The fences that made us strangers on our own Country

By HARRY STEWART

Jane Harrison’s Rainbow’s End stages a hessian fence erected to hide Aboriginal humpies from the Queen’s view. It is a useful metaphor because it reflects a concrete history: fencing and reservation policies restricted movement, reordered kin relations, and enabled dispossession. Fences in Australia were not only agricultural infrastructure; they were instruments of governance.

From the outset, colonisation relied on enclosure. Survey lines, pastoral leases and reserve boundaries converted fluid, seasonal movement into fixed, policed space. Western Australia’s Aborigines Act 1905 is emblematic: it centralised authority in a Chief Protector, authorised extensive powers over the lives and mobility of Aboriginal people, and underwrote decades of coercive administration presented as “protection.”

High Court decision

Missions and reserves worked in tandem with literal fences to break seasonal patterns that had sustained law, economy, and culture. Dislocation was policy. The national Bringing Them Home inquiry found that between about 1910 and 1970, a significant proportion, often cited as between one in three and one in ten, Aboriginal and Torres Strait Islander children were removed from their families, with lasting effects on language, ceremony, and intergenerational transmission of knowledge.

The High Court’s decision in Mabo (No 2) (1992) overturned terra nullius and affirmed that native title survived colonisation where not extinguished. But recognition arrived with a demanding evidentiary standard: claimants must show the continued acknowledgment and observance of traditional laws and customs since sovereignty. This sits uneasily with the historical reality that governments deliberately curtailed movement, ceremony, and language.

The tension is stark in urban and settled regions where dispossession was most thorough. In Yorta Yorta (2002), the Court endorsed a finding that the “tide of history” had washed away acknowledgment and observance of traditional laws and customs, defeating the claim. Whatever one’s view of the doctrine, the paradox is plain: the very policies that severed connection are later invoked to deny legal recognition of that connection. For many urban Aboriginal communities, native title is either extinguished by earlier grants or becomes practically unachievable under a continuity test made harder by state action.

This is about the past. The logic of line-drawing and exclusion remains politically salient. Over the past week, anti-immigration rallies branded “March for Australia” were staged in multiple cities. Their narrative was amplified by high-profile far-right figures online; organisers had earlier promoted the white-nationalist idea of “remigration” before removing it from their own site; and viral crowd claims far exceeded police estimates of roughly 5,000 participants nationwide. The dynamic is familiar: draw hard boundaries, label them “protection,” and normalise exclusion.

Three propositions follow

First, acknowledge fences as a legal technology of dispossession, not an incidental feature of settlement. Physical barriers, reserve lines and statutory controls collectively restricted movement and access to Country. This matters because native title law still evaluates “continuity” against a history in which governments disrupted the very practices now required as proof. A principled response is to amend the Native Title Act so that where discontinuity is substantially state-caused, through removals, prohibitions on movement, or missionisation, there is a rebuttable presumption of continuity. The High Court already recognises that tradition can evolve; the statute should ensure adaptation under duress does not become a penalty.

Second, build an urban justice pathway alongside native title. In cities and large towns, native title is frequently extinguished by exclusive possession grants. Rather than treating this as the end of the conversation, Parliament should legislate an alternative settlement stream that delivers enduring rights even where native title cannot be revived:
​•​ shared governance over significant public precincts and sites;
​•​ cultural access easements for ceremony and care of Country;
​•​ revenue-sharing or participation rights in public-land development; and
​•​ unded cultural mapping to document seasonal routes, sites and kin clusters disrupted by historical policy.

These measures recognise living culture in urban places and create predictable tools for governments, councils and Traditional Owners to manage Country in the present tense.

Third, complete truth-telling and reparations with enforceable outcomes. Jurisdictions continue to vary in the availability and adequacy of compensation for Stolen Generations survivors. A national commitment to consistent, adequately funded redress should be tied to a public historical record of how fencing, reserves and statutory controls disrupted movement and family life. Truth-telling without remedy does little for justice; remedy without truth repeats mistakes. Recent debates about progress under Closing the Gap show how policy momentum stalls when the underlying power imbalance is left intact.

Lessons from Mabo

The broader point is institutional, not rhetorical. Australia has a clear legal history of using spatial control, literal and statutory fences, to limit Aboriginal movement and to manage Aboriginal presence. Our contemporary legal framework can either perpetuate those choices or correct for them. A correction does not require constitutional reinvention; it requires targeted legislative reform that aligns proof rules with historical reality, and it requires practical mechanisms for cultural authority and access in places where native title cannot operate.

The current political moment underscores the need for precision. The anti-immigration rallies show how exclusionary ideas can be rapidly laundered into the mainstream via digital platforms and global influencers. That should sharpen, not dull, our attention to the way law can harden lines that begin as slogans. The lesson from Mabo is that Australian law can recognise historical truth and adjust doctrine accordingly. The lesson from Yorta Yorta is that, without careful design, doctrine can also entrench the effects of earlier state action.

Truth-telling

A measured package, continuity presumptions where the state caused breakage; an urban settlement stream; and nationally consistent redress linked to truth-telling, would improve legal coherence and practical outcomes. It would also reduce litigation risk and delay by providing clearer pathways for agreement-making in metropolitan planning, heritage management and public land use.

Harrison’s play ends with a demand for the right to make decisions and an end to segregation. That is as contemporary as it is historical. We cannot return the seasons that fences sought to interrupt, but we can stop allowing those fences, literal and legal, to determine who counts and on what terms. The task is technical and legislative before it is symbolic. It is also overdue.

• Harry Stewart is a Walbunja man, Juris Doctor candidate and MBA graduate from UNSW who serves on the board of the Indigenous Reading Project.