At the time of writing, the Blue Mud Bay case is still in the court system. It is a complex case involving both native title and the ALRA—the latter with respect to the waters above the intertidal zone, which is Aboriginal land under ALRA. Both matters were run simultaneously, under native title conditions, that is, as a hearing before a Judge of the Federal Court. The determination (as finalised by Justice Mansfield following the untimely death of Justice Selway) found that Yolngu have exclusive native title to their land country, and while Justice Selway felt himself bound by the Yarmirr decision in the High Court to say that exclusive native title rights and land rights under the ALRA do not extend to the waters over the intertidal zone, this does not, in his opinion, reflect the situation under customary law which is no different to that on the land proper:

This initial finding can be seen as a partial victory—the most that could realistically be expected under the native title regime. It states, in effect, that prior to colonisation rom was sovereign both on the land and in the sea. But the Yolngu did not see this as a victory, and nor indeed was it, in terms of Realpolitik, since it did not give them the control that they were seeking over their sea country. For his part, Mr Justice Selway regarded his conclusions as problematic for reasons to do with the relative status of various kinds of European law, particularly the status of the common law ‘right to fish’ as against the status of fee simple under the ALRA, thus giving possible grounds for appeal. In the appeal to the Federal Court, three Federal Court Judges overturned the part of his determination relating to the operation of the ALRA in the intertidal zone, so that the waters over the intertidal zone now come under the ALRA (at least for the moment), and Yolngu (and all other traditional owners with coastal estates on ALRA land) have the right to exclude others from their intertidal waters. The case will now go to the High Court.

In the ‘recognition space’ of the native title arena the Yolngu, despite convincing the Judge that under their customary law they had the right to exclude others from their sea country, failed to get that exclusive right recognised in Australian law. Their interim victory on first appeal relies on the ALRA rather than native title, so has no implications for others outside the ALRA lands. From the perspective of the applicants if not from those raised to view the rules of Euro-Australian legal procedure as normative, irony has now taken centre stage. The only protagonists in the appeals process are judges and other lawyers—practitioners of Australian law. If Yolngu attend it is only as ‘the public’, although it is the fate of their sea country and of their relationship to it that is in the balance.

The Yolngu experience of the native title process has thus far been relatively benign, certainly by comparison with the experiences of some other claimant groups detailed in this volume (see e.g. Redmond, Chapter 4). They started from a position of strength. They already held their land country under ALRA, and they had never been alienated from or forced off their land estates, so that many of the issues about identity that other claimant groups face did not arise. As a collectivity they were able to show a united front, and to put forward a coherent, consistent and convincing account of their system of ‘laws and customs’. There were no competing claims. They brought to the arena a strong view of themselves as uncolonised subjects. The fact that part of the case related to ALRA rather than to native title was also an advantage, since there was the prospect of gaining delimited exclusive rights under that regime, whereas, because of Yarmirr, there was really no prospect of gaining exclusive native title rights to the sea. They also encountered a judge with whom they were able to forge a relationship of mutual respect, even if neither party fully understood the other’s agenda. Justice Selway’s clear insistence on the limits of his interests in the case, legally speaking, combined with his evident respect for their system of ‘laws and customs’, provided a space for Yolngu to reaffirm their sense of sovereignty—at least to themselves, and for the time being.

The Yolngu of Blue Mud Bay have not as yet been exposed to the full weight of codification, as described by Glaskin in this volume (Chapter 3), since there has been no move, as yet, to set up a prescribed body corporate for the claim area. For the moment, through resisting commensurability in the court, they have been able also to cleave to the ‘two worlds’ model, in which the state’s particular objectification of ‘their’ native title is seen by them as essentially irrelevant to rom and the social field that is founded in it.

However, in the court’s terms the dialogue could be perceived at most as being about jurisdiction, and ‘rights’. In the longer term the Yolngu view of themselves as encapsulated but not colonised—as ‘living in two worlds’—will come under increasing pressure. They have been able to sustain that view until now because ALRA, unlike most European law, appeared immutable. In reality, like any other piece of Euro-Australian law, it can be changed and its effects substantially undermined by a government with the will to do so operating in particular political circumstances. Those changes—which may be viewed as the final act of colonisation—are beginning to happen now.