The Gomeroi Nation Native Title Case - "Living in the Shadow of Terra Nullius in Australia's Law" — PART 1
Prof. Phil Falk, Wiradjuri and Ngemba Nations, Examines the Colonial Foundations of Australia’s Native Title System
© Phil Falk, 2025
Phil Falk honors me by posting this trenchant analysis of Australia’s National Native Title Tribunal 19 May 2025 decision blocking the Gomeroi People’s effort to protect their lands from invasion by a gas extraction project authorized by the State of New South Wales, to be constructed by Santos global energy corporation in Gomeroi lands.
Phil is a retired senior law lecturer and advisor with the Bundjalung Elders Council.
Readers familiar with US anti-Indian law’s claim of a right of domination over Original Peoples and lands will shout, “It’s déjà vu all over again!”
The Gomeroi Native Title case was decided by Australia’s NATIONAL NATIVE TITLE TRIBUNAL on 19 May 2025
Examining the Colonial Foundations of Australia’s Native Title System
OVERVIEW:
This article is presented as a two-part series examining the structural limitations of Australia’s native title system and its entanglement with colonial legal authority, extractive capitalism, and the denial of Indigenous sovereignty.
Part 1 - Native Title and the Afterlife of Terra Nullius: Law as Containment, Not Recognition - examines the structural logic of native title as a continuation of settler-colonial domination rather than a pathway to Indigenous sovereignty. Through a critical reading of Mabo v Commonwealth (No. 2) [1992], native title jurisprudence, and the doctrinal legacy of terra nullius, it argues that native title is not recognition but containment, a legal fiction that converts sovereignty into usufruct rights, enforced by state prerogative power. Drawing on thinkers like Carl Schmitt, Frantz Fanon, Edward Said, Patrick Wolfe, and Aileen Moreton-Robinson, it explores how Indigenous law is disfigured into cultural myth, and how recognition operates as a tool of regulation, not justice. Native title is exposed as the afterlife of terra nullius, the Crown’s fallback position that cloaks sovereign denial in the language of inclusion.
Part 2 - Gomeroi v Santos: Recognition Without Power, Law Without Sovereignty - applies the theoretical framework developed in Part 1 to the National Native Title Tribunal (NNTT) determination in Santos NSW Pty Ltd and Another v Gomeroi People and Another [2025] NNTTA 12 (19 May 2025). The determination reveals how native title operates as a legal mechanism of containment, not empowerment. Despite the Gomeroi people’s overwhelming opposition to Santos’ Narrabri Gas Project, the National Native Title Tribunal authorised the licenses, demonstrating how cultural rights are acknowledged only to be overridden. The case exemplifies what scholars like Carl Schmitt, Giorgio Agamben, and Glen Coulthard describe: a legal system that recognises Indigenous presence while structurally excluding Indigenous power. Through concepts like prerogative sovereignty, the ‘state of exception,’ and the colonial logic of terra nullius, Part 2 shows that native title remains bound to a legal architecture designed to neutralise Indigenous law and uphold settler supremacy, even when cloaked in consultation and ‘public interest.’
Context
As Shawnee/Lenape legal scholar Steven T. Newcomb puts it, my article is a view from the shore, not the view from the ship - contrasting Indigenous perspectives with the colonisers’ vantage point from the vessel (Newcomb, 2024, p.1). In this sense, this series challenges the idea that native title is a progressive legal instrument, arguing instead that it is the continuation of terra nullius, hidden behind a façade of procedural recognition.
Part 1: Native Title and the Afterlife of Terra Nullius: Law as Containment, Not Recognition
1.1: the illusion of recognition
The 19th of May 2025 decision by the National Native Title Tribunal (NNTT) to approve Santos’ Narrabri Gas Project, despite persistent objections from the Gomeroi people is not a mere bureaucratic rubber-stamp. It is a clear reminder that native title has never been about sovereignty. Instead, native title, like its counterpart in the US - ‘occupancy’ - remains a strategic element of the Doctrine of Discovery and its overarching framework of domination. Both are calculated forms of ‘legal’ containment; constitutional inclusion is yet another. That is, they are mechanisms designed not only to spatially restrict Indigenous presence and authority, but also to psychologically and politically confine Indigenous sovereignty within the narrow boundaries of recognition defined by settler law.
1.2: historical foundations: from terra nullius to native title
“Land-appropriation [is] the primeval act of founding law ...the source of all further concrete order and all further law, …the reproductive root in the normative order of history” (Schmitt, 1950, cited in d’Errico, 2025, para. 2).
Carl Schmitt’s insight is critical for understanding the architecture of settler-colonial law. Law, in this context, does not begin with justice, but with seizure, with the violent act of claiming space as the foundation of order (Schmitt cited in Antaki, 2004, p.323). To understand the structural nature of this legal containment, we need to examine its historical origins.
This framework of legalised subjugation (the Doctrine of Discovery) has its foundations not only in Catholic papal bulls but was later reinforced and secularised through the Protestant Act of Supremacy in 1534, which declared the English Crown as the supreme legal and spiritual authority (Cox, 2002, para. 5). By replacing the Pope with the Monarch, the Act ensured that the imperial logic of domination was no longer just ecclesiastical but now fully embedded in state power - a logic that still underpins settler legal systems like native title and/or constitutional inclusion today.
What we see is the continuity of domination (superior over inferior) repackaged through state prerogative powers, and applied by courts and tribunal decisions, inevitably favoring extractive interests. This architecture of legal containment, founded in imperial theology and perpetuated by state-sanctioned legal fictions, finds its most enduring expression in the doctrine that continues to cast its long shadow over native title: terra nullius.
1.3: native title as a colonial fiction – native title theory
Native title is a manufactured, inferior form of land tenure; essentially the Crown’s fallback position from terra nullius. This common law colonial gift - native title - suddenly emerged from the shadow of terra nullius, mirroring what Frantz Fanon describes in The Wretched of the Earth as the coloniser’s ‘false generosity’: an offering not meant to liberate but to pacify, to restructure colonial domination in more palatable forms. Native title functions essentially as Fanon’s ‘compromise solution,’ where the colonised are permitted symbolic rights in exchange for structural obedience (Fanon, 1963, pp. 53 - 55).
This strategy can be understood as a modern extension of colonial diversion, symbolic concessions that serve to distract, divide, and delay genuine resistance. Originating from the so-called ‘law of nature,’ native title was rebranded in Mabo as a form of gift, suddenly ‘discovered’ in the common law, a ‘bundle of rights’ conferred on Indigenous peoples (Toohey J, para. 100) and codified in sections 211 and 223 of the Native Title Act 1993 (Cth). But these gifts are not sovereign rights; they are usufruct rights, entitlements to the fruits of land owned by someone else, in this case, land ‘owned’ by the Crown. Though often subject to restrictions by Indigenous Land Use Agreements (ILUAs) (Part 2. Division 3, Subdivision B of Native Title Act 1993), these native ‘usufruct’ rights generally include a right to hunt and fish, to collect food or medicines, to conduct ceremonies, rituals and cultural practices, visit and protect sites of significance, teach law and customs, and access resources such as water, wood, and ochres. These rights must be exercised in accordance with traditional laws and customs. The Native Title Act 1993 section 31 (1) also grants a right to ‘negotiate’ or ‘consult’ on issues that may affect these user rights. It does not include a right to live, build, or own land outright. Even compensation is limited to the loss of this usufruct right, not for the loss of sovereignty, land, or resources, saving the Crown billions in the process (see Commonwealth of Australia v Yunupingu [2025]).
Native title continues to serve the Crown: providing free land, unlimited resources, and complete domination and power to make decisions such as these. Much like the historic gift of terra nullius, native title is merely another subtle form of sovereign denial that lives in its shadow as an illusion of recognition that diverts attention from the ongoing colonial dispossession and the structural inequalities embedded in the system. This symbolic gift functions as a diversionary tactic, redirecting Indigenous agency into limited legal recognition while the underlying colonial power relations remain unchallenged, thus delaying the possibility of genuine liberation.
1.4: outdated legal theories
Grounded in outdated legal theories from the 1760s and beyond - most notably Blackstone’s legal framework - imagined Indigenous peoples as ‘occupants,’ not ‘owners’. Indigenous peoples could use the land but could never hold it against the sovereign’s claim. As Aileen Moreton-Robinson argues, native title is ‘predicated on the denial of Indigenous sovereignty and the continual reassertion of white possession’ - a possession that masquerades as law while obscuring its colonial foundations (Moreton-Robinson, 2015, passim). The shadow of Blackstone, like that of terra nullius, continues to obscure any meaningful recognition of Indigenous land sovereignty. Blackstone described property as:
“that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (Blackstone (1765–1769), Commentaries on the Laws of England, Volume 2, Ch.1: Newcomb, 2016, para.3).
This absolutist conception of ownership was not just legal, but theological - drawn directly from Genesis 1:28, where man is commanded to:
“subdue the earth and have dominion over every living thing.”
Blackstone envisaged this as divine authorisation for human dominion over the earth, which underpins legal justification for private property. This dominion is not stewardship, but control and exclusion - a justification for colonial ideas of land ownership. From this fusion of divine authority and English common law emerged a racialised legal architecture: a god-sanctioned right to dominate, under which Indigenous people could be written out of the story entirely (Newcomb, 2016, para.4 and in passim).
In the United States, this logic hardened into precedent in Johnson v. McIntosh (1823) where the Supreme Court famously asserted that Native peoples had only a right of ‘occupancy’ that could be extinguished by the federal government, effectively denying their sovereignty and land title altogether. Crucially, these legal assertions were pre-emptive, establishing sovereignty long before any ship sailed, conflict erupted, or exploration occurred - decisions made within the realm of law to preempt Indigenous sovereignty from the outset. Cooks' instructions (1768) and Cabot’s charters (1497) reveal this truth: lands were claimed in advance, before departure. The notion of pre-emptive claims is also embedded in the ideal of ‘just wars’ (Miller, 2006, pp. 16-17, 64-65).
In Australia, some 167 years after Johnson v McIntosh, Blackstone’s legal scaffolding - built on sovereign containment and occupancy - was reanimated in Mabo as ‘native title.’ Like constitutional inclusion, native title functions as a mechanism that subtly embeds state control through a progressive narrative that ‘embodies and emboldens Crown sovereignty’, cloaked in ‘inclusive narratives’ that obscure the persistence of underlying domination (d’Errico, 2025, email). Rather than dismantling the foundational framework, Indigenous sovereignty is merely dressed up in the language of rights - an attempt to legitimise and contain it within the very structures that denied it from the start. The underlying architecture remains intact: the Crown as the superior proprietary title, and Indigenous rights as an inferior proprietary title - an ongoing legacy of colonial sovereignty disguised as progress.
This 18th-century Blackstonian muse of racial inequality, dressed up as rights for ‘users,’ was rebranded as equality and sold as an advancement of Indigenous peoples’ human rights in Mabo. Yet beneath the veneer of progress lies the same fundamental framework, one that continues to subordinate Indigenous sovereignty to colonial authority. It is a position confined within the Crown’s hierarchical menagerie of humanity - its zoo of human hierarchy - where Indigenous peoples are perpetually positioned as lesser beings within their ideals of a ‘civilised’ world.
1.5: the ‘civilised’ cage
This racialised enclosure echoes Fanon’s ‘zoological’ gaze, where the colonised subject is not seen as a full human, but as a specimen (Fanon, 1967, p.71 and p.313). Native title, in this light, becomes not an instrument of recognition but a legal exhibit, displaying Indigenous presence only to regulate and contain it within the settler state’s civilising schema. This legal fiction of native title and user rights creates an incremental, racialised ladder of humanity. At the bottom: the terra nullius subject – unrecognised, invisible. With Mabo, Indigenous people were invited a rung higher: partially visible, partially human - users, not owners; occupants, not sovereigns. Captured somewhere between the settler’s imagined barbaric ‘heathen’ and their idealised civilised self, we are frozen on their racialised scale of worth. This is not human rights. It is human wrongs masquerading as progress.
The same principle that kept us out of the Constitution keeps us locked into native title: prerogative powers (to assert terra nullius), an act of supremacy. In this sense, native title is the Crown’s fallback position after terra nullius collapsed under its own lie. It is a safety net - not for us, but for the state. A system that appears to offer reconciliation, while legally reinforcing dispossession.
This case, the Gomeroi People v Santos, like the plethora of other native title cases, exemplifies how native title functions exactly as designed: not as a recognition of human rights, but as a manifestation of human injustice. It is a legal mechanism of limitation, operating within the very framework of human wrongs, serving to perpetuate dispossession rather than challenge it.
This structural logic is concisely what Patrick Wolfe described as the enduring mechanism of settler colonialism, a system premised not on event but on structure, where invasion is a continuing project and elimination is not always genocidal, but administrative, epistemic, and legal (Wolfe, 2006, p.388). Native title operates within this structure as a mode of elimination-by-inclusion: Indigenous presence is acknowledged only to be controlled. It legalises a form of containment by converting sovereignty into user rights, spiritual law into cultural heritage, and ancestral obligation into land management. The settler legal regime thus maintains its authority not by denying Indigenous existence outright, but by redefining it in terms that safeguard settler jurisdiction. In Wolfe’s terms, this is not recognition, but regulation, a transformation of living law into a ‘permissible presence’ under settler governance (Wolfe, 2006. pp.387- 409). Native title doesn’t escape the logic of terra nullius; it is its afterlife that lives in its shadow.
1.6: legal theory
This is not simply a legal issue; it is an epistemological project. The settler legal system does not just dominate through force; it dominates through knowledge. It defines what law is, what counts as evidence, and who is allowed to speak with authority. Here, native title becomes the site where Indigenous law is not just constrained, it is converted, translated, and disfigured.
This flattening of law into ‘cultural expression’ reflects what Edward Said identified in Orientalism as the colonial authority’s ability to define and domesticate the Other through knowledge (Said, 1978, p.243 and p.262). The Tribunal does not hear Gomeroi law as law; it interprets it through a settler epistemology that disfigures it into myth or sentiment, a discursive containment that renders sovereignty unintelligible.
Carl Schmitt's theory of sovereignty reveals what is really at play: the sovereign is ‘he who decides the exception’ (Schmitt cited in Antaki, 2004, pp.323, 325, 327). In the 2024/5 Santos case, it is not the Gomeroi who decides the future of their land, water, culture, law, or stories. It is the Tribunal, backed by the state and corporate interests - sovereign power thinly veiled as procedural fairness and masked as a ‘public or state/national interest’. When the state determines when your rights apply, and, more importantly, when they do not, those rights are not true rights at all; they are permissions. A permission can be revoked, suspended, or redefined at will, its existence depends not on your inherent status, but on the sovereign’s tolerance. You are ‘engaged’ just enough to legitimise their theft.
Similarly, native title law places Indigenous peoples into what is called the ‘state of exception’, inside the law but excluded from its full protections (Agamben in passim). You are recognised legally, but only insofar as that recognition does not interfere with the sovereign’s goals. Your culture is acknowledged, but only if it remains frozen in pre-contact form. Your land is recognised, but only to the extent it is not needed. As Irene Watson reminds us, Aboriginal law is not merely culture but a system of governance in its own right - yet under settler law, it is ‘rendered invisible’ unless it conforms to colonial parameters (Watson, 2015, pp.56 - 63). This invisibility is reflected in how Aboriginal women’s laws and stories are often marginalised or dismissed within the dominant legal framework (Watson, 2007, pp.97 - 103). Aboriginal law’s sovereignty and authority are often ignored unless they are reshaped to fit the narrow recognition granted by colonial institutions. Recognising Aboriginal law as a legitimate governance system challenges the colonial narrative that seeks to confine Indigenous sovereignty within the limited boundaries of recognition and control. It calls for a rethinking of how law is understood, not as a set of cultural practices but as a powerful, governing force that sustains communities, relationships, and sovereignty on their own terms (Watson, 2007, pp.95 - 107). You are not truly sovereign; you are merely the exception ...recognised as a people, but only within the limits imposed by the sovereign, effectively excluding your sovereignty from the full rights of citizenship (Schmitt cited in Antaki, 2004, in passim; and Agamben, 1998, in passim).
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