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Audio Ron Merkel discusses the phrase 'washed away by the tide of history', 2008

TLF ID R10296

This is an edited sound recording of former Federal Court of Australia judge Ron Merkel discussing a High Court of Australia judge's statement that a person's right to native title may have been 'washed away by the tide of history'. Merkel describes the expression, used by one of the judges in the Mabo native title case, as 'unfortunate wording that's been taken out of context'. He says that although no hurt was intended it has 'become a very hurtful term' for people who have mounted unsuccessful native title cases because 'for them the connection has never been lost'. The recording was made in December 2008.

Educational details

Educational value
  • This recording provides Merkel's view of a key phrase used in the High Court's historic Mabo judgement of 1992, a judgement that recognised native title as a form of land ownership in Australia for the first time. The High Court's decision overturned the concept of 'terra nullius' (land belonging to no-one), which had formed the basis for large areas of land in Australia being declared crown land after British colonisation in 1788.
  • The phrase under discussion was said by Sir Gerard Brennan (1928-), one of the seven High Court judges involved in the Mabo ruling. He said that 'the foundation of native title [over particular land] disappears when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs'.
  • In the recording, Ron Merkel (1941-) says that Brennan was trying to illustrate that, to win a native title case, the kind of legal connection that needed to be established with particular land may no longer be provable. In the Mabo judgement Brennan was one of the six judges who supported the view that native title existed subject to certain conditions. Key among the conditions was that claimants could prove to a legal standard a continuing traditional connection with the particular land, unbroken since European settlement.
  • Merkel says that Brennan's 'unfortunate wording' had since been taken out of context and misunderstood in other native title judgements. For example, in 1999 Federal Court judge Howard Olney (1934-) stated that the 'tide of history had washed away' the connection of the Yorta Yorta people to land in southern New South Wales and northern Victoria.
  • Merkel himself used Brennan's phrase in a Federal Court 'consent determination' in 2005 - the first time native title was recognised anywhere in Victoria. On that occasion Merkel stated that the 'tide of history' had not washed away the observance of traditional laws and customs by the Wotjobaluk people on land in the Wimmera region of north-western Victoria. The determination gave them 'non-exclusive' native title rights to hunt, fish, gather and camp.
  • This recording highlights the sensitivity of native title cases, particularly those that fail. Merkel says that it is 'very confronting' for native title claimants to be told that their connection to traditional land has been 'washed away'. He says that failed claimants may feel that they are being told they have 'invented part of their identity and part of their connection'. He says that is 'not the way the expression was ever intended to be used'.

Other details

  • Publisher
  • Date of contribution: 20 Sep 2013
  • Organisation: Education Services Australia
  • Address: Melbourne VIC 3000 Australia
  • URL:
  • Copyright holder
  • Organisation: Education Services Australia
  • Address: Melbourne VIC 3000 Australia
  • URL:
  • Remarks: Copyright Education Services Australia Ltd
  • Content provider
  • Organisation: Education Services Australia
  • Address: Melbourne VIC 3000 Australia
  • URL:
  • Author
  • Date of contribution: 2008
  • Name: Ron Merkel
  • Remarks: speaker
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  • Sound
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  • © Education Services Australia Ltd, 2013, except where indicated under Acknowledgements.