In the Penumbra of Meaning: The Probative Value and Meaningfulness of Ngurrara Canvas II and the Spinifex Paintings in Native Title Claims

In 1992, the High Court of Australia took the radical step of breaking with Australian legal precedent to determine that the continent was not, in fact, terra nullius at the time of British colonisation. As a result of this landmark case, Indigenous Australians became able to obtain recognition of Native Title over their traditional lands and waters. This fundamental change to Australian land law has required the legal system to accept Indigenous forms of evidence as claimants seek recognition of Native Title. In some instances, this evidence has taken the form of contemporary, acrylic paintings: specifically, Ngurrara Canvas II in Application of the Ngurrara People, and Women’s Native Title Painting and Men’s Native Title Painting in Application of the Spinifex People. While scholars from anthropology, art history, legal studies, Indigenous studies and cultural studies have examined the use of these paintings in Native Title claims, assertions by most of these researchers that the...Show moreIn 1992, the High Court of Australia took the radical step of breaking with Australian legal precedent to determine that the continent was not, in fact, terra nullius at the time of British colonisation. As a result of this landmark case, Indigenous Australians became able to obtain recognition of Native Title over their traditional lands and waters. This fundamental change to Australian land law has required the legal system to accept Indigenous forms of evidence as claimants seek recognition of Native Title. In some instances, this evidence has taken the form of contemporary, acrylic paintings: specifically, Ngurrara Canvas II in Application of the Ngurrara People, and Women’s Native Title Painting and Men’s Native Title Painting in Application of the Spinifex People. While scholars from anthropology, art history, legal studies, Indigenous studies and cultural studies have examined the use of these paintings in Native Title claims, assertions by most of these researchers that the paintings constitute evidence in the legal meaning of the word have not been securely bedded in an appropriate interdisciplinary framework. Taking an interdisciplinary approach spanning the fields of art history and law, this thesis asks how the National Native Title Tribunal and the Federal Court of Australia have determined the probative value of these acrylic on canvas artworks by Indigenous Australian claimants in Native Title claims. In doing so, it examines how Australian art historian Rex Butler’s concept of “meaningfulness without meaning” (drawn from a discussion regarding the relationship between Indigenous art and Abstract Expressionism) can clarify how decision makers treat painted evidence. The thesis concludes that when determining Native Title claims, decision makers may legitimately accept Indigenous artworks as evidence of continuous connection to Country which the law requires, without requiring an understanding of what an artwork ‘means,’ and that these artworks can be considered transitional objects which transcend legal understandings of tradition.Show less

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In the Penumbra of Meaning: The Probative Value and Meaningfulness of Ngurrara Canvas II and the Spinifex Paintings in Native Title Claims