The Social Effects of Native Title: Recognition, Translation, Coexistence Benjamin R. Smith and Frances Morphy (Editors) THE AUSTRALIAN NATIONAL UNIVERSITY E PRESS Centre for Aboriginal Economic Policy Research The Australian National University, Canberra Research Monograph No. 27 2007 Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at: http://epress.anu.edu.au/c27_citation.html National Library of Australia Cataloguing-in-Publication entry The social effects of native title : recognition, translation, coexistence. Includes index. ISBN 9781921313516 (pbk.) ISBN 9781921313523 (online) 1. Native title (Australia) - Social aspects. I. Smith, Benjamin Richard. II. Morphy, Frances, 1949- . 346.940432 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design by Brendon McKinley. Printed by University Printing Services, ANU This edition © 2007 ANU E Press Contents Notes on contributors vii Abbreviations and acronyms xi 1. The social effects of native title: recognition, translation, coexistence 1 Benjamin R. Smith and Frances Morphy 2. Performing law: The Yolngu of Blue Mud Bay meet the native title process 31 Frances Morphy 3. Claim, culture and effect: property relations and the native title process 59 Katie Glaskin 4. Some initial effects of pursuing and achieving native title recognition in the northern Kimberley 79 Anthony Redmond 5. `We're tired from talking': The native title process from the perspective of Kaanju People living on homelands, Wenlock and Pascoe Rivers, Cape York Peninsula 91 David Claudie 6. Towards an uncertain community? The social effects of native title in central Cape York Peninsula 117 Benjamin R. Smith 7. Native title and the Torres Strait: encompassment and recognition in the Central Islands 135 Julie Lahn 8. `No vacancies at the Starlight Motel': Larrakia identity and the native title claims process 151 Benedict Scambary 9. What has native title done to the urban Koori in New South Wales who is also a traditional custodian? 167 Dennis Foley 10. Beyond native title: the Murray Lower Darling Rivers Indigenous Nations 185 Jessica Weir and Steven Ross 11. The limits of recognition 203 Manuhuia Barcham 12. History, oral history, and memoriation in native title 215 James F. Weiner iv The social effects of native title List of Figures 2.1. The ritual space of the court 34 2.2. The `translation' steps in a witness statement 39 2.3. The opening ceremony: approach to the court 45 2.4. The opening ceremony: in the court 46 2.5. The court at the edge of the Yolngu law space 47 2.6. The return from the Yolngu law space 47 2.7. Mungurru on a calm day 51 2.8. Mungurru on the day of the `view' 51 5.1. Kaanju homelands showing clan estates 93 8.1. Itinerant protestors in Darwin 159 8.2. Cover of Kujuk 160 8.3. Cover of Longgrass 161 10.1. The Indigenous nations of the Murray±Darling system 186 Notes on contributors Manuhuia Barcham Manuhuia Barcham is the Director for the Centre for Indigenous Governance and Development at Massey University, New Zealand. His recent work has looked at the governance of indigenous organisations in Australia, Canada and New Zealand. The Australian work has focused on work with Noongar in southwest Western Australia and with urban Aboriginal groups in Sydney and Melbourne. David Claudie David Claudie is a Traditional Owner for Kaanju Ngaachi, some 840 000 hectares of culturally and biologically significant country centred on the Wenlock and Pascoe Rivers in central Cape York Peninsula. He is the Chairman of the Chuulangun Aboriginal Corporation, the peak body for land and resource management, homelands and economic development for Kaanju homelands. In 2003 he was the Inaugural Indigenous Visiting Fellow at the Centre for Aboriginal Economic Policy Research, The Australian National University and was Visiting Fellow again in 2005. He has published and presented a number of papers in the area of Indigenous land management, land tenure and Indigenous policy. Dennis Foley Dennis Foley is an Endeavour Fellow and a Fulbright Scholar lecturing at the Australian Graduate School of Entrepreneurship. His blood connection is with the Gammeray, the Gatlay and the Gaimai. His father is a descendant of the Capertee/Turon River people, of the Wiradjuri. Dennis identifies as a descendent of the Gai-mariagal people. He is the author of Repossession: of Our Spirit, an ethnographic study of his family, and Successful Indigenous Australian Entrepreneurs: A Case Study Analysis. Katie Glaskin Katie Glaskin has worked as an applied anthropologist in the area of native title, largely in the Kimberley region, since 1994. In 2002, she was the recipient of the inaugural Berndt Foundation Post Doctoral Research Fellowship at the University of Western Australia, where she is currently a Senior Lecturer. With James Weiner, she co-edited Custom: Indigenous Tradition and Law in the Twenty-First Century (The Asia Pacific Journal of Anthropology Special Issue 7(1), 2006) and Customary Land Tenure and Registration in Australia and Papua New Guinea: Anthropological Perspectives (Asia-Pacific Environment Monograph Series, ANU E-Press, 2007). vii Julie Lahn Julie Lahn is an anthropologist at the Centre for Aboriginal Economic Policy Research, The Australian National University. Her work on Australian Indigenous issues addresses a number of core themes including morality, relatedness, marine resource use, religion, repatriation, and native title and land rights. She has worked with Torres Strait Islanders since 1994, when she conducted her doctoral research. She has been an anthropological consultant since 1998 and has prepared numerous reports documenting the native title interests of Torres Strait Islanders and more recently those of Aboriginal people in southwest Cape York. Frances Morphy Frances Morphy is a Fellow at the Centre for Aboriginal Economic Policy Research, The Australian National University. She is an anthropologist and linguist whose research since 1974 has largely focused on the Yolngu people of north east Arnhem Land. In the late 1990s and early 2000s she assisted in the preparation of the Blue Mud Bay native title claim, and wrote the linguistic report in support of the claim. She is co-editor (with Jon Altman and Tim Rowse) of Land Rights at Risk? Evaluations of the Reeves Report (CAEPR Research Monograph No. 14, 1999), and co-editor (with Bill Arthur) of the Macquarie Atlas of Indigenous Australia: Culture and Society through Space and Time (2005). Anthony Redmond Anthony Redmond has worked in the northern Kimberley region with Ngarinyin people and their near neighbours since 1994. During this time he has conducted both academic research (into transforming local economies, the relationships with pastoralists, traditional cosmology, sung traditions and bodily experience of time and country) as well as applied native title research. His most recent works have been treatments of death and grieving, the comic in everyday Ngarinyin life, the social and ritual importance of body fat, and a phenomenology of travelling in community trucks. Anthony is currently a Visiting Research Fellow at the Centre for Aboriginal Economic Policy Research, The Australian National University. Steven Ross Steven Ross is a Wamba Wamba man from Deniliquin in southern New South Wales, with cultural and familial connections to the Muthi Muthi and Wiradjuri Nations. He has been the coordinator of the Murray Lower Darling Rivers Indigenous Nations since late 2003, having previously worked for the NSW Cabinet Office, NSW Department of Aboriginal Affairs and NSW Attorney General's Department. A graduate in Government and Public Administration from the University of Sydney, he also studied at the University of Edinburgh in 2002, as a British Council Chevening Scholar. viii The social effects of native title Benedict Scambary Benedict Scambary is an anthropologist with over 10 years experience working with the Native Title Act in the Northern Territory. As an employee of the Northern Land Council he was involved in the coordination of the Larrakia native title claims over Darwin. He has recently completed a PhD in anthropology through the Centre for Aboriginal Economic Policy Research, The Australian National University. Benjamin R. Smith Benjamin Smith is a Research Fellow at the Centre for Aboriginal Economic Policy Research, The Australian National University. His research interests include the social effects of customary land claims, the relationship between Indigenous Australians and the state, and the intercultural character of contemporary Indigenous life-worlds. He has carried out both academic and applied research with Aboriginal people in Cape York Peninsula and other locations across northern Queensland. His recent publications include `ºMore than loveº: locality and affects of indigeneity in Northern Queensland' (The Asia Pacific Journal of Anthropology, 7(3), December 2006) and `ªWe got our own managementº: local knowledge, government and development in Cape York Peninsula' (Australian Aboriginal Studies 2005/2). James F. Weiner James F. Weiner has held academic appointments at the ANU, the University of Manchester and the University of Adelaide. Since 1998 he has been a full-time consultant anthropologist in the fields of native