Law Text Culture


This paper considers the Yorta Yorta native title litigation as an example of racialised violence enacted on First Nations people by the colonial law. From my position as a Yorta Yorta woman, I analyse the significant violence underlying the metaphor relied on by Federal Court judge, Olney J, to dismiss the Yorta Yorta native title claim at first instance: that the “tide of history” had “washed away” any acknowledgement of traditional Yorta Yorta law and custom. By reference to the trial transcript, I analyse the discursive connotations of the tide metaphor to demonstrate how its use throughout the trial perpetuated racialised narratives of savagery and civilisation, continuing the ‘originary’ violence of colonisation. Further, I examine how the tide metaphor was deployed to conceal the violence of colonisation, which had the effect of silencing Yorta Yorta narratives while masking the colonial law’s own role in the tide of history. Ultimately, I argue that the tide of history metaphor was used to signal the ‘end stage’ of settler colonialism, in which the colonial law’s own nomocide of Yorta Yorta law and custom was justified. According to colonial narratives, our identity as First Nations peoples is fragile, and we are coming to the end stage of life as Indigenous peoples. In the end stage of settler colonialism, the settler imaginary deems First Nations people as no different from settlers, finally legitimising and indigenising the settler colonial project.