“Always was, always will be”: connection to country amid land dispossession. The failure of the native Title Act to protect aboriginal and Torres Strait Islander peoples’ culture and identity in Australia

Abstract

Land is central to the culture and identity of Aboriginal and Torres Strait Islander peoples, a relationship encapsulated in the concept of “connection to Country”. With the beginning of British colonisation in 1788 and the acquisition of the territory under the doctrine of terra nullius, First Nations peoples were subject to a violent process of dispossession, posing significant challenges to maintaining their connection to Country. The Mabo decision in 1992 overturned the legal fiction of terra nullius, leading to the passage of the Native Title Act 1993 (Cth), a landmark moment in the recognition of Indigenous land rights in Australia. However, this thesis argues that the potential of the Native Title Act in protecting the land-based culture and identity of Aboriginal and Torres Strait Islander peoples remains limited. First, its requirement for an uninterrupted connection to the land claimed ignores the disruption caused by colonisation. Second, the Act relies solely on Western legal frameworks and notions of property, which often conflict with Indigenous understandings of Country. Third, it operates within a system that assumes that land is available for exploitation, prioritising economic interests over the cultural interests of Aboriginal and Torres Strait Islander peoples. These structural flaws are illustrated through the Juukan Gorge case, a sacred rock shelter in Western Australia evidencing 46,000 years of continuous human occupation that was destroyed by the mining company Rio Tinto in 2020. Ultimately, the thesis contends that effective land justice must move beyond formal recognition towards a model enabling First Nations peoples to uphold and protect their relationships with land.