Morphy, Howard --- "The Use of Anthropology in the Reeves Report" [1999] IndigLawB 14; (1999) 4(18) Indigenous Law Bulletin 13
The Use of Anthropology in the Reeves Report
by Howard Morphy
Under the Land Rights Act, anthropology has played a crucial role both in the land claim process and in the day to day administration of the Act by describing traditional systems of land ownership, elucidating the rights that different people have in areas of land and showing how land ownership is linked to other aspects of Aboriginal society.
The role of anthropology in the area of land rights in the Northern Territory was, initially, to provide expert advice for developing mediating structures and institutional frameworks that enshrined the rights and processes of one system of law (Aboriginal customary law) within the legislative framework of another (Australian law). Anthropological ideas were relevant to such legislation because the application of anthropological understanding resulted in definitions and institutional structures that were broadly compatible with indigenous systems of land tenure. This facilitated the continued operation of these indigenous systems once rights in land were recognised under Australian law. Subsequently, anthropologists have worked as researchers and expert witnesses to ensure that determinations in particular land claim cases fit in with local Aboriginal tradition and customary laws The definition of `traditional owner' under the Land Rights Act has also meant that considerable emphasis has been placed on anthropological research.2
Three anthropological issues are central to the Reeves report: the regional context of land ownership, the relationship between land ownership and land use and the significance of the spiritual relationship between people and land. In each case, the Reeves report interprets the evidence in such a way that it supports his recommendations.
Reeves uses developments in anthropological understanding to justify a number of proposed changes to the Land Rights Act that will `allow the representative bodies to adopt decision making processes that accord with their traditions, as they interpret them'.3 Reeves implies that current anthropological understanding contradicts the definition of traditional owner used in section 3 of the Act. In effect, he proposes the replacement of the category `traditional owner', which is fundamental to the current Act, with a more general concept -member of a Regional Land Council' - a category which is defined in terms of residence and/or traditional affiliation to an area of land within the specified RLC region.4
Reeves argues that the existence of a `regional level of organisation' within Aboriginal culture provides support for the development of regional land councils. He devotes considerable space to discussing anthropological literature on Aboriginal group organisation. The issue of the relationship between social structure and individual behaviour, (which in Australia includes such issues as the basis and nature of group formation) lies at the heart of much contemporary anthropological theory.5 This issue has a long history in Australian anthropology and the main sources that Reeves cites for a community level of organisation were in fact published over a decade before the Land Rights Act was drafted.6
The nature of group organisation remains a complex problem within contemporary anthropology. However, the debate has less to do with the substantive issue of defining the set of people who own the land than with the abstract ways in which Aboriginal society continues from one generation to the next. Within Aboriginal society, the validation of rights in land, the operation of principles of succession and the organisation of daily life all require that systems of land tenure operate in a broadly regional context. There is, however, little anthropological evidence for regions with fixed and mutually-exclusive boundaries or for the existence of bounded land-owning groups at a `community or regional level. The region provides the wider framework within which ownership at a more localised level exists and is negotiated.? There is no new anthropological evidence that would support a change to smaller land councils. The creation of smaller regional land councils would create inflexibility at the local level and impose arbitrary limits to effective land ownership. Continuation of Aboriginal politico-legal process would seem best served by the inclusion of local groups within larger entities which allow for changes in the regional foci over time and which avoid drawing rigid boundaries around areas of land.
One of the significant strengths of the original definition of traditional owner under the Act is that, despite the initial concerns of some people,8 it has been shown to be capable of accommodating the diversity of Aboriginal societies through the translation of land ownership under Aboriginal Law into land ownership under Australian Law. Significantly, it is in the area of land claims, where the definition of traditional owner might be predicted to be most contentious, that Reeves has recommended that the definition should remain unchanged. In effect, Reeves is proposing a lower hurdle for membership of Regional Land Councils and a higher hurdle (the original one) for proving land claims. The main criteria for membership of the proposed Regional Land Councils will be residence and traditional affiliation.9 Since people are only allowed to be members of one Regional Land Council, the members of that Council may include people who are not recognised as traditional owners under Aboriginal law (but fit the residential criterion) and exclude people who are successful claimants under the land claim process.
Reeves makes a series of invalid assumptions about Aboriginal regional organisation. His statement that regional populations tend to be linguistically cohesive is wrong. Each of Reeves' proposed regions contains within it great linguistic diversity, reflecting the cross-cutting nature of linguistic and social relationships in Aboriginal Australia, which is in turn reflected in high levels of multi-lingualism. Linguistic cohesiveness cannot be used as an argument in favour of Regional Land Councils. The concept of discrete regional cultures is equally problematic as a basis for identifying units of administration. `Regional cultures' is not a well-analysed concept anthropologically and there is no evidence that the proposed Regional Land Councils correspond to recognised culture areas.
The emphasis placed by Reeves on usufructuary or foraging rights does not reflect the place they have in Aboriginal systems of ownership. A key feature of the Land Rights Act is that it allows for the separation of land ownership from land use while allowing that some relationship exists between the two. Anthropological research by Peterson has demonstrated that land ownership has a central role in regulating the utilisation of resources and in the long term management of land but that it does not entail the exclusive use of resources by the land-owners.10 Anthropological evidence continues to confirm the importance of spiritual and social ties to land as integral to Aboriginal conceptions of land ownership. Reeves, by over-emphasising the exploitation of resources rather than caring for, looking after and managing the land, is imposing a particularly narrow Western common law conception of what ownership entails.
In linking land use to land ownership, Reeves has failed to take account of the central role of consent in Aboriginal systems of land management." The resources of the environment are managed and protected by the land owners through a system of permission which ensures that only those who are entitled to forage over the land or who have permission from the owners to forage can do so. This system of permission involves both the spiritual and secular management of the resources. Contextual banning of hunting, or burning a particular area of land can be instigated as a religious sanction or as the result of a death or a dispute. Such practices can be extended by traditional landowners to other economic resources on Aboriginal land such as the community store. Ownership, as defined under the existing land rights legislation, allows the continuation of such management of resources by land owners.
Reeves recommends the abolition of the permit system partly on the basis that exclusion is race-based and hence discriminatory. However, this is a narrow interpretation of the Land Rights Act. Aboriginal people can be excluded from access to a particular area of land under the operation of Aboriginal law, and the permit system is a means whereby non-Indigenous people who are not covered by Aboriginal law can obtain permission to enter Aboriginal land. It provides a point of articulation between Aboriginal and non-Aboriginal law which allows Aboriginal people to exercise their rights under both.
Reeves' explicit objective is to change the purposes of the Land Rights Act from granting Aboriginal people land rights to being an instrument to facilitate development.12 His recommendations aim to achieve this by reducing the size and power of the existing Land Councils and changing the concept of traditional owner. The power of the Land Councils has been an important factor in enabling local Aboriginal communities to maintain their autonomy and allowing their own systems of value and customary law to operate in changing circumstances. Reeves is quite wrong when he argues that 'traditional owners are not organised to take any action relevant to the secular interests of Aboriginal people'.13 The system of land ownership provides management structures and decision-making processes, and mechanisms for distributing returns from land, including the production of certain commodities and the use of certain resources. These processes are dynamic and capable of responding to changed circumstances, as can be seen by the ways in which Aboriginal corporations have become involved in new economic ventures while still paying due attention to traditional structures and values. Issues of spiritual affiliation and responsibility are integral to the reproduction of Aboriginal society but are not of themselves a barrier to change or development, nor to engagement with wider political and economic structures.
Professor Howard Morphy is Senior Australian Research Council Fellow in the Department of Archaeology and Anthropology at the Australian National University.
Notes
1. Sutton, Peter. Atomism versus Collectivism: The Problem of Group Definition in Native Tide Cases' in Jim Fingleton and Julie Finlayson (Eds.), Anthropology in the Native Title Era, (Aboriginal Studies Press, Canberra, 1995), p 4.
2. Under s 3 of the Act, 'traditional Aboriginal owners', in relation to land, means a local descent group of Aboriginals who-(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to 'forage as of right over that land.'
3. Reeves, John. Building on Land Rights far the net generation: review of the Aboriginal Land Rights (Northern Territory) Act 1976, (Australian Government Publishing Services, Canberra, 1998), p 201.
4. ibid p 595.
5. See Keen, Ian. 'The Western Desert vs the Rest: Rethinking the Contrast' and Morphy, Howard. 'Death, exchange and the reproduction of Yolngu society, both in Francesca Merlan, John Morton and Alan Rumsey (Eds), Scholar and Sceptic: Australian Aboriginal Studies in Honour oft. R Him, (Aboriginal Studies Press, Canberra, 1997). pp 65-94 & pp 123-150, respectively. Cf Sutton, Peter. Native Title and the Descent of Rights, (National Native Tide Tribunal, Perth, 1998).
6. Hiatt, L. R 'Local Organisation among the Australian Aborigines', 32 0ceania (1962), pp 267-286 & Meggitt, Mervin. Desert People: a Study of the Walbiri Aborigines of Central Australia, (University of Chicago Press. Chicago, 1962).
7. See Sutton, op at above n 5, p 8.
8. See, for example, Gumbert, M. Neither Justice nor Reason: A Legal and Anthropological Analysis of Aboriginal Land Rights (University of Queensland Press, St Lucia, 1984).
9. op cit above n 3, p 295.
10. See for example Peterson, Nicolas. Australian Aboriginal Territorial Organisation, (Oceania Monographs, Sydney, 1986).
11. See also Williams, Nancy M. A Boundary is to Cross: Observations on Yolngu Boundaries and Permission` in Nancy Williams and Eugene S. Hunn (Eds.), Resource Managers: North American and Australian Hunrer-Gatherer, (Australian Institute of Aboriginal Studies Press, Canberra, 1982), pp 131-154.
12. op cit above n 3, p 74.
13. ibid p 204.