Cunliffe explores visions of legal history on the Australian High Court

Emma Cunliffe, University of British Columbia, has posted an essay, Anywhere but Here: Race and Empire in the Mabo Decision. It takes up an Australian version of a question very much on the minds of American legal scholars in the wake of the recent PICS case: what happens to history in the hands of judges. The essay appeared in a Symposium Issue of Social Identities. Here's the abstract:

The High Court of Australia's decision in Mabo v. Queensland (No.2) is among the most widely known and controversial decisions the Court has yet delivered. In Mabo, a majority of the Court recognised a common law right to native title subject to certain criteria. In this article, I explore the competing visions of legal history that are implicit within Brennan J's leading judgment and Dawson J's dissent. In particular, I discuss the ways in which both of these judgments render an incomplete and contradictory documentary record more coherent than it really is. Suggesting that neither judgment manages to escape the traces of racism, I argue that the alternative approaches tell us more about the fault lines within contemporary Australian political discourse than they do about the Australian colonial past. I conclude that Brennan J's efforts to render contemporary justice for past wrongs against indigenous Australians deserve acknowledgement, though his judgment is ultimately constrained by the force at the heart of the Australian common law. Much more remains to be done before the Australian common law can be said to recognise indigenous Australian cultures as complex, changeable, and contemporary.