Below is a must-read article on the contradictions and incoherences in the High Court’s creation of Native Title – more a case of activists wishing it were so, rather than factual, rational arguments.
Robert Hill demonstrates that the Torres Strait Islander case is nothing less than mythologising.
More articles of this intellectual, tightly argued calibre are needed to challenge the farce of Native Title.
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The Islands of Irony
Robert Hill, Quadrant, Sep 11 2025
Murray Island is the only place in Australia where, in 1992, the High Court “discovered” common law native title (Mabo 2). Yet in 2012, almost unreported, the very Islanders who claimed sacred and immemorial ownership extinguished that title themselves, choosing instead an inalienable freehold vested in a statutory corporation under Queensland law. The revered precedent died on its own island at the hands of its own people, yet in schools, universities, and politics it is still taught as scripture, the conjuring of native. The irony could not be sharper: the conception of native title, unknown to over a thousand years of English law, from the Anglo-Saxon codes through the common law courts of Henry II and Magna Carta in 1215, became the place where the natives themselves lowered its corpse into the grave, without fanfare or recognition. The only existence of common law native title in Australia is dead.
Also almost unknown is that during the carriage of the Mabo case in the 1990s, the Queensland Government was already issuing Deeds of Grant in Trust (DOGITs) to the other Torres Strait Islands, inalienable leasehold titles willingly accepted by the Islanders themselves. By taking up DOGIT tenure, they extinguished any possibility of native title by their own choice. Yet in the years that followed, with the passage of the Native Title Act, those same Islanders applied for recognition of rights that had already been legally extinguished. In an act of pure legal impossibility, the Queensland Government consented, and by the stroke of consent orders under the Act they were granted “exclusive native title.”
The irony is stark: native title was voluntarily extinguished by the natives, resurrected by politics in defiance of law, and today most islands are ruled not by clans or families, as native title mythology would require, but by the Torres Strait Regional Authority which is a statutory corporation of the Commonwealth, the bureaucratic antithesis of custom, proof that the myth is dead even where it is most loudly proclaimed
Like all things draped in the banner of “Indigenous,” nothing is ever what it seems. The truth has been banished from the conversation, replaced with myth and performance. And in the Torres Strait, the junior sibling of the Indigenous cause, the illusion is at its most absurd. Here lies the story that is never told and will never be taught, a reality in brutal contrast to the endlessly recycled rhetoric.
The Torres Strait is celebrated as the legal recognition of native title, a place of timeless continuity and sacred connection. Yet the islands themselves are no paradise. Most are little more than volcanic outcrops or sandy knolls scattered across treacherous waters, barren, wind-blasted, and inhospitable. A handful are barely large enough to sustain habitation, and those that are settled survive only through constant subsidy and supply from the mainland. To speak of them as sacred homelands of abundance is pure fiction: they are, for the most part, marginal scraps of rock and sand where life without shipping and welfare transfers would collapse overnight.
What a study of the islands does show is a litany of ironies: a people once hemmed in by reefs and tribal war now claiming immemorial attachment while dispersing across the continent; beneficiaries of state protection suing the very state that sustained them; “custodians” reliant on ranger programs and outside scientists to manage their land; and a flag invented in 1992 elevated to national status. Far from proving continuity, the Torres Strait reveals collapse, dependency, and absurdity at the heart of the native title myth.