Table of Contents
Native title has had a profound social impact in Australia. Its effects have been felt from the local level through to the national level ever since the success of the Mabo No.2 case in the Federal Court. But despite the involvement of large numbers of anthropologists in the field of native title practice (alongside lawyers, historians, archaeologists and others trained in the social sciences and humanities) there has been surprisingly little reflection on the social effects of native title. Native title law and native title claims, negotiation of Indigenous Land Use Agreements (ILUAs) and other processes associated with the Native Title Act 1993 (Cth) (NTA) and its amendments all present themselves as candidates for analysis by social scientists. But although there is now an extensive literature on native title, almost all of this literature is concerned with Native Title practice.[1] Far fewer scholars and practitioners—many of whom are publishing academics as well as consultants or employees of various agencies engaged in native title work—have engaged with native title as a social phenomenon potentially (we would argue necessarily) deserving of critical reflection.
This collection seeks to make a contribution towards the study of the social effects of native title. Based on a workshop which took place in November 2005 at The Australian National University, convened by the Centre for Aboriginal Economic Policy Research, the collection includes papers by anthropologists, claimants and other practitioners and scholars dealing with the direct and indirect effects of native title on particular places and people. In particular the collection provides a range of responses to widespread complaints by Aboriginal Australians and Torres Strait Islanders that native title delivers little in the way of meaningful recognition of customary property rights (or the systems of ‘law and custom’ in which these rights are embedded), that where such ‘recognition’ occurs it mistranslates and transforms local Aboriginal ‘cultures of connection’ to land, and that native title produces unnecessary conflict both between Indigenous groups, and also between claimants and other parties.
A critical examination of the effects or impacts of native title seems particularly timely. Following the Federal Government’s 1998 amendments to the NTA (the ‘10 point plan’) and the development of native title case law, native title has increasingly been seen as disappointing or even dangerous by many Indigenous Australians. As Lahn (Chapter 7) notes, the initial optimism that surrounded the Mabo decision has given way to a perception of relatively few benefits or even ‘further dispossession’ flowing from the NTA. Certainly, a number of prominent Indigenous commentators have questioned the trajectory taken by native title law. Noel Pearson, for example, has been extremely critical of the way that native title has come to take its meaning from the NTA and its amendments, writing that the High Court’s decision relating to the Miriuwung-Gajerrong people
has killed off any possibility that the common law of Australia would continue to provide the parameters for reconciliation between the sovereign claim of the Crown and the rights of indigenous peoples as the original occupants of their traditional homelands … [t]he High Court incorrectly, and with the consent of the Aboriginal parties appearing before it, treated native title as a creature of the Native Title Act rather than understanding that this legislation was never intended to change the concept of native title at common law (Pearson 2002).
For Pearson, this decision ‘short-changed’ Aboriginal Australians, being based on an ‘anthropological rather than common law’ conception of native title. Pearson’s comments, however, mask the fact that many anthropologists have themselves been critical of the direction taken by native title. But if we take his comments on an ‘anthropological conception’ to indicate a prescriptive rather than ‘open’ form of recognition, then they draw our attention to the effects of native title in delimiting and forcefully re-shaping the character of Indigenous ties to traditional lands.
There have also been increasing criticisms of native title from across the political spectrum. The Howard Government has been vehement in its ongoing criticism of native title, arguing both that native title has failed to deliver tangible benefits to Aboriginal people, and that it has significantly impacted economic development, particularly in ‘regional’ Australia. This continuing governmental critique has also led to practical interventions, most notably the Federal government’s ‘10 point plan’, developed in response to the success of the Wik and Wik Way peoples’ native title claim in western Cape York Peninsula. More recently, the Howard government has sought to overhaul the native title system to ensure the faster and more efficient processing of native title claims. In so doing, the government has inquired into the effectiveness of representative Aboriginal and Torres Strait Islander bodies, the relationship between the Federal Court and the National Native Title Tribunal, the effectiveness of Native Title Tribunal mediation, and the ways in which prescribed bodies corporate operate. On the basis of their continuing criticisms and interventions, it remains unclear to what degree the Howard government wishes to improve the functioning of Australia’s native title system and its ability to produce tangible effects, and to what degree the government wishes to further lessen native title’s impacts on the status quo.
In this collection, we identify three main effects of native title. Firstly, a number of the papers deal with the issue of recognition—the ways in which the native title process establishes particular groups of Indigenous Australians as (potential) ‘native title holders’. As a number of the papers suggest, rather than simply recognising pre-existent social groups and importing wholesale the manner in which traditional law and custom operate in local Indigenous contexts into the ‘mainstream’ or the ‘intercultural’ context of native title, the process of ‘recognition’ is necessarily partial and transformative. The ‘effects’ of native title thus include the ways in which ‘recognition’ operates as a particular social and cultural process.
Secondly, several of the papers explore the closely linked theme of translation. Anthropology—deeply embedded, in Australia, in the practice of native title and its social effects—is often spoken of (more or less problematically) as a discipline that specialises in ‘cultural translation’.[2] But translation is never a simple or direct process. For translation to be possible in any simple sense there must be commensurability between the terms of the two systems—linguistic or cultural—between which the act of translation is taking place. In practice, in translating a language—or a set of culturally inflected forms and practices—there is almost always a transformation. This goes largely unrecognised in the native title process, which in some respects can be viewed as an exercise in ‘enforced commensurability’ (Morphy, Chapter 2, and see Povinelli 2001). A number of the papers in this collection explore the effects of such translation-induced transformations both within the native title process itself (for example, in the courtroom or in the process leading to a consent determination[3]) and in the effects that ‘flow on’ from the native title process (in the existence and practice of codified native title ‘rights and interests’, and in acts of ‘misrecognition’, for instance).
Lastly, this collection explores issues relating to coexistence—the ways that particular individuals, groups and ‘peoples’ live together. This includes both the coexistence of different Indigenous groups or factions, who may either cooperate with and support or contest claims to native title by other Aboriginal people or Torres Strait Islanders, as well as the coexistence of Indigenous and non-Indigenous or ‘settler’ Australians. Taken together the papers reveal that the circumstances of coexistence vary considerably from place to place and context to context. More broadly, the papers also consider the implications of coexistence at broader levels—between State and Territory governments and Indigenous populations for example. In all of these instances, coexistence has been deeply affected by the ‘native title era’, in both positive and negative ways.
[T]here is a profound irony involved in the idea of recognition: the very desire that makes that ideal so compelling—the desire for sovereign agency, for an antidote to the riskiness and intermittent opacity of social life—may itself help to sustain some of the forms of injustice that many proponents of recognition rightly aim to overcome.
(Patchen Markell, Bound by Recognition, p. 5)
As Manu Barcham (Chapter 11) notes, the last 20 years have seen unprecedented levels of recognition given to the Indigenous peoples of Australia. Citing Fraser’s (1995) claim that the politics of recognition has replaced the politics of redistribution in Anglo-American counties, Barcham cautions that recognition involves particular social and cultural transformations which may produce problems as well as benefits for Indigenous people.
These problems of recognition are insightfully identified by the political philosopher Patchen Markell. Markell (2003)—building on Hegel’s account of the ‘struggle for recognition’, and responding to the recent explosion in the politics of recognition—identifies two interrelated grounds for concern about such a politics. Firstly, he suggests that we might take note of a strand of political thought, running from Tocqueville to Arendt, that cautions against the idea that we might be able to achieve certainty in social and political relations. Rather than being problematic, or even pathological, ‘uncertainty’ may well name an irreducible condition of human life. As several of the authors in this collection note, the desire for certainty has been at the heart of responses to the advent and development of native title. Moreover, it may well be that indeterminacy is even more important within the context of Indigenous cultural production than in other social and political contexts (see Smith 2003b). Even if this is not the case, Markell cautions us against a desire for certainty, through recognition, that may ‘blind us to certain ineliminable, and perhaps also valuable, aspects of our own situation’ (2003: 4).
Noel Pearson’s (1997) model of the ‘recognition space’ allows us to explore the operation and the perhaps problematic effects of recognition on the basis of native title in Australia. Pearson’s model—from which he has now resiled—presents native title as existing in the overlap between distinct fields of Aboriginal law and Australian law. This model has continued to be touchstone for those seeking to understand this process, in particular through the work of David Martin and Christos Mantziaris (see Mantziaris and Martin 2000; Martin 2004) cited by several of the contributors to this collection.
For Martin, the recognition space also involves a process of translation (see below) and a hegemonic, rather than equal interplay between the two forms of property law that coincide in this space. Further, Martin also notes that the recognition space is only one aspect of a complex series of interconnections between Indigenous and non-Indigenous sociocultural forms (see also Smith, Chapter 6).
In his review of Mantziaris and Martin’s (2000) book—which contains their account of the recognition space—Weiner (2003) claims that anthropologists need to be more critical of ‘the legalistic appropriation of anthropological and ethnographic methodology’ and deal with native title as a ‘total social fact’ (see also Lahn, Chapter 7)—that is, as a social phenomenon which re-shapes the local and broader social contexts with which it articulates. Martin (2003: 3) has, in turn, replied to Weiner’s critique, arguing that his and Mantziaris’s use of the ‘recognition space’ concept, criticised by Weiner as over-simplifying the complex interactions between Indigenous Australians and the wider society within which they are now encompassed, was for the limited purpose of identifying the difference between Aboriginal law and custom, and native title rights and interests that develop through the legal process of recognition. Taken together, Mantziaris and Martin’s book and Weiner’s critique are both of great use in understanding the processes of recognition operating within the native title process.
Another account of recognition in the native title context is provided by Patton (1995, 2000), who presents a critical account of the operation of native title law—that is, of native title as a ‘social fact’ in Weiner’s terms. For Patton, recognition is understood as part of a wider process of reterritorialisation in response to the threatened rupture of the fabric of the settler nation-state in Mabo No.2 and its aftermath. But this process remains ambiguous. While it involves the transformative ‘capture’ (rather than simply recognition) of Indigenous law by the common law of the settler state, it also bears the potential of a commensurate capture of the state by indigenous law and custom, a ‘becoming-indigenous of the common law to the extent that it now protects a property right derived from indigenous law’ (Patton 2000: 129, cited in Smith, Chapter 6).
Of course, many Indigenous claimants recognise these problems. As Morphy (Chapter 2) notes, the Yolngu of North-East Arnhem Land came to see the operation of native title as part of an ongoing process of colonisation, having brought with them to the arena a sense of being ‘encapsulated but not colonised’. Morphy argues that this does not involve a state of ‘false consciousness’ on the part of Yolngu claimants; rather, they recognised the power relations at play in the ‘recognition space’, but simultaneously problematised the legitimacy of the state’s assertions, and insisted on the continuation of other social domains in which their own law and custom remain autonomous from the state, and dominate the construction of social action.
In southern Australia too, Aboriginal people continue to express concerns about the non-Indigenous determination of the character of native title, and the compromises and effects of native title claims. Whilst some of the Aboriginal people of the Murray and Lower Darling Rivers have chosen to pursue native title claims, their recognition of the limited—and increasingly narrow—character of ‘recognition’ offered by native title has led to the formation of an Indigenous alliance, the Murray Lower Darling Rivers Indigenous Nations (MLDRIN), to pursue more meaningful recognition outside the ambit of the Native Title Act (Weir and Ross, Chapter 10). For the members of MLDRIN, traditional ownership pre-exists and extends far beyond the limited recognition of rights and interests available as ‘native title holders’. In negotiating agreements and partnerships outside of the native title framework, MLDRIN’s members see themselves as gaining forms of recognition that come far closer to recognising them as ‘self-determining’ traditional owner groups than would be possible under the NTA, and which do not subject them to ‘another colonial validation process’. But MLDRIN’s members also see advantages in the native title system. In particular, native title is seen as a means to gain broader recognition of Indigenous rights, despite the risk of a commensurate loss of recognition where claims are unsuccessful.
Although Aboriginal people may recognise the complexities of being party to the native title process, the question of false consciousness, however uncomfortable, cannot be ignored. Many Aboriginal people, for example, continue to understand native title as being bound to continuing Indigenous sovereignty and maintain that they are able to hold a part of their sovereign selfhood at a reserve from their articulations with the state and the ‘mainstream’. From the perspective of the courts enacting the native title process however—as Morphy (Chapter 2) rightly notes—sovereignty is not at issue with regard to the NTA. The High Court has already rejected the use of Native Title as ‘a vehicle to claim indigenous legal and political sovereignty’ (Mantziaris & Martin 2000: 28). To enter into a native title claim, no matter what reservations are voiced by claimants, is to submit to the state’s authority over the contemporary existence of indigenous property rights, even as they exist between Indigenous Australians. Whatever its potential ‘symbolic’ or ‘practical’ benefits, native title—at least as it exists under the NTA—involves the ‘radical enactment of sovereignty’ over colonised subjects (see also Lahn, Chapter 7). Further, the ability of Aboriginal people anywhere in Australia to think of themselves in a manner autonomous from the state and the mainstream remains open to question. It seems likely that many, if not all forms of contemporary Indigenous identity are at least inflected by forms of identity making—and the ‘politics of recognition’—that are deeply tied to the ‘encapsulating’ mainstream both nationally and internationally.
From this perspective, Aboriginal claims of autonomy from an encapsulating nation-state seem problematic. As Weir and Ross (Chapter 10) rightly note, it is impossible to unpick the assertions of Indigenous group identity in the Murray-Darling region from the intercultural environment within which it came into being and continues to operate. Whilst it may be true that MLDRIN has a distinct character as a result of having emerged as the result of contemporary Indigenous social action (albeit with roots in ongoing ‘custom and tradition’), both the kinds of group identities that coalesce within MLDRIN and the ways it operates as ‘traditional owner’ organisation are undoubtedly inflected by ‘complex historical processes of interaction’ between Aboriginal people and settler society (Weir and Ross, Chapter 10, citing Tully 2004). Both the forms of recognition offered to Indigenous Australians and the desire for recognition itself today form part of the intercultural existence of Aboriginal Australians and Torres Strait Islanders in the context of the nation-state (and, beyond Australia, the international context which is often cited by Indigenous Australians as a source of potential recognition beyond the limited forms offered by Australian governments).
One of the most common complaints Aboriginal Australians make about the native title process—itself based in a sense of autonomy and a desire for self-determination—is that native title involves ‘Aboriginal people having to prove our right to “them” [i.e., to settler Australians and ‘their’ legal system]’. From this perspective, native title is again seen not just as a system of recognition, but also as a system of continuing colonial domination—Aboriginal people have to prove their ‘rights’, whilst settler law not only remains unquestioned, but also retains the authority to rule over the acceptability of Indigenous claims (cf. Morris 2003). Nonetheless, the desire of many Aboriginal people to gain recognition in the eyes of Australian law as ‘traditional owners’ puts many people in a position in which they must necessarily endure this process and its perceived inequities or questionable authority in order to protect their interests and continue to benefit from their connection to their country.
The authority of the non-Indigenous system of law in the native title context is evident in Morphy’s description of the court proceedings in the Blue Mud Bay Native Title Claim (Chapter 2). Morphy notes the existence of elaborate court rules which determine who gets to speak, in what way, and at what points. This discursive structure emphasises the authority of the Judge, who can choose to speak freely at any time. But the Yolngu claimants, who are the most knowledgeable about their own system of ‘laws and customs’, have the most severely curtailed rights to speak in the space of the court. As Morphy notes, the court rules which structure the admissibility (or not) of various kinds of discourse (and of various speakers) ‘seems designed … to emphasise the power of European law by systematically constraining the ability of the knowledgeable practitioners to express that law clearly in its own terms and in its fullness’. The result of these rules is that Yolngu law is ‘present, but not enacted’ in the court, ‘rather, it is explicated through the mediating discourse of examination and cross-examination’, which constrain the way in which Yolngu law is represented, forcing it to become merely subsidiary to both the terms and authority of European law.
The authority that inheres in the ‘ritual space of the court’ is also made evident in other ways. As Pierre Bourdieu has demonstrated, the organisation of particular social spaces is deeply connected to—and reproductive of—socio-religious structures. Like the Kabyle house analysed by Bourdieu (1977), the European courtroom, constructed according to an established set of rules, brings those attending the court into a spatial field saturated by particular cultural orientations. Whilst many such spaces appear as apparently culturally-uninflected or neutral to those whose own selfhood is established in the socio-cultural milieu from which the space is drawn, Morphy’s identification of the courtroom as a ‘ritual space’ makes it clear that its intrinsic meanings are experienced as forceful even by those—the Judge, court officials, lawyers—to whom it is familiar. For other participants—in particular, the Yolngu claimants—the court is alienating not because of a simple cultural disjuncture, but because this disjuncture is one inextricably tied to the ritual performance of power in the person of the Judge and the legal apparatus he or she represents. Thus even before the court makes its authority evident through disciplining speech, this authority is established prima facie by the courtroom itself. As a literal manifestation of the supposed ‘recognition space’ of native title, the courtroom makes it abundantly clear to all participants—and to Aboriginal claimants in particular—that any such recognition will take place on the basis of particular cultural foundations, and under the authority of the Australian legal system.
As Morphy makes clear, however, although Yolngu claimants were forced to accommodate the court’s authority within the native title process, they were also able to make their own system of law visible within the space of the court. Moreover, events that occurred during the court hearings were taken by the Yolngu claimants to be evidence of the power of an autonomous system of ancestral law that continues to inhere in country regardless of the attempts of Australian law to superimpose itself on Yolngu homelands.
Yolngu claimants successfully endeavoured to make their own law evident in the court through performing a ceremony to ‘welcome’ the judge and the court. Such performances, of course, continue to be an enactment of the local authority of particular Aboriginal groups. In participating in this ceremony (and a later performance of Yolngu law at Blue Mud Bay itself) the court implicitly acknowledged the ownership and authority of the clans conducting the welcome. Further, as Morphy notes, the ceremony spatially disrupted the court space, displacing most of the court officials and other non-Yolngu. This spatial displacement—notably not including the judge—made further implicit demonstration of the delimited nature of Yolngu claimants’ accession to the court’s authority.
The court’s authority was further undermined, from a Yolngu perspective, by events that occurred during ‘site visits’ within the claim area. In particular, unusually rough conditions during a boat trip were interpreted by Yolngu claimants as a manifestation of local ancestral beings’ displeasure. The evident power of these beings was evidence, for Yolngu, of incommensurability between ‘European’ and ‘Yolngu’ law. Whilst the court might insist on its own authority and power to shape the conditions of recognition within its own ‘recognition space’, the power of Yolngu ancestors made it evident that the court proceedings were unable to affect the ancestral power that underlies the Yolngu law and custom on which the court sought to operate.
The problem is, of course, that the NTA has extended the power of the Australian legal system further into Aboriginal lives. Even for the Yolngu of Blue Mud Bay, the power of local ancestral beings has only been able to translate into restricted intercultural rights with regard to the waters of the claim area. And these rights have themselves been objectified and transformed by the native title process.
The process of recognition entails the objectification, codification and hence reification of certain aspects of cultural practice as property rights under native title. This can lead to tension between the resulting textualised reifications of customary tenure and local Indigenous practice, as is demonstrated in the papers by Claudie (Chapter 5) and Foley (Chapter 9). For Claudie, native title process generates and supports structures that are at odds with local Indigenous land tenure and governance systems despite its supposed basis in recognising ‘traditional law and custom’. In central Cape York Peninsula, native title claims lodged on behalf of broader language-named identity groups fail to take sufficient account of local principles assigning primary interests in particular areas to specific families or descent groups, or assigning the right to speak authoritatively to country differentially amongst the people associated with a particular area. Although both native title case law and the complexities of connection arguably make it necessary to be broadly inclusive in determining a claimant group in this region, such broad-based claims then allow for the possibility of the assertion of interests by members of the claimant group at odds with local Aboriginal law and custom.
Foley makes similar criticisms in relation to the effects of both the New South Wales Land Rights Act 1983 and the NTA. In Foley’s opinion, the New South Wales Act enabled a ‘land grab’ by local Aboriginal Land councils, often without the involvement or consent of local Aboriginal people. These land councils are perceived as being duplicitous in advertising and organising meetings, and excluding other Aboriginal people, in order to meet the needs of members exercising control over the council. If some land councils have been remiss in serving their constituents or clients, a number of Aboriginal people believe that others may have purposefully manipulated their role for personal benefits.
In the particular case discussed by Foley, the situation is made more complex by the fact that those Aboriginal people controlling the local land council do not identify themselves as traditional owners of areas which they control. Further, they have denied the continuing existence of any traditional owners in some of these areas, despite dealing with people on the basis of their ‘custodianship’ of these areas in other contexts. Foley argues that the current land council system needs to be revised to include traditional owners or custodians on executive committees, greater transparency in the operation of the land rights system, a land sales register created to protect those Aboriginal people who are not members of the local land council, and a review undertaken of who is able to act authoritatively in ‘cultural heritage’ matters (such as site clearance in advance of development projects).
In other instances, the dynamics of identification and objectification within the native title process—as well as in ‘land rights’ legislation—may have less problematic outcomes from the perspective of ‘local’ claimants. In Chapter 7, Lahn describes the way that native title claims produce new social groupings in response to the terms of the NTA and its interpretations. Lahn describes the situation on the Island of Warraber in the Torres Strait, where there are two contrasting modes of Indigeneity—netiv (‘native’) and porena (‘foreigner’).
Although all Warrabeans can trace both native and foreigner forebears, a local emphasis on patrilineal descent means that the majority assert a porena identity. A successful claim under the Torres Strait Islander Land Act 1991 (TSILA) proceeded on the basis of ‘customary affiliation’. However, the relatively open definition of key terms in the TSILA allowed recourse to local accounts of Ailan kastom (‘Island tradition’), leading to a claim by a ‘clan’ group whose membership depended on either consanguineal or affinal ties (i.e. ‘blood’/’descent’ ties or ties through marriage) to families identified with a Vanuatan forbear. The principles of membership allowed for the emergence of an ‘inclusive and seamless’ claimant group.
Following TSILA claim, Warraber residents initiated a NT claim. However, as Lahn notes, ‘[t]he Native Title Act demanded a demonstration of emplaced social identity that was subject to much more sharply delimited terms of authenticity and legitimacy than [in the] TSILA’—in particular by emphasising specific forms of continuity with the colonial past. Lahn, who worked on the ensuing native title claim, notes that despite the superficially straightforward nature of producing a connection report in this context (e.g. identifiable Warraber ancestors present at annexation in 1872), the Warraber native title claim faced a fundamental problem. The laws and norms that shape the native title process ‘marginalised and potentially stigmatised’ the local principles that underlay the ‘clan’ identity which provided the focus for the TSILA claimant group. The principal ancestral figure in the previous TSILA claim was not a Torres Strait Islander and had never resided on Warraber, a situation that infringes what have come to be regarded as key requirements for the consent determination of native title in the State of Queensland.
As a result, a new group identity was asserted for the purposes of the native title claim, based on a number of netiv forebears (most of whom were women) and a collective identity as Warraberalgal (‘people belonging to Warraber’). This new group accorded with the conditions for successful native title, but did so through departing from the normative local emphasis on male forebears and the established porena forebear-focused Gau Clan identity. As Lahn notes, the Warraberalgal native title claimant grouping marked native title as a realm of intercultural production, where an emergent group (and the linked local process of collective representation) was determined as much by the formal and informal expectations of the state as by continuities in local law and custom.
The contemporary and historical complexities of group identities are often elided in native title claims. This is ironic, given that native title has emerged as a historical context of particular import in the refiguring of local identities and groups. Whilst the need to ‘get a claim over the line’ is often seen as impeding a critical examination of regional histories of the articulation of Aboriginal identities, the papers in this collection point towards a rich and relatively under-examined aspect of Indigenous Australian life-worlds and their articulation with the Australian ‘mainstream’. As the papers here indicate, native title can be the context for the development of new groups, the resurgence of ‘undergrounded’ Aboriginal identities (Sutton 2003) and the transformation of extant social categories in a changing intercultural context.
Here the effects of native title are shaped by the relatively conservative and limited forms of recognition it offers, forms that nonetheless have radical effects on both the ‘content’ of native title and the local social fields in which it acts. Like all social milieus—in particular those which have emerged from a recent history of colonialism—the life-worlds of Aboriginal Australians are founded in the interplay of received forms of knowledge and action (‘traditional law and custom’) and historical changes and interactions (see Smith, Chapter 6). However, native title tends to engage poorly with such histories, emphasising what is perceived to be traditional and excluding or rejecting what has been subject to profound historical impacts. One key effect of native title has been to crystallise local distinctions between ‘traditional’ and ‘historical’ people on this basis. As a result, a number of Indigenous settlements have experienced increased levels of conflict and stress as families who regard the settlement as their home find that they are being identified as ‘second class citizens’ in relation to those who identify and have perhaps succeeded in being recognised as ‘traditional owners’.
However, as Foley and Claudie’s papers suggest, this emphasis on the ‘traditional’ occurs in particular and limited ways. The ‘traditional’ recognised within the native title process may be at odds with what local Aboriginal groups or individuals regard as ‘proper’ law and custom, allowing ‘outsiders’ or those considered to have little or no traditional authority position themselves as ‘traditional owners’, and marginalising those who regard themselves as truly authoritative or entitled.
The distinction between tradition and history is also explored in Weiner’s paper (Chapter 12), which suggests that the distinction represents an ongoing inability of anthropologists (and of the native title system more generally) to grapple with the relationship between cultural change and continuity as a result of differentiating social structure (or ‘tradition’) from historical processes and subjective experience. This problem is compounded where Aboriginal people insist on the unchangeability of the Law, a commensurate refusal of a constitutive relationship between culture and history.
Weiner notes that in a number of native title claims, issues of connection have been approached through a separation of accounts of historical occupation and activity on the one hand, and the cosmological reckoning of connection on the other. As he rightly points out, this bifurcate approach handicaps the possibility of presenting the two aspects of Indigenous connections as deeply imbricated in one another. In limiting the anthropologist’s (and other ‘experts’) presentation of the iteration of ‘traditional law and custom’ through a history of practical engagements with ‘country’, this approach also limits the possibilities of arguing for the interweaving of change and continuity that likely exist across all of ‘Indigenous Australia’. Further, to not link the two, from the perspective of social science ‘expertise’ is disingenuous—as Weiner notes, the distinction, in social science terms, is ‘insupportable and factitious’.
For Weiner, the connections between history and anthropology have become increasingly hard to develop given the increasing acceptance of what he calls ‘the project of mythopoeia’ or ‘memoriology’, a blurring of the distinction between myth and history which leads to essentialist constructions of enduring cultural identities (see also Smith 2006). He notes the widespread use of oral history in native title claims as an alternative to (often absent) written records of previous Aboriginal social action. As Weiner notes, oral histories are often counterposed to ‘objective history’, polarising Aboriginal and non-Indigenous positions; proponents of Aboriginal rights simultaneously insist on the lack of difference between oral histories and written histories, equating them simply as equivalent kinds of texts. In insisting that this equivalence should be refused, Weiner does not seek to denigrate oral history. Rather, he draws our attention to the ways in which oral histories are aspects of the cultural constitution of identity. A particular kind of meaning-making that emerges from the interplay of event and human apperception, oral history, like other forms of mythic iteration, can be usefully examined by anthropologists assessing the continuities of law and custom in a particular milieu.
Building from Weiner’s argument, it may be that anthropologists working in the field of native title might usefully examine the construction of the claimant group—and the arguments or reasons cited by claimants for this construction—as evidence for particular (and perhaps ongoing) forms of ‘customary’ practice. Doubtless, the desire evident both amongst anthropologists and other professionals working in the field of native title to present less processual accounts of group-ness limit the acceptability of this approach, providing further evidence of the kinds of bad faith that are evident in native title practice. Such an approach also involves a greater commitment to lengthy ethnographic research, which few NTRBs would be able or willing to support. Nonetheless, as Weiner argues—and as Lahn’s case study (Chapter 7) also suggests—a defensible anthropological analysis of ‘law and custom’ must necessarily take account of the various forms of conjuncture (both between settler and indigenous histories, and between indigenous groups themselves) through which current Indigenous connections to country have been constituted. The problem remains whether such accounts will not open the claimants to challenges that may well lead to a finding of a ‘loss of continuity’ by courts that are less able or willing to accept such accounts of connection.
This ability of the courts to determine the extinguishment of native title is a major concern of native title practitioners, whether such extinguishment occurs on the basis of radical transformation of local Aboriginal law and custom or the development of settler property rights in a given area (in particular the granting of freehold tenure). As Lahn notes, rather than recognition per se, native title’s principal effect may be the delimitation of Indigenous relations to land, or the endorsement of claims of extinguishment (see also Morris 2003). Further, as Wolfe (1999: 202) argues, the forms of ‘repressive authenticity’ demanded by native title displace the burden of historical extinguishment from the expropriating agency of the state to the character of the claimant group.
The outcome of the Yorta Yorta claim looms large in the native title landscape as the paradigmatic determination of the historical extinguishment of native title. In the Yorta Yorta claim Olney J found that the ‘tide of history’ had washed away any substantial continuity in law and custom among the claimants and their forebears (see Weir and Ross, Chapter 10).[4] The Yorta Yorta case made it clear that Aboriginal claimants—in particular those in the ‘settled south’ of Australia—would be subject to extremely conservative and limited grounds for recognition of their law and custom, although the recent finding in the Noongar case makes it clear that, in some cases at least, native title is able to be recognised in the ‘south’, albeit in extremely limited forms.
Following Yorta Yorta it has become evident that native title, as it exists under the Native Title Act, may be at odds with a continuing local system of Aboriginal law and custom pertaining to a particular area. Scambary (Chapter 8) notes that the Larrakia people of Darwin, like the Yorta Yorta, have been unable to gain legal recognition of native title rights and interests despite the court’s recognition of the Larrakia community as ‘a vibrant, dynamic society which embraces its history and traditions’. In the Larrakia claim, the effects of the settlement of Darwin, the arrival of other Aboriginal people into the area and the impacts of government policy proved enough for Mansfield J to find that the claimants had failed to maintain the required form of traditional and cultural continuity. As Scambary notes, this decision seemingly demonstrates the inability of the NTA to recognise a ‘vibrant’ society, with clear connections to its history and customs as native title holders.
Like the Warraber claim described by Lahn, the Larrakia native title claim was preceded by a land rights claim (under the Northern Territory’s Aboriginal Land Rights Act (ALRA)), which led to the coalescence of a particular named group asserting customary ownership of the land in question. Unlike the TSILA claim, however, the Kenbi ALRA claim fed into the production of a series of disjunct, competing groups asserting traditional rights over parts of the wider Darwin region. Competition between Larrakia factions included the establishment of separate corporations and public contestation at opening ceremonies of other Larrakia groups’ credentials. The establishment of an umbrella organisation—the Larrakia Nation Aboriginal Corporation—intended to provide a corporate identity for Larrakia factions also had the unintended result of supporting Mansfield J’s determination of extinguishment, being cited as evidence for the radical transformation of traditional decision-making processes.
Dissatisfaction with the limits of recognition of customary land tenure and other aspects of Indigenous Australians’ connections to their country have led an increasing number to seek alternatives to the native title system.[5] In central Cape York Peninsula, for instance, Kaanju people’s dissatisfaction with native title—discussed in Claudie’s paper (Chapter 5)—has led to alternative strategies for the recognition of Kaanju aspirations for land management. In particular, Kaanju people have developed a proposal for an Indigenous Protected Area (IPA) under Federal environmental legislation, which they have used as the basis for partnerships with various governmental, non-governmental and private sector organisations to gain recognition of their indigenous system of governance and management (see Smith and Claudie 2003). The Yolngu are also following this course, with the recent declaration of stage 1 of the Laynhapuy IPA in the Blue Mud Bay area. Similarly, members of several Aboriginal traditional owner groups from the Murray and Lower Darling Rivers in south-eastern Australia, as well as the Wotjobaluk of the Wimemera-Mallee country (see below),[6] have negotiated agreements with the Victorian government and other ‘mainstream’ agencies outside of the NTA. In the case of the Murray and Lower Darling Rivers groups, this course of action has been taken partly in response to the failure of the Yorta Yorta people (who are one of the Indigenous ‘nations’ on the Murray River system) to have native title rights and interests recognised (see Weir and Ross, Chapter 10). All of these cases demonstrate an increasing desire of Aboriginal groups (and government agencies) to circumvent the NTA and find other routes to developing meaningful and substantial forms of recognition of traditional ownership that lead to tangible social, economic and environmental outcomes.
In many cases, the ‘business’ of recognition may be impeded by the complex dealings between parties representing Aboriginal claimants and other stakeholders in the native title process. Claudie (Chapter 5) outlines perceived failings by a regional land council, which was seen to be responsive rather than proactive in its engagements with the State government. As Claudie points out, these frustrations are (in part, at least) explicable as the result of limited resources and staff, such that land councils are unable to progress all but the most pressing matters at any given time. Even where the reasons for such delays are explained to claimants (and this is not always the case), they do little to persuade Aboriginal people that they are being well served by the native title process.
Doubtless it is these kinds of complexities, in addition to the limited outcomes available in most (although not all) cases, the unpredictable outcomes of court decisions, the lengthy negotiations that may eventually lead to a consent determination, and the kinds of intra-Indigenous and local conflicts that develop in the native title context which have led to the seeking of alternative routes for recognition of indigenous ties to land. Nonetheless, it is unclear how many of these alternatives would be available without the pressure exerted on other partiers by native title claims. In any case, it is clear that we are now dealing with a complex and evolving system of recognition, within which Aboriginal people and Torres Strait Islanders are increasing their ties with ‘mainstream’ agencies and organisations—and the rest of Australian society—whilst retaining distinct identities as members of particular Indigenous groups.