Indigenous Law Bulletin
D E Smith and J Finlayson (eds)
CAEPR, Australian National University,
Reviewed by Robert Blowes
It is a time in the history of Australia when 'fighting over country' is at the forefront of political, media and public attention. Many segments of our community are concerned about how native title will fit with notions of property as long understood before native title was accepted as a part of our society.
As the many and varied papers in this timely collection point out, the 'fighting' is occurring across many levels, and in many comers, of our society.
Lawyers are fighting to fit native title into existing notions and practices of property. They are fighting to come to grips with concepts that originate in another culture, and in non-legal discourse. They are fighting with anthropologists about the concepts and proof of native title.
Anthropologists are fighting to keep up with demand for their services, and at the same time for survival: for legitimacy as experts, for an appropriate role in native title cases and issues, for a culturally-driven development of concepts of native title, and to educate lawyers and judges.
Present governments, pastoralists and miners are fighting to defeat, extinguish and restrict native title and to limit its concepts and application.
There are fights about the best tools or methods to resolve fighting over country: mediation, litigation, negotiations, conciliation.
Aboriginal and Torres Strait Islander groups often seem to be ignored in these battles, which are about them and their connections to land. They are fighting for a lead role in the processes, they are fighting for country, and they are sometimes fighting between themselves, disputing one anther's connections to country.
In their introduction, the editors raise a question debated in many of the papers:
'Are contemporary disputes indicative of the continuing vitality of relations to land, or do they represent a breakdown of classical social and corporate group systems'.
They then make a point which Australian society would do well to take to heart:
'In the past, there was the possibility that conflicts within the Indigenous domain could be slowly resolved or managed by the flow of time ... Nowadays, time has become a luxury that many Indigenous groups in the midst of volatile negotiations with the State and resource developers can ill afford or obtain'.
The editors then summarise the matters they believe that the papers collectively point to as having important practical and policy implications.
Francesca Merlan, in 'Fighting over country: four commonplaces', explores a number of perspectives on the issue of the significance of conflict over land between Aborigines in claims to land. Does it show 'continuing vitality of relations to country'; is it 'endemic' to the 'Aboriginal polity of small scale'; does it justify a denial of any 'moral dimension' to Aboriginal claims; or does it signify that Aboriginal expressions of relations to land 'have a constantly shifting, unstable quality which makes needed certainty and finality impossible'? Merlan comments on the role of anthropologists in evaluating the 'moral dimension' of conflict
'anthropologists can shed light in general on what may be involved in such cases that may help to supersede regular accusations of strategic calculation and falsification often levelled at Aborigines (and anthropologists themselves)'.
Professor Bruce Rigsby in 'Anthropologists, Indian title and the Indian Claims Commission: the California and Great Basin Cases' gives some statistics about the Indian claims process in the USA, and recounts a graphic description of an anthropologist's experience as an expert witness under cross-examination. He reviews some of the literature on property rights, including a discussion by Hallowell, which concluded that the concept of property is universally found in human societies, and is a 'primary contribution ... to a human social order and the security of the individual'.
Deane Fergie contributes 'An essay on the significance of manners', also entitled 'Having it out over Hindmarsh'. As a layperson who has had some buffeting in an experience of the legal system, he makes some observations on the weapons which lawyers wield when engaged on fights over country:
'In adversarial judicial proceedings, the manners and demeanour of ... witnesses ... is deliberately upset. Off balance, and perhaps reacting to the cross and uncivil manners of lawyers at the bar, the demeanour of witnesses is scrutinised and evaluated against standards which would often find the manners of the interlocutor unsatisfactory'.
Gaynor Macdonald's paper 'Recognition and justice: the traditional/historical contradiction in New South Wales', is a reminder of the many-faceted implications for policy, native title claims, internal Indigenous conflict and Indigenous/non-Indigenous relations, which arise from the fact that in many areas there are people who see themselves as having traditional or ancestral links to country, and people who have come, or whose ancestors have come, from elsewhere in the post-contact period.
John Morton asks 'Why can't they be nice to one another? Anthropology and the generation and resolution of land claim disputes'. He looks with the insight of many experiences at the relationships between 'what anthropologists do' and Aboriginal disputes over land, and raises questions about roles of anthropologists and the social impact of their work.
Dianne Smith looks at 'humbug' in 'From Humbug to good faith? The politics of negotiating the right to negotiate'. She first summarises the requirements of the 'right to negotiate' provisions of the Native Title Act 1993 (Cth) before drawing on experiences under the Aboriginal Land Rights (NT) Act 1976 (Cth), observing that in the early days of that Act ' "humbug" was felt to characterise the conduct of many consultations by industry and government about resource development on Aboriginal land'. She also warns that 'Conflict generated by mismanaged consultations and misdirected financial distributions can derail future negotiations, adding substantially to longer-term transaction costs of all parties involved'.
David Trigger provides 'Reflections on Century Mine: preliminary thoughts on the politics of Indigenous responses'. This paper gives considerable insight into the social complexities and internal conflicts that confronted negotiations about the Century Zinc Project, and warns of the pitfalls for non-Aboriginal interests of becoming involved in supporting some groups against others.
Patrick Sullivan recommends putting Aboriginal conflict back into the domain of Aboriginal regulation in 'Dealing with native title systems by recognising Aboriginal authority systems'. He provides a case study of the formation of 'Rubibi', an organisation designed to address the issues of overlapping claims to land around Broome and to avoid a likely three-way contest in the National Native Title Tribunal and Federal Court. The approach has been to identify and describe a large land-holding system containing the competing groups; to then identify a 'group' that holds that system in common; and lastly to create an institutional representation of these two in a corporate entity capable of running a claim for recognition of title, negotiating benefits and regulating and managing land. This approach allows for groups within the larger group to remain in conflict, without contradicting the existence of the larger system. The paper goes on to describe proposed constitutional mechanisms designed to meet the need for a structure 'which is the institutional expression of all potential native titleholders and within which present and future conflicts can be managed' and at the same time is constructed 'around the core of traditional Aboriginal authority'.
Julie Finlayson's paper should be read by anyone dealing with Aboriginal organisations. It contains an important analysis of conflict in relation to native title and the representation of native title holders. It contains messages for Aboriginal representative bodies and organisations, for bureaucrats and politicians writing native title policy and legislation and then observing its successes and failures, for lawyers and anthropologists involved in preparing native title claims, and for those involved in the conduct and determination of claims. 'Aboriginal tradition and Native Title Representative Bodies' suggests there is a structural source of tension and conflict which derives from the 'localism' of Aboriginal politics in relation to land, and the many manifestations of 'regionalism' which are built into native title policies, legislation and practise.
David Martin follows this theme in 'The incorporation of "traditional" and "historical" interests in native title Representative Bodies'. He examines the conflict between so-called 'historical' and 'traditional' peoples in the Mt Isa region, and some mechanisms for accommodating their differing interests in a representative body. He concludes that 'such mechanisms will never "resolve" disputation or conflict ... However, they can provide a framework through which such conflict can at least be addressed in a reasonably equitable, transparent and professional manner.
In 'Disputes in land: the Northern Land Council Experience', Jeff Stead describes the statutory role of the NLC in dispute conciliation and prevention, and examines the implications of recent court decisions for the resolution of disputes between Aboriginal groups. He sounds a note of warning: 'Often it is found that there is not a dispute about land occurring, so much as a dispute over control and authority'. He offers some guidance for land councils in their engagement of lawyers in these processes.
.. it is critical to establish and maintain, as much as possible, a non-adversarial approach by legal practitioners. This may be difficult to achieve, but is particularly important for creating an atmosphere conducive to mediation and conciliation of disputes, as opposed to further entrenching antagonistic positions'.
John Altman turns to 'Fighting over mining moneys: The Ranger Uranium Mine and Gagudju Association' and considers what he regards as 'the almost inevitable disputation that ... occurs over the distribution of such money'. He looks at the history of the payment of 'royalties' for mining on Aboriginal land, and at how and why disputation has occurred over moneys from mining at Ranger, which is on Aboriginal land surrounded by Kakadu National Park.
In the final paper, 'Dispute management strategies: suggestions from the Central Land Council', Julia Munster discusses the experiences and procedures of the Central Land Council as a Native Title Representative Body in managing infra-Indigenous disputes.
Implicit in the themes of the papers is a recognition of vital roles that lawyers and anthropologists play in relation to native title, land rights and other dimensions of Aboriginal fighting over country.
Lawyers and anthropologists will always be involved in native title processes. They will do well to remember that it is not their country that is in issue in a native title process. It might involve their professional turf, and provide a forum in which they can act out professional jealousies, but the battle must belong to the native title holders. Lawyers and anthropologists must each learn to appreciate and respect the very relevant expertise and professional perspective of the other. Lawyers in particular need to see anthropologists as colleagues rather than merely as expert witnesses, as pawns in their game.
Anthropologists and lawyers acting for claimants need to work together cooperatively with native title people, to ensure that properly understood Indigenous perspectives and concepts of customary connections to land accompany the development and acceptance of native title into a predominantly non-Indigenous way of looking at country.