FIGHTING OVER COUNTRY: Anthropological Perspectives Edited by D.E. Smith and J. Finlayson Centre for Aboriginal Economic Policy Research The Australian National University, Canberra Research Monograph No. 12 1997 First published in Australia 1997. Printed by Instant Colour Press, Canberra, Australia. © Centre for Aboriginal Economic Policy Research, The Australian National University. This book is copyright Apart from any fair dealings for the purpose of private study, research, criticism or review as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission. Inquiries should be directed to the publisher, Centre for Aboriginal Economic Policy Research, The Australian National University, Canberra ACT 0200, Australia. National Library of Australia. Cataloguing-in-publication entry. Fighting over country: anthropological perspectives ISBN 07315 2561 2. 1. Aborigines, Australian - Land tenure. 2. Native title - Australia. 3. Torres Strait Islanders - Land tenure. 4. Land use - Australia. I. Finlayson, Julie, n. Smith, Diane (Diane Evelyn). ID. The Australian National University. Centre for Aboriginal Economic Policy Research. (Series: Research monograph (The Australian National University. Centre for Aboriginal Economic Policy Research); no. 12). 306.320899915 Acknowledgments A number of people assisted in the organisation and conduct of the workshop Fighting Over Country: Anthropological Perspectives held in Canberra in late September 1996. The workshop was the latest in a series sponsored by the Australian Anthropological Society focusing on land rights and native title issues. Diane Smith, Julie Finlayson, Francesca Merlan, Mary Edmunds and David Trigger formed the organising committee, and ongoing administrative support was provided by the Centre for Aboriginal Economic Policy Research (CAEPR). The Native Titles Research Unit of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) provided modest but very helpful financial assistance towards catering for the workshop. AIATSIS, CAEPR and the Department of Archaeology and Anthropology of The Australian National University provided audiovisual equipment and other resources, and the University made conference rooms available. A number of people also gave invaluable help during the workshop itself. Many people have assisted in the production of this monograph. We would especially like to thank the authors for their original contributions to the workshop and their efforts to promptly submit final papers. Krystyna Szokalski, assisted by Linda Roach and Hilary Bek provided their usual high professional standard of proofreading, editing, layout and design. David Martin and Lui Jin assisted in translating the variety of disk versions we received. The editors also wish to acknowledge the contribution of CAEPR in subsidising the financial costs of this publication. Diane Smith and Julie Finlayson CAEPR March 1997 IV Contents Acknowledgments iii Abbreviations and acronyms vi Introduction vii 1. Fighting over country: four commonplaces Francesco Merlan 1 2. Anthropologists, Indian title and the Indian Claims Commission: the California and Great Basin cases Bruce Rigsby 15 3. Having it out over Hindmarsh: an essay on the significance of manners Deane Fergie 46 4. 'Recognition and justice': the traditional/historical contradiction in New South Wales Gay nor Macdonald 65 5. Why can't they be nice to one another? Anthropology and the generation and resolution of land claim disputes John Morton 83 6. From humbug to good faith? The politics of negotiating the right to negotiate Diane Smith 93 7. Reflections on Century Mine: preliminary thoughts on the politics of Indigenous responses David Trigger 110 8. Dealing with native title conflicts by recognising Aboriginal political authority Patrick Sullivan 129 9. Aboriginal tradition and Native Title Representative Bodies Julie Finlayson 141 10. The incorporation of 'traditional' and 'historical' interests in Native Title Representative Bodies David Martin 153 11. Disputes in land: the Northern Land Council experience Jeff Stead 164 12. Fighting over mining moneys: the Ranger Uranium Mine and the Gagudju Association. JonAltman 175 13. Dispute management strategies: suggestions from the Central Land Council Julia Munster 187 14. Multiplicity and complexity: the Goldfields Land Council's native title experience Jeni Lewington, Steven Roberts and Yvonne Brownley 203 Contributing authors 215 Abbreviations and acronyms ABTA Aboriginals Benefit Trust Account ACA Act Aboriginal Councils and Associations Act 1976 AIATSIS Australian Institute of Aboriginal and Torres Strait Islander Studies ALRA Aboriginal Land Rights (Northern Territory) Act 1976 ATSIC Aboriginal and Torres Strait Islander Commission CAEPR Centre for Aboriginal Economic Policy Research CDEP Community Development Employment Projects (scheme) CLC Central Land Council CRA Conzinc Riotinto Australia CZL Century Zinc Limited ICC Indian Claims Commission IRA Indian Reorganization Act 1934 GLC Goldfields Land Council KLC Kimberley Land Council LALC Local Aboriginal Land Council NLC Northern Land Council NNTT National Native Title Tribunal NSW New South Wales NTA Native Title Act 1993 NTRB Native Title Representative Body UGRAC United Gulf Region Aboriginal Corporation US United States WA Western Australia Introduction In the recent context of the Native Title Act 1993 and the longer-term history of Indigenous land rights in Australia, a recurring issue has been that of disputes about land ownership and usage involving Indigenous people. Complex and often sensitive issues have arisen about the nature and impacts of such disputes, usually in the course of negotiations over resource development or during the preparation and mediation of land claims. The earliest ethnographies indicate that intra-Indigenous disputes over land have probably always occurred. But important questions about disputes within the Indigenous domain remain: Were they endemic? In their past expression, were disputes essentially different in form and conduct to those occurring nowadays? 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? Indigenous conflicts in the past have been characterised by anthropologists as being controlled by the canons of 'equality at arms', 'sufficient retaliation' and 'equivalent injury', and conducted in accordance with an 'immense catalogue' of symbolic and ritualised behaviours (Stanner 1968: 48-9). In the current situation where many disputes involve non-Indigenous parties, an important issue is the extent to which Indigenous disputes over land have been created or exacerbated beyond 'usual' levels and controls by the very statutory processes initiated by native title and land rights legislation. Fighting Over Country: Anthropological Perspectives is an edited volume focusing on these matters and includes papers first presented at a two-day workshop of the same name held in Canberra at The Australian National University, 29-30 September 1996. Sponsored by the Australian Anthropology Society, the workshop had its origins in the recommendations made by participants at an earlier native title conference held in Canberra in February 1995, at which it was suggested that a future meeting be held to consider anthropological perspectives and understandings of land disputes. The resulting workshop in 1996 was given a contemporary theme and application. The papers in this volume are presented by anthropologists who, collectively, have considerable field research experience, often in the frontline of such disputes. The papers cover a range of perspectives, from those of anthropologists working for representative organisations charged with the preparation and conduct of claims and resource negotiations, to those of anthropologists participating as expert witnesses in royal commissions, court and heritage hearings. The socioeconomic, political and organisational contexts and impacts of disputes over land are canvassed in a number of case studies from urban, rural and remote regions of Australia. Authors focus on disputes between and within Indigenous groups and organisations; and between Indigenous and non-Indigenous parties (including governments and their departments, private sector agencies, resource developers, and other land owners such as pastoralists and farmers). To date, a better understanding of the intricacies of these matters has been hampered by the politicised and often very public context within which many land-oriented disputes occur. In some Indigenous quarters, there is a reserve about airing the 'dirty linen' of their disputes and a realisation that such airing inevitably results in areas of restricted knowledge having to be made public. There is also a defensive disquiet in land councils and other representative organisations about the public perception that Indigenous Australians are 'always fighting' with each other over land; a perception that many in the media seem happy to reinforce. At the same time, the legal and procedural requirements of various land rights and native title legislation mean that what once might have been 'inside' or 'private' tensions between individuals, families and groups are now appropriated into various mainstream forums, be they hearings, royal commissions, negotiations, mediations or court rooms. In the past, there was the possibility that conflicts within