards indigenouspeoples in the colonies of settlement, 1763–1814’, PhD thesis, University of Copenhagen,1997, p. 178.13 Sharp, ‘History’, p. 160. See also P. McHugh, ‘Law, history and the Treaty of Waitangi’,New Zealand Journal of History, 31 (1), 1997, pp. 45, 49, and W. H. Oliver, ‘The future behind



us. The Waitangi Tribunal’s retrospective utopia’, in Histories, Power and Loss. Uses of the Past –A New Zealand Commentary, eds A. Sharp and P. McHugh (Wellington, 2001), pp. 9–29.14 In the hope my argument will neither be misunderstood nor misused, I wish to emphasisethat the term myth is used here in its ancient sense and not in the more popular or populistsense of a falsehood.15 P. A. Cohen, History in Three Keys. The Boxers as Event, Experience, and Myth (New York,1997), p. 213.16 Ibid., pp. 213–4, his emphasis.17 J. Morton, ‘Abortive redemption? Apology and indigenous tradition in Australian reconcili-ation’, Journal of the Polynesian Society, 112 (3), 2003, p. 248, his emphases. Note that Mortonis arguing that myth and history are basically similar, not different.18 Cohen, History, p. xi. 19 See A. Davidson, The Invisible State. The Formation of the Australian State 1788–1901(Melbourne, 1991).20 Reynolds, cited by S. Marris ‘History a weapon for the oppressed’, Australian, 19 April 2000;H. Reynolds, ‘The public role of history’, Dissent, 3, 2000, p. 5.21 As I have remarked elsewhere, Reynolds does not enjoy such a high reputation amongacademic historians. See B. Attwood, ‘Historiography on the Australian frontier’, in FrontierConflict. The Australian Experience, eds B. Attwood and S. G. Foster (Canberra, 2003), pp. 176–7. However, criticism of Reynolds has almost become de rigueur, so much so that some have noteda phenomenon of ‘Reynolds bashing’ (T. Griffiths, personal communication, July 1999).22 For example, Reynolds’s The Other Side of the Frontier has sold about 30,000 copies, whileThe Law of the Land has sold approximately 15,000 (C. Forster, personal communications, 10December 2001 and 23 March 2004. Penguin provided this information at the request of theauthor).23 Cochrane, ‘Hunting’, p. 32.24 McKenna, Looking, pp. 46–7; H. Reynolds, ‘Aboriginal-European contact history’, Journalof Australian Studies, 3, 1978, p. 64.25 D. J. Mulvaney, ‘Review of . . . Henry Reynolds, The Law of the Land’, Overland, 111, 1988, p.94; L. Hiatt, ‘The Appropriation of Terra Nullius. A Review Symposium’, Oceania, 59 (3),1989, p. 226; One can compare what Reynolds argues in The Law of the Land with themeasured tone of passages in his Frontier. Aborigines, Settlers and Land (Sydney, 1987); see, forexample, pp. 135–6.26 H. Reynolds, The Law of the Land 2nd edn (Melbourne, 1992), pp. 185–6; Reynolds, WhyWeren’t We Told? A Personal Search for the Truth About Our History (Melbourne, 1999), pp. 187–91. As time has gone on, Reynolds has increasingly emphasised his association with Mabo.Compare his account of the beginnings of the case with that of Nonie Sharp. See N. Sharp,No Ordinary Judgment. Mabo, the Murray Islanders’ Land Case (Canberra, 1996), pp. 22–30.27 H. Reynolds, The Law of the Land 3rd edn (Melbourne, 2003), p. 2.28 ‘Milirrpum v Nabalco and the Commonwealth’, 17 Federal Law Reports, 1970–71, pp. 142–3, 243. 29 H. Reynolds, The Law of the Land 1st edn (Melbourne, 1987), pp. 3, 7, 33, 43, 122, 132,140–1, 156, 158, 163, 166–8 (henceforth all references are to this edition unless otherwiseindicated); 2nd edn, pp. 126, 131; R. Lilley, ‘The Appropriation of Terra Nullius. A ReviewSymposium’, Oceania, 59 (3), 1989, pp. 222–3. Reynolds’s political purpose obviously influ-enced the nature of the research he conducted. Indeed, in Why Weren’t We Told he tells us thathe ‘set out to find [the documents] to support his interpretation of why the British deniedAboriginal rights to land’ (pp. 197–8).30 No legal scholar had undertaken the lego-historical work Reynolds did in this book and hedeserves considerable praise for the task he performed, which was no mean feat for someoneuntrained in the discipline of the law.31 When The Law of the Land was first published Marxist scholars castigated Reynolds for hisliberal stance on the law. See, for example, V. Kerruish, ‘Reynolds, Thompson and the rule oflaw. Jurisprudence and ideology in terra nullius’, Law in Context, 7 (1), 1989, pp. 120–33.32 Reynolds, Law, p. 149; V. Gollan, ‘The Appropriation of Terra Nullius. A Review Symposium’,Oceania, 59 (3), 1989, p. 229.



33 D. Ritter, ‘The “rejection of terra nullius” in Mabo. A critical analysis’, Sydney Law Review, 18(1), 1996, p. 29.34 Reynolds was not the first to do this. Alan Frost had already done so in his ‘New SouthWales as terra nullius. The British denial of Aboriginal land rights’, Historical Studies, 19 (77),1981, pp. 513–23, arguing that the British had acted in accordance with the conventions ofcontemporary international law in denying Aborigines’ rights to the land. By doing juridicalhistory both these historians necessarily ascribed to the law (or law) a greater role in determiningindigenous rights to land than it actually had. In North America, Australia and New Zealand,for example, I would argue that rights to land were determined mostly on the ground, by thenature of relations between colonists and aboriginal peoples.35 The role of law and legalism in the dispossession of aborigines in Australasia is a complex onethat has only recently been considered in a nuanced manner. See, for example, M. Hickford,‘Making “territorial rights of the natives”. Britain and New Zealand, 1830–1847’, D.Phil thesis,University of Oxford (1999); D. Ward, ‘The politics of jurisdiction. “British” law, indigenouspeoples and colonial government in South Australia and New Zealand, c. 1834–1860’, D.Philthesis, University of Oxford (2003).36 See M. Borch, ‘Rethinking the origins of terra nullius’, Australian Historical Studies, 32 (117),2001, pp. 230–1. As Borch makes clear (‘ “Conciliating” ’, pp. 127–8, 228), this is also true ofFrost’s work, which is also, I would argue, politically over-determined. The law and government inthe Australian colonies did not really begin to tell a story about the rights of British possessionuntil the 1830s, that is, simultaneous to humanitarian concern, which was during and after theevent of large-scale colonial expansion and dispossession rather than before, as colonists, includinghumanitarians and lawyers, tried to both explain and justify this to themselves and others.37 Reynolds, Law, p. 22; Gollan, ‘Appropriation’, p. 229. Given Reynolds’s lack of interest inepistemological matters and his reluctance to be self-reflexive, I am unsure to what degree heunderstands what it was that he was doing in The Law. What is clear is that he believedsomething had to be done and that he was going to do it. I argue that this carries a heavy costsince in the long run it weakens the influence his telling story could have.38 Reynolds was not the first historian to advance seriously the notion that the lands ofthe Australian colonies had been claimed by the British on the basis of terra nullius. Frost hadalready done so in his ‘New South Wales’. Furthermore, many academic historians have sincebeen influenced by this rather than Reynolds’s work. See, for example, R. Broome, AboriginalAustralians. Black Response to White Dominance 1788–1980 (Sydney, 1982), pp. 26–7; S. G. Foster,‘Aboriginal rights and official morality’, Push From the Bush, 11, 1981, p. 72; B. Attwood,‘Aborigines and academic historians. Some recent encounters’, Australian Historical Studies, 24(94), 1990, p. 130; A. G. L. Shaw, ‘British policy towards the Australian Aborigines, 1830–1850’,Australian Historical Studies, 25 (99), 1992, p. 266; Shaw, A History of the Port Phillip District.Victoria Before Separation (Melbourne, 1996), p. 111; A. McGrath, ‘A national story’, in ContestedGround. Australian Aborigines under the British Crown, ed. A. McGrath (Sydney, 1995), p. 12. Ina recent attack on the way historians, lawyers and judges have used terra nullius, an untutoredwriter, Michael Connor, has overlooked both these matters. Similarly, he seems ignorant of thefact that legal historians have already made the basic argument he presents. More importantly,it seems Connor has failed to grasp the fact that Frost and Reynolds used the term in the courseof attributing the denial of aboriginal ‘land rights’ to a lack of knowledge on the part of theBritish or a mistaken application of the law by the colonisers, which is a benign interpretationof the reasons why the Aboriginal people’s rights were disregarded. Most importantly, perhaps,Connor does not offer an alternative explanation for why Aboriginal rights to land were denied.See M. Connor, ‘Error nullius’, Bulletin, 26 August 2003, pp. 76–8. Are such writers recommendinga return to the racism embedded in the law’s earlier myth about Australia’s origins? For a responseto Connor’s article, see A. Atkinson, ‘Letter to the editor’, Bulletin, 16 September 2003, p. 9.39 Ritter, ‘Rejection’, pp. 9, 29. In The Law of the Land Reynolds implies that Blackburnasserted the doctrine of terra nullius, and in Why Weren’t We Told he explicitly claims this: ‘withBlackburn . . . the doctrine of terra nullius still ran in Australia’ (p. 187). In fact Blackburn doesnot use the term.40 For these decisions, see http://www.law.mq.edu.au/scnsw, Division of Law, Macquarie University.41 Reynolds, Law, p. 12.



42 Both Reynolds and Frost convey the impression that it was. Historians, of course, often useconcepts from the present to make sense of the past. As Cohen observes, historians ‘seek toform a bridge between those [past] worlds and the world of the people of our own day, makingpossible some degree of useful communication between the two . . . [We] must be acquaintedwith two languages, in our case those of the present and of the past, and . . . navigate back andforth between these two very different realms, incessantly, sensitively, and with as much honestyas possible’ (History, p. 297). In this case, Atkinson has pointed out, critics such as Connor are‘wrong to suggest that just because he can’t find the term terra nullius in earlier documentationtherefore the idea it has been used to express was not fundamental to British settlement’ (‘Letterto the editor’). However, Reynolds and Frost might have done more to explicate why theychose to use it, and could have done so simply by reference to the political and legal contextin which they were writing.43 Ritter, ‘Rejection’, p. 8. It should be noted that in the 1830s and 1840s in Australia, NewZealand and other British colonies many colonisers drew upon the law of nations orinternational law, rather than just English common law, in order to make a case for theirrights to land. See, for example, http://www.law.mq.edu.au/scnsw/cases1835-36/html/r_v_murrell_and_bummaree_1836.htm, Justice Burton in R v. Murrell.44 In 1993 the former Chief Justice Sir Harry Gibbs commented: ‘There is one matter whichhas puzzled me a little. In the judgments in Mabo, and in much public discussion which hasfollowed, there are frequent references to the doctrine of terra nullius, which the Court is saidto have rejected’. See H. Gibbs, ‘Foreword’, in Mabo. A Judicial Revolution, eds M. A. Stephensonand S. Ratnapala (St Lucia, 1993), p. xiv.45 ‘Coe v Commonwealth of Australia’, (1979) 24 Australian Law Reports, 118, pp. 120–3, inB. Attwood and A. Markus, The Struggle for Aboriginal Rights. A Documentary History (Sydney,1999), pp. 289–92.46 By the same token it can be argued that the conservative Frost accepted the applicationof the term terra nullius because it had entered contemporary political discourse and he wantedto ‘explain’, in a manner favourable to the nation’s founding figures, why Australia had beenclassified in these terms.47 Reynolds, Law, pp. 166–7, 170–1; G. Simpson, ‘Mabo, international law, terra nullius and thestories of settlement. An unresolved jurisprudence’, Melbourne University Law Review, 19 (1),1993, p. 207; Ritter, ‘Rejection’, pp. 8, 18–19. In the third edition of The Law of the LandReynolds reflects on the success of this strategy (p. 234).48 Of lesser importance is the fact that Reynolds was mirroring the approach of Aboriginalcampaigners for land rights (see pp. 162, 173). It might also be the case that Reynolds wastrying to counter Frost’s argument in ‘New South Wales’, though this is not evident in The Lawof the Land since there, as in the rest of his work, Reynolds does not engage in historiographicaldebate. In this case Reynolds, again perhaps following legal practices, does not even list Frost’sarticle in his bibliography.49 Ritter, ‘Rejection’, pp. 7–8.50 M. F. Lindley, The Acquisition and Government of Backward Territory in International Law (London,1928), p. 10. 51 Reynolds, Law, pp. 12, 28.52 Reynolds’s usage of ‘terra nullius’ in The Law of the Land is in fact multi-faceted. Sometimesit is a doctrine, other times a concept, yet others an ideology. In some of his other writing,it is an idea, a principle and a ‘territory’. See H. Reynolds, ‘What is native title’, Wiser, 1 (1),1993, pp. 26, 30. Reynolds takes quite some time before he defines the second of his key terms– native title – and that he conflates ‘native title’ with ‘land rights’ even though native titlerights were (and are) a much weaker form of property rights than those the land rightsmovement of the 1960s and 1970s first sought.53 Ritter, ‘Rejection’, p. 6. 54 Reynolds, Law, pp. 31–2, 55.55 Ibid., pp. 14–22; B. Attwood, ‘Writing the Aboriginal past. An interview with John Mulvaney’,Overland, 114, 1989, p. 8.56 Reynolds, Law, pp. 122, 154. Many historians have questioned Reynolds’s characterisationof humanitarianism. See, for example, the work referenced in endnotes 35, 57 and 58 as well



as H. Robert, ‘Colonizing concepts of Aboriginal rights in land in Port Phillip and SouthAustralia in the 1830s’, MA thesis, University of Melbourne (2002).57 A. G. L. Shaw, ‘Orders From Downing Street’, Journal of the Royal Australian Historical Society,54 (2), 1968, p. 118; Shaw, ‘British policy’, pp. 265–7, 279; Ward, ‘Politics’, pp. 59, 62–63, 65;Ward, ‘Means’, pp. 2, 4–7, 12, 14–15.58 Reynolds, Law, p. 129; R. Lilley and J. Crawford, ‘The Appropriation of Terra Nullius. AReview Symposium’, Oceania, 59 (3), 1989, pp. 223, 228; McKenna, Looking, pp. 56–9; Ward,‘Politics’, p. 67.59 Reynolds, Law, pp. 145–6, 174; McHugh, ‘Law’, p. 43.60 Reynolds, Law, pp. xi, 156–7, 175, 176. Here Reynolds follows in the footsteps of theprincipal non-Aboriginal campaigners for ‘land rights’, seeking to discover redeeming featuresin Australia’s past, though he seems unaware he is doing this (ibid., pp. 156–7). In the 1960sFrank Engel and Barrie Pittock, among others, undertook historical study of a kind thatanticipated Reynolds’s research for The Law of the Land. See B. Attwood, Rights for Aborigines(Sydney, 2003), p. 284. In the area of Aboriginal policy and practice Australia often seems toresemble a historicidal culture.61 See Simpson, ‘Mabo’, p. 210; R. Hunter, ‘Aboriginal Histories, Australian Histories, and theLaw’, in In the Age of Mabo. History, Aborigines and Australia, ed. B. Attwood (Sydney, 1996), pp. 1,16; Ritter, ‘Rejection’, pp. 6–7, 16.62 G. Pandey, Remembering Partition. Violence, Nationalism and History in India (Cambridge, 2001),p. 152. 63 Reynolds, Law, pp. 172–5, 178. In the first edition of The Law Reynolds invokes the bi-centenary at both the beginning and the ending of the book (pp. 7, 177). Reynolds reiteratedthe redemptive humanitarian theme in his This Whispering in Our Hearts, which might beregarded as a primer for the modern-day reconciliation movement (Sydney, 1998). As many ofthe non-academic reviews of The Law reveal, Reynolds had struck a real chord in casting thematter as one crucial to settler Australians’ sense of themselves (see the reviews extracted forpublicity for the third edition of the book, pp. ii–iii).64 See ‘Mabo v Queensland No. 2’, Australian Law Journal Reports, 66, 1992, pp. 450–1, 466,483.65 On occasion, though, Reynolds has argued otherwise. See H. Reynolds, ‘Anti-Mabo argumentspast their use-by-date’, Australian, 17 November 1993.66 For opponents, see, for example, G. Partington, The Australian History of Henry Reynolds(Holden Hill, 1995), pp. 2–4, 19, 52; C. Veliz, ‘History as an alibi’, Quadrant, 47 (3), 2003, p. 23.67 G. Davison, The Use and Abuse of Australian History (Sydney, 2000), p. 15.68 H. Reynolds, ‘Black-white watershed’, Australian, 6–7 June 1992; Reynolds, Law 2nd edn,pp. 185–6; van Tiggelen, ‘Whispering’, p. 18. For mistaken historians and legal scholars, see,for example, Simpson, ‘Mabo’, p. 196; T. Rowse, After Mabo. Interpreting Indigenous Traditions(Melbourne, 1993), p. 21; Attwood, ‘Past’, p. 141, endnote 53; S. Macintyre, ‘Australia and theEmpire’, in The Oxford History of the British Empire, Vol. V. Historiography, ed. R. W. Winks(Oxford, 1999), p. 180. Reynolds has continued to make this claim, referring in the thirdedition of The Law of the Land to the Court’s ‘decision to recognise native title and therebyoverthrow the doctrine of terra nullius’ (p. 212).69 As Ritter notes, the plaintiffs argued that Aboriginal interests in land were preserved as a burdenupon the radical title of the Crown irrespective of the mode of acquisition of a colony, that is,whether it be categorised as conquered, ceded or settled (as a terra nullius) (‘Rejection’, p. 20).70 R. H. Bartlett, The Mabo Decision (Sydney, 1993), p. ix.71 See Hunter, ‘Aboriginal Histories’, pp. 12–16; Ritter, ‘Rejection’, pp. 7, 26–7, 32–3. Forthese reasons, my argument in this article does not undermine the legal reasoning of the Court’sdecision. For a consideration of why this is so, see Ward, ‘Means’, pp. 16–18.72 See R. Broome, ‘Historians, Aborigines and Australia. Writing the national past’, in In theAge of Mabo. History, Aborigines and Australia, ed. B. Attwood (Sydney, 1996), pp. 54–72.73 Hunter, ‘Aboriginal Histories’, p. 5.74 Cochrane, ‘Hunting’, pp. 33–6. 75 Reynolds, Law, p. 172; Reynolds and Deane’s claim that the American law had retreatedfrom injustice in the Supreme Court’s decision in Johnson v. McIntosh in 1823 is disputed by



many scholars. See, for example, D. E. Wilkins, American Indian Sovereignty and the U.S. SupremeCourt (Austin, 1997), pp. 27–35.76 McHugh, ‘Law’, pp. 40, 46, 54, 56. It is probably no coincidence that Reynolds’s narrativehad its greatest impact on the most strongly Christian of the six majority judges, the CatholicsBrennan and Gaudron and the Anglican Deane.77 As H. L. Dalton has observed: ‘when a story is well told, I park my analytical faculties at thedoor. I suspend judgment’. See H. L. Dalton, ‘Storytelling on its Own Terms’, in Law’s Stories.Narrative and Rhetoric in Law, eds P. Brooks and P. Gewirtz (New Haven, 1996), p. 57.78 As in the example of the 1967 referendum, a historian can have no expectation that pointingout the precise nature of the High Court’s ruling will stem the tide of erroneous claims madeabout the significance of ‘the doctrine of terra nullius’. See B. Attwood and A. Markus, The1967 Referendum, or When Aborigines Didn’t Get the Vote (Canberra, 1997), especially p. ix. AsCohen has pointed out, ‘for most human beings experience and myth have an emotional powerand importance . . . that historians ignore at their peril’ (History, p. xv).79 As we shall see later, R. van Krieken has disputed this need in ‘From Milirrpum to Mabo. TheHigh Court, terra nullius and moral entrepreneurship’, University of New South Wales LawJournal, 23 (1), 2000, pp. 73–5.80 Perhaps it is significant that Reynolds has observed: ‘The influence of the new historicalwriting on the High Court remains a contentious issue. But there can be no doubt that theMabo judgment has changed the way the story of Australian colonisation must in future be told’(Why Weren’t, p. 202, my emphasis).81 J. Webber, ‘The jurisprudence of regret. The search for standards of justice in Mabo’, SydneyLaw Review, 17 (1), 1995, p. 7; Ritter, ‘Rejection’, pp. 6–7.82 As Ritter notes, though, ‘it certainly was not clear among the majority judges what was beingreversed by the “rejection of terra nullius”. As Ian Hunter has highlighted: “the majority’scritique of . . . terra nullius slides between three different (though not unrelated) concepts anddomains of reasoning: first, terra nullius is an (absurdly false) anthropological and historicaldescription of the state of Aboriginal society at the time of colonisation. Second, somethinglike terra nullius has been accepted as doctrine in the small set of Australian precedents that . . .affirm the Crown’s “radical title” to all colonial lands, and in the one case that applied thisframework to an Aboriginal land claim (Milirrpum v Nabalco). Third, terra nullius is (togetherwith conquest and cession) one of the three instruments of the acts of state through whichBritain founded colonies and, as such, is acknowledged in various Privy Council judgments asthe instrument of a supralegal exercise of foreign power” ’. See Ritter, ‘Rejection’, p. 26, citingI. Hunter, ‘Native title. Acts of state and the rule of law’, in Make a Better Offer. The Politics ofMabo, ed. M. Goot and T. Rowse (Sydney, 1994), pp. 101–2.83 Presumably ‘fictional’ in this passage and ‘fiction’ in the next one I quote were not intendedby Brennan to be read in the popular meaning of falsehood but understood in the sense thelaw uses this term.84 ‘Mabo’, pp. 421–2, 424, see also pp. 416–17, 429; Ritter, ‘Rejection’, pp. 22–4.85 ‘Mabo’, p. 451. They rejected both these propositions as fatally flawed because, they argued,the Australian cases supporting them consisted of ‘little more than bare assertion’ and were notconcerned with Aboriginal title to land and so the relevant comments were all dicta (ibid., p. 449).86 Ritter, ‘Rejection’, p. 29; ‘Mabo’, p. 482; van Krieken, ‘Milirrpum’, p. 74.87 Ibid., p. 76. It seems to me that van Krieken overlooks the fact that all the judges found itnecessary to engage with the story of terra nullius to some degree and that they all found itnecessary to tell a (hi)story of the law’s treatment of indigenous rights to land. He also makes noallowance for the possibility that Toohey decided there was no need to reject terra nullius becausehe knew other judges had dealt with this adequately (Webber, ‘Jurisprudence’, p. 17, footnote 24).88 As a result of this legislation, more land became the freehold title of settler Australians thanever before. It offered Aboriginal people comparatively little, as Aboriginal critics such as GaryFoley have pointed out. See his unpublished essay, ‘Native Title is Not Land Rights’, 1997,http://www.kooriweb.org/foley/images/dximages/logo.gif. More recently, Wooten has noted:‘In Mabo the High Court eloquently and bravely confronted the fiction of terra nullius andits consequences, but could only rule on legal rights . . . Instead of rising to the challenge ofcreating a new Indigenous policy that could deliver more just outcomes in contemporary



conditions, parliament simply cemented the crippled structure of existing rights into the NativeTitle Act, 1993 . . . It did not have to be like this. Australia is not bound to mean-spiritedlyhold its indigenous people to the limited legal rights that ingenious lawyers can find survivingafter 200 years of trampling on them’ (‘Conflicting’, pp. 35–7).89 P. Keating, An Address to the Nation, 15 November 1993, http://www.keating.org.au/cfm/details.cfm.90 Cohen, History, p. 214.91 Many nationalist historians of colonialism, I suggest, have made too much of the differentways the British and other imperial powers treated the matter of indigenous rights to land intheir colonies. As a comparative perspective demonstrates, they only seemed to recognise thesewhen and where they perceived that this was necessary or conducive to their colonisation ofnew territories and only for so long as this was essential.92 Like other myths, this narrative is true but too simple, since it overlooks many things, forexample the range of opinion among colonists and the fact that some were troubled by theimpact their invasion had upon Aborigines and wanted to alleviate this.93 Arguably, Van Diemen’s Land was the only colony where this occurred. Significantly, it was VanDiemonian settlers who were the only ones in Australia to adopt the strategy of treaty-makingas a means of colonising. This resulted in the controversial ‘treaty’ known as Batman’s treaty,which is the subject of research Helen Doyle, Liz Reed and myself are currently doing.94 Reynolds, Law, pp. 11, 176, but see also pp. 45–6, 52–3, 150–1. In his conventionalhistorical text, Frontier, Reynolds is more able to discuss this; see, for example, pp. 184–5.95 R. White, ‘Using the past. History and Native American studies’, in Studying Native Americans.Problems and Prospects, ed. R. Thornton (Madison, 1998), p. 236.96 ‘Retrospective utopia’ is Oliver’s term. See his ‘Future’, pp. 10–13.97 W. H. Oliver, Looking for the Phoenix. A Memoir (Wellington, 2002), p. 169. In 1988 JohnMulvaney remarked in his review of The Law of the Land: ‘My concern is that selectivetreatment of favorable evidence can establish a case, while endangering its credibility . . . Isuspect that enthusiasm for a meritorious cause has resulted in some propagandist blurring atthe expense of niggling footnotes’ (‘Review’, pp. 94–5).98 White, ‘Using’, p. 236.99 R. J. Evans, ‘History, memory and the law. The historian as expert witness’, History andTheory, 41 (3), 2002, p. 345.100 At the same time it seems general readers expect a big (moral) story, which is seldomcompatible with the task academic history has given itself, for better or worse, in recent times.101 In the foreword to the first edition he characterised his task as one of ‘investigat[ing] thecomplex political, legal and moral questions involved in the first and second land rightsmovements’ rather than historical ones, and its cover asserted that the book ‘challenge[d] thelegal and moral assumptions underlying the European occupation of Australia’ (front cover,p. xi). These short phrases do not indicate to readers the nature of the text they encounter.

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The Law of the Land or the Law of the Land?: History, Law and Narrative in a Settler Society

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