There remains a puzzle as to the status of Indigenous land rights in Australian colonial law. The common view is that the laws of the British colonies, and subsequently of the federated state, did not recognise Indigenous land rights until late in the 20th century. Against this, a smaller body of scholarship argues that recognition had already occurred much earlier, the clearest instance being in the colony of South Australia in the 1830s and 1840s. The result is an apparent duplicity in the colonial law, whereby Indigenous land rights appear to have been both recognised and denied. The article shows a tendency in the scholarly literature to resolve this duplicity in absolute terms, based on positivist analysis of law. In contrast, by taking a critical legal pluralist approach, the article shows how different and even contradictory manifestations of the same law subsisted simultaneously through time. This both sheds new light on the question of the recognition of Indigenous land rights in Australian colonial law, and contributes theoretically to ‘critical legal pluralism’ by developing its temporal dimension.
German-Australian colonial entanglements
