The robustness of aboriginal land tenure systems: underlying and proximate customary titles.

The robustness of aboriginal land tenure systems: underlying and proximate customary titles. While Aboriginal(1) land use patterns may have been fragile in theface of colonisation, and severe limits were consequently placed onAboriginal people's capacity to physically enact local traditionalentitlements on many lands, the basis and key content of traditionaltitle to such lands is not fragile but has generally been maintainedwith considerable robustness. In this paper I suggest that thisrobustness arises in a critical sense from the pre-existing and widelycontinuing dual structure of traditional land tenure land tenure:see tenure, in law. , which may beunderstood as consisting of an underlying title held within the relevantregional jural The principles of natural and positive rights recognized by law.Jural pertains to the rights and obligations sanctioned and governed by positive law or that law which is enacted by proper authority. and cultural system, which underpins proximate proximate/prox��i��mate/ (prok��si-mit) immediate or nearest. prox��i��mateadj.Closely related in space, time, or order; very near; proximal.proximateimmediate; nearest. entitlements enjoyed by small groups of individuals. There is scopewithin Australia's Native Title Act (1993) for the recognition ofthis system of customary law under the western legal concept of nativetitle. INTRODUCTION The Australian Native Title Act (1993), at section 223.(1),defines the common law rights and interests under native title as being,among other things, * rights and interests in the land and waters that are'possessed under the traditional laws acknowledged and traditionalcustoms observed by the Aboriginal peoples or Torres Strait Islanders Torres Strait Islanders are the indigenous people of the Torres Strait Islands, part of Queensland, Australia. They are Melanesians culturally akin to the coastal peoples of Papua New Guinea. ,(that is, they derive from and are rooted in a wider set of livingprinciples); [italics added] * rights and interests in the land and waters where the Aboriginalpeoples or Torres Strait Islanders have a connection with the land'by those laws and customs' (that is, it is not sufficient toestablish connection, either by continuing physical occupation or inmore cerebral ways, the connection must be derived from and rooted inthe system of law and custom relating to relating torelate prep → concernantrelating torelate prep → bez��glich +gen, mit Bezug auf +accland and land-related groups ofpeople) [italics added]; and * rights and interests in the land and waters that `are recognisedby the common law of Australia' The last of these requirements refers above all to the content ofthe High Court's decision in the case of Mabo and others v State ofQueensland (see Bartlett 1993a). In that decision at pp. 61-62, Brennan CJ said: ...[W]here an indigenous people (including a clan or group), as acommunity, are in possession or are entitled to possession of land under aproprietary native title, their possession may be protected or theirentitlement to possession may be enforced by a representative action brought onbehalf of the people or by a sub-group or individual who sues to protect orenforce rights or interests which are dependent on the communal native title. Thoserights and interests are, so to speak, carved out of the communal nativetitle. A sub-group or individual asserting a native title dependent on a communal nativetitle has a sufficient interest to sue to enforce or protect the communaltitle. A communal native title enures for the benefit of the community as a wholeand for the sub-groups and individuals within it who have particular rightsand interests in the community's lands. [Italics added] The Native Title Act thus envisions two distinct but related kindsof whole-part(2) dependency relationships. One is between particularrights and interests and the wider system of jural and culturalpractices in which they are embedded. The other is between the rightsand interests held in land or waters by subgroups or individuals, andthe communal native title out of which they are `carved'. In this paper I argue that these requirements themselves are inessence an accurate reflection of the relationship between widerAustralian Aboriginal systems of land tenure and the granting of localentitlements under and within those systems. While there has been somedebate as to how much of the detailed content of native title has to beproven in legal cases(3) there has been little debate about theproposition that,`[n]attive title has its origin in and is given itscontent by the traditional laws acknowledged by and the traditionalcustoms observed by the indigenous inhabitants of a territory.'(4) ABORIGINAL LAW AND LAWS Gaynor Macdonald has produced a good deal of evidence to show thatthe Bogan River The Bogan River was discovered by Charles Sturt in 1829 and is a minor river in the central western region of New South Wales, Australia. The Bogan starts near Forbes and flows generally north-north-west past Nyngan. Wiradjuri, acting as the Peak Hill native titleclaimants (New South Wales New South Wales,state (1991 pop. 5,164,549), 309,443 sq mi (801,457 sq km), SE Australia. It is bounded on the E by the Pacific Ocean. Sydney is the capital. The other principal urban centers are Newcastle, Wagga Wagga, Lismore, Wollongong, and Broken Hill. ), have a sense of their own culture, law andcustom as a distinctive system (1916: Chapter 6). An emphasis on this isnot an artefact See artifact. of the native title context. The short title of her PhDthesis, completed in 1986, was The Koori Way. Constructs of the sametype are well documented, not only for remote regions where classicaltraditions persist strongly, but also for people of rural and urbanbackgrounds not unlike those of the Peak Hill people, where thosetraditions have been subject to considerable historical transformation. Jerry Schwab's PhD on Aboriginal people of the Adelaideregion was called The `Blackfella Way', a reference to a particularcomplex of values, social rules, beliefs and style that carriescustomary-legal force in the area of obligations towards others and maybe referred to as `our Law' (1991:132). In far north Queensland Far North Queensland, or FNQ, is the northernmost part of the Australian state of Queensland. The region, which contains a large section of the Tropical North Queensland area, stretches from the city of Cairns north to the Torres Strait. theterms `Murri Murri can refer to any of following: Murri are the indigenous Australians of Queensland Murri is a city and resort in Pakistan which is also spelled as Murree Law' and `Bama Law' embrace the same basicconcept, and this Law governs, among other things, who has rights toland (Land Tribunal 1996: paras 766-778). These concepts are directdescendants of more classically framed and expressed notions that areusually translated into English as `Aboriginal Law'. Kenneth Maddock has published a brief review of such concepts,using as his examples the term julubidi in the Mardu region of WesternAustralia Western Australia,state (1991 pop. 1,409,965), 975,920 sq mi (2,527,633 sq km), Australia, comprising the entire western part of the continent. It is bounded on the N, W, and S by the Indian Ocean. Perth is the capital. and the term djugaruru among the Warlpiri of north-centralNorthern Territory (Maddock 1984:212). These terms typically refer to abody of jural rules for human conduct, and range widely from religiousacts(5) to marriage rules, kinship etiquettes and even forms of animalbehaviour and the making of fire, for example Maddock (1984:212). Landlaw falls under the same rubric RUBRIC, civil law. The title or inscription of any law or statute, because the copyists formerly drew and painted the title of laws and statutes rubro colore, in red letters. Ayl. Pand. B. 1, t. 8; Diet. do Juris. h.t. . This should not be taken to suggest that indigenous terms forAboriginal Law are vague or nebulous. Where well documented they arepolysemous, that is, they have several related but distinct senses ofdifferent scopes, context indicating which one is in use. For example,the relevant term in Kayardild (Gulf of Carpentaria Noun 1. Gulf of Carpentaria - a wide shallow inlet of the Arafura Sea in northern AustraliaCarpentariaAustralia, Commonwealth of Australia - a nation occupying the whole of the Australian continent; Aboriginal tribes are thought to have migrated from ) is birrjilka,defined by Nicholas Evans For the linguist, see Nicholas Evans (linguist).Nicholas Evans (born 1950 in Bromsgrove, Worcestershire, England) is an English journalist, screenwriter TV/film producer and novelist. (1992:20-21) as `1. Time, occasion; 2. Way,manner, pace; 3. `Law', way, custom: 4. Morals, way of living; 5.Something (event)' In the case of Arrerte (Aranda, CentralAustralia Central Australia:see Northern Territory, Australia. ) Henderson and Dobson (1994:332) define atywerrenge (tjurunga)as `1. sacred objects Sacred ObjectsArk of the Covenantgilded wooden chest in which God’s presence dwelt when communicating with the people. [O.T. ; 2. sacred, 3. traditional law, 4. precious tosomeone, much-loved'.(6) It is always integral and common to these concepts that the Law issomething derived from ancestral people or Dreamings and is passed downthe generations in a continuous line. In the Flinders Island Flinders Island,Australia: see Furneaux Group. language ofCape York Peninsula Cape York Peninsula,280 mi (451 km) long, N Queensland, Australia, between the Gulf of Carpentaria and the Coral Sea. It is largely tropical jungle and sparsely populated. The Northern Peninsula Aboriginal Reserve is there. Weipa (1991 pop. 2,510) is the largest town. the term translated as Aboriginal Law, isepiy-Abiya, literally `from father and from father's father'(my own unpublished fieldnotes). Although transformations betweenancient and modern practices are recognised by people such as theWiradjuri, their customary land law still has this same essentialfeature of being something that derives much of its authority andsanctity by being conceived as a body of principles transmitted down thegenerations from elders to younger people. In the case of a Wiradjurisubgroup such as the Bogan River people (or `Peak Hill mob') theirown customary land law is embedded in a wider regional system of similarcultural institutions. It is useful to try to be precise about the way local entitlementsto land can be said to be derived from a wider set of customary laws andcultural principles held by members of the social field or networkconcerned. `LAWS AND CUSTOMS' DERIVED FROM A SET OF WIDER LIVING PRINCIPLESThis notion can be understood in two ways, both of which are relevanthere. First. a particular land-related law or custom(7) may be shown tobe part of, and embedded in, a wider set of such laws and customs thatin some sense cohere cohere (kōhēr´),v to stick together, to unite, to form a solid mass. among themselves, and are also held in common by aparticular group of people. It is in each of these distinct senses thatthe system may be said to be a whole system underpinning a communaltitle, rather than merely an accidental set of principles or practicesfound across a mere population. This is important to interpreting theterms `possessed under' and `confer' in sections 223(1) and225 of the Native Title Act. Hal Wootten QC has argued at length and onseveral occasions that the concept of native title as a bundle of rights The bundle of rights is a common way to explain the complexities of property ownership. Teachers often use this concept as a way to organize confusing and sometimes contradictory data about real estate. defined by previous land use is based on a misreading of the Mabojudgements as well as a misunderstanding of Aboriginal relationships toland', and it simply ignores the special character of the communaltitle of the highest level group in exclusive occupation of land.'This is the group which has the system of custom which defines therights and interests of its members and subgroups as between themselvesin the group land, (Wootten 1995:110 and see Wootten 1994a, 1994b). Second, a particular law or custom, or a local group's systemof laws and customs to which the particular law or custom belongs, mayin turn be shown to be part of and embedded in a geographically andsocially wider set of similar laws, customs or systems. This latterembedding is particularly important in establishing the fundamentalpossessive relations of a group to land, as opposed to the specificincidents of their title. Section 225 of the Native Title Act seeminglyputs things in reverse here. It implies that the court will see if therights and interests of a native title, once established, conferpossession, occupation, use and enjoyment of the land or waters on itsholders to the exclusion of all others... etc'. In normalAboriginal terms, the possessory pos��ses��so��ry?adj.1. Of, relating to, or having possession.2. Law Depending on or arising from possession: possessory interest.relationship, or occupation as ofright, is the state from which specific rights, interests andresponsibilities flow. If members of surrounding groups are asked if acertain person has the right to fish or hunt somewhere, or, morecritically, if they have a right to assert control over the culturalheritage of that area, they would be expected to first want to know whatcountry, and thus whose country, is being talked about. The possessoryrelationship is not built up from fragments of rights and interests. Itis the other way around. The need to show how laws and customs are derived from a systemhas direct implications for the giving of evidence in native title andsimilar cases. In the first case, where one is trying to show that a particularlaw or custom is part of a locally coherent system possessed by a group,it may be useful to show that several such laws and customs are relatedto each other in principle. For example, the right to assert that one isWiradjuri, and from a particular Wiradjuri subgroup identified with aparticular river system, may be recognised only if one meets certaincriteria, such as a licit form of descent from a Wiradjuri forebear ofthe appropriate subgroup, combined with active involvement in thegroup's affairs upon reaching adulthood. That one meets suchcriteria may be established on the principle that elders of the relevantcommunity know and accept one,s genealogical position in a certainfamily, and know and accept one's degree of involvement in theaffairs of the community (Macdonald 1996). This may be the basis onwhich speaking possessively of the land is considered proper orimproper, or the basis on which one may be delegated to take publicresponsibility for looking after the cultural heritage of the group andits land (e.g. in transactions with the National Parks and WildlifeService). This principled basis, however, may be shown not to be restrictedsimply to matters of landed identity. It may also be the basis on whichsexual relationships are considered legitimate or illegitimate in thegroup, or it may be a prerequisite for certain kinds of politicaloffice. In such a way, one could show that a specific strand of rightsand interests forming part of one's native title is constituted bya law that is part of a system of like laws. They constitute a systembecause their licitness lic��it?adj.Permitted by law; legal.[Middle English, from Old French licite, from Latin licitus, past participle of lic and enactability rests on, and in that sense isderived from and rooted in, common principles that drive much of thegroup's customary-legal behaviour across different domains(property, marriage, public office). It is a basic principle of ethnography that where there is asuperficial patterning in speech or behaviour, this may well be evidenceof a deeper system at work. It is important to pay attention, forexample, to the specific language of land relationships when trying tounderstand those relationships. Let us say that by careful observationthere seem to be three roughly equivalent ways of speaking of the mostfundamental level of connection to land, in a particular group: * people use possessive constructions (my country, their place,Granny's home) or are in a sense said to be possessed by places (webelong to Dubbo really) * people use ablative constructions (she's from Wagga but shelives in X, he's really from Trida, my people are originally fromMurrin Bridge) * people use juxtaposition (they're all Bourke mob, theWanaaring fellas) This type of discourse would suggest a landrelationship system in which the salient and highly compatibleprinciples were. possession, origin, and identity. This is a system ofdeep principles of connection to land, of the kind that tends to bewidely regional in its manifestation. The deeper the principle, the lesslikely it is to be confined to be in childbed.See also: Confine to smaller sub-regional groups. But there is another side to such systems, namely the wayassertions deriving from them are policed. In a modest sense suchstatements are policed as to their idiomatic id��i��o��mat��ic?adj.1. a. Peculiar to or characteristic of a given language.b. Characterized by proficient use of idiomatic expressions: a foreigner who speaks idiomatic English. naturalness, their grammar,and the definition of what contexts are appropriate for saying them atall. These are sociolinguistic so��ci��o��lin��guis��tics?n. (used with a sing. verb)The study of language and linguistic behavior as influenced by social and cultural factors.so rules, and they are integral to culture.But such statements are policed in a stronger sense as well. If the samepeople have regular ways of controlling false or exaggerated statementsput in this type of language, by shaming people, by socially ostracisingthem, and so on, then they clearly have a system for distinguishinglicit from illicit claims of connection to country. This itself is acritical part of the system of laws by which they are connected to land.This socially broad-based policing system belongs to the wider socialdomain, not just the level of local entitlements to small parcels ofland. To return to the earlier discussion. there is thus a second sensein which a particular law or custom may be shown to be part of a system.That is the regional sense. It is normally the case that one localgroup,s laws and regular practices, including those which underpin theirentitlement to publicly identify with a particular traditional country,is only part of a web of similar laws and practices in the wider region.For this reason it is useful, in legal proceedings All actions that are authorized or sanctioned by law and instituted in a court or a tribunal for the acquisition of rights or the enforcement of remedies. for establishingnative title, to call witnesses from surrounding groups, who arerecognised senior members of them, who can testify (as non-applicants)as to the propriety of the applicants, evidence and claims.(8) This can be most useful on two fronts: first, they can assert whoare the right people to identify with the area in which the claimed landfalls, and can usually give a name for them or at least name the mainfamilies concerned. They may also give a general statement of how farsuch an applicant group,s interests extend geographically. Such peoplemay also state why they themselves are not applicants, and may say thatfor them to be applicants would be in contravention A term of French law meaning an act violative of a law, a treaty, or an agreement made between parties; a breach of law punishable by a fine of fifteen francs or less and by an imprisonment of three days or less. In the U.S. of Aboriginal Law.Secondly, they may also give very useful evidence as to the lawfulness,under Aboriginal custom, of the applicant,s evidence. Their role is notmerely to corroborate To support or enhance the believability of a fact or assertion by the presentation of additional information that confirms the truthfulness of the item.The testimony of a witness is corroborated if subsequent evidence, such as a coroner's report or the testimony of other or assert the veracity of the statements ofautonomous others, but to enact their rightful role as keepers of theregional system which holds in its ultimate gift the local entitlementsthat are under discussion. This is one of the reasons why such eldersare often refeffed to, in Aboriginal English, as the Law men, or `Lawwomen'. They have supra-local, regional roles in relation to localland matters. This social role itself reflects the duality of rights andinterests in land. UNDERLYING TITLES AND PROXIMATE ENTITLEMENTS Aboriginal native title systems, in the broad sense of theindigenous customary laws and cultural practices of mainland Australiathat give rise to traditional land tenure, are dual systems thatrecognise both an underlying title and aproximate title in land.(9) The living holders of specific traditional land interests, oftennow called the traditional owners, in a vernacular sense across much ofAustralia, hold title to those lands in the proximate sense, whileunderlying titles are maintained by the wider regional cultural andcustomary-legal system of the social networks of which they are members.The distinction I make here is akin to, but clearly not the same as, thedistinction in Australian law between radical title and beneficialownership.(10) A more closely related distinction has occasionally arisen in theliterature for Aboriginal tenure systems. Marie Reay refeffed to`residual rights,(11) held in the estate of an extinct clan by others ofthe same semi-moiety in the Borroloola region of the Northern Territory(Reay n.d.10). Such rights are in that region central in facilitatingsuccession to vacated estates by other groups. This analysis has gainedfurther support from subsequent work in the same region by David Trigger(1989:15). Nancy Williams, writing of North-East Amhem Land,distinguished, radical title, to a clan estate from `a specific andsubsidiary right in [small parcels of] land, vested in in a group otherthan the owning clan by a procedure of formalised Adj. 1. formalised - concerned with or characterized by rigorous adherence to recognized forms (especially in religion or art); "highly formalized plays like `Waiting for Godot'"formalistic, formalized `granting'. No`absolute right in perpetuity Of endless duration; not subject to termination.The phrase in perpetuity is often used in the grant of an Easement to a utility company. in perpetuityadj. forever, as in one's right to keep the profits from the land in perpetuity. is entailed; the continuance of the grantis subject to renegotiation at any time `(Williams 1982:141). Ian Keendescribed the same process in the same region as the granting of rightsof `ownership' of small areas within a clan estate, while the roottitle, remains with the clan of the encapsulating estate'(1988:277). (Italics added in each case.) These usages refer to constructs that are different from theunderlying/proximate distinction I wish to explore here, although theyperhaps indicate that a common principle of layering of entitlements mayoperate at a number of levels within Aboriginal land tenure systems. Thecleavage I discuss here is one I regard as foundational, however. Underlying title in the case of Aboriginal customary law consistsof the cultural and jural constitution of a particular area of land,including * its geographical limits and/or focal points as a unit of tenure, * its internal structure (eg. drainage subsystem, ecological zoneetc.), * its association with markers of a particular cultural identity(eg. a particular language, a subsection couple, a focal residentialcentre (campsite, old mission etc.), certain totemic entities,site-specific myths, songline verses, sacred objects etc.), * its characteristics as a form of property (eg. its not beingavailable for treatment as an alienable The character of property that makes it capable of sale or transfer.Absent a restriction in the owner's right, interests in real property and tangible Personal Property are generally freely and fully alienable by their nature. commodity, the communal basis ofits tenure), and * the acceptable norms by which claims as of right may be madeover it by Aboriginal people (eg. a certain kind of descent from formerlandholders, conception, modes of ceremonial incorporation, longresidence combined with other preconditions, etc.).These and other components of the underlying title may be establishedin evidence for the purpose of legal action such as a native titledetermination application, whether or not the land concerned has, forthe time being, living claimants with unambiguous entitlement to it.Uncompleted succession to a vacated proximate title, or a proximatetitle in dispute between rival groups, are contexts which make it plainthat underlying title may be distinguished from any current state ofactive claimancy. Where rival groups have radically differentunderstandings of the content of the underlying title, in the sense laidout above, they will probably have more of a legal problem inestablishing their claims than if they merely disagree over who shouldhold it. In my experience, while rival groups (and even non-rivalgroups) often have differences about the cultural content of aparticular land area, they do tend to agree on much of it and tend tocoincide strongly on what should count as jural principles in therecognition of customary proximate fights in land.(12) The underlying title is that to which living people becomeentitled, either through birth, incorporation or succession. Proximateentitlement entails the right to publicly claim the particular countryconcerned and to exercise the rights, and fulfil the custodialobligations, that flow from such standing. In many ways this pattern resembles the doctrine of tenure inEnglish law The system of law that has developed in England from approximately 1066 to the present.The body of English law includes legislation, Common Law, and a host of other legal norms established by Parliament, the Crown, and the judiciary. , under which the Crown holds radical title to all the landover which the Crown has established sovereignty, and all propertyinterests of those other than the Crown are held of, the Crown.(13)While such held, interests come and go and are transformed from time totime, the radical title may go on undisturbed. Similarly, underlying Aboriginal titles are always present if thesystem of traditional land relationships persists, whether it does so ina conservative, classical form or in some post-classical, transformedway that has evolved more recently. Underlying titles are usuallyenjoyed in the proximate sense by extant groups, but for various reasonsthey may not be instantiated in this form, or even at all, at all times.Extinction of landed groups and out-migration may leave countryuntenanted for a time.(14) It may then be described by some Aboriginalpeople as `orphan country', that is, country lacking custodians whoclaim it as their principal estate, even though individuals or groupsfrom surrounding areas may be active in looking after it as regents(Sutton 1995b:53). The survival of an underlying title over a parcel of land is notvitiated by the temporary disappearance of local proximate titleholders. In terms of the Native Title Act 1993, the reverse may not betrue -- that is, for the local, proximate native title to endure assuch, it must ultimately do so on the grounds that the society in whoseculture it lies embedded maintains the relevant system of `traditionallaw and custom'.(15) This does not mean, however, that regencies ofactive custodianship over vacant estates must be in place in order forthe underlying title to remain alive within the regional land tenuresystem. People will sometimes say of a vacant estate: `Nobody is lookingafter it at the present time,. The estate nevertheless retains a`good' title in the sense that its cultural and jural definition assomething to be claimed endures, and a successor claiming it properly,must do so under Aboriginal customary laws. The wider regional social and cultural system in whichAboriginal-defined parcels of tenurable land subsist sub��sist?v. sub��sist��ed, sub��sist��ing, sub��sistsv.intr.1. a. To exist; be.b. To remain or continue in existence.2. is not in generalmanifested as a formal adjudicatory body consisting of permanentoffices. In Aboriginal practice it is typically externalised as theLaw', which in this particular context refers to the sacred patternintegrating land areas with languages, totems, Dreaming tracks and otherdefining features of one's geo-political landscape, a pattern thatwas laid down forever, at the foundation of the world. People do notmake the Law. While senior practitioners of this Law may be, and oftenare, called upon to play a key role in influencing the outcome ofdebated cases of succession to vacant estates, or boundary disputes, forexample, they do not usually arrogate ar��ro��gate?tr.v. ar��ro��gat��ed, ar��ro��gat��ing, ar��ro��gates1. To take or claim for oneself without right; appropriate: Presidents who have arrogated the power of Congress to declare war. to themselves a role of formally,representing, the regional tenure system in which they have becomeeminent. However, by playing such roles they emphasise the relativelyunitary regional character of the system of underlying titles. The regional Law, rather than a group of elders or `tribalcouncil', is what has proximate land entitlements in its gift. Thatis, the wider system maintains the underlying titles while at the sametime it maintains the principles and lawful procedures by whichproximate entitlements are allocated to living people. This is, ofcourse, hypostasising. I am treating a cultural system as if it were anactor, a controlling being, just as English law maintains the fictionthat all the land there belongs to the Sovereign (Brennan CJ in CLR (Common Language Runtime) The runtime engine in Microsoft's .NET platform. The CLR compiles and executes programs in Microsoft Intermediate Language (MSIL). The counterpart to the CLR for the Common Language Infrastructure (CLI), ECMA's standard version of . Mabono. 2 pp. 9, 27.) This is indeed how Aboriginal tradition treats it also. theDreaming Law, Blackfella Way, Koori Way, Murrilbama Law, are what lanKeen has called,a control practice or institution, that is, an organisedset of long-term and short-term, specific and diffuse actions,coordinated roles, and a body of norms. ... The overall control effectsare not achieved by any one action, although individual actions areindispensible' (Keen 1989:38) The Law may be an intersubjectiveconstruction, but it is not simply an analytic construct ofanthropological study. For those who live by it, it is regarded as apermanent reality beyond individual human agency. Gerontocratic authority, as Myers says of the Pintupi(1980s,1980b), is legitimised as the carrying on, following up andpassing on of the Law and looking after the young, and thus as theresponsibility to mediate a taken-for-granted cosmic order. In Pintupi representation, what we might call public goals, andlegitimate injunctions of personal autonomy at the collective level existed,as it were, prior to society itself. Far from being able to rightfully coercetheir juniors in personal matters, the norms, rules, and constraints older mencould be said to represent and speak for to juniors were not the product of theirwills, from the Dreaming, they were imperative for all. (Myers 1980b:312). Definitions of `all', in such a context, are something of aminefield. I agree with Ian Keen (1989:19) that neatly boundedcollective social universes in Aboriginal Australia do not exist, andthat network-based models of sociality are much more appropriate. It isalso clear from the evidence that transitions between differentAboriginal Law systems, and, in particular, areas of distinct andabutting land tenure arrangements, are sometimes graduated, sometimesrather abrupt, but tend to be managed through the bicultural bi��cul��tur��al?adj.Of or relating to two distinct cultures in one nation or geographic region: bicultural education.bi��cul skills ofthose living along the edges of such differing systems (Sutton1995b:59-60). There are occasions when such differences are great,especially where people with only a recent history of non-aboriginalcontact assert their own Law in contradistinction con��tra��dis��tinc��tion?n.Distinction by contrasting or opposing qualities.contra��dis��tinc to that of theweakened and disarrayed populations they have encountered on theirexodus from the hinterland (see eg. Kolig 1978, Stanton 1983, Palmer1983). This type of disjunction disjunction/dis��junc��tion/ (-junk��shun)1. the act or state of being disjoined.2. in genetics, the moving apart of bivalent chromosomes at the first anaphase of meiosis. raises serious questions for applicantsfor the recognition of native title, especially if a claim is contestedby groups who do not recognise, or only partly recognise, each others,systems of customary land law. Even where two adjacent regional populations hold to the sameessential principles of land tenure, and agree on the character andcontent of underlying titles in the zone known to both of them, casesmay still arise when their senior practitioners disagree over theallocation of proximate tenure to a particular area or estate.(16) Thesecases are less problematic for legal claimants, in my view, because itis not difficult to establish the content and coherence of theunderlying title, and there is an expectation that even members ofdifferent regional systems can come to accommodations over suchdisagreements, over time, and in some kind of lawful manner. I believe that this principle of the chartering of the local bythe regional is what is being figured, among other things, in the verymany founding myths of the different regions of Australia. In thesemyths, what typically occurs is that a heroic ancestral figure (or pairof figures) travels across the landscape, allotting land areas toparticular groups.(17) Landed groups are not sui generis [Latin, Of its own kind or class.] That which is the only one of its kind. sui generis(sooh-ee jen-ur-iss) n. Latin for one of a kind, unique. , but areperceived as being, from their foundation, members of a multiplicity oflike entities which belong to a coherent regional cultural system.W.E.H. Stanner wrote, in relation to this theme: When everything significant in the world was thus parcelled outamong enduring groups, the society became made up of perennialcorporations of a religious character. ... The religion was not the mirage of the society, andthe society was not the consequence of the religion. Each pervaded the otherwithin a larger process. (Stanner 1965:237).The wider Aboriginal land tenure system holds underlying titles in,as it were, a communal wellspring well��spring?n.1. The source of a stream or spring.2. A source: a wellspring of ideas.wellspringNoun from which individuals and groups mayestablish local entitlements by way of inheritance, succession orincorporation. And the communal nature of the title is not vitiated bythe fact that a local land-owning group may, at times, be reduced to asingle individual, or, in cases of succession, when the replenishment ofan extinct estate-holding group begins with the conception or successionof a single person. The title retains its communal character even in itsproximate embodiment, a point explicitly recognised in the AboriginalLand Act (Queensland) 1991 S1.03 which defines a,group of Aboriginalpeople in part as. if there is only one surviving member of a group ofAboriginal people -- that person'. The main bodies of evidence for the general proposition thatAboriginal land tenure may be understood as consisting of two mainlevels, the underlying and the proximate, seem to me to be thefollowing: * The status of estates of recently extinct proximate titleholders, prior to completed succession. * The status of estates subject to disputed proximate title, * The distinction between public and private lands or sites. * The role of regional elders in validating proximate entitlements. * The possibility of the divestment of proximate entitlements byregional elders, voluntarily by out-migration, and retrospectivelythrough genealogical forgetting. * The relative stability of geographic units of land affiliation,in the face of group extinctions and fissions. * The linguistic evidence that classical conceptions ofland-holding emphasise custodianship, belonging and landed origin ratherthan absolute ownership. I will deal with each of these in more detailin the following sections. Continuity of underlying title during processes of successionWhen a local land-holding group dies out, as indeed happens from timeto time in all known parts of Aboriginal Australia (Peterson and Long1986, Sutton 1995b), their erstwhile proximate title may be withoutliving holders for some time, perhaps even a generation or more.Customary devices for succession to it, and for the recognition of bothindividual and collective `regents' who look after the local titlein the event of delayed succession, are well documented (Peterson, Keenand Sansom 1977, Kolig 1978, Akerman 1995, Sutton 1995b:53). Wheresuccession to a vacant estate remains unresolved, there is no hint thatthe land has ceased to be an estate, with all the economic, spiritualand other cultural content to which a title holder would be entitled. Itis not `no-man's land', or exposed to the unilateralassumption of occupation-as-of-right by some far distant group that hasno existing connections to the area, simply because it has been`orphaned'. There is in fact very little reliable evidence of `conquest'or the forcible unilateral takeover of land by Aboriginal groupsalthough a number of cases are on the record (Sutton 1980: Appendix.) Itis certainly sufficiently abhorrent to Aboriginal people for the verysuggestion to have been met by many blanket denials, duly reported inmany ethnographies. Also uncommon, and perhaps contingent on Adj. 1. contingent on - determined by conditions or circumstances that follow; "arms sales contingent on the approval of congress"contingent upon, dependant on, dependant upon, dependent on, dependent upon, depending on, contingent dramaticevents of depopulation DEPOPULATION. In its most proper signification, is the destruction of the people of a country or place. This word is, however, taken rather in a passive than an active one; we say depopulation, to designate a diminution of inhabitants, arising either from violent causes, or the want of such as epidemics (or colonial conquest in thelast two centuries), is the filling of territorial vacuums by uninvited un��in��vit��ed?adj.Not welcome or wanted: uninvited guests.uninvitedAdjectivenot having been asked: uninvited guests migrants. Both forms of change in proximate tenure would normally, oneexpects, be succeeded in time by the restoration of a sense of lawfulstanding for the incoming groups as landholders. The status of estates subject to disputed proximate title If native title is just the ability of living people to establishtheir entitlement to possession and use of land or waters, then anunresolved conflict between rival groups over a parcel of land mightsuggest that no native title could there be found. But conflictingparties in such cases will normally agree that there is a `thing'to be fought over which includes the land physically but is alsosomething more abstract than the land and is culturally constructed. Inthe legislative sense this reification re��i��fy?tr.v. re��i��fied, re��i��fy��ing, re��i��fiesTo regard or treat (an abstraction) as if it had concrete or material existence.[Latin r includes the native title. Just as a deceased person's freehold title may be `good'legally, in spite of being fought over by the recently bereaved, so alsomay a native title be both `good' and subject to mutually exclusive Adj. 1. mutually exclusive - unable to be both true at the same timecontradictoryincompatible - not compatible; "incompatible personalities"; "incompatible colors" claims. This is a prime reason why I argue that mediations andadjudications over Aboriginal traditional land ownership generallyshould not authorise invidious in��vid��i��ous?adj.1. Tending to rouse ill will, animosity, or resentment: invidious accusations.2. lists of individuals as land holders, butshould instead recognise the categories and principles that generate therelevant proximate entitlements within the regional system and from theunderlying title. The distinction between public and private lands or sites. Observations from widely different parts of the Australiancontinent indicate that, in the absence of local resources or remarkablefeatures, areas on the periphery of local estates or Dreaming trackareas are typically either shared by adjoining landed groups, or perhapsregarded as the property of all the locally linked groups, and at thesezones the abutting estates lack specific boundaries. This is true ofboth Arnhem Land Arnhem Land,37,100 sq mi (96,089 sq km), N Northern Territory, Australia, on a wide peninsula W of the Gulf of Carpentaria. The great majority of the region belongs to the Arnhem Land Aboriginal Reserve, the largest aboriginal reservation in Australia. and Central Australia (see Sutton 1995b). In Central Australia anthropologist Olive Pink Olive Muriel Pink (born 17 March 1884 in Hobart, Tasmania - died 6 July 1975 in Alice Springs, Northern Territory) was an Australian botanical illustrator, anthropologist, gardener, and activist for aboriginal rights. gave the results offield observations made during travel with senior Arrernte people The Arrernte people are a group of people that traditionally live in the Arrernte lands of central Aust. Some Arrernte people live in other areas a distance from their homeland, and may even live in [Sydney] or [Melbourne] or overseas.The groups of people are the ones below. acrosscountry by camel. She specifically addressed the question of clan estateboundaries and so-called `no-man's land'. While the totemicsites of a clan's estate were strictly respected by non-owners asif they had been pastoral, `boundary posts', typically poor andwaterless country at the outer edges of estates was also typicallylacking in associated sacred songs and paint designs and was held incommon as `tribal land' rather than as the `private' land ofparticular clans (Pink 1936:283-4). This rather unusual record (Peterson and Long 1986:53-54) issuggestive of suggestive ofDecision making adjective Referring to a pattern by LM or imaging, that the interpreter associates with a particular–usually malignant lesion. See Aunt Millie approach, Defensive medicine. a plane of tenure at the supra-local level that emergesin, but is not confined to, a specific context (boundary phenomena). Myview is that it may reflect the dual system of title to which I amreferring here. A related phenomenon may be the basis of what Gerald Wheelerdescribed, on the basis of his Australia-wide literature survey, as`tribal overrights' (1910:40,44-45,62). His sources indicated thatwhile small areas were subject to ownership by small groups, all membersof the `tribe' to which such groups belonged had a general right ofaccess to each others' estates, and thus the `rights of families orof individuals, as also those of the local group, were, in general,subject to tribal overrights' (p.45). Trespass was a seriousoffence but generally consisted of members of one tribe entering theterritory of another, although it was important to bear in mind the`loose way' the term `tribe' was so often used (p.46). In western Cape The Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the huge (and now defunct) Cape Province. York Peninsula it has been recorded that certain`main places' (aak mu'em in Wik-Ngathan, Sutton 1995c:48) wereavailable more or less freely for use by members of visiting groups withcountries elsewhere in the same immediate region, but such people werenot free to camp of their own free will at other more private places inthe same estates.(18) Within aak mu'em the visitors might haveregular shade areas, for example, allotted to them, and I was able tomap some such places (1978:71 Fig 5). Someone once defined aakmu'em for me as `just like a pub', that is, a public space.Although these are statements about use rights, not tenure per se, theyrepresent aspects of the formalisation Noun 1. formalisation - the act of making formal (as by stating formal rules governing classes of expressions)formalizationsystematisation, systematization, rationalisation, rationalization - systematic organization; the act of organizing something of usufructuary USUFRUCTUARY, civil law. One who has the right and enjoyment of an usufruct. 2. Domat, with his usual clearness, points out the duties of the usufructuary, which are, 1. rights withinestates which may be held by those who do not claim the estates as theirown. These statements also exemplify the widespread ethic of reciprocity The ethic of reciprocity or "The Golden Rule" is a fundamental moral principle which simply means "treat others as you would like to be treated." It is arguably the most essential basis for the modern concept of human rights. that permeates the use of estates. This ethic and the intervisitationinvolved makes it `normal' that people know a great deal about eachothers' countries. This knowledge is important in enabling them tomaintain a regional, rather than estate-bound, common system ofconstituting the cultural and ecological content of estates and of howthey should be used, spoken for, and otherwise dealt with lawfully. The role of regional elders in validating proximate entitlements In a number of land claims heard in the Northern Territory andQueensland jurisdictions, elders from groups with country surroundingthat of the claimants have appeared and given evidence. Not only do theytypically vouch for vouch forverb 1. guarantee, back, certify, answer for, swear to, stick up for (informal) stand witness, give assurance of, asseverate, go bail forverb 2. the applicants' claims, they often also denythat they themselves are entitled to make any claim in the case.Especially within a claimant group, elders may also vouch for thestanding, as traditional landholders, of those `diaspora people'who have been physically alienated from the country to which they areentitled through descent and affiliation.(19) It is too limited a view to understand this practice simply asexternal corroboration or credentialling. In fact it is accurate to saythat these elders are representatives from within the regional system ofauthority in dealings with land, and their roles are integral to themaintenance of the `system of law and custom' in which underlyingtitle persists, if it persists at all. Their denials of localentitlements in the countries of others are denials of proximate title.They are not denials that the speakers are guardians of the wider,underlying system of title, and I argue that this is one of their keyroles. As members of the wider jural public they can legitimatelyinfluence the public acceptability of claims of proximate entitlement. Regional elders assemble from time to time to deal withconflicting land claims, usually with a view to helping settle them. Ido not regard this as merely a recent development, although depopulationduring the colonial era combined with emerging new opportunities forestablishing legal title have no doubt accelerated the need for suchassemblies in recent decades. While it became fashionable for a while todeny that `councils of elders' existed in classical Aboriginaltraditions, the evidence for some kind of widespread system ofassemblies of this kind cannot be ignored (Keen 1989). Even in theabsence of explicit accounts in the older literature detailing landtenure dealings engaged in by such assemblies, the role of the seniorjural public in religious matters is a commonplace theme in theethnographies, and land tenure is at the heart of the religious system.It is inconceivable that assemblies of elders would meet to discussreligious matters, including sacrilege SacrilegeSadness (See MELANCHOLY.)abomination of desolationepithet describing pagan idol in Jerusalem Temple. [O.T.: Daniel 9, 11, 12; N.T. , without also addressing disputedland claims, questions of succession, and similar perennial and seriousland tenure issues whose resolution is so typically framed in terms ofreligion. Even T.G.H. Strehlow, who was very inclined to stress theautonomy of Arrernte clans (`njinanga sections'), once described aland tenure succession dispute in Central Australia and then commented:`The conflicting arguments were irreconcilable; neither of them wassupported by sufficient legal authority to win general acceptance'(Strehlow 1947:156). This cannot possibly have been an intra-clanmatter, and here Strehlow explicitly acknowledges the role of theregion's senior men, in this case, as those whose understanding ofcustomary law had to be met by the opposing aspirants to succession. Proximate title may be `revived', when a clan or itsequivalent has become extinct, so long as the underlying customary titlecontinues and there are people in some kind of authority, or at least anacquiescent ac��qui��es��cent?adj.Disposed or willing to acquiesce.acqui��es jural public, who can eventually reassign it to proximatetitle holders or accept their assumption of it. In some regions tangible signs of the title to an estate includesacred objects. They may be held in the custodianship of a region'sceremonial elders pending the revival of living memberships forestate-holding groups that have become extinct. For example, a child maybe conceived in the relevant area and thus become the founder of anew-old group holding the local title involved. Eventually the child maybecome the recognised holder of sacred objects relating to their estate.The same may apply to paint designs, songs and other sacra sa��cra?n.Plural of sacrum. , whichtogether may sometimes be called `title deeds' (as in Keen 1988).The child itself cannot make claims over such sacra. They are bestowedon the child by decision of their elders and often with elaboratedevices of divination divination,practice of foreseeing future events or obtaining secret knowledge through communication with divine sources and through omens, oracles, signs, and portents. (eg. Strehlow 1947: Chapter 3). In the Roper River Roper RiverRiver, Northern Territory, Australia. It flows east to Limmen Bight on the Gulf of Carpentaria; it is about 250 mi (400 km) long and is navigable for about 100 mi (160 km). It marks the southern limit of the region known as Arnhem Land. region, as in a number of others, young or evenadult people may be `put into country' (not their country of birth)during ceremonies conducted by senior ceremonial practitioners, and atsuch times sacred objects related to the country may be made forthem.(20) In this way vacated estates may have their proximatecustodianships restored, not by personal choice or whim, but by acollective, and collectively enacted, decision made by some subset ofthe region's senior Law people. Material symbols of this bestowalrelationship mediate the new arrangements. These are concrete examplesof the underlying/proximate distinction at work in daily practice. The phenomenon of inter-group competition for individuals isanother relevant example. I am familiar with a case in the Tennant Creekregion, where two somewhat different broad regional land tenure systemsand language types abut To reach; to touch. To touch at the end; be contiguous; join at a border or boundary; terminate on; end at; border on; reach or touch with an end. The term abutting implies a closer proximity than the term adjacent. , and where one individual has been`claimed' by the collective ceremonial interests on each side ofthis divide. This is made precise in his assignment by each of the tworegional groups to primary custodianship of different sites located indistinct areas. On my last contact with the people concerned the matterlay unresolved. In the same area, and involving the same two regional groups, someyears ago a man from one group was killed by a man from the other. Thecompensation exacted, or perhaps offered and accepted, was that thefather of the killer `gave' him as a replacement son to the fatherof the man he had killed, who then placed him in his own land-holdinggroup. The person thus bestowed retained a certain ambiguous landedidentity nonetheless: that of his ancestral origin was not entirelyerased by his reidentification through a form of fostering.(21) The possibility of the divestment of proximate entitlements I have a small but relevant body of case material which indicatesthat, from time to time, the primary local entitlements of a group maybe reduced or forfeited, not merely by the usual well-documentedprocesses of long-term out-migration, but by a communal decisionauthorised by elders of the relevant region. That is, no localentitlements are mechanistically and inalienably in��al��ien��a��ble?adj.That cannot be transferred to another or others: inalienable rights.in��al acquired, no matter howstable might be the rules under which they may be received and, in turn,passed on. Strictly speaking Adv. 1. strictly speaking - in actual fact; "properly speaking, they are not husband and wife"properly speaking, to be precise , all proximate title interests areultimately maintained by consent, and lack absolute inevitability. Thisis not to say that people's proximate title interests chop andchange rapidly -- far from it in general -- but merely to characterisethe limits of the system. One of the reasons why the divestment or withdrawal of proximaterights and interests is possible is that individuals all have multiplelegitimate pathways to rights in several different local countries,because they have remembered ancestors from several different countries.That is, the,withdrawal, of local tenure rights from a small group bywider consensus does not leave them landless land��less?adj.Owning or having no land.landless��ness n.Adj. 1. , but shifts their primaryfocus elsewhere.(22) Indeed the arguments used in these cases, and inthe much more frequent cases of disputed local tenure, tend to be of thesort@ They are not so connected here, this is only their mother,smother's country -- they're really more from over there, wheretheir father's father's country is., These are cases ofshifting emphasis, but occasionally a group's or individual'slocal proximate entitlements can be withdrawn completely. Linked to these rather rare cases of withdrawn or reduced rights,is the practice of reducing a person,s publicly acknowledged estatelinks after their death, a practice ritually made plain in the VictoriaRiver District (Deborah Bird Rose, pers. comm.). This often means thatthey may basically transmit one particular set of local estate intereststo their descendants, even though, while they were alive, they activatedstrong interests in two or more estates (eg. father's,mother's, father's mother').Without some such means ofretrospective pruning of links, the system would have to face thespectre of individuals claiming and attempting to service interests inas many as sixteen different estates from their variousgreat-great-grandparents. Rose's point is that in one region, atleast, such pruning can be public and communally formalised. This is aform of retrospective divestment. At least until the advent of written genealogies, most Aboriginalpeople have been able to ascribe multiple estate interests only topeople of their parents, and perhaps grandparents' generations, ifthat. If the country of a great-grandparent is known, it will be asingle country, even though in their lifetime that person might haveheld three or four estate interests. It is also sometimes the case thatan individual who exercises interests in a number of countries to whichthey are connected by ancestry or some other legitimate pathway willdecide to relinquish one or more of those interests whilst still alive.If they are a senior person they might do so almost unilaterally, butwhere ceremonial obligations are involved this would be more difficult. These occasional instances of reduction or effective removal ofproximate title interests from individuals or small groups, includingcases of self-divestment, again reinforce the notion of a distinctionbetween underlying and proximate titles. They should not be understoodas cases of the alienability of land. It remains impossible, underAboriginal systems, to treat land held under customary law as acommodity that can be wholly alienated by sale or exchange. In the casesknown to me, people may succeed to local proximate title by some lawfulpathway, or may be divested of it by some customary process, and in thatsense the people, rather than the land, might be regarded as alienable. The relative stability of geographic units of land affiliationThe classical Aboriginal approach to the geographical definition ofunits of land tenure is highly conservative, especially in the betterwatered parts of the country. That is, there is a documented tendencyfor these units to be maintained in essentially the same shape, or atleast focused on the same key sites, over long periods. The role ofdrainage in stably demarcating such units is probably one aspect oftheir capacity to endure (cf. Peterson 1976, Sutton 1995b:50-51). In western Cape York Peninsula, in a detailed, field-mapping-basedstudy of traditional land interests, including disputed succession, Ifound that, in spite of the somewhat ragged facts of local claimancy ina number of cases. The shape and content of the territories remain relativelyconstant and unambiguous, and provide a matrix for ecological and politicalstability. (Sutton 1978:59-60) In the Princess Charlotte Bay Princess Charlotte Bay is a large bay on the coast of far north Queensland at the base of Cape York Peninsula, 350 km north northwest of Cairns. Princess Charlotte Bay is a part of the Great Barrier Reef Marine Park, and it is a habitat for the dugong. region of south-eastern Cape YorkPeninsula, detailed mapping combined with linguistic research has shownthat the local clan estates, the smallest territorial units of the area,have very ancient names, most of them probably centuries old. Thisconclusion arises from the fact that, on a very large sample, theyfrequently have different but cognate names in several of the languagesof the region. These differences among cognate terms indicate theircontinuing use in those languages over the centuries during which theyhave been diverging from a common original stock. A significant numberof the clan names are based on particular names of focal sites or areaswithin the estates (Sutton 193:31). The clan names, if not theirmemberships, appear to have been highly stable. Erich Kolig found that in the Kimberley region of WesternAustralia, there was always the possibility of a land-holding clanbecoming defunct but the estates of such clans tended to be maintainedas distinct: As soon as a clan had effectively ceased to perform itslife-maintaining duty of tending the land it was in charge of, others had to fill the gap -and they did not hesitate. This development did not result in a clan'sactually expanding its land holding. Those of the clan who were most closely affiliated withthe new locality took over. However, within a few generations the tiesbetween the two splinter groups and the recognition of a common origin woulddisappear since actual genealogical memory is traditionally very shallow. (Kolig1978:62-63) This accords with my own findings for the Cape Keerweer region ofCape York Peninsula, where evidence from clan totems, totemic personalnames and language affiliations suggests very strongly that certainpairs of clans with geographically separated estates were formerly, ineach case, a single clan with a single estate (Sutton 1978:82-82). In writing of North-East Arnhem Land lan Keen was at some pains tocorrect the existing ethnographic impression that the area had `ratherclearly defined groups with determinate DETERMINATE. That which is ascertained; what is particularly designated; as, if I sell you my horse Napoleon, the article sold is here determined. This is very different from a contract by which I would have sold you a horse, without a particular designation of any horse. 1 Bouv. Inst. n. 947, 950. estates', and said thatYolngu people `contested the definition of country, as well as rightsover it. The definition of country was not `objective' but relativeto a person's perspective, interest, and loyalties.' (1994:102). He also said that the rich coastal countries tended to havedefinitions on which people agreed more than they did in relation toinland areas, and moiety moiety:see clan. and group identities of these coastal areaswere less subject to dispute (1994:105). In a recent personalcommunication (15/596) he confirms that the `identity and location offocal sites are fairly consistent through the literature on the region,although `clan' identity is not'. As the literature in thiscase dates back to the late 1920s (Warner 1937) this indicates that atleast the geographic cores of the countries and their more importantDreaming identities have been relatively stable in the record for aroundseventy years. In the pastoral district of the upper Roper River region of theNorthern Territory, Francesca Merlan found a pattern of continuity ofterritorial boundaries, this time at the level of land units affiliatedwith particular language groups: This situation strongly suggests that `Mangarayi country'conceptually associated with the Mangarayi language, has in fact been much morestable an entity, at least over the past several generations since contact, than hasthe personnel. ... The boundaries of Mangarayi country are permeable, so that newpersonnel may be recruited to it. (Merlan 1981:144-145) Peterson's theoretical model of long@term changes inrelationships between estates and ranges allowed for the expansion andcontraction of estate sizes, but he nevertheless regarded a particularsize relationship between estates and band ranges as `modal'(Peterson and Long 1986:147). While it has been suggested thatdemographic decline in a land-holding group might result in a diminutionof the size of its landed estate (Peterson and Long 1986:58-59),documentation of such cases has not been substantial. Nor has that ofthe amalgamation of estates into other estates.(23) The point here is that the system of localised land units ismaintained by the custodians of a regional system, and the locations andextents of the units tend to be stable over time. That is, the widersystem is far more stable than the descent-group identities of those whoare recruited to fill the slots of the system from time to time. This isfurther evidence of the robustness of the underlying system of titles,rooted in and policed by the relevant wider social network, as comparedwith local entitlements held proximately prox��i��mate?adj.1. Very near or next, as in space, time, or order. See Synonyms at close.2. Approximate.[Latin proxim by small groups. The linguistic evidence The linguistic evidence suggests on balance that classicalconceptions of land-holding emphasise exactly that: `holding',custodianship, belonging and landed origin rather than the kind ofprivate ownership associated with chattels. Possession is neverthelessclearly implied. In Aboriginal languages, possessive constructions are often usedto describe the relationship between a person or group and their land,hence expressions that may be translated, for example, as `my/your/hiscountry' (using eg. dative dative(dā`tĭv)[Lat.,=giving], in Latin grammar, the case typically used to refer to an indirect object, i.e., a secondary recipient of an action. For example, him in I gave him a book is translated in Latin by a dative case. or genitive genitive(jĕn`ĭtĭv)[Lat.,=genetic], in Latin grammar, the case typically used to refer to a possessor. The term is used in the grammar of other languages, but the phenomenon referred to may not closely resemble a Latin genitive; thus a pronouns), or `Topsy'scountry' (name + dative, + genitive or similar). There is also a frequent expression translatable as `owncountry', where the same word meaning `own' is typically usedalso for one's relatives (eg. one's own family).(24) In somelanguages there is a close connection between expressions for `owncountry' or `owner of country' and `own relatives'. Forexample: Pitjantjatjara (Western Desert): ngura walytja 1. (one's) ownplace; 2. owner of a place, person who belongs there; from ngura camp, home,place, site, country, and walytja 1. a relative, someone you care for and whocares for you, 2. owner, someone who takes care of something; 3. doing somethingoneself. (Goddard 1987:83,170) Eastern and Central Arrernte The term Central Arrernte can refer to the Arrernte people who traditionally live in Alice Springs, the centre of the Arrernte country in Australia.It can also refer to a dialect of the Arrernte language that is spoken in this area. (Central Australia): apmereke-artweyean owner of land inherited patrilineally Adv. 1. patrilineally - by descent through the male line ; someone who belongs to acountry; from apmere country + -ke `for' and artweye 1. owner; 2. one whobelongs to a Dreaming, ceremony or song; 3. relations, ancestors; 4. aparticular relation. (Henderson and Dobson 1994:286-287 and see p. 455 kwertengerle) Relatives are people one possesses (one `has' a mother,nephew etc.) but not as property or chattels. Relatives `belong' toeach other, although not as property. Something of this reciprocity isalso evident in the case of land -- Aboriginal people often say they`belong to' their country as much as it belongs to them. These are all indications of a broad kind of possessiverelationship to land, and it is not often contested nowadays thatcertain traditional Aboriginal land relationships may be describedloosely but correctly as forms of `ownership' or examples of asystem of `tenure'.(25) In many languages regular locutions may refer to theperson/country relationship without using possessives, as in the caseof: Kayardild (Wellesley Group, Gulf of Carpentaria): dulkuru dangkaa(literally `country person'), idiom: `Boss of country', owner orcustodian of territory or sacred site; (plural: dulkuru-dulkuru (country + reduplication reduplication/re��du��pli��ca��tion/ (re?doo-pli-ka��shun)1. a doubling back.2. the recurrence of paroxysms of a double type.3. duplication (3). ))(Evans 1992:44). Pitjantjatjara (Western Desert): ngurara `resident, local, personthat lives in a place'; nguraritja `someone that belongs to a place,traditional owner (from ngurara +-(i)tja `of, from') (Goddard 187:83) Many Aboriginal languages have other regular locutions thatconsist of a place or country name plus some affix affixv. 1) to attach something to real estate in a permanent way, including planting trees and shrubs, constructing a building, or adding to existing improvements. or similar devicethat indicates a group of people jurally related to that country: Flinders Island Language (Cape York Peninsula): Yalgawarra(members of clan holding Yalga estate); Aba Yalgaya (people from Yalgaestate); Walmbarrwarra (members of clans holding the many constituentestates of the Walmbarr region; the Walmbarr `nation'). (Sutton 1993) The relevant verbs in Aboriginal languages are most often thosemeaning to `hold', `Iook after', `be in charge of', `comefrom' `belong to' and so on. Few if any Aboriginal languageshave a verb that corresponds to English `have' or `own'. Forexample: Nunggubuyu (Eastern Arnhem Land): warnaga- 1. to hold, grasp; 2.to be in charge of (people, country, ritual). This is the closestNunggubuyu verb to English `have'. lhal-warnaga to hold or be in charge ofcountry. (Heath 1982:204) Wik-Ngathan (Cape York Peninsula): kooepe- 1. wait for; 2. lookafter, hence [also] possess as country, totem (Sutton 1995c:24); poenche- 1.descend into; 2. belong to (country) (Sutton 1995c:82) plus unpublished notes). In 1978 I wrote, in relation to the people of the Cape Keerweerregion (Cape York Peninsula):(26) `Owning' land in this sense is spoken of [in Wik-Ngathan]using the verb /kooepanha/ which means `to look after, wait for, wait upon,guard'. The other verb of possession is /pi'anha/ which describes holding ofany kind, including possession of a wife, but does not apply in this situation. Thusland tenure is more a type of established custodianship rather than inalienable Not subject to sale or transfer; inseparable.That which is inalienable cannot be bought, sold, or transferred from one individual to another. The personal rights to life and liberty guaranteed by the Constitution of the United States are inalienable. or alienable possession. The possessive pronouns used in this context are morefrequently oblique than genitive [ie. the forms used are more oftenbenefactive rather than truly possessive in meaning] (e.g. /aak thananta/ rather than/aak thananga/, `their country'). Established custodianship ofthis kind, which is the target or archetype archetype(är`kĭtīp')[Gr. arch=first, typos=mold], term whose earlier meaning, "original model," or "prototype," has been enlarged by C. G. Jung and by several contemporary literary critics. of person-land relationships, must bedistinguished from `minding the country' for someone else. (Sutton 1978:57-58). More recently, in about 1993, a senior Cape Keerweer man steepedin classical traditions but also a committed and practising Christian,spoke to me with some sadness, mixed with anger, about a dispute thenraging between local groups over the tenure of a particular estate. Hethen said: Brother, we don't own the land. We are the stewards of theland. God owns the land.(27) Thus another translation of kooepe- in his particular languagewould be `to act as steward of'. The question arises, then, as tohow independently such land holders may act. Are they self-appointing,or, as the words `steward' and kooepe- imply, are they placed inthis role by something higher than themselves? HOW AUTONOMOUS CAN LOCAL LAND-OWNING GROUPS OR INDIVIDUALS BE? I consider the answer to this question to be: none of themabsolutely and in principle, as far as assertions of tenure areconcerned. In operational or day-to-day terms there is less autonomy forthose who come from the harshest deserts than there is for those whocome from the better favoured environments. In relation to the Pintupi of the Western Desert, Fred Myerswrites: Identification [with country] is an ongoing process, subject toclaim and counterclaim, dependent on validation and acceptance orinvalidation and nonacceptance. ... Such rights exist only when they are acceptedby others. (1986:128). The primary basis on which identification [with country] isestablished is conception. Through such an incarnation, an individual isconsidered to be identified substantially with a place, as a mutual transformationof the same creative activity of The Dreaming. Yet however rooted it may be in thecosmological facts, identification becomes meaningful only when validatedsocially. It must be actualized ac��tu��al��ize?v. ac��tu��al��ized, ac��tu��al��iz��ing, ac��tu��al��iz��esv.tr.1. To realize in action or make real: "More flexible life patterns could . . . and accepted by others through a process ofnegotiation. (1986:141) Most other Aboriginal systems, even those of the northernneighbours of the Pintupi, the semi-desert Warlpiri and Warlmanpa,exhibit lesser degrees of operational negotiability for landaffiliations. In the latter region, the land claim book for a NorthernTerritory land claim over Muckaty Station reads: It would be tempting to regard the patrifiliates of Muckaty-areaDreamings such as Milwayi, Ngapa, Wirntiku or Yapayapa as in some sense the`basic' landowners under Aboriginal tradition in the region. This would beneat and uncomplicated, and would resemble the European type of land tenurein which individuals or corporations hold exclusive title to discreteparcels of land. The actual system of relations with land in the region is far moresubtle and complex than this. No Aboriginal country is an island. It exists only as an elementin a system of interrelations between landscapes and the kin associated withthem. Indeed, without such relationships, the countries themselves have noparticular reason for existence. They are essentially relational in function. Justas the words that belong to the class of verbs, or nouns, in a language are definedas such only because of syntactic relations between subjects, objects andindirect objects, so the nature of countries, in this region is constituted by therelationships between people, Dreamings, ceremonies and places. Theserelationships are not enforcible paper contracts but states of mutual assent betweenpeople that are subject to continual, if gradual, renegotiation. These statesof assent are not merely symbolised in religious imagery but are frequently attainedand maintained through the very process of creating such imagery inthe organisation, diplomacy and decision-making that make ceremonial eventspossible. The heart of the Aboriginal land tenure system in the Muckatyregion thus lies not within the cell-like structures of the countries but inthe local clustering of shared rights and interests in country, both agnatic ag��nate?adj.1. Related on or descended from the father's or male side.2. Coming from a common source; akin.n.A relative on the father's or male side only. anduterine uterine/uter��ine/ (u��ter-in) pertaining to the uterus. u��ter��ineadj.Of, relating to, or in the region of the uterus. , that provide the cultural, religious and political context for theseapparent,units,. They are not so much units, or self-existent territorial entities, as thebones of the system which, when articulated, make up the body of the system. Just asthere is no system without its constitutive constitutive/con��sti��tu��tive/ (kon-stich��u-tiv) produced constantly or in fixed amounts, regardless of environmental conditions or demand. building@blocks, so there are noAboriginal territorial building The Territorial Building at 425 South King Street in downtown Honolulu, Hawaiʻi was a government building of the Territory of Hawaiʻblocks without the wider set of relationsbetween regional kin and landscapes in which they play their part. A brick is abrick because of the way walls are made. The customary use and exploitation of land, and decision-makingabout land in the new bureaucratic environment which is now soinsistent, are also never by intention or even common usage carried on by members ofhighly local country groups exclusively. Again, knowledge of the land isnever in principle that of members of the local country groups exclusively.This pattern is general. The local countries provide an elemental structure overwhich the real determination of authority over land is actually played out.(Sutton, Morel morelAny of various species of edible mushrooms in the genera Morchella and Verpa. Morels have a convoluted or pitted head, or cap, vary in shape, and occur in diverse habitats. The edible M. and Nash 1993:46-47)In retrospect, and with regard to the last sentence above, I wouldnow say that real authority, over the definition of local land ownershipwill often be a matter of negotiation, in the sense that there istypically a dialectical interplay between the drive for local autonomyand a respect for the Law, of the wider jural public.(28)' Widerjural publics, moreover, are recruited differentially to adjudge To determine by a judge; to pass on and decide judicially.A person adjudged guilty is one who has been convicted in court. particular events or contests and are thus context-dependent `aggregatestructures' (Sansom 1980:259ff). What is not so labile labile/la��bile/ (la��bil)1. gliding; moving from point to point over the surface; unstable; fluctuating.2. chemically unstable.la��bileadj.1. is theDreaming content of country, the geographic definition of sites andcores of estates, the linguistic identity of country, and the rules forrecruitment to local estate-holding groups, which these wider publicsand their senior practitioners know and apply to cases of disputedproximate title. Small local groups often act with great autonomy in relation toland use, and such cases might be thought to alter the cast of mygeneral argument. I will cite one example. In the early 1990s a small group of traditional land holders inthe Western Desert region cut a private deal with a small mining operator toallow him to dig up chrysoprase on a Dreaming track. Strong disapproval amongothers in the region soon developed as many were highly critical that a fewpeople had `gone it alone, and had also agreed to the mining of a sacred site, thusliterally, breaking `the Law'. There was also much criticism that themen concerned had failed to negotiate through the regional land council and had done thedeal `through the back door,. It became a case of a small group versus the restof a large regional population. Talk of spearing and ensorcelling theoffenders abounded but nothing apparently eventuated. In due course the regional landcouncil held a meeting close to the mine site. At this meeting thedecision to allow the mine was endorsed. The offenders were, in 1996, still held in adegree of opprobrium OPPROBRIUM, civil law. Ignominy; shame; infamy. (q.v.) , however, and the verse of the song referring to thesite has been deleted. (David Brooks David Brooks is the name of: David Brooks (journalist) (born 1961), commentator for The New York Times and other publications David Brooks (politician) (1756–1838), United States representative in the Fifth United States Congress (pers. comm. July 1996))This was not, of course, a case about land ownership but one aboutsite use and site destruction. Nevertheless it seems that, even where aregion,s senior people disapprove, local forces may at times prevail inthe contest between localism lo��cal��ism?n.1. a. A local linguistic feature.b. A local custom or peculiarity.2. Devotion to local interests and customs. and regionalism re��gion��al��ism?n.1. a. Political division of an area into partially autonomous regions.b. Advocacy of such a political system.2. Loyalty to the interests of a particular region.3. . We cannot know how theregion would react to a repeat offence in this case, so we also cannotknow how long local forces could continue to prevail in the teeth ofwidespread opposition. It seems that the wider consensus in the regionis that mining proposals should be dealt with through, and with thelegal and other support of, their land council. Here is one of manyinstances of a desire to engage with modern bureaucratic institutions inorder to present the buffer of a regional will to pressures originatingfrom outside. In regions heavily impacted by colonial and post-colonialdevelopments, it is sometimes the case that some people maintainproximate entitlements to small areas such as classical estates as wellas an identification with more widely@cast landed entities such aslanguage groups, but at the same time others from the same region maymaintain only the wider form of identification with land. Such asituation may lead to conflict. In the Birthday Mountain land claim inCape York Peninsula (Land Tribunal 1995), this particular distinctioncame to a head when the claim was lodged solely on behalf of a smalldescent group within whose estate the claimed land fell in its entirety.This claimed land was part of the southern Kaanju language group area.Other southern Kaanju people lodged a subsequent claim over the sameland. Just after the conclusion of the hearings the two sets ofclaimants came to a signed settlement to the effect that they agreed thesouthern Kaanju as a whole had traditional affiliation to the claimedland, the small descent group were the owners of the land underAboriginal tradition, and the latter were therefore the appropriatepeople to act as trustees and grantees of the land under the AboriginalLand Act (Queensland) 1995. This was reflected in the Tribunal,srecommendations, namely that (apart from a cemetery reserve) the land begranted in fee simple to the southern Kaanju, and that members of thesmall descent group be appointed as the grantees of the land as trusteesfor the benefit of the southern Kaanju as a whole (Land Tribunal(Queensland) 1995). Here was a case in which an assertion of autonomy by a groupholding proximate title failed, not completely, but partially, and as aresult of the assertion of interests by those speaking for a wider groupthat included them. Spokespersons for both sets formally agreed thateach had a specific form of right and interest in the land. Although thelegal process was novel, not to mention its particularly disturbingapplication in this case, and may have thrown interested parties intosome disarray, it seems that some ancient principles concerned with thedual nature of customary title did emerge. CONCLUSION In writing a paper such as this, one is always wary of engaging in`codification' of tradition, or what Francesca Merlan (1995) hascalled `the regimentation of customary practice'. Any legislationaimed at granting or recognising indigenous land titles, once enacted,immediately creates problems for those who wish to understand suchtitles in all their complexities, indeterminacies and contradictions,but who at the same time are assisting in their presentation andexplanation to a tribunal or judge. The reductive re��duc��tive?adj.1. Of or relating to reduction.2. Relating to, being an instance of, or exhibiting reductionism.3. Relating to or being an instance of reductivism. impulse is usuallysomething to resist as far as possible, but it is still an art form. onecan schematise Verb 1. schematise - give conventional form to; "some art forms schematise designs into geometrical patterns"schematizealter, change, modify - cause to change; make different; cause a transformation; "The advent of the automobile may have altered the well, or badly. Simple oppositions, such as the one I have considered here betweenunderlying and proximate titles, easily sweep the complexities of reallife under a rug. On the other hand, without the occasional sweepinggeneralisation it is difficult to advance discussion of a subject byanything other than slowly gained inches. I am given courage by the factthat failed hypotheses are often fecund fe��cundadj.Capable of producing offspring; fertile. ones. Given the present realityof an Australian native title apparatus that marches inexorably on andis soon to begin testing indigenous claims in the Federal Court, time isshort for anthropologists seeking to work out some of the majorimplications of the new laws New Laws:see Las Casas, Bartolomé de. for the research they will have to do. Oneof the major directions of this research, I suggest, should be therelationship between what I have called underlying and proximatecustomary Aboriginal title Aboriginal title is a common law property interest in land. It has been recognised in Canada, Australia, New Zealand, the United States, and increasingly in other common law countries as well, such as Malaysia and Nigeria. in land and waters. NOTES(1.) I do not deal with Torres Strait Islander land relationships inthis paper, although the arguments may well apply in that case. I haverestricted myself to systems with which I am more familiar.(2.) I use `whole-part' here in the logical sense, with noimplication that a cultural entity has an ascertainable whole, in thesense of a putative `complete' account by an anthropologist.(3.) Eg. Toohey J in Mabo and ors. v Queensland 2 at p146 ATSI ATSI Aboriginal and Torres Strait Islander (Australia)ATSI Association of Thai Software IndustryATSI Association of TeleServices InternationalATSI American Transmission Systems, Inc. SocialJustice Commissioner 1995:24; see also 57-61 Bartlett 1993a:S10.1.3;Bartlett 1993b: S4.1.2;.(4.) Brennan J in Mabo and ors. v Queensland 2 at p42.(5.) It is no accident that initiation is widely referred to inAboriginal English as `going through the rules'.(6.) Compare also the range of meanings listed for tjurunga byStrehlow (9147:85-86).(7.) Anthropological discourse has generally abandoned the termcustom, but it has continuing use in Australian law. See Rigsby 1996.(8.) This is not to suggest that there is a fixed council of elders Council of Elders may refer to:In politics: Global Elders, a humanitarian group referred to in media as the Council of Elders. Council of Elders of the Bundestag (Germany), a joint deliberative body ,for each of a set of non-overlapping regions, but there is remarkableagreement, as a rule, on the subject of who the authoritative elders arewithin any particular context. both the context of issues and that of ageographic area.(9.) In the first draft of this paper I referred to these as radicaland beneficial titles respectively. Lawyers who commented on that drafttended to suggest these terms be replaced, in order to avoid confusionwith their function as key terms in Australian and other English-basedland law. `Underlying, is particularly apt in the sense that Aboliginalpeople will sometimes refer to the Dreaming as,undergroundculture', as they did in the Elliott region in my experience, andfor the Victoria River region see Daly Pulkara's statement, `TheEarth got a culture inside, in Rose (1992:229). 'Proximate'means, among other things, Proximate, means, amongother things. `1. next, nearest; 2. closely adjacent, very near; ...4.next in a chain of relation' (Macquarie Dictionary(10). In the high court's Mabo decision there is only occasionaluse of the term, underlying, instead of, radical, title. Eg.: Brennan CJin Mabo and ors. v Queensland 2 CLR at p53: What the Crown acquired was an underlying title to land and asovereign political power over land, the sum of which is not tantamount to absolute ownershipof land. Until recent times, the political power to dispose of To determine the fate of; to exercise the power of control over; to fix the condition, application, employment, etc. of; to direct or assign for a use.See also: Dispose land in disregard of nativetitle was exercised so as to expand the underlying title of the Crown to absolute ownership but,where that has not occurred, there is no reason to deny the law,s protection to thedescendants of indigenous citizens who can establish their entitlement to rights and interests whichsurvived the Crown's acquisition of sovereignty.(11.) In a preliminary exploration of the topic of the present paperI also used this term: `Members of their wider regional group may besaid to have an underlying or,residual, interest in all the smallestates of the region, somewhat in the sense that the Australian statehas an underlying sovereign interest in all Australian lands, (Sutton1995d:8).(12.) Writing of North-Eeast Amhem Land Ian Keen (1994) repeatedlycites evidence of variation between different versions of myths, songinterpretations and other land-related cultural forms, but at the sametime emphasises the fact that Yolngu have a form of social organisationand religion in which there are many universal categories and symbolsand predominantly agreed ways of dealing with land tenure (see eg. pp.(12-15, 265-276). The question arises, however, as to whether or not agroup with a radically unique sense of customary land law, one that wasunmatched and unsupported by Aboriginal thought and practice in its ownregion, would have difficulty establishing a legal case for nativetitle. There is not room to explore this here, although the issue mayarise concretely in the future and if so it will ultimately have to bedealt with both anthropologically and legally.(13.) `Tenure, derives from Old French tenir which in turn is cognatewith Latin tenere `to hold' (Macquarie Dictionary 1991:1804). Infeudal-based legal terms, `tenure' does not refer to the holding ofthe land but to the relationship between Paramount Lord and tenant[Oxley-Oxland and Stein 1985:5; Brennan CJ in Mabo 2 CLR at p53). Landin Australian law is thus, held of, someone, not held absolutely, unlessby the Crown. This fiction of ultimate ownership by an individual officeis none the less legally real, just as the superorganic constructions ofthe Dreaming or Aboriginal Law have reality in Aboriginal culture andsociety.(14.) I do not refer here to physical absence from the land, but theabsence of active claims as of right over the land, whether made inabsentia in absentia(in ab-sensh-ee-ah) adj. or adv. phrase. Latin for "in absence," or more fully, in one's absence. Occasionally a criminal trial is conducted without the defendant being present when he/she walks out or escapes after the trial has begun, since the accused or not.(15.) Native Title Act 1993(1).(16.) This has occurred in the case of certain Stormbird Dreamingsites on Muckaty Station in the Northern Territory. Senior men from theTennant Creek region control this songline from Burke Creek south tonear Willowra, and senior men from the Elliott region to their northcontrol it south from about Mataranka to Muffranji and probably south toBurke Creek. In the early 1990s senior members of the two regionalceremonial foci disagreed over the allocation of members of oneparticular patriline to Stormbird sites on Muckaty (Sutton, Morel andNash(17.) I have gone into considerable detail about the evidence forthis proposition in relation to language areas in Sutton (in press).Quite often a superordinate mythic figure is explicitly not only thefounder of cultural diacritica such as language but also of the Law, asin the case of Ngurunderi on the Lower Murray River (Berndt and Berndt1993). Like other mythic instigators, of this level, Ngurunderioriginated from outside the region of his greatest fame. Perhaps thispattern of external origins reflects the distinction of the underlyingLaw from its instantiations, since the ideology that normally applies toholders of established proximate entitlements to land is that they havebeen there since the start of everything, and immigration immigration,entrance of a person (an alien) into a new country for the purpose of establishing permanent residence. Motives for immigration, like those for migration generally, are often economic, although religious or political factors may be very important. is denied. Bycontrast, for founding major Dreamings, a story of immigration orpassage through the known region is extremely common.(18.). There were also secret waters, for use only by senior localmen (cf. Keen 1994:114 where a similar distinction applies in North-EastAmhem Land).(19.) In one Northern Territory case a group of male elders drawnfrom the relevant wider region gave evidence which did not support agroup's claims, but the group was nevertheless legally successful.See Aboriginal Land Commissioner 1981.(20). John Avery, personal communication August 1996.(21.) I am grateful to John Avery for reminding me of this case andfleshing it out for me.(22.) W.E.H. Stanner (1965:230) said that totemic disinheritance disinheritancen. the act of disinheriting. (See: disinherit) DISINHERITANCE. The act by which a person deprives his heir of an inheritance, who, without such act, would inherit. 2. was`not really possible', but went on to cite cases where the childrenof men who married wrongly were said to,lose, their paternal totems, andhe knew personally of one case where a man had abandoned his totem andpublicly declared his intention never to return to his clan country.'There are rules, both religious and secular, governing acquisition[of totems], so that a person's totem could be said to be a matterof right, but public ascription as��crip��tion?n.1. The act of ascribing.2. A statement that ascribes.[Latin ascr and agreement disputes do arise) bothseem necessary conditions.'(23). Amalgamation does occur regularly in one sense, in that heavilyimpacted regional groups whose sub-group estates become vacatedextensively and suddenly may assign conjoint con��joint?adj.1. Joined together; combined: "social order and prosperity, the conjoint aims of government"John K. Fairbank.2. succession to all of thevacated estates by those surviving in a few of them, as in the case ofthe Malak Malak of Daly River, the Yiidhuwarra of eastern Cape York, andthe Larrakia of the Darwin region (see Aboriginal Land Commissioner1982, Land Tribunal (Queensland) 1994a, Sutton 1995a respectively). Butin these cases, even where an old vacant estate is still remembered, itis not combined with an estate of a surviving sub-group, but swept intothe pool of the surviving regional or language group,s overallterritory.(24.) There are similarities here with English, as in `looking afteryour own', best wishes to you and yours', and the dialectal`our Onslow'.(25.) For a brief overview of literature on this see (Sutton 1995b:40,161).(26.) I have changed the orthography between 1978 and 1995,unstressed un��stressed?adj.1. Linguistics Not stressed or accented: an unstressed syllable.2. Not exposed or subjected to stress.Adj. 1. vowels now being shown as /e/ instead of /a/, and allunderlying stems are now shown as consonant-final.(27.) A somewhat similar syncretic syn��cre��tism?n.1. Reconciliation or fusion of differing systems of belief, as in philosophy or religion, especially when success is partial or the result is heterogeneous.2. view was reported in 1996 ascoming from Jean George of Napranum (Weipa, Cape York Peninsula), whilevisiting Canberra to witness the High Court proceedings in the Wik case:Before they came to mine the place it was our land and it's stillour land... We're not fighting for their land, we are talking aboutour land. The land was given to us by God., fin Kennedy et al 1996). lanKeen reports local Christian Revival leaders in Amhem Land asserting, inthe late looslearly 1980s, that 'God gave the various people of theworld their lands, and God entrusted the ancestors with countries ofYolngu groups,(28.) T.G.H. Strehlow spent a lot of time emphasising the autonomy ofclans in relation to their estates (nyen- henge hengeNouna circular monument, often containing a circle of stones, dating from the Neolithic and Bronze Ages [from Stonehenge] sections) in theArrernte region (see 1965, 1970). On the other hand, he published richlydetailed accounts of joint, large-scale involvement of members of manydifferent clans in dealing with cases of sacrilege, including punitiveaction (eg. 1970:123-128) He also said that religious authority extendedinto the secular realm (1970:116). REFERENCESABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER1995. Native Title Report January-June 1994. Sydney: Office of theAboriginal and Torres Strait Islander Social Justice Commissioner.ABORIGINAL LAND COMMISSIONER 1981. Finniss River Land Claim.Canberra: Australian Government Publishing Service. 1982 Daly River(Malak Malak) Land Claim. Canberra-Australian Government publishingservice.AKERMAN, K. 1995. Kimberley and Dampier Land. In Appendix2 (p.99) ofP. Sutton, Country: Aboriginal Boundaries and Land Ownership inAustralia. Canberra: Aboriginal History Monographs.BARTLETT, R. H. 1993a. The Mabo Decision, and Full Text of theDecision in Mabo and Others v State of Queensland: Commentary. Sydney:Butterworths. 1993b. The Source, Content and Proof of Native Title atCommon Law. In Richard H. Bartlett (ed), Resource Development andAboriginal Land Rights in Australia. Perth: The Centre for Commercialand Resources Law, University of Western Australia and MurdochUniversity.BERNDT, R.M. and C.H. BERNDT (with J.E. STANTON) 1993. A World thatWas. The Yaraldi of the Murray River and the Lakes, South Australia.Melbourne: Melboume University Press at the Miegunyah Press.EVANS, N. 1992. Kayardild Dictionary and Thesaurus. A Vocabulary ofthe Language of the Bentinck Islanders, North-west Queensland. MelbourneDepartment of Linguistics Noun 1. department of linguistics - the academic department responsible for teaching and research in linguisticslinguistics departmentacademic department - a division of a school that is responsible for a given subject , University of Melbourne AsiaWeek is now discontinued. Comments:In 2006, Times Higher Education Supplement ranked the University of Melbourne 22nd in the world. Because of the drop in ranking, University of Melbourne is currently behind four Asian universities - Beijing University, .GODDARD, C. 1987. A Basic Pitjantjatjara/Yankunytjatjara to EnglishDictionary. Alice Springs: Institute for Aboriginal Development.HEATH, J. 1982. Nunggubuyu Dictionary. Canberra: Australian Instituteof Aboriginal Studies.HENDERSON, J., and V. DOBSON 1994. Eastern and Central Arrernte toEnglish Dictionary. Alice Springs: Institute for Aboriginal Development.KEEN, I. 1988. Yolngu Religious Property. In T. Ingoid, J. Woodbumand D. Riches (eds.), Hunters and Gatherers. Property, Power andIdeology, pp. 272-91. Oxford: Berg. 1989. Aboriginal governance. In J.CAltman (ed) Emergent Inequalities in Aboriginal Australia, pp. 17-42,Oceania (University of Sydney The University of Sydney, established in Sydney in 1850, is the oldest university in Australia. It is a member of Australia's "Group of Eight" Australian universities that are highly ranked in terms of their research performance. ). 1994. Knowledge and Secrecy in an Aboriginal Religion. Oxford: Clarendon Press.KENNEDY, F., L. MCLEAN and D. NASON 1996. God Gave us the Land, notthe High Court: Elders. The Australian 11 June.KOLIG, E. 9178. Dialectics of Aboriginal Life-space. In M.C. Howard(ed), `Whitefella Business': Aborigines aborigines:see Australian aborigines. in Australian Politics, pp.49-80. Philadelphia: Institute for the Study of Human Issues.LAND TRIBUNAL (QUEENSLAND) 1994a, Aboriginal Land Claims to CapeMelville National Park Cape Melville is a national park in Queensland (Australia), 1711 km northwest of Brisbane. See alsoProtected areas of Queensland (Australia) , Flinders Group National Park Flinders Group is a national park in Queensland (Australia), 1745 km northwest of Brisbane. See alsoProtected areas of Queensland (Australia) , Clack IslandNational Park and Nearby Islands. Brisbane: Goprint. 1994b. AboriginalLand Claim Aboriginal land claims are claims of Native or Aboriginal peoples (also referred to as Indigenous peoples) about their ownership of land before the arrival of settlers, primarily Europeans. to Simpson Desert National Park Simpson Desert is the largest National Park in Queensland (Australia), 1495 km west of Brisbane. See alsoSimpson Desert Simpson Desert Conservation Park Simpson Desert Regional Reserve Protected areas of Queensland (Australia) . Brisbane: Goprint. 1995.Aboriginal Land Claims to Vacant Crown Land in the Vicinity of BirthdayMountain. Brisbane: Land Tribunal. 1996 Aboriginal Land Claim toLakefield National Park Lakefield is a National Park in Queensland (Australia), 1,707 km northwest of Brisbane. It is the second largest park in Queensland and a favourite place for fishing and camping. It can be accessed by road either through Cooktown or Laura. . Brisbane: Landtribunal.MACDONALD, G. M. 1986. The Koori Way'. The Dynamics of CulturalDistinctiveness in Settled Australia. PhD thesis, University of Sydney.1996. Bogan River Wiradjuri Anthropological Report (re: Federal CourtNG6001 of 1995). Sydney: New South Wales Aboriginal Land Council.MACQUARIE DICTIONARY 1991 (2nd edn). Sydney: The Macquarie Library.MADDOCK, K. 1986. Aboriginal Customary Law. In P. Hanks and B. KeonCohen cohenor kohen(Hebrew: “priest”) Jewish priest descended from Zadok (a descendant of Aaron), priest at the First Temple of Jerusalem. The biblical priesthood was hereditary and male. (ed), Aborigines and the Law. Essays in Memory of ElizabethEggleston, pp. 212-237. Sydney: George Allen & Unwin.MERLAN, F. 1981. Land, Language and Social Identity in AboriginalAustralia. Mankind 1995. The regimentation of customary practice: FromNorthern Territory Land Claims to Mabo.the Australian Journal ofAnthropology 6:64-82.MYERS, F. R. 1980a. The Cultural Basis of Politics in Pintupi Life.Mankind 1980b. A Broken Code: Pintupi Political Theory and ContemporarySocial Life. Mankind 1986. Pintupi Country, Pintupi Self. Sentiment,Place and Politics among Western Desert Aborigines. Washington/CanberraSmithsonian Institution Press Australian Institute of AboriginalStudies.OXLEY-OXLAND, J. and R.T.J. STEIN 1985. Understanding Land Law.Sydney: The Law Book Company.PALMER, K. 1983. Migration and Rights to Land in the Pilbara. In N.Peterson and M. Langton (eds), Aborigines, Land and Land Rights, pp.172-179. Canberra: Australian Institute of Aboriginal Studies.PETERSON, N. 1976. The Natural and Cultural Areas of AboriginalAustralia: a Preliminary Analysis of Population Groupings with AdaptiveSignificance. In N. Peterson (ed.), Tribes and Boundaries in Australia,pp. 50-71. Canberra: Australian Institute of Aboriginal Studies.PETERSON, N., I. KEEN and B. SANSOM 1977. Succession to Land: Primaryand Secondary Rights to Aboriginal Estates. (A submission to the RangerUranium Environmental Inquiry.) In joint select Committee on AboriginalLand rights in the Northern Territory, Official Hansards report, pp.1002-PETERSON, N. and J. LONG 1986. Australian Territorial Organization: aBand Perspective. Sydney: Oceania (University of Sydney).PINK, O. 1936. The Landowners in the Northern Division of the ArandaTribe, Central Australia. OceaniaREAY, M. n.d. Comments on the Borroloola Land Claim. Ms. submitted toAboriginal Land Commissioner (Northern Territory).RIGSBY, B. 1996.`Law, and, `Custom, as Anthropological and LegalTerms. In J. Finlayson and A. Jackson@ Nakano (eds), Heritage and NativeTitle: Anthropological and Legal Perspectives, pp. 230-254.Canberra-Australian Institute of Aboriginal and Torres Strait IslanderStudies.SANSOM, B. 1980. The Camp at Wallaby wallaby:see kangaroo. wallabyAny of about 25 species of medium-sized kangaroos, found chiefly in Australia. Brush wallabies (11 species) are built like the big kangaroos but differ in dentition. Rock wallabies live among rocks, usually near water. Cross: Aboriginal FringeDwellers in Darwin. Canberra: Australian Institute of AboriginalStudies.SCHWAB, R. G. 1991. The `Blackfella Way'. Ideology and Practicein an Urban Aboriginal Community. PhD thesis, Australian NationalUniversity.STANNER, W.E.H. 1965. Religion, Totemism totemismComplex of ideas and practices based on the belief in kinship or mystical relationship between a group (or individual) and a natural object, such as an animal or plant. The term derives from the Ojibwa word ototeman, signifying a blood relationship. and Symbolism. In R.M. andC.H. Berndt (ed)., Aboriginal Man in Australia, pp. 207-237. Sydney:Angus and Robertson.STANTON. J. E. 1983. Old Business, New Owners: Succession and, theLaw, on the Fringe On The Fringe is a popular Pakistani television show on Indus Music. It is hosted and scripted by the eccentric television host and music critic, Fasi Zaka and directed by Zeeshan Pervez. of the Western Desert. In N. Peterson and M. Langton(eds), Aborigines, Land and Land Rights, pp. 160-171. Canberra:Australian Institute of Aboriginal Studies.STREHLOW, T.G.H. 1947. Aranda Traditions. Melbourne: MelbourneUniversity Press. 1965. Culture, Social Structure, and Environment inAboriginal Central Australia. In R.M. Berndt and C.H. Berndt (eds)Aboriginal Man in Australia. Essays in Honour of Emeritus Professor A.P.Elkin,pp. 121-145. Sydney-Angus and Robertson. 1970. Geography and theTotemic Landscape in Central Australia: a Functional Study. in R.M.Berndt (ed.) Australian Aboriginal Anthropology University of W.A.Press, Perth, pp. 92-140.SUTTON, P. 1978. Wik: Aboriginal Society, Territory and Language atCape Keerweer, Cape York Peninsula, Australia. PhD thesis, University ofQueensland The University of Queensland (UQ) is the longest-established university in the state of Queensland, Australia, a member of Australia's Group of Eight, and the Sandstone Universities. It is also a founding member of the international Universitas 21 organisation. , 1980. Notes on Some Aspects of Traditional Aboriginal LandTakeovers Marked by Conflict. Typescript. Submission in relation to theFinniss River Land Claim. Darwin: Northern Land Council. 1993. Flindersislands & Melville National Parks Land Claim. Cairns: Cape York LandCouncil. 1995a. The Larrakia Group. Submission to Aboriginal LandCommissioner, re Kenbi (Cox Peninsula) Land Claim. Darwin: Northern LandCouncil. 1995b. Country: Aborigitial Bolitidaries and Land Ownership inAustralia. Canberra: Aboriginal History Mollographs. 1995c. Wik-NgathanDictionary. Adelaide: Caitlin Press. 1995d. Atomism atomism,philosophic concept of the nature of the universe, holding that the universe is composed of invisible, indestructible material particles. The theory was first advanced in the 5th cent. B.C. by Leucippus and was elaborated by Democritus. versus Collectivism collectivismAny of several types of social organization that ascribe central importance to the groups to which individuals belong (e.g., state, nation, ethnic group, or social class). It may be contrasted with individualism. :the Problem of Group Definition in Native Title Cases. Pp. 1-10 in J.Fingleton and J. Finlayson (eds), Anthropology in the Native Title Era:Proceedings of a Ivorkstiop, Canberra: Australian institute ofAboriginal and Torres Strait islander Studies. (in press) Materialism,Sacred Myth and Pluratism: Competing Theories of the Origin ofAustralian Languages. In Scholar and Sceptic.. Australian AboriginalStudies in Honour of L.R. Hiatt, edited by F. Merlan, J. Morton and A.Rumsey. Canberra: Aboriginal Studies Press.SUTTON, P., P. MOREL and D. NASH 1993. The Muckaty Land Claim.Darwin: Northern Land Council.TRIGGER, D. S. 1989. Garawa/Mugularrangu (Robinson River) LandCouncilWARNER, W. L. 1937. A Black Civilization: a Social Study of anAustralian Tribe. New York New York, state, United StatesNew York,Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of : Harper and Brothers.WHEELER, G. C. 1910. Tize Tribe, and intertribal in��ter��tri��bal?adj.Existing or occurring between tribes.Adj. 1. intertribal - between or among tribes; "intertribal warfare" Relations inAustralia. London: John Murray.WILLIAMS, N. M. 1982. A Boundary is to Cross: Observations on YolnguBoundaries and Permission. In N.M. Williams and E.S. Hunn (eds)Resolirce Managers: North American North Americannamed after North America.North American blastomycosissee North American blastomycosis.North American cattle ticksee boophilusannulatus. and Australian Hunter-gatherers, pp.131-154. Boulder, Colorado: Westview Press for the American Associationfor the Advancement of Science.WOOTREN, H. 1994a. Mabo -- Issues and Challenges. The Judicial Review303:330-340. 1994b. The Mabo Decision and Native Title. in S.Woenne-Green, R. Johnston, R. Sultan and A. Willis eds., Competinginterests. A boriginal Participation in National Parks and ConservationReserves in Austratia. Maroochydore: Corgi corgi:see Cardigan Welsh corgi; Pembroke Welsh corgi. Printing. 1995. The End ofDispossession The wrongful, nonconsensual ouster or removal of a person from his or her property by trick, compulsion, or misuse of the law, whereby the violator obtains actual occupation of the land. Dispossession encompasses intrusion, disseisin, or deforcement. ? Anthropologists and Lawyers in the Native Title Process.in J. Finlayson and D. Smith (eds.) Native Title: Emerging issues forResearch, Policy and Practice, pp. 101-118 Canberra: CAEPR CAEPR Centre for Aboriginal Economic Policy ResearchCAEPR Comprehensive Adverse Event and Potential Risks (clinical drug trials), ANU Anu(ā`n), ancient sky god of Sumerian origin, worshiped in Babylonian religion. .