Asia-Pacific Environment Monograph 3 Customary Land Tenure and Registration in Australia and Papua New Guinea: Anthropological Perspectives Asia-Pacific Environment Monograph 3 Customary Land Tenure and Registration in Australia and Papua New Guinea: Anthropological Perspectives Edited by James F. Weiner and Katie Glaskin 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/customary_citation.html National Library of Australia Cataloguing-in-Publication entry Customary land tenure and registration in Australia and Papua New Guinea : anthropological perspectives. Bibliography. ISBN 9781921313264 (pbk.) ISBN 9781921313271 (online) 1. Aboriginal Australians - Land tenure - Social aspects - Australia. 2. Papuans - Land tenure - Social aspects - Papua New Guinea. 3. Land titles - Registration and transfer - Australia. 4. Land titles - Registration and transfer - Papua New Guinea. 5. Land use - History - Australia. 6. Land use - History - Papua New Guinea. I. Weiner, James F. II. Glaskin, Katie. (Series : APEM Monographs Series). 306.32 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 Duncan Beard. Cover photograph: Landowner of Goare Village, Goaribari Island, Gulf Province, Papua New Guinea (photo by James F. Weiner). This edition © 2007 ANU E Press Table of Contents Foreword ix Abbreviations xv Contributors xvii 1. Customary Land Tenure and Registration in Papua New Guinea and Australia: Anthropological Perspectives, James F. Weiner and Katie Glaskin 1 2. A Legal Regime for Issuing Group Titles to Customary Land: Lessons from the East Sepik, Jim Fingleton 15 3. Land, Customary and Non-Customary, in East New Britain, Keir Martin 39 4. Clan-Finding, Clan-Making and the Politics of Identity in a Papua New Guinea Mining Project, Dan Jorgensen 57 5. From Agency to Agents: Forging Landowner Identities in Porgera, Alex Golub 73 6. Incorporating Huli: Lessons from the Hides Licence Area, Laurence Goldman 97 7. The Foi Incorporated Land Group: Group and Collective Action in the Kutubu Oil Project Area, Papua New Guinea, James F. Weiner 117 8. Local Custom and the Art of Land Group Boundary Maintenance in Papua New Guinea, Colin Filer 135 9. Determinacy of Groups and the ‘Owned Commons’ in Papua New Guinea and Torres Strait, John Burton 175 10. Outstation Incorporation as Precursor to a Prescribed Body Corporate, Katie Glaskin 199 11. The Measure of Dreams, Derek Elias 223 12. Laws and Strategies: The Contest to Protect Aboriginal Interests at Coronation Hill, Robert Levitus 247 13. A Regional Approach to Managing Aboriginal Land Title on Cape York, Paul Memmott, Peter Blackwood and Scott McDougall 273 Index 299 v List of Figures Figure 4-1: Nenataman location map. 61 Figure 4-2: Topographical and site map of Nenataman. 62 Figure 6-1: Percentage of landowner households dissatised with dierent types of landowner organisation, 1998–2005. 101 Figure 6-2: Petroleum Development Licence areas in PNG. 102 Figure 6-3: A simplied model of the Huli descent and residence system. 107 Figure 6-4: Zone ILGs proposed for the Hides licence area (PDL 1). 109 Figure 6-5: Zone ILG structure proposed for the Hides licence area. 110 Figure 6-6: Landowner preferences for benet distribution, 2005. 113 Figure 9-1: Area of common interest at Hidden Valley. 186 Figure 9-2: Approximate number of signatories for ‘Nauti’ by year 188 Figure 10-1: Approximate location of outstation groups in 2001. 207 Figure 10-2: General locations of Bardi and Jawi buru. 210 Figure 11-1: Diagram depicting places of signicance for the Warlpiri in relation to the licence area in initial year of exploration. 235 Figure 11-2: Diagram depicting places of signicance for the Warlpiri in second year of exploration with reduced licence area. 235 Figure 11-3: Diagram depicting broader areas of importance for Walpiri in relation to the exploration licence area in initial year of exploration. 242 Figure 11-4: Diagram depicting mining lease area in relation to areas of signicance for Walpiri in the fth year of mining. 242 Figure 12-1: Kakadu National Park, showing Coronation Hill and reduced (post-1989) Conservation Zone. 252 Figure 12-2: Kakadu National Park, showing stages of declaration and the original Conservation Zone. 254 Figure 13-1: Cape York Native Title Representative Body’s area of administration and the subregions of Wik and Coen. 276 Figure 13-2: Wik subregion model. 288 Figure 13-3: Coen subregion model. 291 vii List of Tables Table 6-1: ILGs in petroleum licence areas, October 2004 103 Table 9-1: Distribution of living descendants of the ‘Nauti’ constituent 187 patrilines of Equta patronymic by village (in 2000) Table 9-2: Some attributes related to commons ownership in four cases 189 in Torres Strait and Papua New Guinea Table 13-1: Tenures on Cape York Peninsula showing potential for 279 overlapping Aboriginal ownership Table 13-2: Model of harmonised rules for a PBC as trustee of a Land Trust 283 viii Foreword Anthropologists 50 years ago would probably have regarded a collaborative presentation of essays on indigenous land tenure in Australia and Papua New Guinea (PNG) as a dubious undertaking, if not a category error. Aboriginal and Melanesian systems were functionally distinct, one adapted to the needs of a hunting and gathering economy, the other to sedentary horticulture. Going back another 50 years, such a conjunction would have been intelligible only if its purpose was to exhibit lower and higher stages in cultural evolution. As the authors of the present volume are not motivated by a desire either to overturn functionalism or advance evolutionism, what brings them together in common cause? An important clue is to be found in the curious fact that the Native Title Act of 1993, passed by the Federal Government on behalf of the indigenous people of Australia, grew directly out of a High Court action by three Torres Strait Islanders whose ancestors probably came from PNG and whose people traditionally lived as subsistence cultivators. In the course of documenting the denigration of Aborigines in colonial legal history, Justice Brennan made it clear he would have no sympathy with any attempt to represent the plaintiffs as belonging to a higher level of native society than any that existed on the mainland (Bartlett 1993: 27). His colleague Justice Toohey acknowledged significant cultural differences between the two peoples but insisted that the principles relevant to a determination of interests in land were the same (ibid: 140). Although the Mabo decision was the first positive determination by the judiciary of the rights of native Australians to land at common law, it was heralded by political and legislative forerunners in PNG as well as Australia. In the early 1970s, government inquiries were carried out independently to consider the issue of land rights in two Commonwealth territories Ð the Commission of Inquiry into Land Matters (1973) in PNG, and the Aboriginal Land Rights Commission (1973) in the Northern Territory. Two Acts of Parliament ensued shortly afterwards: the PNG Land Groups Incorporation Act 1974 and the Australian Aboriginal Land Rights (Northern Territory) Act 1976. It need hardly be said that the consequences of this legislation for the intended beneficiaries were profound. Less conspicuous, though no less profound, were the side-effects on the practice of anthropology. Whereas in the first three quarters of the twentieth century investigations of traditional land tenure in Australia and PNG were pursued at a leisurely pace, in response to the needs of an academic discipline, in the last quarter they were more often carried out under contract and under pressure in the context of indigenous land claims or externally-financed resource exploitation. While I am a relic of the old order, all the other contributors in this book belong to the new. ix Customary Land Tenure and Registration in Australia and Papua New Guinea My interest in customary land corporations began while I was an undergraduate at Sydney University. In 1952, two years before I enrolled in anthropology, A.R. Radcliffe-Brown published his collected essays and addresses under the title of Structure and Function in Primitive Society, which enshrined unilineal descent as a key principle in the occupation, ownership, and use of land in pre-industrial social formations. In his first article on Aboriginal social organisation, Three Tribes of Western Australia (1913), he identified the primary territorial group in the Port Hedland region as a patrilineal clan. In his seminal treatise, The Social Organization of Australian Tribes (1931), he argued that the patrilineal clan formed the basis of landowning corporations throughout the continent.1 Radcliffe-Brown was professor of anthropology at Sydney University from 1926 to 1931. Scholars attracted by his theoretical approach after he returned to England, particularly E.E. Evans-Pritchard and Meyer Fortes, emerged as leading exponents of descent theory in the analysis of African societies. In Aboriginal and Melanesian ethnography his abiding influence dominated the research agenda throughout the 1950s, particularly following the establishment of anthropology at The Australian National University. Most of my contemporaries regarded themselves in some sense as `British structuralists'. One of the most thoroughgoing applications of the school's doctrines was carried out by my teacher M.J. Meggitt, who first consolidated descent theory in the Australian desert and then planted its flag in the New Guinea Highlands (Meggitt 1962, 1965). While post-war anthropology was thus preoccupied with the documentation of indigenous corporate culture, post-war native policy under the direction of Paul Hasluck (Minister for Territories) viewed communal ideologies as barriers to the assimilation of individuals into the workforce and lifestyle of Western civilisation.