Customary Marine Tenure in Australia Edited by Nicolas Peterson and Bruce Rigsby Contents

Customary marine tenure in Australia Edited by Nicolas Peterson and Bruce Rigsby Contents Title Page iii List of Figures vi Note to the 2014 edition Peter White viii Preface Nicolas Peterson and Bruce Rigsby ix 1. Introduction Nicolas Peterson and Bruce Rigsby 1 2. A survey of property theory and tenure types Bruce Rigsby 26 3. Reimagining sea space: from Grotius to Mabo Nonie Sharp 61 4. Aboriginal fishing rights on the New South Wales South Coast: a Court Case Scott Cane 83 5. Use and continuity in the customary marine tenure of the Whitsunday Islands Bryce Barker 110 6. Salt water, fresh water and Yawuru social organisation Patrick Sullivan 120 7. Marine tenure in the Wellesley Islands region, Gulf of Carpentaria Paul Memmott and David Trigger 136 8. ‘We always look north’: Yanyuwa identity and the maritime environment John J. Bradley 152 9. Customary marine tenure at Groote Eylandt Kingsley Palmer 171 10. Gapu Dhulway, Gapu Maramba: conceptualisation and ownership of iv Contents saltwater among the Burarra and Yan-nhangu peoples of northeast Arnhem Land Geoffrey Bagshaw 185 11. Ownership and resource use on islands off the Liverpool River, Northern Territory Peter Cooke and Gowan Armstrong 213 12. The Sandbeach People and dugong hunters of Eastern Cape York Peninsula: property in land and sea country Bruce Rigsby and Athol Chase 230 13. The Sea of Waubin: the Kaurareg and their marine environment Michael Southon and the Kaurareg Tribal Elders 262 14. The promise of native title and the predicament of customary marine tenure Sandra Pannell 276 Copyright v List of Figures Figure 4:1 The south coast of New South Wales Figure 4:2: Summary of charges against defendants, October 1991–March 1992 Figure 4:3: Family chronologies as summarised for the Magistrate in 1993 Figure 5:1 The Whitsunday Islands Figure 5:2 Presence of turtle bone in Border Island 1 archaeological site Figure 5:3 The relative importance of dietary resources in archaeological sites in the Whitsunday region Figure 7:1 The southeastern Gulf of Carpentaria Figure 7:2 The Properties of inside and outside country on Mornington Is- land Figure 7:3 Drawing by Kaiadilt man showing his concept of his country. Be- low is a comparative sketch map of Bentinck Island (after Tindale 1977:248) Figure 7:4 Coastal mainland Ganggalida country Figure 7:5: Schematic Representation of Ganggalida Classification of Envi- ronmental Zones in the Mainland Coastal Area Figure 7:6 Lardil geography of Langungatji, Sunday Island Figure 8:1 Southwest Gulf of Carpentaria, Borroloola and the Sir Edward Pellew Islands Figure 8:2 Sea grass beds and reefs known and named by Yanyuwa dugong and turtle hunters Figure 8:3 Paths and camps of the Dugong Hunter spirit ancestors over the Pellew Islands Figure 9:1 Northern Groote Eylandt estates Figure 10:1 Blyth River—Crocodile Islands region Figure 10:2 Burarra yakarrarra and Yan-nhangu baparru with coastal estates Figure 10.3 Junction of gapu dhul way and gapu maramba at Mooroongga Island Figure 11:1 Liverpool River estuary Figure 12:1 Lamalama and related peoples, sea country vi List of Figures Fiure 13:1 Muralag and adjacent islands Figure 13:2 Indigenous involvement in each of the Torres Strait fisheries vii Note to the 2014 edition Peter White Most Australians are used to the concept of land ownership. The idea of ownership of areas of sea and its resources is foreign to them, but not to coastal Aboriginal communities. The papers in this volume demonstrate how this concept is developed in various communities, and some of the general implications of this. Originating in a session of papers at a conference in 1996, the papers in this volume were originally published as Oceania Monograph 48 in 1998. It was later reprinted, but this 2014 reprint will allow its important concepts to have wider circulation. Two more recent publications which expand those here are J. Bradley, Singing Saltwater Country (Allen & Unwin, 2010) and M. Somerville and T. Perkins, Singing the Coast (Aboriginal Studies Press, 2010). viii Preface Nicolas Peterson and Bruce Rigsby This volume has its origins in a conference session held at the 1996 Australian Anthropological Society Meetings. The purpose of the session was to make a beginning towards enlarging our collective knowledge and understanding of the range and variety of contemporary indigenous systems of marine tenure. As has been widely commented on, such systems, both here and abroad, have received little attention until the last twenty years, yet there is not only a significant iden- tification and involvement with the sea among indigenous peoples in Australia but it also plays an important subsistence role in the life of many Aboriginal and Torres Strait Islander communities around the continent. This importance is now coming to public notice following the passing of the Native Title Act 1993 (Cth) with more than 120 applications for determination being lodged over the coastal waters by the end of 1997. In April 1997 proceedings began in the Federal Court in the first application for recognition of native title in the sea in the case of Mary Yarmirr and others v the Northern Territory of Australia and others before Mr Justice Olney. Unlike the Mabo case and the recognition of native title in the land, the Yarmirr case comes against a background of a paucity of published research into indigenous marine tenure. In the light of the land claims experience it seems important to build up knowledge and understanding of the complexities of the marine tenure systems among the public, government, lawyers and the judiciary if Aboriginal and Torres Strait Islanders claims and rights are to be understood and assessed properly. We see this volume as a first step in the process. We would like to thank Anthea Bundock for assistance in preparing the man- uscript and Kevin Cowan for drawing the figures. We would also like to thank Oceania’s editorial and office staff, and the two anonomous readers for their help- ful suggestions for improving the volume. ix 1 Introduction Nicolas Peterson and Bruce Rigsby Until the 1970s, indigenous systems of marine tenure received little attention not just within Australian waters but worldwide (see Ruddle and Akimichi 1984, 1–5). The reasons for this are complex but without doubt one of the more important is the widespread European understanding that the seas are open to all. This has resulted in the indigenous relationship to the sea being seen only in terms of resource usage and in the many and complex indigenous systems of near-shore marine tenure worldwide becoming invisible. Over the last three decades, however, research on indigenous marine tenure has received considerable attention partly in response to the failure of fisheries development schemes and partly in response to decolonisation. In the Pacific, in particular, much research has been driven by the belief that traditional systems of marine tenure can be harnessed and/or revived in order to manage near-shore marine resources in a sustainable way (e.g. see Ruddle 1994). In Australia the interest in marine tenure is even more recent and it was not until the 1980s that the first studies started to appear in response to the Aborigi- nal Land Rights (Northern Territory) Act 1976 (Cth). Section 73(1)(d) of this Act provides for reciprocal legislation to be passed by the Northern Territory under which Aboriginal communities can apply to close sections of the sea adjoining Aboriginal land for two kilometres off-shore. This resulted in Section 12(1) of the Aboriginal Land Act 1978 (NT), which became the first statutory granting of some limited rights over the sea. Before the sea is closed the Administrator of the Northern Territory may refer the matter of closure to the Aboriginal Land Com- missioner for investigation and recommendation. The statutory test for closure is based on the proof of the right to exclude strangers. Only two applications for closure of the seas have been made to date, in the area around Milingimbi and Howard Island on the Arnhem Land coast,1 1 The two cases are the Castlereagh Bay/Howard Island decided in 1988 and the Milingimbi, Crocodile Islands and Glyde River Area decided in 1981 by the Abo- riginal Land Commissioner. The other cases have not been pursued for two reasons: 1 1 Introduction although research for two others was carried out in the 1980s: Croker Island (see Palmer and Brady 1984) and Groote Eylandt (Palmer 1983). With the Mabo No. 2 judgement in 1992 and the subsequent passing of the Native Title Act 1993 (Cth) which contemplates that rights and interests in the sea may be recognised (see s6 and s223), interest has escalated enormously so that marine tenure is set to become a key native title issue. However, it should be em- phasised that the statutory right to negotiate does not apply to ‘off-shore’ areas (s234(8a)) and proposed amendments to the Act will ensure the priority of fishing industry interests over native title, limiting indigenous people only to a right to apply for compensation. Although native title is now driving the interest in marine tenure, it is important to maintain some conceptual separation between research for an ethnographic documentation of such tenure and research for an application for the recognition of native title rights in the sea, although the two are, of course, closely related. Court rulings and legal discourse are now defining and structuring the kinds of evidence required for a native title application, placing limitations on a purely ethnographic account concerned with local categories, perceptions and understandings, some of which may have only a marginal place in the evidence required by the court.

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