Law Text Culture


In her trenchant critique of the manner in which settler-colonial law, in its seemingly progressive manifestation through the Mabo Native Title legislation, in fact operated as a ‘particularly problematic form of neocolonial practice’, Penny Pether (1998: 130) demonstrates how this assertion of contemporary neocolonial practice was predicated on the High Court’s refusal to address the charged issue of Aboriginal sovereignty – with all the attendant foundational ramifications that this would have entailed. In adjudicating on this issue, Australian settler-colonial law was, in Pether’s (1998: 124) memorable phrase, acting as ‘a species of excess of its own authority’. If, Pether (1998: 116) argues, Mabo was marked by what ‘the judgment refuses to do’ (that is, acknowledge Aboriginal sovereignty), then it is also inscribed, paradoxically, by what it ‘makes imaginable’: that Aboriginal sovereignty has never been extinguished – despite over two hundred years of colonial rule (of law).