In 2007 the journal CriticalInquiry devoted two issues to thephenomenon of the ‘case’ and its significance in thehumanities. Introducing the topic, Lauren Berlantdefined a case pragmatically as a ‘problem-event’that calls forth an act of judgement (2007, 663).Mabo v Queenslandwas such a problem-event, a test case that broughtthe realities of Indigenous law and relationship toCountry before the white Australian legal system andforced an adjudication of one of the foundationalpremises of that legal system, the fiction ofterra nullius. Inoverruling this legal fiction, the High Courtrecognised the continuing existence of Indigenouspeoples’ rights to their traditional lands, as partof the common law of Australia. It was a judgementwhose resounding implications for nationalself-understanding were felt in every field ofculture.

The Mabo judgement gavelegal recognition to ‘native title’, but it did soin ways that preserved the legitimacy of both theAustralian state and the system of land law that hadbeen imported with colonisation. In a well-knownmetaphor, Justice Brennan referred to the need notto ‘fracture the skeleton of principle which givesthe body of our law its shape and internalconsistency’ (Mabo1992, 43). Thus, the court expressly ruled outrecognising Indigenous sovereignty and any right tomonetary reparations for land lost. This was acompromise decision, a limited recognition ofIndigenous law that would contain its impact on thedominant legal order. And yet, as thelaw-and-literature scholar Penelope Pether notes,what the judgement overtly refuses to do, it‘paradoxically makes imaginable’ (1998, 116).

While scholars in various fields of Australian studieshave described Mabo as a watershed (Hocking 1993,188; Collins and Davis 2004; Attwood 1996), it isbest understood as ‘part of a process’ rather than an event (Attwood1996, 150; emphasis in original) or, inanthropologist Nonie Sharp's words, as ‘a step inthe reshaping of identity, albeit minimal, cautious,qualified’ (1996, 223). The Mabo decisionimmediately sparked a conservative backlash thatincluded a constitutional challenge to the NativeTitle Act by Western Australia and amendments by theHoward government in 1998 that wound back the scopeof native title and the rights of traditionalowners.