Our relationship to the ground is, culturally speaking, paradoxical: for we appreciate it only in so far as it bows down to our will. Let the ground rise up to resist us, let it prove porous, spongy, rough, irregular – let it assert its native title, its right to maintain traditional surfaces – and instantly our engineering instinct is to wipe it out; to lay our foundations on rationally – apprehensible level ground.
– Paul Carter, The Lie of the Land[i]
THE NATIVE-TITLE CLAIMS process has required the law to engage with new forms of indigenous and non-indigenous knowledge. It has drawn on archaeology, cartography, linguistics, anthropology and history, among other disciplines, to aid its recognition of indigenous laws and customs that have formed the basis of native-title rights.
New forms of knowledge require new descriptions to comprehend them and therefore it is not surprising to find that metaphor has been an important aid to description in native-title jurisprudence. The concept of native title itself has been described variously as a "recognition space"[ii] and a "bundle of rights".[iii]However, the metaphor that has received most critical attention is the use of "tide of history" to explain the impact of the passing of time on the extinguishment of native title. This description was first used by Justice Brennan in the Mabo case in a passage that foreshadowed the difficulty indigenous Australians would have in making out a legal case for the continued existence of native-title rights and interests. It was most famously adopted by Justice Olney to conclude his rejection of the native-title claim of the Yorta Yorta people: "The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native-title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title."[iv]
In this paper, we analyse the metaphor of "the tide of history". We argue that the metaphor is more than a figurative device to enliven a judgement. As a linguistic concept, it reveals the degree of the law's abstraction from indigenous connections to land, and how it perceives and uses history to accomplish the extinguishment of rights based on these connections.
THE NATIVE-TITLE JURISPRUDENCE developed in the Mabo case meant the past had new legal implications. How the law understood the relationship between the present and the past and how it chose to investigate this relationship had a direct impact on the extent of native-title rights. One of the key motivations for Mabo was the desire to reconcile past injustices to indigenous peoples. In particular, the spectre of its own implication in the violence of colonisation hung over the law.
In Mabo, the High Court exculpated the law in part by confirming that it was the force of executive action and not the introduction of the common law that had dispossessed Aboriginal peoples from their lands. However, the law could not avoid altogether its association with the violence of colonisation and the stark injustice of the consequent displacement of indigenous peoples from their lands in the name of the law.
So the law developed a jurisprudence of historical injustice, what law expert Jeremy Webber has described as a "jurisprudence of regret".[v] This jurisprudence required the law to interrogate the past like never before. "The gist of Mabo," according to Justice Gummow in the Wik case, "lay in the holding that the long-understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown then to have been false".[vi] Rights associated with occupation of land prior to the assertion of sovereignty had to be reconciled with present land rights, use and occupation. Native title was a mechanism for bridging the gap between the past and the present by recognising a basis for rights that existed in both periods of time. The existence of past rights became crucial to the claim of present rights.
We can see in the "tide of history", something of the law's understanding of the relationship between the past and the present and the role of "history" in native-title extinguishment.
SIGNIFICANT 20th-CENTURY PHILOSOPHERS of language such as Jacques Derrida[vii] and Paul de Man[viii] have irrevocably shifted our understanding of how, and where, metaphor occurs. In different ways, they have identified that metaphor is not purely a representational device employed in literature to embolden or gloss by suggestion but that it is a discursive signifier that occurs in all writing including, we can conclude, legal writing.
Derrida, for example, argues that a philosophical text will consist both of a rhetorical argument and also of metaphors, which either openly, or more surreptitiously through "objective" concepts, invest the text with layers of meaning. For Derrida, concepts are not abstract notions superior to metaphors, but are metaphors themselves, or have traces of metaphors embedded within them. He teasingly uses a metaphor to refer to this concept: the palimpsest, a text with layers of meanings inscribed upon each other, sometimes partially erased, sometimes revealing themselves, but in constantly different ways and at different times. The power of metaphor is therefore that it is understood as a shared cultural referent but is also language that suggests "there is no original meaning that controls the meanings that follow and no final meaning toward which interpretation must proceed".[ix] Metaphor is always a point of ambiguity or ambivalence, and as a result, historians John Docker and Ann Curthoys argue, it is capable of "potentially unhinging any statement and disturbing any grounds of certainty".[x]
Understanding the power of metaphor in this way informs how we can, or should, interpret the metaphor "the tide of history" in the Yorta Yorta judgement. To date, although appalled by the connotations of the metaphor for native title, academic commentators have extended its destructive consequences in their critiques of its use.[xi] More interestingly, indigenous communities claiming spaces in which to tell their own stories have almost turned the metaphor as used in Yorta Yorta into a reverse discourse.[xii] There is much power in using the metaphor in these ways. However, despite the certainty of jurisprudential meaning the law infers from the original metaphor, it cannot be long before it will reveal its traces and destabilise its own meaning.
ONE OF THE most intriguing aspects of the current power of the "tide of history" metaphor is the fact that what it seeks to signify and what it is currently accepted as meaning in a conceptual sense, is undermined by its own visual allegory. It is the dissonance of water images in a claim about rights to land (Yorta Yorta country is landlocked, although it includes parts of the Murray River) that makes the metaphor seem particularly powerful, but also discordant and destabilising.
In What is History? (Penguin, 1990), EH Carr explores the historian's ambivalence to the application of water imagery to history. In trying to explain the concept that history is always interpretative he uses an ocean metaphor, suggesting that historical facts: " ... are like fish swimming about in a vast and sometimes inaccessible ocean; and what the historians catch will depend partly on chance, but mainly on what part of the ocean he chooses to fish in and what tackle he chooses to use – these two factors being, of course, determined by the kind of fish he wants to catch."[xiii]
Carr seems to realise, however, that the metaphor inscribed on this concept is inherently undermined by its own traces of contradictory meaning and soon switches his attention to a different topographical feature to make his point, namely: the mountain, grounded and unyielding. "It does not follow that because a mountain appears to take on different shapes from different angles of vision, it has objectively no shape at all or an infinity of shapes."[xiv] From the vantage point of this metaphor, Carr pushes the lofty concept that the past is open to interpretation in a variety of verifiable ways, yet reminds us that it is still solidly capable of being remembered.
Historian Simon Schama in Landscape & Memory (Fontana Press, 1996) suggests that there are constant variations over time and culture in how landscape is used as a referent in Western culture. But while acknowledging that these metaphors are not immutable, he argues that it is clear that they have two constant characteristics: endurance and power to shape institutions. National identity, for example, "would lose much of its ferocious enchantment without the mystique of a particular landscape tradition: its topography mapped, elaborated, enriched as a homeland". [xv]
Property rights formalise use and possession of land. Land-tenure maps orient these commitments, highlighting their location over their nature. Native title is particularly threatening to existing property rights because of its foundation in occupation and connection. Native-title connections are unique and grounded. They give rise to other representations of the land that are capable of coexisting with, and thus threatening, exclusive property rights in the established system of land tenure.
A water metaphor has particular power in opposition to the foundation of native title. The tide of history works away at these connections, loosening them and eventually washing them away. It tells us that history, interchangeable with the past, has particular consequences – it erases all before it – eroding cliffs, cleaning marks from the sand. It cleanses things of meaning and significance. As a result, to know how things are, we can only look at the last wash of the tide. The mark of previous tides is gone. Through the tide of history, the extinguishment of native title is effected without the overt violence associated with burying, trampling and overlaying. The tide is slow and a-spatial. It does not confront connections to land at particular locations but works a general and benign extinguishment.
THE APPARENTLY BENIGN operation of tide is reinforced through its connection with time. The metaphor reveals a particular understanding of history as a means for erasing and forgetting the past that serves to exculpate the law of any responsibility for the extinguishment of native title. The tide of history is not just a means of revealing events through texts but a force that alters those events. It has inevitable and unstoppable consequences. The law can only observe on what history inevitably does and comment on the impact of the consequent erasure. The past is not only capable of washing away the facts but this erasure is inevitable and irrevocable. Tides, like colonisation, arrive from the ocean and make irreversible progress that is out of the law's control. The tide of history, then, implies the impossibility of a jurisprudence of historical injustice.
History is, of course, about remembering. As such, historians, as exemplified by Carr, have an understandable uneasiness when water images are applied to historical practice. The erasure that references to tides and oceans suggest, threatens history because it also suggests the impossibility of accessing the past and the inevitability of forgetting. In fact, the idea that the "tide of history" can "wash away" the acknowledgment and observance of traditional laws and customs seems an obvious non sequitur. One of the most significant hurdles to establishing native-title claims based on rights that are derived from the intersection of legal systems at a time in the past is the absence of historical records of traditional laws and customs upon which those rights are said to be based. Thus, in the law's own evidentiary terms, it is the lack of a "tide of history" that contributes to the washing away of native-title rights.
The "tide of history" as a means of forgetting fits neatly into a positive legal methodology. The law seeks to resolve disputes and move on. Legal resolution is final. While a decision is remembered as a precedent, the issues of rights as they pertain to particular claimants and respondents can be forgotten.
THE "TIDE OF HISTORY" is capable of distruption. Within it, surreptitious but glossed over, are references to the possibility that history indeed leaves things behind. Tides do not roll back never to return. They return incessantly, albeit leaving different traces and artefacts in their wake. They do not denude the land, leaving it featureless and faceless, but move it into new formations. Although their movement is inexorable, it is not necessarily progressive – they come and go, advance and recede, are high and low. And so within the metaphor there is already something different from the cleansing of the past.
The "tide of history" has prodigious rhetorical power in confirming the extinguishment of native title. Although, as Derrida suggests, all metaphors are capable of disruption and reinscription, it is important to reflect on the jurisprudential basis of any metaphors used in native-title judgements. Judges need to account for their descriptive choices. Can "history" be an agent of extinguishment? Can the traces of land-based traditions be washed away by historical documents in the face of contemporary assertions of their continuity?
Lawyers and others involved in the native-title claims process ought, perhaps, to choose grounded metaphors – metaphors of, and from, the land. In relation to native-title extinguishment, the law can draw on the work of historians and others who consciously write about and espouse their own practices by reference to land imagery and all that it suggests. By alluding to Deleuze and Guattari's rhizomes[xvi] or Foucault's archaeology[xvii], the law might discover a language that burrows beneath its own terrain, confronting more directly the impact of native-title extinguishment, or indeed exposing sedimentary traces of the past – root structures, alluvial deposits and continuing traditional occupations – that challenge the very fact of extinguishment.
[i] Paul Carter, The Lie of the Land (Faber & Faber, 1996), at 2.
[ii] See, among others who have used this concept to explain native title: Noel Pearson, "The Concept of Native Title at Common Law", Australian Humanities Review, 1996; G. Yunupingu (ed), Our Land is Our Life: Land Rights – Past, Present and Future (University of Queensland Press, 1997); Christos Mantziaris and David Martin, Native Title Corporations, A legal and anthropological analysis (The Federation Press, 2000), at 9; Lisa Strelein, "Conceptualising Native Title", The Sydney Law Review, 2001, vol 23, at 95.
[iii] Beaumont CJ and von Doussa J, Western Australia v Ward (2000), 99 FCR 316, at .
[iv] Yorta Yorta Aboriginal Community v Victoria (Federal Court of Australia, Olney J, December 18, 1998, unreported)  FCA 1606 at .
[v] Jeremy Webber, "The Jurisprudence of Regret: The Search for Standards of Justice in Mabo", Sydney Law Review, 1995, vol 5, at 17.
[vi] Gummow J, in Wik Peoples v Queensland (1996) 187 CLR 1 at 181.
[vii] Jacques Derrida, "White Mythology: Metaphor in the Text of Philosophy", Margins of Philosophy, (University of Chicago Press, Chicago, 1982), at 207-71.
[viii] Paul de Man, "The Epistemology of Metaphor", in Sheldon Sacks (ed), On Metaphor (University of Chicago Press, Chicago, 1979), at 11-28.
[ix] Jacques Derrida, "White Mythology: Metaphor in the Text of Philosophy", Margins of Philosophy, (University of Chicago Press, Chicago, 1982), at 207-71, 258-64.
[x] Ann Curthoys and John Docker, Chapter Six: Metaphor, in Is History Fiction?, forthcoming, UNSW Press, at 2. See also: Ann Curthoys and John Docker, "Time, Eternity, Truth, Death: History of Allegory", Australian Humanities Review, No. 1, 1999, at 5-26.
[xi] Ann McGrath, "Washed Away by Time?: Native Title and The Tide of History", paper presented at the Research School of Social Sciences, Australian National University, June 19, 2003; Bruce Buchan, "Withstanding the Tide of History: The Yorta Yorta Case and Indigenous Sovereignty', Borderlands, vol 1 no 2, 2002; Katrina Alford, "White-washing away native title rights: the Yorta Yorta land claim and the ‘tide of history' "(1999) 13 Arena Journal 67; Natasha Case, "Tide of History or Tsunami?" (1998) 4(17) Indigenous Law Bulletin 17; Valerie Kerruish and Colin Perrin, "Awash in Colonialism, (1999), 24 Alternative Law Journal3.
[xii] Aboriginal Elders' Voices: stories of the tide of History (Language Australia, 2002, Melbourne). The volume is a collection of oral histories from Victorian elders.
[xiii] EH Carr, What is History? (Penguin, Australia, 1990, first published Macmillan, London, 1961), at 23.
[xiv] Ibid, at 26-27.
[xv] Simon Schama, Landscape and Memory, (Fontana Press, London, 1996), at 15.
[xvi] Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia,( trans. Brian Massumi, London, University of Minnesota Press, 1988), at 3-25.
[xvii] Michel Foucault, The Archaeology of Knowledge, (trans. A.M. Sheridan Smith, London, 1989, first published Tavistock Press, London, 1972).