Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence

In this paper, we consider the use of history in Indigenous land rights claims in Australia through a critique of the High Court’s construction of Native title rights in Yorta Yorta Aborginal Community v. Victoria. The leading joint judgment of Gleeson C.J., Gummow and Hayne JJ. (with whom McHugh and Callinan JJ. agreed on the result) posited the time of the assertion of sovereignty as the key moment in the history of Indigenous and non-Indigenous legal relations, and the test for the proof of Native title focuses on this moment. This paper is intended to be interdisciplinary in perspective and uses analysis from both legal and historical theory. We aim to demonstrate how the courts have adopted a particular understanding of what history is and how it may be used in the resolution of claims. The courts assume that law and history have a shared understanding of the past. Secure in this assumption, the only issues of concern to courts relating to historical evidence are practical issues of the form and presentation of expert reports and testimony, and legal issues of their relevance and reliability. We question the ability of history and law to speak to each other about the past, free from difficult questions of theory and method. We advocate for an alternative role for historians in the claims process as theoretical experts on the nature of the past and its interpretation