Howe, Adrian --- "A Poststructuralist Consideration of Property as Thin Air: Mabo - A Case Study" [1995] MurdochUeJlLaw 18; (1995) 2(1) Murdoch University Electronic Journal of Law

A POSTSTRUCTURALIST CONSIDERATION OF PROPERTY AS THIN AIR - MABO, A CASE STUDY

Author:	Adrian Howe La Trobe University
Issue:	Volume 2, Number 1 (April 1995)

"It seems to me that the possibility exists...for a fictional discourse to induce effects of truth...One `fictions' history on the basis of a political reality that makes it true, one `fictions' a politics not yet in existence on the basis of a historical truth."
Foucault [1]

This article offers a poststructuralist reading of the High Court judges' conceptualisations of property law in Mabo v Queensland (No 2)[2] in the light of Kevin Gray's thesis that property is `not theft - it is fraud' and that the `ultimate fact' about property is that it `does not really exist:  it is mere illusion'. Property is `a vacant concept - oddly enough rather like thin air'. For Gray, the interesting question is how some resources get `propertised' and some do not. As `the vast majority of the world's human and economic resources still stand outside the threshold of property' and thus remain `unregulated by any proprietary regime', lawyers interested in the allocation of propertised resources should be `just as keenly interested when a particular resource is not propertised'. In Gray's view, `the refusal to propertise a given resource is absolutely critical - because logically anterior - to the formulation of the current regime of property law'. Yet remarkably, the fact that decisions have to be made about whether to leave a resource `outside the regime' remains `unrecognised and unanalysed in legal discussions of property'[3] To propertise or not to propertise - that is the unexamined question which Gray claims lies at the heart of the `property concept'.

I want to consider how Gray's thesis might apply to Aboriginal land in Australia - that is, to land occupied by Aboriginal people in 1788 and still claimed by them in the late twentieth century. Following Gray's suggestion that a decision to leave a resource outside the regime of property law is `a fundamental precursor to all property discourse',[4] we need to ask: has Aboriginal land been propertised in Australia? But this begs another question: by the rules of which proprietary regime are we to determine whether Aboriginal land has been propertised? Aboriginal lawyers argue that Aboriginal groups had their own land law prior to the white invasion. Thus, Aboriginal land could be said to be already propertised. Certainly, support for the view that land was regulated by Aboriginal proprietary regimes can be found in Blackburn J's famous `factual' finding in Millurpum v Nabalco, the first Australian land rights case, that Aboriginal peoples had `a subtle and elaborate system' - `a system of law' no less - such that: `If ever a system could be called "a government of laws, and not of men"', it was theirs.[5] On the other hand, the reception of English common law and, in particular, the doctrine of tenure coduld be said to have propertised indigenous land under Anglo-Australian law. Alternatively, statutory land rights schemes could be said to have propertised Aboriginal land. Indeed, Australia is said to have been `at the forefront in passing legislation which has granted ownership of extensive areas of land to Aboriginal groups'.[6] Furthermore, not only has the majority in the High Court in Mabo (No 2) held that there is a concept of `native title' at common law in Australia; according to Richard Bartlett, most legislatures in Australia have moved to give effect to `such rights to land as native title at common law recognises'.[7] Thus, Aboriginal land would seem to be well and truly propertised today, such that the question of whether it should be propertised is now redundant.

However, the issues are more complex in that while Aboriginal land could not be said to stand outside the threshold of property, it is not fully within it either. In particular, as we shall see, the High Court judges were unclear about the proprietary nature of native title. Moreover, none of them accorded native title rights the status of rights enjoyed by the owner of the fee simple which, according to Gray, `represent the nearest approximation to absolute ownership known to our modern system of law'.[8] >From this we might devise two questions: should common law Aboriginal title be equated with a fee simple interest and would that have the effect of fully propertising Aboriginal land? But rather than pursuing such a positivistic project, the point of my poststructural inquiry here - one which is more faithful to Gray's focal concerns - is to analyse Mabo (No 2) for what it might tell us about what constitutes `the "propertiness" of "property"'[9]. More specifically, I am interested in analysing the different ways in which the majority judges went about the task of discursively propertising Aboriginal land by bringing it within the common law or rather, by leaving it straddled across the imaginary line dividing propertied from non-propertied resources.

First, however, I should elaborate briefly on my poststructuralist perspective.[10] Broadly, poststructuralism (or rather, the kind of Foucault-influenced poststructuralist analysis which interests me), examines power relations operating within regimes of truth. Within feminist theoretical debates which question what the foundational category `Woman' authorises and who it excludes and deauthorises, Judith Butler has argued that the point of poststructuralism is `that power pervades the very conceptual apparatus that seeks to negotiate its terms'. The aim is `to interrogate what the theoretical move that establishes foundations authorises, and what precisely it excludes or forecloses'. It is most relevant to point out that Butler highlights the exclusionary processes at work in the operation of power and that, in particular, she argues that subjects are `constituted through exclusion, that is, through the creation of a domain of deauthorised presubjects, figures of abjection, populations erased from view'.[11] For that surely was the fate of Aboriginal land claimants prior to Mabo (No 2). Interestingly too, Gray declares that a `primordial principle' of property law is that a resource can be propertised only if it is `excludable' - that is, `if it is feasible for a legal person to exercise regulatory control over the access of strangers to the various benefits inherent in the resource'.[12] Prior to Mabo (No 2), Aboriginal land was, in Gray's terms, a `non-excludable resource'.[13] Indeed, the fact that it was not feasible for Aborigines to exclude non- Aboriginal strangers from the benefits inherent in their land was a key factor in Blackburn J's finding in Milurrpum that Aborigines had no proprietary interest in the land.[14]

If Gray is right that a refusal to propertise a particular resource is `always an occasion of some moment in the jurisprudence of property',[15] the decision of the majority in Mabo (No 2) to overturn a jurisprudence which had for so long refused to recognise native title is surely such an occasion as well. Moreover, to the poststructuralist theorist interested in the way power pervades conceptual apparatuses, it is significant that Gray comes to conceptualise `property' as a `power-relation' - `property is a power-relation constituted by legally sanctioned control over access to the benefits of excludable resources'.[16] More precisely:

"`Property' is the power-relation constituted by the state's endorsement of private claims to regulate the access of strangers to the benefit of particular resources."[17]

After Mabo (No 2) Aboriginal land can be conceptualised as a power- relation constituted by the state's endorsement of communal native title claims to regulate the access of strangers to the benefit of particular resources. But Gray's point, which is well taken here, is that whatever legal fictions are relied on in property cases, they cannot disguise the power relations at work within legal regimes of truth.

Of course, much has been made of the role played by legal fictions in Australian property cases. In particular, the majority's rejection in Mabo (No 2) of the legal fiction of terra nullius has attracted much attention, notwithstanding Richard Bartlett's insistence that terra nullius is not a concept of the common law, that it `had never been referred to in any case prior to Mabo as justifying a denial of native title' and that `the concept is essentially irrelevant to native title at common law'.[18] From the perspective of an international lawyer however, terra nullius is far from irrelevant. for example, Gerry Simpson has analysed what he calls the `interpretive crisis' brought about when the High Court disposed of terra nullius but refused to follow international law and the implications of its own arguments and find that Australia was conquered territory.[19] What is of interest here is that the majority's invention of `a completely new category of acquisition' - namely, `the occupation of already occupied territory (or occupation of land that is not terra nullius') - has had a powerful discursive effect, notwithstanding the fact that this invention is, in Simpson's view, a `semantic impossibility'.[20] But from a poststructuralist perspective, one sensitive to Foucault's convincing arguments about the power of discourse and the lessons of history, much more is at stake here than semantics.

"...as history constantly teaches us, discourse is not simply that which translates struggles or systems of domination, but is the thing for and which there is struggle, discourse is the power which is to be seized."[21]

Reducing the High Court's new legal fiction to a `semantic impossibility', Simpson misses the fact that semantics or no semantics, the new fiction performs a similar function to that of older legal fictions such as those supporting the doctrine of tenure. Simply, property law's legal fictions operate to conceal power relations at work in the conceptualisation of `property'.

To be clear: it is not that such fictions are false: following Foucault, we would not read Mabo (No 2) as overturning any falsehoods or even as dispelling any myths about land or, more specifically, about the relationship of Aboriginal people to land and to English land law. Nor should the Mabo decision be seen as establishing a historical truth. Rather, its legal fictions operate to `induce effects of truth', as Foucault would have it. Foucault's point is not that truth is `abscent' in fictional discourses, but rather that

"One `fictions' history on the basis of a political reality that makes it true, one `fictions' a politics not yet in existence on the basis of a historical truth."[22]

I would argue that this is precisely how one should read the Mabo decision - as a fictioning of history on the basis of the political reality of Aboriginal land claims which make them `true' and as a fictioning of a politics (a politics of human rights not yet in existence) on the basis of a new `historical truth'.

In this connection, we might note Rob McQueen's critique of High Court judges' understanding of `history'. He suggests that their historical understanding is uninformed by an appreciation of `the very different nature of "historical" and "legal" truth; and the dangers of confusing the two'. In particular, they are unaware of the `dangers of translating a conditional historical "truth" into an absolute legal "truth" with a definite performative function'.[23] Foucault might be less concerned about distinguishing `historical' from `legal' truths, but he would agree that the translating of conditional historical truths into legal truths has a performative function - it is to induce effects of truth. Now this, surely, provides a more fruitful and certainly a more politicised reading of Mabo (No 2) than one concerned with `interpretive crises' and `semantic impossibilities', let alone one which valorises `scientific history' and science.[24] To read the terra nullius story as `surreal' and the majority's new fiction in Mabo (no 2) as `mysticism', as Simpson does,[25] is to overlook the performative role played by legal truths. Significantly, this role is not overlooked by Toohey J who demonstrates a very good understanding of the function of legal fictions in his discussion of the doctrine of tenure in Mabo (no 2). As Toohey J explains

"the effect of the fiction of past possession by the Crown is to secure the paramount lordship or radical title of the Crown which is necessary for the operation of feudal land law."

Tellingly, he relies on past authority to declare that `since fictions in law are only acknowledged "for some special purpose", that should be taken to be the extent of the fiction'.[26]

Moreover, Toohey J reasons that since fictions work to cancel each other out - for example, `the fiction of a lost Crown grant answers the fiction of original Crown ownership' - it follows that in the present case

"if the fiction that all land was originally owned by the Crown is to be applied, it may well be that it cannot operate without also according fictitious grants to the indigenous occupiers."[27]

We have it, then, from the highest authority that legal doctrines are based on legal fictions which are designed to perform special functions. Notably, in property law they cancel each other out in order to produce new truths about land grants. Brennan J provides some pertinent examples. After noting that the court's rejection of terra nullius removes the `fictional impediment' to the recognition of indigenous land rights,[28] he moves on to tackle the doctrine of tenure - `the fiction that land granted by the Crown had been beneficially owned by the Crown'. This fiction, however, did not give the Crown `an absolute benefical title' to the land: `the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land'.[29]

By a process of refictioning history, Brennan J is thus able to reject the doctrine of Crown ownership of land except, as R D Lumb points out, in the `formal sense' of the radical title.[30] Brennan J devises a new fiction in which the antecedent land rights of the indigenous people `constitute a burden on the radical title of the Crown'.[31] However, as we have seen, fictions have a way of cancelling each other out, and in Mabo (No 2) the court held that ownership could be vested in the Crown and therefore taken from indigneous titleholders, the beneficial owners, by virtue of the prerogative or by legislation. So what one new fictions gives, another takes away. Clearly, such fictions are the power to be seized by Aboriginal land claimants and their opponents. Let us then, proceed with the task of reading the Mabo decision as fictional discourse. What do its discursive moves authorise and what do they exclude or foreclose?

                               II

This is a necessarily selective reading, one which confines itself to the received and invented legal fictions of `property' as they unravel in Mabo (No 2). We might note in passing that the majority decision maintains the fiction of settlement even in the face of its own historical findings that the `process of "settlement" involved hostilities against the native inhabitants'.[32] The High Court may have rejected the doctrine of terra nullius, but by clinging to the fiction of `settlement', it resists the implications of its own recognition that the acquisition of Australia was achieved by acts of violence which are strongly suggestive of conquest.  As for the the fictions of property, it is appropriate that we return briefly to the doctrine of tenure and its fiction that all property originates with the Crown,[33] for it is this doctrine which is fundamental to English land law and, consequently, to the determination of earlier interpretations of the status of Aboriginal land claims. In Brennan J's view, this doctrine cannot be overturned `without fracturing the skeleton which gives our land law its shape and consistency'.[34] The fiction of royal grants on which the doctrine relies - a fiction, tellingly, which was recognised as such (as a mere `fiction') by Blackstone himself[35] - must remain because it induces such crucial effects of truth. However, the doctrine of tenure needs to be rewritten or perhaps, refictionalised, to accord with contemporary `facts' in Australia. Accordingly, Brennan J sets about fictioning a history on the basis of the political reality that the international law theory that inhabited land may be classified as terra nullius `no longer commands general support'.[36] Brennan J thus distinguishes Crown title from Crown ownership of colonial land, declaring that if the land were `desert and uninhabited, truly a terra nullius', the Crown would have an absolute beneficial title to it.[37]

We are returned then, perhaps inexorably, to terra nullius, notwithstanding the insistence of eminent authority that the determination of this question was essentially `irrelevant' to native title at common law. The majority judges might want their decision to be hailed as a decisive rejection of the racist concept of terra nullius, but this claim to fame is somewhat vitiated by legal arguments that this concept is irrelevant to the acceptance of native title.[38] Further, the High Court did not reject the concept in the crucial sense of denying Australian sovereignty. Thus as Bartlett explains, the `real question' in Mabo was whether native title was part of the common law of a `settled' territory like Australia: whether or not a region was terra nullius or `settled' `was never considered to be a bar to native title in Australia or anywhere'.[39] Noting that the court cited with approval Blackburn J's `factual' finding of the original legal system, and implicitly, the original sovereignty of Aboriginal peoples in Milurrpum v Nabalco,[40] Bartlett suggests that `perhaps the true significance' of the rejection of terra nullius was the recognition of `the falseness' of the fiction that Aboriginal people were `without laws, without a sovereign and primitive in their social organisation'.[41]

With respect, fictions are not false - they induce effects of truth.  They are crucial to the telling of what Rosemary Hunter calls `competing stories about law and the land'. Hunter provides an insight into the power of the truth-telling effects of these narratives in her evaluation of the white judiciary's terra nullius story as told in Cooper v Stuart.[42] Citing Lord Watson's declaration in that case that New South Wales had been `practically unoccupied, without settled inhabitants or settled law' when it was `peacefully annexed to the British dominions', Hunter comments that for `sheer inventiveness and historical inaccuracy, this story is more than a match' for `Captain Cook stories' about the white invasion as told by Aborigines. These competing stories function in similar ways to assimilate `an alien reality into the speaker's own belief system'.[43] However, `reality' intrudes into this otherwise excellent analysis to the point where Hunter comes to interpret Mabo (No 2) as a repudiation of `the lie of terra nullius'.[44] But recall, fictions are not lies - they induce effects of truth. Hunter is closer to the mark when she reads the rejection of the doctrine of communal native title in Millurpum as a `rigged contest' in which `the invaders' story won a convincing victory and the power of their law to determine the truth in its own terms was reaffirmed'.[45] For `truth' here is clearly dependent not on `reality' but on the power of law - in this case white Anglo-Australian law and its fiction of terra nullius.

What then, counts now as the truth about Aboriginal land rights? Are they, for example, proprietary? What is the status of common law native title in Mabo (No 2)?  While the Court was unclear on this point, six of the seven judges declared that the content and nature of common law native title is determined according to the traditional laws and customs of the indigenous people who, according to these laws and customs have a `connexion with the land'.[46] On the other hand, according to Brennan J, native title is extinguished if the indigenous group

"by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connexion with the land or on the death of the last of the members of the group or clan."[47]

According to Dean and Gaudron JJ

"Even where (from the practical point of view) common law native title approaches `full ownership'...it is subject to three important limitations."

First, it cannot be alienated outside `the local native system' except by surrender to the Crown; second, it is only a personal right and finally, it is `susceptible of being extinguished by an unqualified grant by the Crown' of a fee simple or of a lesser estate inconsistent with rights under common law native title.[48] Dean and Gaudron JJ suggest further that it is preferable

"to recognise the inappropriateness of forcing the native title to conform to traditional common law concepts and to accept is as sui generis or unique."[49]

But for those rights to be enforced at common law, the Court found it necessary to equate them at least to some degree to common law concepts of property rights. However, the Court could not reach a consensus on whether these rights were proprietary or personal. Brennan J seemed to indicate that native title rights could fall into either category;[50] Deane and Gaudron JJ considered the rights to be `personal only',[51]) while Dawson and Toohey JJ preferred to avoid any such classification.[52] As Toohey put it, a determination as to whether native title is `personal' or `proprietary' is `fruitless' and `unnecessarily complex'.[53]

Clearly, Deane and Gaudron JJ did not share this opinion. In their view, declaring native title rights to be personal rather than proprietary had effects which could be specified. Native title rights be voluntarily extinguished by surrender to the Crown. They could also be abandoned - `lost by the abandonment of the connexion with the land or by the extinction of the relevant tribe or group'.(54] Such devastating effects prompt a question: was native title classified as personal in order to better render it extinguishable?[55] The new truth about native title, that it is extinguishable by the Crown without compensation, is surely the most controversial aspect of the decision. Significantly, three of the judges allowed for compensation when native title was `wrongfully' extinguished.  But one might ask: how can a wrongful extinguishment extinguish? It can, if one subscribes to Toohey J's view, noted above, that legal fictions perform special functions. In Mabo (No 2), the fiction of extinguishment functions to cancel out the fiction of native title. In the new fictional account, `permissible' wrongful extinguishments are past events which have generated `reasonable expectations' on the part of a considerable number of what might be called `innocent non-extinguishers'. So the fiction of `wrongful' extinguishments operates to indicate which past acts are compensable, while the fiction of `abandonment' works to exclude a huge number of possible native title claims.

Puzzling questions remain however. Notwithstanding `the powerful descriptions of the circumstances in which titles were lost and stolen', there are few guidelines in Mabo (No 2) as to what might constitute a `wrongful' extinguishment.[56] Evidently, the story of the dispossession of the Aboriginal people which the majority tells in Mabo (No 2) does not come within the fiction of a `wrongful' extinguishment. But what is the justification for the `radical distinction' between native title and its extinguishment? Brennan J distinguishes `skeleton' from `non-skeleton' principles of the common law, but the crucial question is: `on what ground is extinguishment of title skeletal but title not?'[57] And what about the plaintiffs' argument about their possessory title? As Garth Nettheim notes, only Toohey J devoted attention to the argument `from within the common law based on presumptions of title arising from possession of the plaintiffs' predecessors'.[58] Toohey J found much in English property law to support this argument, concluding that the Meriam people may have acquired a possessory title on annexation.[59] Yet he viewed the consequences as being no more beneficial for the plaintiffs than native title. Nettheim disagrees. He claims that a holding that Aboriginal people hold possessory title in accordance with Anglo-Australian property law could differ `in significant ways' from a holding that they hold a native title which is recognised but extrinsic to the common law.[60] A full consideration and recognition of a possessory Aboriginal title however, might disrupt the fiction that native title was extinguishable without compensation and that, more broadly, it conveys rights which amount to something less than full ownership. A little more inventiveness, such as that which he deployed in his discussion of fiduciary duties,[61] might have allowed Toohey J to induce a more just effect of truth for Aboriginal people.

                             III

We return, finally, to the question: should Aboriginal land be propertised or, rather, fully propertised?  For all the uncertainty of the content of common law native title, Aboriginal land has been `propertised' in the crucially important sense that it is property to the extent of attracting the protection of s 51 (xxxi) of the Constitution. It has been suggested that such is the breadth of this provision that

"..only by the most perverse process of logic could native title escape being included as a property interest subject to the constitutional requirement of just compensation if by a Commonwealth statutory provision it is acquired by the Commonwealth or another."[62]

Still, while native title is properly classified as a property interest, a question remains about the equality of property rights between Aboriginal and non-Aboriginal title holders. Justice surely demands that the rights flowing from common law native title be accorded `the same status as property rights granted, according to statute, by the Crown'.[63] But as Michael Mansell argues, Aboriginal land rights are far from being accorded this status in Mabo [No 2). The court accepted the view that nomadic people had rights demanding recognition, but it ruled that `the status of Aboriginal rights to land at the time of the invasion was not equivalent to that of Europeans, but something less'- notably, to that of Indian tribes in North America. However, this interest in land amounted only to a right to occupy. For Mansell, the analogy drawn with other native people and not with whites indicates the indigenous peoples' interests in land `are something less than the interests of Europeans, a racist position indeed'.  He points out too, the racism of the court's ruling that Aboriginal interests in land are not as `disposable' as those of whites in that `the group must retain its identity in a "biological" manner, the right being a personal one only'. Such limitations on the transmissibility of native title as well as its inalienable nature and the limitations that Aboriginal land rights can be extinguished and `abandoned' lead Mansell to conclude that Mabo (no 2) `merely propounded white domination and superiority over Aborigines by recognising such a meagre Aboriginal form if rights over land'.[64]

It is difficult to disagree. The High Court majority in Mabo (No 2) denied to Aboriginal people the benefit of the common law principle that possession gives rise to an interest which is presumed to be a fee simple. Yet as Gray explains, the fee simple estate occupies `a pre-eminent position' in English property law, providing the strongest possible title and carrying with it `a plenitude of rights and powers' over land.[65] The principles of justice propounded by the majority surely require that property concepts applicable to all title holders be applied equally. This could be achieved by assimilating native title to all other titles and held to be a fee simple. As R B O'Hair argues, while the High court gave Aborigines a `second rate title', they should not have `worse title' than non-Aborigines, they should be compensated for extinguishment and that nothing less than a `full fee simple' is in order. Like Mansell, O'Hair suggests that `in retaining restrictions on alienability and a requirement of continued adherence to native customs', the majority ensured that `Australian law still continues to bifurcate society into black and white'.[66]

Finally, Noel Pearson has criticised the majority for failing to recognise native title as equivalent to beneficial title. In his view, native title should be recognised `as constituting at least the equivalent of the fullest estate known to the common law, a fee simple estate'. He notes that only Toohey J was prepared to support an argument based on possessory title (common law Aboriginal title) which would have conferred the fee simple title.[67] In Mabo (No 2) the Court held that the Meriam people were `entitled as against the whole world to possession, occupation, use and enjoyment'[68] of their tradition lands, but as Pearson argues, the Court's omission of `ownership' from their characterisation of the Meriam people's entitlements implies that their title `is not comparable to the fullest ownership recognisable by the law'.[69] Yet as Bartlett notes, the Court declared the need to `fully respect' the property rights of Aboriginal people and offered no reason why the content of native title should be limited. The result was `uncertainty as to the content of native title'[70] and, we might add, uncertainty as to the propertiness of Aboriginal land. So much for `fully respecting' Aboriginal property rights.

                                IV

Property, according to Gray, is fraud and illusion. Certainly, the legal fictions discarded and invented in Mabo (no 2) support the view that white property holdings in Australia are fraudulent, established as they are on the dispossession of the Aboriginal people Deane and Gaudron JJ conceded as much when they declared that the association with the dispossession of Aboriginal people of the fictions of terra nullius and of the Crown's unqualified and legal and beneficial ownership of the land disqualified those fictions from

"acquiring the legitimacy which their acceptance as a basis of the real property law of this country for more than a hundred and fifty years would otherwise impart."[71]

But the view that property is illusion is not supported by this poststructuralist reading of the Court's fictional discourse about Aboriginal land rights. Rather, this discourse has induced new effects of truth about the propertiness of Aboriginal land. In Mabo (No 2) the Court invented new fictions about the nature of Aboriginal title, not least because they were worried about describing that title `as conferring "ownership", a term which connotes an estate in fee simple or at least an estate of freehold'.[72] This could be read as a refusal to properly propertise Aboriginal land. Nevertheless, as Bartlett has said

"native title, even without the requirement of compensation at common law, is far from illusory, as the current constitutional and political furore indicates."[73]

Aboriginal land rights might have been rendered `second rate', but they are not illusory. The High Court has fictioned a new history on the basis of political contingencies and it has fictioned a politics which is coming into existence on the basis of a new historical truth - that of the dispossession of the Aboriginal people.

NOTES  

[1] Michel Foucault, `The History of Sexuality' in Colin Gordon (ed), Power/Knowledge (1980), 193.

[2] [1992] HCA 23; (1992) 175 CLR 1.

[3] Kevin Gray, `Property in Thin Air' (1991) 50 Cambridge Law Journal  252, 256-7.

[4] Ibid 256.

[5]  (1971) 17 FLR 141, 267-8.

[6] H. McRae, G. Nettheim and L. Beacroft, Aboriginal Legal Issues: Commentary and Materials (1991), 137.

[7] Richard Bartlett, `Mabo: Another Triumph for the Common Law' in Essays on the Mabo Decision (1993), 64 (my emphasis).

[8] Gray, above n 3, 252.

[9] Ibid 259.

[10] I am using poststructuralism interchangeably with postmodernism. Poststructural/postmodern perspectives rarely find their way into property law. Moreover, some articles claiming such a perspective are not identifiably postmodern. For example, in one self-proclaimed postmodern `re-reading' of property law, the author claims an intellectual debt to Mary Joe Frug who did attempt to elaborate a postmodern approach to contract law. However, his references to `the truth' and to `social reality' belie a postmodern perspective. Joseph William Singer, `Re-reading Property' (1992] 26 New England Law Review 711, 712 and 719.

[11] Judith Butler,`Contingent Foundations and the Question of "Postmodernism"' in Judith Butler and Joan Scott (eds) Feminists Theorise the Political (1990), 7-8 and 13-6 (her emphasis).

[12] Gray above n 3, 268.

[13] Ibid 269.

[14] (1971) 17 FLR 141, 272-3.

[15] Gray above n 3, 268.

[16] Ibid 295.

[17] Ibid 294.

[18] Richard Bartlett, The Mabo Decision (1993), ix.

[19] Gerry Simpson, `Mabo, International Law, Terra Nullius and the Stories of Settlement: an Unresolved Jurisprudence' [1993] MelbULawRw 7; (1993) 19 MULR 195, 197.

[20] Ibid 198.

[21] Michel Foucault, `The Order of Discourse' in Michael J Shapiro (ed) Language and Politics (1984), 110.

[22] Foucault, above n 1, 193.

[23] Rob McQueen, `Why High Court Judges Make Poor Historians' (1990) 19 Federal Law Review 245, 264.

[24] Simpson, above n 19, 197-8 and 210. Simpson borrows the notion of `interpretive crises' from Thomas Kuhn's study of scientific revolutions. A critical comparison of Foucault and Kuhn's work on the relationship between truth, language, science and power falls outside the scope of this paper. But see Michael Shapiro's study which adversely contrasts Kuhn's positivistic analytical model with Foucault's more politicised post- empiricist approach. Michael J Shapiro, Language and Political Understanding: The Politics of Discursive Practices (1981), 146-151.

[25] Simpson above n 19, 210.

[26] [1992] HCA 23; (1992) 175 CLR 1, 213 (Toohey J).

[27] Ibid.

[28] Ibid 45.

[29] Ibid 47.

[30] R D Lumb, `Native Title to Land in Australia: Recent High Court Decisions' (1993) 42 International and Comparative Law Quarterly 84, 87.

[31] [1992] HCA 23; (1992) 175 CLR 1, 57.

[32] Ibid 77 (Deane and Gaudron JJ).

[33] Ibid  27 (Brennan J, citing Stephen CJ in Attorney-General (NSW) v Brown).

[34] Ibid 45.

[35] Ibid 47 (Brennan J citing Blackstone's Commentaries).

[36] Ibid 41 (Brennan J).

[37] Ibid 48.

[38] Ibid 138-9 (Dawson J); Sir Harry Gibbs, Foreword to Mabo: A Judicial Revolution (1993).

[39] Bartlett above n 17, ix.

[40] (1971) 17 FLR 141, 267.

[41] Bartlett, above n 17, x, citing Brennan J in Mabo [1992] HCA 23; (1992) 175 CLR 1, 39.

[42] (1889) 14 App.Cas. 286.

[43] Rosemary Hunter, `Before Cook and After Cook: Land Rights and Legal Histories in Australia' (1993) 2  Social and Legal Studies 487, 490.

[44] Ibid 496.

[45] Ibid 492.

[46] [1992] HCA 23; (1992) 175 CLR 1, 3.

[47] Ibid  70 (Brennan J).

[48] Ibid 88-89.

[49] Ibid.

[50] Ibid 51 and 61.

[51] Ibid 110.

[52] Ibid 133 and 195.

[53] Ibid 195.

[54] Ibid 110.

[55] This is the suggestion of Susan Phillips, `Reconstructing the Rules for the Land Rights Contest' in Essays on the Mabo Decision (1993) 12.

[56] Ibid 13.

[57] M J Detmold, `Law and Difference: Reflections on Mabo's Case' in Essays on the Mabo Decision (1993) 42.

[58] Garth Nettheim, `Judicial Revolution or Cautious Correction? Mabo v Queensland' (1993) 16  UNSW Law Journal 12-13.

[59] [1992] HCA 23; (1992) 175 CLR 1, 178 and 211.

[60] Nettheim, above n 58, 12-13.

[61] [1992] HCA 23; (1992) 175 CLR 1, 199-205.

[62] Alceo Turello, `Extinguishment of Native Title and the Constitutional Requirement of Just Terms' (1993) 3 ABL 11. Turello also argues that the majority decision in Mabo should be read as indicating that extinguishment of native title amounts to an acquisition, as required by S 51 (xxxi).

[63] Greg McIntyre, `Aboriginal Title: Equal Rights and Racial Discrimination' [1993] UNSWLawJl 5; (1993) 16 UNSW Law Journal 57, 58.

[64] Michel Mansell, `The Court Gives an Inch But Takes Another Mile' (1992) 2 ALB 5, 6.

[65]Gray, above n 3, 252-3.

[66] R B O'Hair, `Mabo and Land Rights - Searching for a Golden Thread' in M A Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution (1993) 70-71. On the other hand, the attempt prior to Mabo to translate Aboriginal title into English property law by devising a notion of a communal, freehold and inalienable title was hailed as `ingenious'. For although the holder of freehold can alienate land at will, it was considered by some to be `contrary to the Aboriginal relationship to their land' if it were possible for title-holders to alienate their land and thus dispossess future generations. Moreover, this view was said to be `strongly supported by Aboriginal groups, unconvinced by the opposing argument that it is paternalistic and discriminatory to impose restrictions on Aboriginal land-owners which do not apply to non-Aboriginal land-owners'. McRae, Nettheim and Beacroft above n 5, 179-181.

[67] Noel Pearson, `204 Years of Invisible Title' in Stephenson and Ranapala above n 66, 79-80 (citing Toohey J in Mabo (1992) 175 CLR 206-7.

[68] [1992] HCA 23; (1992) 175 CLR 1, 2.

[69] Ibid 82.

[70] Richard Bartlett (ed), Resource Development and Aboriginal Land Rights in Australia (1993) 41.

[71] [1992] HCA 23; (1992) 175 CLR 1, 120.

[72] Ibid 75 (Brennan J).

[73] Bartlett, above n 17, xx.