Section 223 and the shape of native title: The limits of jurisdictional thinking

In his 2007 essay, ‘Public space’, Paul Carter describes the encounter in the late 1780s between first fleet surveyor William Dawes and an Eora woman known as Patyegarang. According to Carter, Dawes transcribed Patyegarang’s speech, eager to learn her language. For Carter, it is such encounters which underwrite or allow a meeting place, and relations between laws, to develop. One question, then, might be what law governs such meeting places between settlers and indigenous people? According to Carter, the meeting place is a kind of between – a place where their respective laws ‘were put in parentheses, and new, provisional rules of exchange improvised’ (Carter 2007: 430-31). In some ways, this echoes Pearson’s formulation in the 1990s of native title as a recognition space. He explained that if native title is not ‘of’ the common law, neither is it ‘of’ aboriginal law:

Native title is therefore the space between the two systems, where there is recognition. Native title is for want of a better formulation the recognition space between the common law and the Aboriginal law which forded recognition in particular circumstances.