Introduction to ‘Anthropology and change over the land rights era’

This collection of papers arose from a conversation among several of us contributors with long-term experience of working as anthropologists in land and native title claims. We felt that we and others with such involvement had written relatively little about our observations at this intersection of anthropology and law, but that we all had a sense of issues and changes throughout the ‘land rights era’. By that we mean the last 50 years since the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA). We first presented versions of the papers that follow at a panel of the Australian Anthropological Association in November 2023. At that panel and outside it, we have continued to discuss what we see as major questions. The papers in this issue address only some of the topics that anthropologists have encountered in their land claims and native title work (including controversy and debate over their involvement, see Trigger, 2011). Much more can be said, and it is one of the aims of this journal issue to stimulate more comment on anthropology in these contexts. All of the contributors have considerable experience in working with Indigenous people and claims, much of it in the land claims context, but also in the institutional land council setting (O'Meara and Williams), in ALRA claims, native title applied and research work (all of us), in long-term independent research and community work (especially Burke, Garde, but all of us to varying extents), as well as in academia, some as former postgraduate students, two of us as teachers and researchers in the academy (Merlan, Trigger). Finally, from a legal perspective, author of the Afterword, National Native Title Tribunal President Kevin Smith, provides a masterful perspective on the challenges of the next few decades, transposing the key signature of ‘change’ into a view of the near and longer-term future of land and native title rights in Australia, and the prospect of anthropologists' engagement in it. The first article, ‘Anthropology and change over the land rights era: Towards treaties?’, discusses matters, comparatively and then with a particular focus on Australia, that contextualise the following papers in the issue. It examines: the comparative size of ‘Indigenous estates’ in Anglo-settler countries; differing processes of their accumulation and limitation; variable application of concepts of ‘treaty’ in them; and the role of anthropologists in the development of the Australian Indigenous estate. The phrase ‘Indigenous estate’ has been applied by economic anthropologist Jon Altman (2013) to land (and sea) granted in Australia to Indigenous interests under various forms of tenure. The first paper examines the extent of the Australian Indigenous estate compared to those of other Anglo ex-colonies—the United States, Canada, and New Zealand.1 Australia has been a latecomer to the recognition of land (and sea) rights. While all the other countries made forms of colonial treaty or treaties with their Indigenous peoples, Australia never did so. Nevertheless, the first paper shows that the area Australia has granted in various forms to Indigenous interests in the last few decades has, proportionally, far exceeded that granted in the other countries. This seems to present a paradox. Given the diversity of tenures under which lands have been granted, it becomes important to examine the processes of accumulation of these Indigenous estates; and also ways and time periods in which they have been restricted, relevant to the proportional differences in the Indigenous estates of the Anglo ex-colonies. In Australia, the progression went from minimal recognition of Indigenous entitlement to lands (limited to establishment of largely remote ‘reserves’), to promulgation of some progressive land rights legislation from the 1960s in some states, to the development of a federal land rights statute with application to the Northern Territory (and some additional state-level legislation and granting of lands around the same period, in the 1960s, 1970s, and beyond). In Australia, the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) and the Native Title Act 1993 (NTA) have been the two key pieces of recent, federal legislation under which the expansion of the Indigenous estate has principally occurred. The other papers in this issue examine situations and land rights cases grounded in the context of those two pieces of legislation. Political mobilisation concerning Indigenous rights in approximately the last third of the 20th century took place in the context of many other socioeconomic and political changes in all these Anglo settler countries. Among these changes were continuing post-World War II penetration of human rights values and institutional developments; neoliberalisation of economies; and mining and resource exploration in relatively remote areas that were becoming considerations in what geographer John Holmes (2010, referring to Australia) calls the ‘multifunctional transition’ of land tenures as these evolved to include consumption, protection, and Indigenous values. Australian land rights developments compare with the revivification in New Zealand of the colonial-era, but long-ignored 1840 Treaty of Waitangi and the development from 1975 of the Waitangi Tribunal; in Canada, with the gradual legal recognition of ‘native’ (or Aboriginal) land title and the impetus this gave from 1973 to recognition of ‘comprehensive settlements’, which began to look like more multi-factorial ‘treaties’ than those that had been made and called such over Canadian colonial history; and with the somewhat different developments in the United States that had seen early established and still extant ‘treaties’, which, however, were continually impacted and restricted by major qualifications, reversals, and limitations of Indian entitlements to land. These countries have all entertained questions of ‘treaty’, at many points evincing what philosopher Paul Patton (2014) calls a ‘treaty ideal’—the attraction of ‘treaty’ as a settlement of the contentious relations of colonisation. Importantly, comparison shows that ‘treaty’ has been variably linked to recognition of Indigenous sovereignties, in concept and in practice. Comparison helps show how different meanings attributed to the concept are related to the elusiveness of implementation of treaty in Australia. Recent developments in Australia, however, raise the question whether ‘treaties’ may yet come about—are in fact coming about—somewhat differently from some imaginings of them. Difficulties have emerged in the completion of some Australian land and native title claims processes under the two recent principal forms of legislation, ALRA and NTA. Despite Australia's uniqueness in never having made treaties historically with its Indigenous peoples, other and potentially more treaty-like processes have arguably begun to occur as alternatives to land claims and native title outcomes. The second paper, ‘Traffic-habits and local descent groups: Broadening the scope of ethnographic research into land rights post-land claims’ by Dayne O'Meara, addresses one of the ALRA criteria for identifying ‘traditional land owners’: the requirement for them to comprise ‘local descent groups’, a task anthropologists typically undertake in land claims work. This is a phrase of the ALRA, not a standard anthropological term. Early in the land claims era (from 1978), it had been thought that local descent groups might conform to a patrilineal ‘clan’ model associated with anthropological forebear A.R. Radcliffe-Brown.2 His model, however, had already been subjected to serious critique by the 1960s, largely around differences that emerged from consideration of groups from different perspectives, as ‘land-owning’ and ‘land-using’. The possibilities for different kinds of findings with respect to ‘traditional ownership’ were early and long debated in critical anthropological commentary on the ALRA (so that there exists a specialist literature on this). It took some time for anthropologists to appreciate some of the (limited) flexibility in the definition of traditional owner; for example, whether findings for particular areas would be in terms of ‘patrilineal’ groups (or ones in which the relation to land was traced only through the father's line); or whether people related to land areas through their mothers had equally valid, if different, claims to ‘traditional ownership’. In any case, the ALRA was applied to a diversity of situations, from (broadly) remote-area contexts where connections to land had remained stronger and more differentiated by the time of their investigation, to peri-urban and urban situations where more significant change had clearly occurred. In these different situations, and especially the latter, a tendency became visible in claims cases for larger and/or more broadly defined groups to be identified as traditional owners. Where and on what bases has this happened? Is it always a good thing, or does such broadening of attribution of ‘traditional ownership’ run the risk (in some cases) of flattening existing hierarchies of traditional knowledge? There were modifications of local descent groups in claims cases and other administrative and research work, but that leads to O'Meara's main point. With a term such as ‘local descent group’ developed for statutory purposes, there comes to be substantial interface between the institution that makes use of it, and Indigenous people's understanding of its application in those particular contexts. There emerge what social theorist Benedict Anderson calls ‘traffic habits’, whereby such understandings can be contextually drawn upon by Indigenous people, and become ensconced in institutional documentation that structures administrators' and researchers' expectations of who, for example, are ‘traditional owners’ for an area, and the reasons for this. This usage can become standard and expected, brought to meetings and consultations as if fixed, by researchers, organisations, and indeed, sometimes adopted and adapted by Indigenous people themselves. But this does not adequately represent the various other ground-level practices or concepts in terms of which Indigenous people think and act about forms of relationship to land areas. Sometimes they may find anthropological and administrative concepts perplexing, describing them as ‘whitefella way’. The information they offer can relate to their views of knowledgeability; cultural authority and its various possible bases; responsibility; the dynamics of kinship and political interaction; the actualities of who has spent time where and with whom and is so acknowledged; all of which may go outside normative structural notions and be a great deal more unruly. Even who to include in a particular land claim, in Indigenous views, may not be boundable by any highly structured notion of local descent group (or fit neatly with the other ALRA-required characteristics). Because of the differences and interaction between ground-level and institutional concepts and practices, O'Meara argues that the relationship of claims work must continue to be linked to anthropology as a discipline; and that detailed ethnography that could elucidate some of these commonly encountered complexities can be better understood, and inform institutional decision-making in the post-claim or post-determination contexts in which anthropologists work. The third paper, ‘Land claim legacies, native title, and the rigours of Indigenous by Trigger, has much in with but is was the principal anthropologist in a land claim called in the Northern Territory in then were principal ways in which Indigenous people in important connections to was to father's and father's which are to a area of the and some as those of and (or of these But at the time of the claim, the bases on which people were to these could be sometimes of and and/or these with social called than by There then and among Indigenous people about the of some people's claims to about the or of Indigenous views on claims to years the claim with traditional identified on what were then bases of to father's and father's was called upon to in concerning the rights to on the other of the in on the of a as the in the also had identified as but some also to There was considerable of between the two periods of but the focus was on particular In that context it became that colonial over time had been more in than in the Northern and the principal for was a much defined of descent from any by did not controversy but gave it a particular who is (or and questions areas of in Indigenous people can and claim to more than one of such (Merlan, is that change is and clearly visible in this had not been at the of land rights was how there would be change in and how and other would come to local and of traditional In this in change had to the sense that Indigenous people, especially those on the of the with their particular had much detailed experience and of its and than had been the there or among the Northern Territory But in to clearly (and with Indigenous and practices about to have always been more than the highly structured of that had been more seen as normative in the land claim years to the there are many who have and are about more and of to what they see as traditional Given the possible of there is a tendency This is to and to many other researchers who have continued to research in particular over a long At the same such as the land had been present for a long and their research and other are upon and they and their ‘traffic have become of the of main is that change and its must be of those are always they may only in particular and the of a or normative With that and a land claim years is not an for findings of The paper by Paul Burke, and Towards an ethnography of traditional land in the Northern Territory addresses many issues of change in the of and relationship to some of which were also in a of of what as the ethnography of to land among that has with in Australia's and in land claim and native title contexts. of the having become more like of the in the to some of on the one and of to through of and on the has there to be a of of experience of and becomes detailed and sometimes are to a place and a or of connections among of and to have become more kinds of of of people to for have become standard and have been an arguably There on the other the of that were in the to be relatively or of particular would be an tendency to as where some may have been as or of some but and other of has on about of people in claims on the of than of the relation of to a community and of that have always a role in the of social At the same time there is of Indigenous their and of also a on the of in and for example, and of written which would not have been of the of in of are that many of are others of different are In of the of the definition of traditional especially in ALRA (Merlan, this but also more how much expectations of traditional and its statutory may have to change to The paper, by and Garde, in the era: and change over years in to some of the same but more had with Indigenous people of years in a While Indigenous people had detailed information concerning and the usage of those who with had of that of detailed the much experience and the of people had of relationship to But it was possible to to them the information had and of the of of from Indigenous to in the first and from documentation to people and the Indigenous community in the the of to the of Indigenous people, which continue and the of (in many as in this between and Indigenous in ways that can have this This is only one of the of of on ethnographic work, that can at represent the and experience of that people had In recent years anthropologists have made of information and concerning the and of in and a larger of their research All of the papers in this issue are with of but one might of of ethnographic and O'Meara argues that of people to land not find in some of the normative concepts that have been applied to ‘traditional so that there be a between claim findings and the of While that may always be the in to fit ethnographic into a legal the may in some Importantly, on a different but related O'Meara argues that to be of the extent to which and practices of relationship with and are by institutional ‘traffic habits’, the of an and of understandings in claim processes may be by Indigenous people and then continue to in post-claim and post-determination processes as of their of While some might to that Indigenous views are independent and not to such of the of all of these is that it would be to that especially many of and and that an of ethnographic is the to the and of O'Meara the of ethnography and its continuing to anthropology as a of ethnographic and All of the also can be as a to anthropologists that there are in the of claims and in their the of ‘traffic and working with as if they were all and the role of anthropology in Canadian land claims, anthropologists as having a tendency such of for the of anthropologist anthropological work to become to than its of and may be and in some but for those who and with Indigenous a more of situations is for paper also a about on Indigenous people's to land. that the of the of interaction between and Indigenous people have had different in its and administrative compared to the Northern Territory its and such as His of has important for other claims, and for understanding have come to see in terms of to such as than to grounded groups and their in some to their in the Northern with they continue some usage of social which have always a in connections of Indigenous of and but these have to a are to and such But what is the relationship of such observations to on the one anthropology on the might as discusses have the anthropological involvement in land and native title claims is a to long-term colonial and especially might that all such be Indigenous to be on their think it is that all the of related of involvement that not have the of ‘treaty’ as and have these (Merlan, this Land and native title claims developed in a always have of as well as of as well as of that Indigenous and other claims, and ones that it seems and to the of groups anthropological to that Indigenous people be to claims on their many different kinds of interests are many are made that would to to questions of and The issues that Indigenous are and many are made on their existing legislation. Indigenous are also to of as points and have great of people who, in many were the last to and on in remote where other may to (Merlan, who are of Indigenous land rights and claims, may be to the of that of involvement but many Indigenous continue to that involvement, and the information that have from years of from experience that are not always to the of ethnographic that some ways of more than that information on issues of social and or may be But O'Meara's for ethnography to be seems to well we must that such does not relate to the legal and administrative of to the question in the of recognition traditional native title and may have to in to change among experience of is different from that of their who were claim would be would be more than to many present into the of the ALRA, for example, where are not linked to has written of in New may of of other if one changes a statutory that not to the of claims, and questions of it We may be the time criteria of recognition the two major statutory were relatively to such as in Australia, the claim of and various native title We may see ways in some kinds of that have outside statutory (Merlan, this and include the and the that emerged the Land and native title claim around claims such as are (Merlan, this and it to be seen how they bases for settlement were more on processes of group and would to to Indigenous involvement, especially that to be There are many important questions that we contributors are but have not and this issue be a for and others to examine our involvement in land and native title claims as and to the of the ‘land rights for other of Indigenous social and cultural to Despite land (or the of some of us is that the has a understanding of how it has on what bases Indigenous people have been to be in relation to what some claims and cases have in of and others have in of relatively and so We this issue to some of these questions of there are some reasons about anthropologists' engagement has been relatively There are issues about the of we have by land or other have been to this in the particular cases they as they have established them as with Indigenous and much of by and as a of it is also to anthropologists that our in land and native title claims has been to its legal institutional establishment anthropologists have longer-term and of Aboriginal people and their than is of other Land claims in the Northern Territory have been by legal of the major land under the working relations between anthropologists and have from highly to with many in a O'Meara's paper some of differences in that may between anthropologists and they must work for and outcomes. In Afterword, Kevin a legal perspective to these anthropological Kevin is President of the National Native Title and has an of experience as a and in native that the to the Native Title Act with the that it is as a for the and of Aboriginal and and the of among all key of a of which as to the of of cultural the Indigenous and In many ways this some of the for the of that of ‘treaty’ that native title to has largely been with the of legal and the next of native title in the issue of in With some to the other an of anthropologists' engagement with issues in native title and in the We contributors with all of the land under the Land Rights Act for claims having some time in a more critical and can be for political the early which rights in the main of has somewhat and the ALRA is not the political it to be (Merlan, The question of the extent to which it has become in our and structures we be more social have not for many Indigenous people recent the of to so there is a continuing for example, the (or in some of and their important At the same the of native title claims, possible since the this and may well recognition to some groups and their that they have not been to to Paul for to the from which these papers for and all the contributors and in particular for their and in the for and for this issue. are and in and/or in

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