Effects of Native Title Workshop

Manuhuia Barcham, Massey University

Temporality, Place and Being: Australian Native Title and the Concept of Cultural Authenticity

[Abstract to Follow]

Barendji Gadgin Land Council Aboriginal Corporation

Lyn McLachlan, Horsham Office, Department of Sustainability and Environment

Patrick Fricker and Colin Leigh, Indigenous Partnerships, Parks Victoria

Elizabeth Dalgleish and Graeme Aitken, Native Title Unit, Department of Justice

Beyond native title in the Wimmera: The Wotjobaluk, the State and the importance of doing it local

In Victoria, the Native Title Act 1993 (Cwlth) provided the impetus for a broadening of public policy in the area of Aboriginal Affairs. Most significantly, there was a policy shift from a focus solely on a problem-solving approach addressing Aboriginal social and economic disadvantage to a broader approach involving recognition of Aboriginal people as traditional owners and as the rightful custodians of Aboriginal culture. This latter approach focused on strengthening Aboriginal identity through connection to land and culture as part of a vibrant, living culture.

As part of this approach, the Victorian Government engages with claim groups on their aspirations for the future, particularly those aspirations that underpin their native title claim through the mediation to the resolution of claims. 'Non-native title benefits' such as administrative funding, cultural projects and constructive engagement in Crown land management have formed part of packages aimed at claim resolution. These non-native title benefits may form part of a package irrespective of whether a positive consent determination of native title is possible. However, for claim groups these non-native title benefits are often unattractive for two main reasons. They are tied to the surrender of native title and they take many years to realise.

Against this backdrop, the Barendji Gadgin Land Council Aboriginal Corporation (Wotjobaluk traditional owners) and the State initiated a number of partnership projects:

• the WIRMP (Wimmera Indigenous Resource Management Partnership) group,

• the 'Engaging Indigenous Communities (Native Title and Cultural Heritage)' training course,

• the Ranch Community Partnership Project,

• the Wotjobaluk Information, Interpretation and Education Project, and

• the Wotjobaluk Oral History Project.

These projects have required substantial personal and professional commitment from both the Wotjobaluk traditional owners and State representatives though the core strength of all these projects has been the focus on doing it local; all projects are local to the Wotjobaluk traditional owners, to their land and to their culture.

Paul Burke, PhD Candidate, School of Archaeology and
Anthropology, The Australian National University

The effect of native title on anthropology and law

At an intermediate level, between Aboriginal lifeworlds and the politics of statecraft, native title can also be seen as the interaction of the field of Aboriginalist anthropology and the juridical field. The interaction of these fields, through the report writing and courtroom performance of the expert anthropologist and the obligation on judges to find facts within the largely indeterminate legal doctrine of native title, has its effects in both fields. This paper undertakes an initial exploration of these effects. In the field of Aboriginalist anthropology there has been a juridification of fieldwork with the prospect of fieldnotes playing a part in native title litigation. There has also been an intensification of tensions between applied and academic orientations. This has happened at a time of increasing complexity of possible theoretical approaches within anthropology, a complexity that typically must be downplayed to manage the positivistic assumptions of forensic fact-finding. The management of theoretical complexity is portrayed either negatively, as a betrayal of intellectual rigour, or positively, as professionalism. To break out of the perceived encapsulation of Aboriginalist anthropology by native title, some have attempted a counter-encapsulation of law within anthropological explanation, but with limited success. In native title, the juridical field tends to swallow and digest Aboriginalist anthropology for its own purposes using existing forensic techniques and prerogatives. But indeterminate legal categories in native title do produce tensions at different levels of the juridical field. These tensions are exemplified in the current denial by the High Court of its primary role in creating the legal doctrine, problems of how to limit appeals to questions of law, and the wide variation in the approaches of different judges to procedure and fact-finding, including looking to anthropology to resolve central indeterminacies and to share responsibility for difficult decisions.

David Claudie, Kaanju Traditional Owner and Chairman, Chuulangun Aboriginal Corporation

'We're tired from talking … when are we getting our land back?'

The native title process from the perspective of Kaanju People living on homelands, Wenlock and Pascoe Rivers, Cape York Peninsula.

This paper investigates the native title process from the perspective of Kaanju people living on homelands at Chuulangun on the upper Wenlock River in central Cape York Peninsula, Northern Australia. Our experiences with native title reinforce our view that the native title process is at odds with Indigenous land tenure and governance systems, creates and maintains obstacles for the carrying out of traditional land and resource management obligations, and are antithetical to the homelands development and economic development aspirations of Kaanju Traditional Owners living on homelands.

This paper draws, in particular, on the experiences of the Kaanju people with a native title claim to some 241,000 hectares of our homelands centred on the Wenlock River in Cape York. This claim was lodged with the National Native Title Tribunal in 1997 and eight years on we are 'tired from talking' and engaging in a process that works on the assumption that we have to justify and prove our ownership of homelands, while government and other 'stakeholders' presume control over our traditional lands.

This paper stresses three main points:

1. Our frustration with the native title process that has:
• Accommodated the 'interests' of the State government and other 'stakeholders' to the detriment of our rights as traditional owners.
• Led to proceedings being dominated by claimants whose connections to the area under claim are questionable, and are based on false presumptions relating to 'tribal' identity.
2. Our serious concerns about the ability of the Native Title Act (NTA) and the system of Prescribed Bodies Corporate (PBCs) contained in the NTA to adequately and effectively recognise 'proper' on-ground indigenous governance, primary Indigenous land and resource management and decision-making for homelands, and the right of traditional owners to use and develop their land and associated resources economically in order to sustain their people and land into the future.
3. Recognition by the NTA that Aboriginal people should be compensated for their sovereignty being taken out of the land.

Dennis Foley, Koori Centre, The University of Sydney

What has native title done to the urban Koori who is a traditional custodian?

White discourse which is 'native title' can stifle, smother and extirpate custodial Indigenous knowledge to the point that government policy and expert opinion from the legal fraternity and the anthropological industry become the owners of knowledge in modernity. Indigenous knowledge is considered only when is agrees with the non-Indigenous expert (or can be used as evidence against the claimant).

In the eye of the law and the anthropologist's pick and shovel, can urban Blacks be traditional custodians of knowledge when they have been the subject of 217 years of persecution?

Why are these people conveniently classified as extinct in NSW to suit pre-Mabo and pre-Wik legal precedence in the NSW Land Rights Act? Why is custodial knowledge dismissed, yet the small groups of coloured people who espouse extinction then claim to be the 'true' Indigenous owners through the power structures of specific land councils? Ironically they are given legitimacy under 'NSW Statute law' and become custodians in European terms over issues of native title and subsequently reconstruct or invent cultural knowledge.

Native title sits on the tongue of some traditional custodians as does mucus rise from the throat when suffering a chest infection. To some, native title is a virus, an infection of modernity. This is the experience of one small group of Guringah people, the custodians of knowledge of the northern suburbs of Sydney.

Katie Glaskin, University of Western Australia

Claim, culture and effect: Property relations and the native title process

Work on the Bardi and Jawi native title claim first began in 1994, when the Native Title Act was quite new. The case was heard at various times between the years 2001-2004, and in 2005, French J., the second trial judge to hear the case, made a determination. For Bardi and Jawi, the prolonged (and often onerous) process of claiming country has had a number of impacts, effects and consequences. This paper considers just one aspect of these: a changing consciousness about 'culture'. As Bardi have engaged with native title, some of the 'compelling but largely implicit premises of cultural practice' (Scott 1993:322) have been brought into the realm of discourse, objectifying particular aspects of 'culture' and relations to country. Based on fieldwork carried out between 1994-2003, I will argue that these objectifications, in turn, have had implications for the articulation and enactment of property relations within the group.

Sarah Holcombe, Centre for Aboriginal Economic Policy Research, The Australian National University

The management of Indigenous heritage in land use agreements in the Pilbara: Rights and risks

This paper explores the effects of native title on the engagements between resource developers, Native Title Representative Bodies (NTRBs) and Indigenous stakeholders. Land use agreements are a negotiated outcome under the Native Title Act 1993 (Cwlth), which ensures land access to resource developers. This particular case study will focus on land access procedures that are embedded in the Pilbara Rio Tinto Yandicoogina (aka 'Yandi') agreement. Rio Tinto made the business case for working under the Act in 1995 when the then CEO, Leon Davis, stated that the company 'is satisfied with the central tenet of the Native Title Act'. Yet, how does this business case translate 'on the ground'? In such situations, land access is ideally mediated by the regional NTRB, but there are many factors, historical, legal and otherwise, mitigating against this. The Yandi agreement's heritage program fulfils the legal requirements of the Western Australian Aboriginal Heritage Act (1972), while the agreements' 'program goals' voluntarily exceed the Heritage Act's minimal requirements. Other Western Australian agreements have different models of heritage management, depending to some degree on outcomes by native title claimant groups and the extent of the claim area these agreements encompass. What are the implications of the Heritage Act being utilised by resource developers, such as Rio Tinto, in a manner suggesting there may be wider community relations benefits? And how might this be reflective of the structural and political tensions between the legacy of a historically self-regulatory environment, under which the resource sector has traditionally operated in WA, and the contemporary post-native title environment in which they find themselves today?

Craig Jones, Native Title Studies Centre, James Cook University

Is co-existence possible? The future of rural Australia post native title

Rural communities are seeking to establish a right to the future; if you like a path way to self-determination. The term self-determination has been commonly applied to the aspirations of Indigenous Australians since the 1970s. The term has been rarely applied to the aspirations of non-Indigenous Australians. With advent of native title in 1992 and the subsequent High Court Wik decision in 1996, native title has become part of the Australian landscape, indeed some 75% of Australia is potentially affected by native title.

Native title has often been painted as a war between pastoralists and Aboriginal peoples. This war has mostly been fought in the courts with both sides viewing the outcomes with limited satisfaction. A new trend is emerging where the debate between the parties is no longer about rights and interests but rather about the nature and shape of the future. Can rural communities establish a workable co-existence and is this a tool for Indigenous and non-Indigenous self-determination? Are the agreements and the process a result of the frustrations that the parties have with native title in its legal manifestation? This paper will investigate a number of case studies in Northern Australia in land use and access agreement-making with a view to answering these questions and the implications of agreements outside of the native title determination process.

Julie Lahn, Regulatory Institutions Network, The Australian National University

Native Title and the Torres Strait: encompassment and recognition in the Central Islands

This paper focuses on the residents of Warraber and Poruma Islands in central Torres Strait and compares their experiences pursuing two successful land claims, initially under the Torres Strait Island Land Act (TSILA) and then through the Native Title Act (NTA). Difficulties that emerged in shifting from a TSILA-based approach to the demands of NTA involved issues of local ancestry, details of land ownership and the nature of male knowledge. The outcome in terms of local representation highlights both the constraints of native title and the extent to which it is must be seen fundamentally as an intercultural product, emerging from the interaction of multiple points of reference and modes of understanding which are not equally influential or weighted in terms of ultimate outcomes. The paper illustrates Islanders' ability to deal creatively with state-sanctioned regimes of value in pursuing their aim to gain recognition of substantial and enduring relations to their islands while maintaining a commitment to the core terms of local relatedness.

Gaynor Macdonald, Department of Anthropology, University of Sydney

Recognition by whom? Native title outcomes in south-eastern Australia

My experiences with native title processes in New South Wales and southern Queensland suggest that native title has proved to be, as Francesca Merlan once predicted, 'a birth and an abortion'. Who has 'benefited' and in what ways? Why has native title been important in this region? This paper will examine the processes of re-constituting spatialised and social selves in response to native title agendas as these have played out in three different rural areas. It will examine the contests over mapping, over traditions and histories, and over culture and colonisation. It will look at the concretising of bounded groups who are now defined in oppositional terms, and how warm fuzzy notions about the closeness of kin and community seem to have been blown apart. Yet native title has also brought people together and enhanced relations at a local level in ways once thought unimaginable. How should we understand the complex of outcomes which have significantly reshaped social and political organisation? Has native title been a positive or negative influence? What criteria might be applied to even address such a question? What do its outcomes reveal about Aboriginal cultural histories and contemporary politics; and about Aboriginal aspirations (or otherwise) in the context of modernity?

David Martin, Centre for Aboriginal Economic Policy Research, The Australian National University

Effecting change in Aboriginal lives: A failure of Australian native title anthropology?

Noel Pearson has characterised Australianist anthropology as a 'B-Grade industry', in part because of what he sees as its failure to productively engage with the courts and its consequent implication in the increasingly restrictive judicially-constructed framework in which native title is interpreted and determined. From within anthropology itself, James Weiner has provided trenchant criticism of those anthropologists who, in his view, accept native title as it is constructed by the law, rather than analysing it as 'total social fact'; that is, how it organises and informs disparate relations, practices and institutions throughout the complex social field in which Aboriginal and non-Aboriginal people engage.

This presentation critiques the role of anthropology in the native title arena, but from a different, if not unrelated, direction. It argues that we have typically failed to strategically engage with the implications for our applied native title practice of an increasing disparity between goals and aspirations of Aboriginal claimants, and the legal construction of native title rights and interests. Too much anthropological attention seems to focus on trying to force poor evidentiary material and sometimes even poorer analysis though the eye of the consent determination needle. This presentation argues that it is naive and unprofessional, and indeed counterproductive, to seek to challenge the legal construction of native title from our positions within formal native title processes themselves; for example through implicit (and often explicit) advocacy in the preparation of 'connection reports' for proposed consent determinations. It suggests that one more productive way to integrate our practice of theory with our theory of practice is to bring our analyses of the disparity between native title as 'total social fact' and native title as legal construct to bear through robust (rather than complicit) evaluations of the available evidence in claims on which we are working, and where possible and appropriate, equally robust advice as to alternative means of meeting claimants' aspirations, including those through the ILUA provisions of the Native Title Act.

Frances Morphy, Centre for Aboriginal Economic Policy Research, The Australian National University

Mutual non-recognition? The Yolngu of Blue Mud Bay meet the native title process

This land was never given up
This land was never bought and sold
The planting of the Union Jack
Never changed our law at all
(Yothu Yindi, Treaty, 1991)

The Yolngu who live in the remote homeland settlements of Blue Mud Bay in north-east Arnhem Land have a long history of resistance, both formal and informal, to the colonial process. The applicant group in the Blue Mud Bay native title claim to the seas and intertidal zone of the northern part of Blue Mud Bay included many descendants of the signatories to the Bark Petition, one of the interpreters in the Gove Land Rights case, the sons of the man for whom that case is named, many other descendants of witnesses in the case, and two signatories to the Barunga Statement. The late Mr Justice Selway, the Federal Court Judge who heard the Blue Mud Bay native title case, recognised that the Yolngu of Blue Mud Bay considered this case to be just one battle in a long campaign for their right to control what happens on their land and sea country.

I will argue in this paper that the native title process is a new stage in the process of colonisation, in which the recognition of 'native title' is used, ironically, as a means to subjugate 'customary law'. While this is hardly an original observation, the nature of the process is starkly revealed in the Blue Mud Bay context. Here the land has never been alienated in any real sense, and it became Aboriginal Land under the Aboriginal Land Rights Act (ALRA), so that people never had to undergo the land claim process in order to secure title to their land country. They have, however, seen the land of closely related groups alienated to the mining venture on the Gove Peninsula, and in some ways they regarded the Blue Mud Bay case as their equivalent of the Gove case, relating in this case to the sea.

I will argue that the Blue Mud Bay native title hearing was an arena in which two discourses were developed in parallel. The barristers were the architects of one of these. The rules of this highly rule-governed discourse (rules which were never spelled out explicitly for the benefit of the other party-the witnesses) were based in their understanding of the Act and of the nature of 'proper' procedure in the court context, including its essentially adversarial nature and the necessity to abide by the rules of 'evidence'. They brought to this discourse assumptions about the nature of Aboriginal society and of Aboriginal witnesses based on their prior experience of other native title hearings. Through this discourse they were attempting to categorise aspects of Yolngu society and sociality in terms of the language and categories of the Act, in order to build grounds for arguments about the existence or non-existence (and the exclusivity or non-exclusivity) of a very limited set of native title 'rights'.

The discourse constructed by the Yolngu witnesses was very different. They brought to the arena their past history of political struggle, past dialogues with outsiders in which they had attempted to educate them about Yolngu society and persuade them of its value—and above all their profound and strongly asserted Yolngu-ness, which has its foundation in rom ('ancestral law' is a rough and partial gloss) and is deeply embedded in place. Yolngu constructed the court as another arena for this dialogic process, which was at the same time a Yolngu-internal discourse in which they were reaffirming their belief in the power and value of the Yolngu system, and its ability to endure.

For much of the proceedings the two discourses ran side by side, with neither of the main parties being fully conscious of the fact. I will isolate points where the separate existence of the two came sharply into focus, either for the participants or for me as an observer (sometimes both), and analyse them as micro-moments in the colonial process and in Yolngu resistance to being defined as colonised subjects.

Anthony Redmond, School of Archaeology and Anthropology, The Australian National University

Some social effects of pursuing and achieving native title in the northern Kimberley

This paper is an exploration of some dramatic shifts in the social dynamics between native title claimants/holders and pastoralist families in the northern Kimberley brought about by native title litigation. I take two families as a sample case of these shifts, one Indigenous and the other Euro-Australian, which have lived in co-habitation of a northern Kimberley pastoral lease for four and three generations respectively. Many of the visible signs of violence, mutual antagonism and clear conflicts of interest between these two family groups are deliberately submerged in the course of everyday interactions between them which attempt to elevate notions of shared intimacy and mutual economic goals. The inevitably adversarial process of pursuing native title, however, has laid bare many of these conflicts of interest and presented in the public forum of the Federal Court the moving personal testimonies of those who have lived through an era which arcs across the colonial polarities of early pastoral settlement (1947) and recent victories for Indigenous country-holders in the courts (2003). Despite the painful revelations produced in court of the underlying power imbalances which have characterized their relationships, both parties are now required to and indeed desire to continue to co-exist on this same country. I describe and analyse the altered but persistently preservative nature of these relationships by drawing upon the court transcript of the case and my own fieldwork with the witnesses.

Steven Ross, co-ordinator, Murray Lower Darling Rivers Indigenous Nations

Jessica Weir, PhD Candidate, Centre for Resource and Environmental Studies, The Australian National University

The Murray Lower Darling Rivers Indigenous Nations

This paper examines the governance structures, history and achievements of MLDRIN—the Murray Lower Darling Rivers Indigenous Nations—as a case study of agreement making with government outside of the native title system. MLDRIN is an alliance of ten Indigenous Nations from the southern part of the Murray Darling Basin. The work of MLDRIN focuses on achieving the recognition of the role of traditional owners in the many water management policies and programs implemented in the Basin. The over allocation of water from the rivers for consumptive purposes has had a devastating effect on county, and Indigenous engagement is a part of the response by government to include broader community values in water management. MLDRIN seeks to pro-actively manage this involvement by formulating and then negotiating their own plans of how this engagement takes place. Memorandums of Understanding and partnership agreements have been brokered, or are being brokered, to establish the protocols underlying the relationship with government. At the same time, more practical outcomes of employment and funding have been arranged, while cultural flows and water rights are on the horizon.

Benedict Scambary, Centre for Aboriginal Economic Policy Research, The Australian National University

The Larakia in Darwin

Larrakia people have been struggling for many decades to have their prior interests in the Darwin region recognized. The Kulaluk protests, the Kenbi Land Claim and more recently the Larrakia Native Title claim have generated only limited recognition of Larrakia interests within the City of Darwin. However, new provisions intended to regulate antisocial behaviour, illegal camping and public drunkenness of Indigenous visitors to Darwin, have placed considerable responsibility on Larrakia people and their institutions to exercise their authority as the traditional owners of the Darwin region. This paper explores and juxtaposes Larrakia constructions of themselves and external portrayals in the claims process, with constructions of Larrakia used in the discourses associated with the management of antisocial behaviour in the city of Darwin.

Benjamin R. Smith, Centre for Aboriginal Economic Policy Research, The Australian National University

Towards an uncertain community? Effects of native title in central Cape York Peninsula

In his account of the 'recognition space', Noel Pearson presents native title as existing in the overlap between distinct fields of Aboriginal law and Australian law. Whilst the idea of the recognition space itself has received considerable attention among anthropologists working in the native title field, the exclusion of 'part' of the 'totality' of Aboriginal law in the recognition space model has received less anthropological attention. Further, the recognition space model apparently fails to recognize (or, at the very least, to emphasize) the distinctly different character of Aboriginal law and 'mainstream' law and the translation of the character of Aboriginal law in the recognition space.

This paper examines the effects of native title in relation to the wider 'community' of central Cape York, a group of Indigenous and non-Indigenous families who have lived alongside each other for several generations. Drawing both on anthropological accounts of the strongly processual character of Indigenous social groups, recent writing on community, law and justice in continental philosophy, as well as my earlier work on 'certainty' in relation to native title claims, I argue that the effects of native title suggested by the 'recognition space' fail both the Indigenous and non-Indigenous people of the central Peninsula. An alternative approach to 'recognition' (albeit one dependent on the leverage provided by the Native Title Act (Cwlth) 1993) might take better account of what is excluded from the recognition space. In particular, it might draw on the relatively open and indeterminate character of Indigenous socio-cultural production, and provide a platform for a 'community-to-come' rather than seeking to delimit and reify relationships of coexistence with regard to particular tracts of land.

Lisa Strelein, Manager and Research Fellow, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies

Damein Bell, Gunditjmara Claimant and Project Manager, Lake Condah Sustainable Development Project

Who's running this show? The institutional dynamics of the native title process and the impact on claimants ability to assert control in the process.

It seems that all participants in the native title process are focused on achieving outcomes, preferably through agreement. But all have expressed frustration at the lack of progress, as evidenced in yet another series of reviews and reforms announced by the Attorney General. In order to understand the mounting frustration over the lack of resolution, there is a need to map the drivers within the native title system, the competing objectives and outcomes sought by each of the actors and the indicators of success. Interventions and innovation in Federal Court practice have been trialed in 2004-05 in an attempt to speed up the resolution of claims and to encourage parties to reach agreement. These changes will have a significant impact on the processes for managing native title negotiations, including the relationship between litigation and mediation, with concomitant implications for the research and claim management by the Native Title Body and claimant group. Related to these interventions by the Court is the growing role of State government connection frameworks in driving processes. It is necessary to critically examine the effect of power relations in negotiations to determine the legitimate place and role of connection in the resolution of native title claims.

Lisa Strelein will provide a preliminary exploration of these issues as a precursor to a series of substantive research projects to be undertaken throughout the year by the NTRU research team. Each of the issues raises questions that require significant work of their own. However, to look, if even briefly, at how these issues combine is important in understanding the impact of native title processes on the communities at the front line of negotiating the morass.

There are many native title claim groups for whom these issues form a crush of competing pressures. Damein Bell from the Gunditjmara native title claim group in Victoria will provide a commentary and reflection on the Gunditjmara experience of the process and how they are managing the competing demands and expectations.

James Weiner, Consulting Anthropologist

The quarrel between anthropology and history: Pressures on disciplinarity from within native title research

A variety of influences—e.g., the formal and legal constitution of expert opinion, the experience of cross-examination in court, and in general the scrutiny and assessment of scholarly work by lay persons—have placed pressures on conventional scholarly disciplines, and have produced exogenous pressures influencing the direction that cross-disciplinarity and multi-disciplinarity are taking within native title research. In this paper I undertake a modestly polemical defence of anthropology as against other disciplines competing for expert status within native title and critique some of the reformulations of conventional anthropological reference terms forced upon anthropologists by such pressures.