Native Title as Displaced Mediator

Abstract

This article considers how native title is a legal manifestation of settler colonialism that operates as a displaced mediator. Using native title cases from Australia and elsewhere, this article argues that native title displaces Indigenous laws, customs, and practices in constructing native title holders as ‘traditional’ to mediate their integration into the so-called ‘modern’ nation. Legal processes construct native title and then retroactively posit that these legal constructions pre-exist the Crown’s acquisition of sovereignty. This provides legal support for the Crown’s acquisition of sovereignty and Aboriginal and Torres Strait Islander peoples who assert native title claims become subjects who aver and reproduce the myth that the Crown acquired sovereignty over them. Native title displaces more unsettling, decolonising practices but produces the appearance of justice through the production of existential and material benefits for its subjects. Northern Territory v Griffiths (2019) 364 ALR 208 (‘Timber Creek’) demonstrates this.