This collection arose from a workshop for anthropologists in July 2010, Turning the Tide: Anthropology for Native Title in South-East Australia. Held at Sydney University and co-convened by the University of Sydney and the Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander UNSETTLING Studies, the workshop addressed issues of native title anthropology in what is often referred to as ‘settled’ Australia. In these areas, native title — as a form of justice and recognition for indigenous peoples — has proven a particularly frustrating experience. The title of the workshop recalled the various Yorta Yorta native title decisions in Victoria, and Olney J’s quoting of Justice Brennan in ANTHROPOLOGY Mabo (No 2) (1992, at [60]): ‘when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared’. Modelling the connection of native title claimants to their land in ways that are acceptable to the adversarial native title context is a challenge for native title UNSETTLING ANTHROPOLOGY anthropologists. They are faced with embedded and static notions of tradition that fly in the face of at least half a century of national and international THE DEMANDS OF NATIVE TITLE ON WORN anthropological debates and theory, but which have received little attention in Bauman the native title sector. The book includes issues such as naming of groups, the CONCEPTS AND CHANGING LIVES significance of descent from deceased forebears, the constitution of society, ways of approaching Aboriginal land tenure, processes of group exclusion and inclusion, changing laws and customs, and the scale of native title groups. and Macdonald Edited by Toni Bauman and Gaynor Macdonald UNSETTLING ANTHROPOLOGY THE DEMANDS OF NATIVE TITLE ON WORN CONCEPTS AND CHANGING LIVES Edited by Toni Bauman and Gaynor Macdonald anthro_mono.indb 1 18/05/10 4:40 PM First published in 2011 by the Australian Institute of Aboriginal and Torres Strait Islander Studies © The Australian Institute of Aboriginal and Torres Strait Islander Studies in the volume, 2011 © in individual chapters is held by the contributors, 2011 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10 per cent of this book, whichever is the greater, to be photocopied by any educational institution for its education purposes provided that the educational institution (or body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. Australian Institute of Aboriginal and Torres Strait Islander Studies. GPO Box 553, Canberra, ACT 2601 Phone: (61 2) 6246 1183 Fax: (61 2) 6261 4288 Email: [email protected] Web: www.aiatsis.gov.au/asp/about.html National Library of Australia Cataloguing-In-Publication data: Title: Unsettling Anthropology: The Demands of Native Title on Worn Concepts and Changing Lives/ edited by Toni Bauman and Gaynor MacDonald. ISBN: 9780987135339 (pbk.) Subjects: Native title (Australia). Aboriginal Australians — Land tenure. Anthropology — Australia. Other Authors/Contributors: Bauman, Toni. MacDonald, Gaynor. Australian Institute of Aboriginal and Torres Strait Islander Studies. Dewey Number: 346.940432 Printed in Australia by CanPrint Communications Contents Acknowledgements ....................................................................................... v Contributors .................................................................................................vi Introduction CHAPTER 1: Concepts, hegemony, and analysis: Unsettling native title anthropology — Gaynor Macdonald and Toni Bauman ........................................ 1 PART A: Analysing Anthropological Approaches to Native Title in South-East Australia CHAPTER 2: Group names and native title in south-east Australia — Tim Dauth ....................................................................................................21 CHAPTER 3: The differences which resemble: The effects of the ‘narcissism of minor differences’ in the constitution and maintenance of native title claimant groups in Australia — Simon Correy, Diana McCarthy and Anthony Redmond .........................................................................................41 CHAPTER 4: Territorial boundaries and society in the New South Wales Riverine: A Wiradjuri analysis — Gaynor Macdonald ..................................... 62 CHAPTER 5: The proof of native title connection in absentia — Sally Babidge .................................................................................................82 PART B: Native Title Practice Papers CHAPTER 6: Good, bad and ugly connection reports: A panel discussion at the Turning the Tide: Anthropology for Native Title in South-East Australia workshop, Sydney 2010 — Simon Blackshield, Lee Sackett, Vance Hughston and Ian Parry ...................................................................................................102 CHAPTER 7: Modelling the continuity of Aboriginal Law in urban native title claims: A practice example — Paul Memmott ........................................122 CHAPTER 8: Anthropology and the resolution of native title claims: Presentation to the Federal Court Judicial Education Forum, Sydney 2011 — David Trigger ........................................................................142 CHAPTER 9: Anthropological expertise and native title: An extract from an expert report to the Federal Court in the Waanyi native title application — Peter Blackwood .......................................................................161 PART C: Research Report CHAPTER 10: Caroline Tennant-Kelly, activist and anthropologist: Field work accounts of Australian Aboriginal culture in the 1930s — Kim de Rijke and Tony Jefferies .....................................................................168 Acknowledgements The editors sincerely thank Lydia Glick for her assistance in editing this volume and Rachel Ipoliti for typesetting. This volume arose from the Turning the Tide: Anthropology for Native Title in South-East Australia workshop in Sydney 2010 where we were ably assisted by Alex Crowe, Alice Nagy, Anna Nettheim, Matthew O’Rourke, and Zoe Scanlon. Anna subsequently transcribed the proceedings of the workshop and also assisted with editing. We are grateful to the contributors for their patience and for responding promptly to editorial queries and thank the anonymous peer reviewers for their comments. The views expressed in the collection are, of course, the views of the authors. v Notes on Contributors Dr Sally Babidge is an anthropologist in the School of Social Science at the University of Queensland. She has undertaken native title research in Western Australia and Queensland. Her research focuses on ethnography and historical ethnography of the state and changing practices of Australian indigenous families. Research interests on the comparative politics of indigenous identity in the context of resource extraction and negotiations take her to northern Chile. Toni Bauman is a Research Fellow in the Native Title Research Unit (NTRU) at the Australian Institute of Aboriginal and Torres Strait Islander Studies, and an anthropologist, mediator, facilitator and trainer. She has a wide range of experience in land and native title claims, agreement-making, decision- making and dispute management processes, and partnering. Between 2003 and 2006, Toni Bauman ran the Indigenous Facilitation and Mediation Project in the NTRU, and in 2008 advised the Federal Court on its indigenous dispute resolution and conflict management case study project. She also undertakes a range of speaking engagements and facilitation of workshops, including with native title holders. Simon Blackshield is a barrister and solicitor with fifteen years’ experience as a native title lawyer in New South Wales, Queensland and Western Australia. He currently divides his time between running the national legal firm, Blackshield Lawyers, and acting as In-house Counsel for the South West Aboriginal Land and Sea Council in WA. Dr Peter Blackwood is a consultant anthropologist based in Cairns, whose practice has been predominantly in Aboriginal cultural heritage, statutory land claims and native title. He has previously held positions as senior anthropologist with the Cape York Land Council in Queensland and the Aboriginal Areas Protection Authority in Alice Springs, and has been an expert witness for native title matters. Simon Correy is a Senior Research Anthropologist at Native Title Services Corporation (New South Wales) where, among other details, he has undertaken research contributing to the achievement of a number of native title consent determinations. He has held this position since 2002 following several years vi Contributors of consultancy including work for the Indigenous Land Corporation and anthropological research on the Wiradjuri Wellington native title determination application which was the first such application in Australia lodged under the Native Title Act 1993. He has ongoing academic research interests in the social effects of the native title phenomenon, particularly the constitutive role of the Native Title Act and its contingent processes