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Australian Native Title Anthropology: Strategic Practice, the Law and the State

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Australian Native Title Anthropology: Strategic Practice, the Law and the State AUSTRALIAN NATIVE TITLE ANTHROPOLOGY STRATEGIC PRACTICE, THE LAW AND THE STATE AUSTRALIAN NATIVE TITLE ANTHROPOLOGY STRATEGIC PRACTICE, THE LAW AND THE STATE KINGSLEY PALMER Published by ANU Press The Australian National University Acton ACT 2601, Australia Email: [email protected] This title is also available online at press.anu.edu.au A catalogue record for this book is available from the National Library of Australia ISBN(s): 9781760461874 (print) 9781760461881 (eBook) This title is published under a Creative Commons Attribution-NonCommercial- NoDerivatives 4.0 International (CC BY-NC-ND 4.0). The full licence terms are available at creativecommons.org/licenses/by-nc-nd/4.0/ legalcode Cover design and layout by ANU Press This edition © 2018 ANU Press Contents Tables and figures . vii Acknowledgements . ix Introduction . 1 1 . Certainty and uncertainty: Native title anthropology in Australia . 11 2 . The society question . 29 3 . Customary rights to country . 55 4 . Exercise of native title rights . 85 5 . Aboriginal religion and native title . 107 6 . Native title research and oral testimony . 133 7 . Early texts and other sources . 159 8 . Native title disputes . 185 9 . Genealogies . 207 10 . Compensation . 227 11 . The art of the possible . 239 References . 251 Case law . 271 Index . 273 Tables and figures Table 1.1: Claims lost and won, 2011 to 2017 ..................23 Figure 4.1: Cognatic descent over four generations ...............91 Table 7.1: Kimberley ‘tribes’ and cultural groups ...............169 Figure 7.1: Kaberry’s language map of the Kimberley ............170 Table 7.2: Eastern Goldfields, WA: some ‘tribal’ names recorded by Tindale ........................................181 Figure 9.1: Tindale sheet 89 collected from Point Pearce, SA, in 1939 ..........................................218 vii Acknowledgements I am deeply indebted to all of those with whom I have worked in Aboriginal Australia since I commenced research and fieldwork in the early 1970s. While this is not an ethnography of any Indigenous Australian group, but a study of the application of anthropology to native title law in Australia, I could not have written as I have without the benefit of my research and study with Aboriginal people over many years. While there are too many individuals to mention by name, I am particularly grateful to the people of Yandeearra in the Pilbara region of Western Australia who were my first mentors and guides and who introduced me to the richness and complexity of Australian Indigenous cultures. In particular, I thank the late Peter Coffin, Clancy McKenna and Sam Coffin who taught me so much. In subsequent years I worked in the Maralinga Lands and Yalata (South Australia), over many parts of the Top End including the Victoria River District (VRD), Galiwinku, Numbulwar and Groote Eylandt. Later, as a consultant, I worked in many areas of rural and remote Australia on native title claims lodged over areas of the southwest, southeast, Goldfields, Pilbara and Kimberley regions of Western Australia. In South Australia, I worked with claimants in the far west and remote northeast of the state. In Queensland, I worked with Indigenous claimants who had lodged claims to central, north-western and eastern parts of the state and in the Torres Strait. In the Northern Territory, I worked on claims in the VRD. To all of the many hundreds of claimants with whom I have worked, I express my thanks and appreciation for their generosity, patience and forbearance as I sought to understand their culture. Some colleagues have provided comments, suggestions, information or pointed out errors for correction. Others have discussed native title issues with me in the course of our work together and I have benefitted from their perspectives and expert knowledge. All have contributed in some way to what follows, and I thank them all for their assistance. Mindful that I may have inadvertently omitted some who should rightly ix AusTRAlIAN NativE TITlE ANThRopoloGy be listed below, I apologise, but a book written over several years owes acknowledgement to many and this list may not be exhaustive. In particular, then, I thank Jon Altman, Wendy Asche, Robert Blowes, Lyn Coad, Ambrose Cummins, Julie Finlayson, Sturt Glacken, Vance Hughston, George Irving, Ian Irving, Tina Jowett, Sophie Kilpatrick, Jonathan Kneebone, Justin Lincoln, David Martin, Dante Mavec, Pam McGrath, John Morton, Olivia Norris, Sandra Pannell, David Parsons, Nic Peterson, Susan Phillips, Ophelia Rubinich, Lee Sackett, Basil Sansom, Sheree Sharma, Peter Sutton, Sarah Thomson, David Trigger, David Turnbull, Amy Usher, Daniel Vachon, James Weiner and Stephen Wright. I thank Lea Gardam of the South Australian Museum for facilitating permissions for the reproduction of the Tindale genealogy, which is Figure 9.1 in this book. In particular, I thank Uncle Lewis Yerloburka O’Brien for generously giving permission for the use of this genealogy. I also thank two anonymous reviewers who took the trouble to read an earlier draft of this book and provide many helpful comments and suggestions, all of which I was pleased to consider and mostly adopt. I thank Emily Hazlewood and the ANU Press staff for their many editorial amendments and suggestions, and for delivering this book in its present form. Finally, I thank Catherine Wohlan for urging me to finish this book, and for her encouragement, many helpful suggestions, critical comments and corrections. x Introduction This is a book about the practice of anthropology in the context of Australian native title claims. The Native Title Act 1993 (Cth) established a means whereby Indigenous Australians can make application to the Federal Court for the recognition of their rights to the continental landmass of Australia and its islands and seas. Such rights were identified in the legislation as ‘native title rights’. The application is subject to legal process. Those who make the claim (the applicant) have to prove to the court that the native title rights have continued to exist substantially uninterrupted since the acquisition of sovereignty over Australia by the British Crown. They also have to show that the native title rights have not been extinguished by subsequent acts of the colonisers. In this, the onus of proof lies with the applicant. Even applications that seek determination by the consent of the participating parties have to satisfy the Federal Court of the justice of their claim according to the Native Title Act and subsequent case law. Consequently, applications for the recognition of native title require that the case be prepared and the pleadings developed. Lawyers must draft the application under instruction from those who make the claim, typically a group of Indigenous Australians who lay claim to a common area of land. Legal counsel must prosecute the application and, should the matter not be settled by the parties prior to trial, the application goes to a hearing. In these regards, an application made to the Federal Court for a determination of native title shares much common ground with other applications brought to that court. Like much else that depends upon a judicial process for its resolution, a significant factor in the prosecution of a native title claim is the evidence that supports the applicant’s case. Indigenous testimony was and remains the most significant component of the evidentiary process of a native title claim. However, others have also been recruited to the process. Principal amongst these are anthropologists. The involvement of anthropology and anthropologists in the native 1 AusTRAlIAN NativE TITlE ANThRopoloGy title process marked a continuance of their professional involvement in Indigenous relationships with the state – and in particular with legislation and related legal action that sought to recognise the rights of the original inhabitants of Australia. By the end of 1993, when the Native Title Act received royal assent, anthropologists had clocked up a substantial record of involvement in processes that sought to codify the recognition of Indigenous rights in Australia. Anthropologists had seen action in relation to legislation enacted by state governments, including the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and the Maralinga Tjarutja Land Rights Act 1984. But it was in relation to the Aboriginal Land Rights (Northern Territory) Act 1976 that anthropologists had found substantial scope for the application of their discipline. The late 1970s and much of the 1980s saw their frequent involvement in the preparation and adjudication of claims in the Northern Territory. The transition from this sustained involvement of some members of the profession in the Territory’s Land Rights Act to the Native Title Act was not altogether smooth, particularly following amendments to the Native Title Act in 1998. Anthropologists who had undertaken research on an application and whose views, data and opinions were provided to the court were subsequently subject to a level of scrutiny, examination and cross- examination not previously encountered. The uses of anthropology in a native title claim consequently required a very exact application of the discipline and its methods. A need for the expertise of an anthropologist in advancing applications for the recognition of native title is a response to legal process. The court recognised that the questions it had to consider in relation to an application were not likely to be illuminated solely by common or popular knowledge or even wholly
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