Date30 December 2004
Published date30 December 2004
AuthorAlexander Reilly
Alexander Reilly
New and converging technologies in administration and mapping have enabled
of land. By the time native title was recognised in the Mabo decision (1992)
the primary representation of land tenure was in digital cadastres1created and
controlled by Federal and State bureaucracies. Native title was immediately cast
as a spatial question. The location of native title rights was determined within the
confines of a map of existing legal interests in the land. In this paper, I consider
how the spatial orientation of property has affected the nature and expression of
native title rights in Australia.
Since the time of first British settlement of Australia in 1788, maps have been
used increasingly in the service of the State to define the spatial dimension of
property (Baigent & Kain, 1992, pp. 307–318). Maps allow space to be rendered
geometrically providing a precision and orientation to property rights. Spatial
representation reinforces the jurisdiction of the law to determine the nature of
property rights. As Harley put it, “the rules of society and the rules of measurement
are reinforcing in the same image” (1989, p. 6). Furthermore, the spatialisation of
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 221–239
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34010-X
propertyrightsenablesthetransferofland to be achieved without the inefficiencyof
demonstrating relationships on the ground. By the time the existence of native title
was declared in Mabo, the relationship between property law and cartography was
well entrenched, and not surprisingly, cartography became central to the process
for claiming native title rights.2
There is a tension between the role cartography plays in the native title claim
process and the foundation of native title rights in Indigenous laws and customs.
Indigenous laws and customs are based on relationships of people and their
“Country”3that exist within a system of logic which predates cartography.
Aborigines did not create maps before the coming of Europeans. As they themselves say:
‘We don’t need a paper map – we’ve got our maps in our heads.’ (Myers, 1986; Rose, 1996;
Sutton, 1995, 1998a, p. 363; Verran,1998).
However,the recognition of native title is only possible to the extent that it does not
impinge upon existing common law and statutory rights.4Thus, the recognition
of native title depends on a successful translation of laws and customs into rights
and interests within the system of land tenure.
In considering the relationship between cartography and native title, the paper
draws on existing theoretical considerations of the metaphorical and rhetorical
power of maps (Harley,1989; Monmonier, 1993; Woods, 1992). Cultural theorists
have used spatial metaphors, and maps in particular,as an analytical tool to explain
concepts in their theories. Following Baudrillard, the paper questions the extent
to which the representation of native title has come to replace the relationships
on the ground that are the foundation of title in a process of “simulation”(1994).
As Foucault used spatial metaphors to think through the dimensions of power, the
paper interrogates the relationship between cartography and the legal concept of
jurisdiction (1977, p. 68). The work of Gilles Deleuze and Felix Guattari focuses
on the shifting and contingent potential in maps.
The map is open and connectible in all its dimensions; it is detachable, reversible,susceptible to
constant modification. .... It can be drawn on the wall,conceived of as a work of art, constructed
as a political action or as a meditation (Deleuze & Guattari, 1987, p. 12).
The paper argues that this potential in maps points to a similar potential in
the law to challenge existing notions of property, particularly given the already
close association between cartography and the representation of property rights.
Most specifically, the paper discusses a literal relationship between cartesian
cartography5and the law in the representation of native title as a property right.
There is a natural association between the measure of property and cartography. In
this, the paper draws on the work of De Sousa Santos who explores a relationship
between the power of the map to represent and order relations spatially and the

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