9. AWASH IN A TIDE OF HISTORY: “RESPONSIBILITY” FOR CULTURAL VIOLENCE – A COMPARATIVE ANALYSIS OF NULYRIMMA

DOIhttps://doi.org/10.1016/S1059-4337(04)34009-3
Pages203-220
Publication Date30 Dec 2004
AuthorLee Godden
9. AWASH IN A TIDE OF HISTORY:
“RESPONSIBILITY” FOR
CULTURAL VIOLENCE – A
COMPARATIVE ANALYSIS OF
NULYRIMMA AND VOSS
Lee Godden
Legendary explanations of history always served as belated corrections of factsand real events
which were needed precisely because history itself would hold man responsible for deeds he
had not done and for consequences he had never foreseen (Arendt, 1958, p. 208).
INTRODUCTION: THE TIDE OF HISTORY
What is this tide of history that washes over the continent of Australia after 1788
destroying in its wake much of the indigenous people’s relationship with land
and waters? Now only remnants, fragments of a former aboriginal inscription of
law/lore remain evident in the Australian physical and metaphoric landscape.1In
Law, the “tide of history” has been extended from its original voicing in Mabo
v. Queensland [No. 2] (1992) to become a justificatory strategy for the limitation
of responsibility and a concurrent apologia that simultaneously acknowledges a
previous aboriginal connection with land but denies its current legitimacy.2
In Mabo [No 2], Justice Brennan noted the inability of Australian law to protect
aboriginal people’s relationship with their land where it was overwhelmed by the
force of history –
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 203–220
© 2004 Published by Elsevier Ltd.
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34009-3
203
204 LEE GODDEN
The common law can, by reference to the traditional laws and customs of an indigenous people,
identify and protect the native rights and interests to which they give rise. However, when
the tide of history has washed away any real acknowledgment of traditional law and any real
observance of traditional customs, the foundation of native title has disappeared. A nativetitle
which has ceased with the abandoning of laws and customs based on tradition cannot be revived
for contemporary recognition (Mabo [No. 2], at 60).
The tide of history, as it is employed in the stories told by judges about the
colonization of Australia, is appropriately majestic and exonerable – not the
accretion of individual choice and acts of conflict and violence but a force that
carries all before it. It is a force that denies the attribution of responsibility
to any individual or institution. The image appears in many manifestations; all
emphasising the inexorable nature of the extinguishment of aboriginal customary
rights to country. The imaginary of the tide of history is to be found in a number
of recent native title cases, most notably in Members of the Yorta Yorta Aboriginal
Community v Victoria (2002). Perhaps though, it reaches its most formidable
modern instrumentalism in the Native Title Act 1993 as modified by the “Wik 10
point plan” amendments of 1998.3The central significance of the “tide of history”
imaginary must be understood as part of the development of the particular doctrine
of extinguishment of native title in Australian law. Native title cannot stand in the
face of its being engulfed by a tide of history that wipes away the traditional
connection with land.4The Native Title Act supersedes5and extends the effect
of this common law doctrine with regimes of validation and confirmation6–of
extinguishment. The range of “acts” and Acts, that extinguish Native Title are
extensive and, arguably, continue the wash of the tide of history.
The Legends of Settlement History
At first instance, Arendt’s insights into the retrospective power of history and
its legendary qualities appears markedly different from the manner in which law
assigns responsibility for past acts and makes its declaration of liability. Arendt
exposes the slippage between the inspirational qualities of history as legend and a
firmer,darker notionof“responsibility.”The legendary,inspirational scopefor law,
as judges declare, is much more restricted. Justice Merkel, in delivering judgment
in Nulyrimma, reminds us that,
It is not within the court’s power, nor its function or role, to set right all of the wrongs of the
past or to chart a just and social course for the future (p. 638).
Despite judicial assertions of the limited aspirations of law, it is contended here
that the tide of history imaginary within Australian law does need to be understood
as one of legendary function.

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