Robustness of aboriginal land tenure systems: Underlying and proximate customary titles, The

robustness of aboriginal land tenure systems: Underlying and proximate customary titles, The

Sutton, Peter


While Aboriginal’ land use patterns may have been fragile in the face of colonisation, and severe limits were consequently placed on Aboriginal people’s capacity to physically enact local traditional entitlements on many lands, the basis and key content of traditional title to such lands is not fragile but has generally been maintained with considerable robustness. In this paper I suggest that this robustness arises in a critical sense from the pre-existing and widely continuing dual structure of traditional land tenure, which may be understood as consisting of an underlying title held within the relevant regional jural and cultural system, which underpins proximate entitlements enjoyed by small groups of individuals. There is scope within Australia’s Native Title Act (1993) for the recognition of this system of customary law under the western legal concept of native title.


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 traditional customs observed by the Aboriginal peoples or Torres Strait Islanders’ (that is, they derive from and are rooted in a wider set of living principles); [italics added]

rights and interests in the land and waters where the Aboriginal peoples or Torres Strait Islanders have a connection with the land `by those laws and customs’ (that is, it is not sufficient to establish connection, either by continuing physical occupation or in more cerebral ways; the connection must be derived from and rooted in the system of law and custom relating to land and land-related groups of people) [italics added]; and

rights and interests in the land and waters that `are recognised by the common law of Australia’

The last of these requirements refers above all to the content of the High Court’s decision in the case of Mabo and others v State of Queensland (see Bartlett 1993a). In that decision at pp. 61-62, Brennan CJ said:

…[W]here an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under a proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a sub-group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title. A sub-group or individual asserting a native title dependent on a communal native title has a sufficient interest to sue to enforce or protect the communal title. A communal native title enures for the benefit of the community as a whole and for the subgroups and individuals within it who have particular rights and interests in the community’s lands. [italics added]

The Native Title Act thus envisions two distinct but related kinds of whole-part2 dependency relationships. One is between particular rights and interests and the wider system of jural and cultural practices in which they are embedded. The other is between the rights and interests held in land or waters by subgroups or individuals, and the communal native title out of which they are ‘carved’.

In this paper I argue that these requirements themselves are in essence an accurate reflection of the relationship between wider Australian Aboriginal systems of land tenure and the granting of local entitlements under and within those systems. While there has been some debate as to how much of the detailed content of native title has to be proven in legal cases,3 there has been little debate about the proposition that ‘hn] ative title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.’4


Gaynor Macdonald has produced a good deal of evidence to show that the Bogan River Wiradjuri, acting as the Peak Hill native title claimants (New South Wales), have a sense of their own culture, law and custom as a distinctive system (1996: Chapter 6). An emphasis on this is not an artefact of the native title context. The short title of her PhD thesis, completed in 1986, was The Koori Way. Constructs of the same type are well documented, not only for remote regions where classical traditions persist strongly, but also for people of rural and urban backgrounds not unlike those of the Peak Hill people, where those traditions have been subject to considerable historical transformation.

Jerry Schwab’s PhD on Aboriginal people of the Adelaide region was called The ‘Blackfella Way’, a reference to a particular complex of values, social rules, beliefs and style that carries customary-legal force in the area of obligations towards others and may be referred to as `our Law’ (1991:132). In far north Queensland the terms ‘Murri Law, and `Bama Law’ embrace the same basic concept, and this Law governs, among other things, who has rights to land (Land Tribunal 1996: paras 766-778). These concepts are direct descendants of more classically framed and expressed notions that are usually 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 Western Australia and the term djugaruru among the Warlpiri of north-central Northern Territory (Maddock 1984:212). These terms typically refer to a body of jural rules for human conduct, and range widely from religious acts5 to marriage rules, kinship etiquettes and even forms of animal behaviour and the making of fire, for example Maddock (1984:212-213). Land law falls under the same rubric.

This should not be taken to suggest that indigenous terms for Aboriginal Law are vague or nebulous. Where well documented they are polysemous, that is, they have several related but distinct senses of different scopes, context indicating which one is in use. For example, the relevant term in Kayardild (Gulf of Carpentaria) is birrjilka, defined by Nicholas Evans (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 Arrernte (Aranda, Central Australia) Henderson and Dobson (1994:332) define atywerrenge (tjurunga) as ‘1. sacred objects; 2. sacred; 3. traditional law; 4. precious to someone, much-loved’.6

It is always integral and common to these concepts that the Law is something derived from ancestral people or Dreamings and is passed down the generations in a continuous line. In the Flinders Island language of Cape York Peninsula the term translated as `Aboriginal Law’ is epiy-abiya, literally `from father and from father’s father’ (my own unpublished fieldnotes). Although transformations between ancient and modern practices are recognised by people such as the Wiradjuri, their customary land law still has this same essential feature of being something that derives much of its authority and sanctity by being conceived as a body of principles transmitted down the generations from elders to younger people. In the case of a Wiradjuri subgroup such as the Bogan River people (or `Peak Hill mob’) their own customary land law is embedded in a wider regional system of similar cultural institutions.

It is useful to try to be precise about the way local entitlements to land can be said to be derived from a wider set of customary laws and cultural principles held by members of the social field or network concerned.


This notion can be understood in two ways, both of which are relevant here. First, a particular land-related law or custom7 may be shown to be part of, and embedded in, a wider set of such laws and customs that in some sense cohere among themselves, and are also held in common by a particular group of people. It is in each of these distinct senses that the system may be said to be a whole system underpinning a communal title, rather than merely an accidental set of principles or practices found across a mere population. This is important to interpreting the terms `possessed under’ and ‘confer’ in sections 223(1) and 225 of the Native Title Act. Hal Wootten QC has argued at length and on several occasions that `the concept of native title as a bundle of rights defined by previous land use is based on a misreading of the Mabo judgements as well as a misunderstanding of Aboriginal relationships to land’, and it `simply ignores the special character of the communal title of the highest level group in exclusive occupation of land.’ This is `the group which has the system of custom which defines the rights and interests of its members and subgroups as between themselves in the group land’ (Wootten 1995:110 and see Wootten 1994a,1994b).

Second, a particular law or custom, or a local group’s system of laws and customs to which the particular law or custom belongs, may in turn be shown to be part of and embedded in a geographically and socially wider set of similar laws, customs or systems. This latter embedding is particularly important in establishing the fundamental possessive relations of a group to land, as opposed to the specific incidents of their title. Section 225 of the Native Title Act seemingly puts things in reverse here. It implies that the court will see if the rights and interests of a native title, once established, `confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others…etc’. In normal Aboriginal terms, the possessory relationship, or occupation as of right, is the state from which specific rights, interests and responsibilities flow. If members of surrounding groups are asked if a certain person has the right to fish or hunt somewhere, or, more critically, if they have a right to assert control over the cultural heritage of that area, they would be expected to first want to know what country, and thus whose country, is being talked about. The possessory relationship is not built up from fragments of rights and interests. It is the other way around.

The need to show how laws and customs are derived from a system has direct implications for the giving of evidence in native title and similar cases. In the first case, where one is trying to show that a particular law 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 related to each other in principle. For example, the right to assert that one is Wiradjuri, and from a particular Wiradjuri subgroup identified with a particular river system, may be recognised only if one meets certain criteria, such as a licit form of descent from a Wiradjuri forebear of the appropriate subgroup, combined with active involvement in the group’s affairs upon reaching adulthood. That one meets such criteria may be established on the principle that elders of the relevant community know and accept one’s genealogical position in a certain family, and know and accept one’s degree of involvement in the affairs of the community (Macdonald 1996). This may be the basis on which speaking possessively of the land is considered proper or improper, or the basis on which one may be delegated to take public responsibility for looking after the cultural heritage of the group and its land (eg. in transactions with the National Parks and Wildlife Service).

This principled basis, however, may be shown not to be restricted simply to matters of landed identity. It may also be the basis on which sexual relationships are considered legitimate or illegitimate in the group, or it may be a prerequisite for certain kinds of political office. In such a way, one could show that a specific strand of rights and interests forming part of one’s native title is constituted by a law that is part of a system of like laws. They constitute a system because their licitness and enactability rests on, and in that sense is derived from and rooted in, common principles that drive much of the group’s customary-legal behaviour across different domains (property, marriage, public office).

It is a basic principle of ethnography that where there is a superficial patterning in speech or behaviour, this may well be evidence of a deeper system at work. It is important to pay attention, for example, to the specific language of land relationships when trying to understand those relationships. Let us say that by careful observation there seem to be three roughly equivalent ways of speaking of the most fundamental 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 (we belong to Dubbo really)

people use ablative constructions (she’s from Wagga but she lives in X, he’s really from Trida, my people are originally from Murrin Bridge)

people use juxtaposition (they’re all Bourke mob, the Wanaaring fellas) This type of discourse would suggest a land relationship system in which the salient and highly compatible principles were: possession, origin, and identity. This is a system of deep principles of connection to land, of the kind that tends to be widely regional in its manifestation. The deeper the principle, the less likely it is to be confined to smaller sub-regional groups.

But there is another side to such systems, namely the way assertions deriving from them are policed. In a modest sense such statements are policed as to their idiomatic naturalness, their grammar, and the definition of what contexts are appropriate for saying them at all. These are sociolinguistic rules, and they are integral to culture. But such statements are policed in a stronger sense as well. If the same people have regular ways of controlling false or exaggerated statements put in this type of language, by shaming people, by socially ostracising them, and so on, then they clearly have a system for distinguishing licit from illicit claims of connection to country. This itself is a critical part of the system of laws by which they are connected to land. This socially broad-based policing system belongs to the wider social domain, not just the level of local entitlements to small parcels of land.

To return to the earlier discussion: there is thus a second sense in 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 local group’s laws and regular practices, including those which underpin their entitlement 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 for establishing native title, to call witnesses from surrounding groups, who are recognised 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 who are the right people to identify with the area in which the claimed land falls, and can usually give a name for them or at least name the main families concerned. They may also give a general statement of how far such an applicant group’s interests extend geographically. Such people may also state why they themselves are not applicants, and may say that for them to be applicants would be in contravention 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 not merely to corroborate or assert the veracity of the statements of autonomous others, but to enact their rightful role as keepers of the regional system which holds in its ultimate gift the local entitlements that are under discussion. This is one of the reasons why such elders are often referred to, in Aboriginal English, as `the Law men’ or `Law women’. They have supra-local, regional roles in relation to local land matters. This social role itself reflects the duality of rights and interests in land.


Aboriginal native title systems, in the broad sense of the indigenous customary laws and cultural practices of mainland Australia that give rise to traditional land tenure, are dual systems that recognise both an underlying title and a proximate title in land.9

The living holders of specific traditional land interests, often now called the `traditional owners’ in a vernacular sense across much of Australia, hold title to those lands in the proximate sense, while underlying titles are maintained by the wider regional cultural and customary-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, the distinction in Australian law between radical title and beneficial ownership,lo

A more closely related distinction has occasionally arisen in the literature for Aboriginal tenure systems. Marie Reay referred to `residual rights ‘1 held in the estate of an extinct clan by others of the same semi-moiety in the Borroloola region of the Northern Territory (Reay n.d.:10). Such rights are in that region central in facilitating succession to vacated estates by other groups. This analysis has gained further support from subsequent work in the same region by David Trigger (1989:15). Nancy Williams, writing of North-East Arnhem Land, distinguished radical title’ to a clan estate from ‘a specific and subsidiary right in [small parcels of] land’ vested in in a group other than the owning clan by a procedure of formalised ‘granting’. No `absolute right in perpetuity is entailed; the continuance of the grant is subject to renegotiation at any time'(Williams 1982:141). Ian Keen described the same process in the same region as the granting of rights of ‘ownership’ of small areas within a clan estate, `while the `root title’ remains with the clan of the encapsulating estate’ (1988:277). (Italics added in each case.)

These usages refer to constructs that are different from the underlying/proximate distinction I wish to explore here, although they perhaps indicate that a common principle of layering of entitlements may operate at a number of levels within Aboriginal land tenure systems. The cleavage I discuss here is one I regard as foundational, however.

Underlying title in the case of Aboriginal customary law consists of 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 zone etc.),

its association with markers of a particular cultural identity (eg. a particular language, a subsection couple, a focal residential centre (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 being available for treatment as an alienable commodity, the communal basis of its tenure), and the acceptable norms by which claims as of right may be made over it by Aboriginal people (eg. a certain kind of descent from former landholders, conception, modes of ceremonial incorporation, long residence combined with other preconditions, etc.).

These and other components of the underlying title may be established in evidence for the purpose of legal action such as a native title determination application, whether or not the land concerned has, for the time being, living claimants with unambiguous entitlement to it. Uncompleted succession to a vacated proximate title, or a proximate title in dispute between rival groups, are contexts which make it plain that underlying title may be distinguished from any current state of active claimancy. Where rival groups have radically different understandings of the content of the underlying title, in the sense laid out above, they will probably have more of a legal problem in establishing their claims than if they merely disagree over who should hold it. In my experience, while rival groups (and even non-rival groups) often have differences about the cultural content of a particular land area, they do tend to agree on much of it and tend to coincide strongly on what should count as jural principles in the recognition of customary proximate rights in land.12

The underlying title is that to which living people become entitled, either through birth, incorporation or succession. Proximate entitlement entails the right to publicly claim the particular country concerned and to exercise the rights, and fulfil the custodial obligations, that flow from such standing.

In many ways this pattern resembles the doctrine of tenure in English law, under which the Crown holds radical title to all the land over which the Crown has established sovereignty, and all property interests of those other than the Crown are `held of, the Crown.’3 While such ‘held’ interests come and go and are transformed from time to time, the radical title may go on undisturbed.

Similarly, underlying Aboriginal titles are always present if the system of traditional land relationships persists, whether it does so in a conservative, classical form or in some post-classical, transformed way that has evolved more recently. Underlying titles are usually enjoyed in the proximate sense by extant groups, but for various reasons they may not be instantiated in this form, or even at all, at all times. Extinction of landed groups and out-migration may leave country untenanted for a time.14 It may then be described by some Aboriginal people as `orphan country’, that is, country lacking custodians who claim it as their principal estate, even though individuals or groups from 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 not vitiated by the temporary disappearance of local proximate title holders. In terms of the Native Title Act 1993, the reverse may not be true – that is, for the local, proximate native title to endure as such, it must ultimately do so on the grounds that the society in whose culture it lies embedded maintains the relevant system of `traditional law and custom’.15 This does not mean, however, that regencies of active custodianship over vacant estates must be in place in order for the underlying title to remain alive within the regional land tenure system. People will sometimes say of a vacant estate: `Nobody is looking after it at the present time’. The estate nevertheless retains a ‘good’ title in the sense that its cultural and jural definition as something 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 which Aboriginal-defined parcels of tenurable land subsist is not in general manifested as a formal adjudicatory body consisting of permanent offices. In Aboriginal practice it is typically externalised as `the Law’, which in this particular context refers to the sacred pattern integrating land areas with languages, totems, Dreaming tracks and other defining features of one’s geo-political landscape, a pattern that was laid down ‘forever’ at the foundation of the world. People do not make the Law. While senior practitioners of this Law may be, and often are, called upon to play a key role in influencing the outcome of debated cases of succession to vacant estates, or boundary disputes, for example, they do not usually arrogate to themselves a role of formally ‘representing’ the regional tenure system in which they have become eminent. However, by playing such roles they emphasise the relatively unitary regional character of the system of underlying titles.

The regional Law, rather than a group of elders or `tribal council’, is what has proximate land entitlements in its gift. That is, the wider system maintains the underlying titles while at the same time it maintains the principles and lawful procedures by which proximate entitlements are allocated to living people. This is, of course, hypostasising. I am treating a cultural system as if it were an actor, a controlling being, just as English law maintains the fiction that all the land there belongs to the Sovereign (Brennan CJ in CLR Mabo no. 2 pp. 9, 27).

This is indeed how Aboriginal tradition treats it also: the Dreaming Law, Blackfella Way, Koori Way, Murri/Bama Law, are what Ian Keen has called ‘a control practice or institution, that is, an organised set of long-term and short-term, specific and diffuse actions, coordinated roles, and a body of norms…. The overall control effects are not achieved by any one action, although individual actions are indispensible’ (Keen 1989:38). The Law may be an intersubjective construction, but it is not simply an analytic construct of anthropological study. For those who live by it, it is regarded as a permanent reality beyond individual human agency.

Gerontocratic authority, as Myers says of the Pintupi (1980a,1980b), is legitimised as the carrying on, following up and passing on of the Law and looking after the young, and thus as the responsibility to mediate a taken-for-granted cosmic order. In Pintupi representation, what we might call `public goals’ and legitimate injunctions of personal autonomy at the collective level existed, as it were, prior to society itself. Far from being able to rightfully coerce their juniors in personal matters, the norms, rules, and constraints older men could be said to represent and speak for to juniors were not the product of their wills; from the Dreaming, they were imperative for all. (Myers 1980b:312).

Definitions of ‘all’, in such a context, are something of a minefield. I agree with Ian Keen (1989:19) that neatly bounded collective social universes in Aboriginal Australia do not exist, and that network-based models of sociality are much more appropriate. It is also clear from the evidence that transitions between different Aboriginal Law systems, and, in particular, areas of distinct and abutting land tenure arrangements, are sometimes graduated, sometimes rather abrupt, but tend to be managed through the bicultural skills of those living along the edges of such differing systems (Sutton 1995b:59-60). There are occasions when such differences are great, especially where people with only a recent history of non-Aboriginal contact assert their own Law in contradistinction to that of the weakened and disarrayed populations they have encountered on their exodus from the hinterland (see eg. Kolig 1978, Stanton 1983, Palmer 1983). This type of disjunction raises serious questions for applicants for the recognition of native title, especially if a claim is contested by 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 same essential principles of land tenure, and agree on the character and content of underlying titles in the zone known to both of them, cases may still arise when their senior practitioners disagree over the allocation of proximate tenure to a particular area or estate.16 These cases are less problematic for legal claimants, in my view, because it is not difficult to establish the content and coherence of the underlying title, and there is an expectation that even members of different regional systems can come to accommodations over such disagreements, over time, and in some kind of lawful manner.

I believe that this principle of the chartering of the local by the regional is what is being figured, among other things, in the very many founding myths of the different regions of Australia. In these myths, what typically occurs is that a heroic ancestral figure (or pair of figures) travels across the landscape, allotting land areas to particular groups.” Landed groups are not sui generis, but are perceived as being, from their foundation, members of a multiplicity of like 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 out among enduring groups, the society became made up of perennial corporations of a religious character…. The religion was not the mirage of the society, and the society was not the consequence of the religion. Each pervaded the other within a larger process. (Stanner 1965:237).

The wider Aboriginal land tenure system holds underlying titles in, as it were, a communal wellspring from which individuals and groups may establish local entitlements by way of inheritance, succession or incorporation. And the communal nature of the title is not vitiated by the fact that a local land-owning group may, at times, be reduced to a single individual, or, in cases of succession, when the replenishment of an extinct estateholding group begins with the conception or succession of a single person. The title retains its communal character even in its proximate embodiment, a point explicitly recognised in the Aboriginal Land Act (Queensland) 1991 St.03 which defines a `group of Aboriginal people’ in part as: `if there is only one surviving member of a group of Aboriginal people – that person’.

The main bodies of evidence for the general proposition that Aboriginal land tenure may be understood as consisting of two main levels, the underlying and the proximate, seem to me to be the following:

The status of estates of recently extinct proximate title holders, 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 by regional elders, voluntarily by out-migration, and retrospectively through 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 of land-holding emphasise custodianship, belonging and landed origin rather than absolute ownership.

I will deal with each of these in more detail in the following sections.

Continuity of underlying title during processes of succession When a local land-holding group dies out, as indeed happens from time to time in all known parts of Aboriginal Australia (Peterson and Long 1986, Sutton 1995b), their erstwhile proximate title may be without living holders for some time, perhaps even a generation or more. Customary devices for succession to it, and for the recognition of both individual and collective ‘regents’ who look after the local title in the event of delayed succession, are well documented (Peterson, Keen and Sansom 1977, Kolig 1978, Akerman 1995, Sutton 1995b:53). Where succession to a vacant estate remains unresolved, there is no hint that the land has ceased to be an estate, with all the economic, spiritual and other cultural content to which a title holder would be entitled. It is not `no-man’s land’, or exposed to the unilateral assumption of occupation-as-of-right by some far distant group that has no existing connections to the area, simply because it has been ‘omhaned’.

There is in fact very little reliable evidence of ‘conquest’ or the forcible unilateral takeover of land by Aboriginal groups although a number of cases are on the record (Sutton 1980: Appendix). It is certainly sufficiently abhorrent to Aboriginal people for the very suggestion to have been met by many blanket denials, duly reported in many ethnographies. Also uncommon, and perhaps contingent on dramatic events of depopulation such as epidemics (or colonial conquest in the last two centuries), is the filling of territorial vacuums by uninvited migrants. Both forms of change in proximate tenure would normally, one expects, be succeeded in time by the restoration of a sense of lawful standing 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 establish their entitlement to possession and use of land or waters, then an unresolved conflict between rival groups over a parcel of land might suggest that no native title could there be found. But conflicting parties in such cases will normally agree that there is a ‘thing’ to be fought over which includes the land physically but is also something more abstract than the land and is culturally constructed. In the legislative sense this reification 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 also may a native title be both ‘good’ and subject to mutually exclusive claims. This is a prime reason why I argue that mediations and adjudications over Aboriginal traditional land ownership generally should not authorise invidious lists of individuals as land holders, but should instead recognise the categories and principles that generate the relevant proximate entitlements within the regional system and from the underlying title.

The distinction between public and private lands or sites.

Observations from widely different parts of the Australian continent indicate that, in the absence of local resources or remarkable features, areas on the periphery of local estates or Dreaming track areas are typically either shared by adjoining landed groups, or perhaps regarded as the property of all the locally linked groups, and at these zones the abutting estates lack specific boundaries. This is true of both Arnhem Land and Central Australia (see Sutton 1995b).

In Central Australia anthropologist Olive Pink gave the results of field observations made during travel with senior Arrernte people across country by camel. She specifically addressed the question of clan estate boundaries and so-called `no-man’s land’. While the totemic sites of a clan’s estate were strictly respected by non-owners as if they had been pastoral `boundary posts’, typically poor and waterless country at the outer edges of estates was also typically lacking in associated sacred songs and paint designs and was held in common as `tribal land’ rather than as the ‘private’ land of particular clans (Pink 1936:283-4).

This rather unusual record (Peterson and Long 1986:53-54) is suggestive of a plane of tenure at the supra-local level that emerges in, but is not confined to, a specific context (boundary phenomena). My view is that it may reflect the dual system of title to which I am referring here.

A related phenomenon may be the basis of what Gerald Wheeler described, on the basis of his Australia-wide literature survey, as `tribal overrights’ (1910:40,44-45,62). His sources indicated that while small areas were subject to ownership by small groups, all members of the ‘tribe’ to which such groups belonged had a general right of access to each others’ estates, and thus the `rights of families or of individuals, as also those of the local group, were, in general, subject to tribal overrights’ (p. 45). Trespass was a serious offence but generally consisted of members of one tribe entering the territory 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 York Peninsula it has been recorded that certain `main places’ (aak mu’em in Wik-Ngathan, Sutton 1995c:48) were available more or less freely for use by members of visiting groups with countries elsewhere in the same immediate region, but such people were not free to camp of their own free will at other more private places in the same estates.’8 Within aak mu’em the visitors might have regular shade areas, for example, allotted to them, and I was able to map some such places (1978:71 Fig 5). Someone once defined aak mu’em for me as `just like a pub’, that is, a public space. Although these are statements about use rights, not tenure per se, they represent aspects of the formalisation of usufructuary rights within estates which may be held by those who do not claim the estates as their own. These statements also exemplify the widespread ethic of reciprocity that permeates the use of estates. This ethic and the intervisitation involved makes it ‘normal’ that people know a great deal about each others’ countries. This knowledge is important in enabling them to maintain a regional, rather than estate-bound, common system of constituting the cultural and ecological content of estates and of how they 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 and Queensland jurisdictions, elders from groups with country surrounding that of the claimants have appeared and given evidence. Not only do they typically vouch for the applicants’ claims, they often also deny that they themselves are entitled to make any claim in the case. Especially within a claimant group, elders may also vouch for the standing, as traditional landholders, of those `diaspora people’ who have been physically alienated from the country to which they are entitled through descent and affiliation.’9

It is too limited a view to understand this practice simply as external corroboration or credentialling. In fact it is accurate to say that these elders are representatives from within the regional system of authority in dealings with land, and their roles are integral to the maintenance of the `system of law and custom’ in which underlying title persists, if it persists at all. Their denials of local entitlements 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 key roles. As members of the wider jural public they can legitimately influence the public acceptability of claims of proximate entitlement.

Regional elders assemble from time to time to deal with conflicting land claims, usually with a view to helping settle them. I do not regard this as merely a recent development, although depopulation during the colonial era combined with emerging new opportunities for establishing legal title have no doubt accelerated the need for such assemblies in recent decades. While it became fashionable for a while to deny that `councils of elders’ existed in classical Aboriginal traditions, the evidence for some kind of widespread system of assemblies of this kind cannot be ignored (Keen 1989). Even in the absence of explicit accounts in the older literature detailing land tenure dealings engaged in by such assemblies, the role of the senior jural public in religious matters is a commonplace theme in the ethnographies, and land tenure is at the heart of the religious system. It is inconceivable that assemblies of elders would meet to discuss religious matters, including sacrilege, without also addressing disputed land claims, questions of succession, and similar perennial and serious land tenure issues whose resolution is so typically framed in terms of religion. Even T.G.H. Strehlow, who was very inclined to stress the autonomy of Arrernte clans (‘njinanga sections’), once described a land tenure succession dispute in Central Australia and then commented: `The conflicting arguments were irreconcilable; neither of them was supported by sufficient legal authority to win general acceptance’ (Strehlow 1947:156). This cannot possibly have been an intra-clan matter, and here Strehlow explicitly acknowledges the role of the region’s senior men, in this case, as those whose understanding of customary law had to be met by the opposing aspirants to succession.

Proximate title may be ‘revived’, when a clan or its equivalent has become extinct, so long as the underlying customary title continues and there are people in some kind of authority, or at least an acquiescent jural public, who can eventually reassign it to proximate title holders or accept their assumption of it.

In some regions tangible signs of the title to an estate include sacred objects. They may be held in the custodianship of a region’s ceremonial elders pending the revival of living memberships for estate-holding groups that have become extinct. For example, a child may be conceived in the relevant area and thus become the founder of a new-old group holding the local title involved. Eventually the child may become the recognised holder of sacred objects relating to their estate. The same may apply to paint designs, songs and other sacra, which together may sometimes be called `title deeds’ (as in Keen 1988). The child itself cannot make claims over such sacra. They are bestowed on the child by decision of their elders and often with elaborate devices of divination (eg. Strehlow 1947: Chapter 3).

In the Roper River region, as in a number of others, young or even adult people may be `put into country’ (not their country of birth) during ceremonies conducted by senior ceremonial practitioners, and at such times sacred objects related to the country may be made for them.2 In this way vacated estates may have their proximate custodianships restored, not by personal choice or whim, but by a collective, and collectively enacted, decision made by some subset of the region’s senior Law people. Material symbols of this bestowal relationship mediate the new arrangements. These are concrete examples of the underlying/proximate distinction at work in daily practice.

The phenomenon of inter-group competition for individuals is another relevant example. I am familiar with a case in the Tennant Creek region, where two somewhat different broad regional land tenure systems and language types abut, and where one individual has been ‘claimed’ by the collective ceremonial interests on each side of this divide. This is made precise in his assignment by each of the two regional groups to primary custodianship of different sites located in distinct areas. On my last contact with the people concerned the matter lay unresolved.

In the same area, and involving the same two regional groups, some years ago a man from one group was killed by a man from the other. The compensation exacted, or perhaps offered and accepted, was that the father of the killer ‘gave’ him as a replacement son to the father of the man he had killed, who then placed him in his own land-holding group. The person thus bestowed retained a certain ambiguous landed identity nonetheless: that of his ancestral origin was not entirely erased by his reidentification through a form of fostering.2′

The possibility of the divestment of proximate entitlements

I have a small but relevant body of case material which indicates that, from time to time, the primary local entitlements of a group may be reduced or forfeited, not merely by the usual well-documented processes of long-term out-migration, but by a communal decision authorised by elders of the relevant region. That is, no local entitlements are mechanistically and inalienably acquired, no matter how stable might be the rules under which they may be received and, in turn, passed on. Strictly speaking, all proximate title interests are ultimately maintained by consent, and lack absolute inevitability. This is not to say that people’s proximate title interests chop and change rapidly – far from it in general-but merely to characterise the limits of the system.

One of the reasons why the divestment or withdrawal of proximate rights and interests is possible is that individuals all have multiple legitimate 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 by wider consensus does not leave them landless, but shifts their primary focus elsewhere.22 Indeed the arguments used in these cases, and in the much more frequent cases of disputed local tenure, tend to be of the sort: `They are not so connected here, this is only their mother’s mother’s country — they’re really more from over there, where their father’s father’s country is.’ These are cases of shifting emphasis, but occasionally a group’s or individual’s local 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 estate links after their death, a practice ritually made plain in the Victoria River District (Deborah Bird Rose, pers. comm.). This often means that they may basically transmit one particular set of local estate interests to their descendants, even though, while they were alive, they activated strong interests in two or more estates (eg. father’s, mother’s, father’s mother’s). Without some such means of retrospective pruning of links, the system would have to face the spectre of individuals claiming and attempting to service interests in as many as sixteen different estates from their various great-great-grandparents. Rose’s point is that in one region, at least, such pruning can be public and communally formalised. This is a form of retrospective divestment.

At least until the advent of written genealogies, most Aboriginal people have been able to ascribe multiple estate interests only to people of their parents’ and perhaps grandparents’ generations, if that. If the country of a great-grandparent is known, it will be a single country, even though in their lifetime that person might have held three or four estate interests. It is also sometimes the case that an individual who exercises interests in a number of countries to which they are connected by ancestry or some other legitimate pathway will decide to relinquish one or more of those interests whilst still alive. If they are a senior person they might do so almost unilaterally, but where ceremonial obligations are involved this would be more difficult.

These occasional instances of reduction or effective removal of proximate title interests from individuals or small groups, including cases of self-divestment, again reinforce the notion of a distinction between underlying and proximate titles. They should not be understood as cases of the alienability of land. It remains impossible, under Aboriginal systems, to treat land held under customary law as a commodity that can be wholly alienated by sale or exchange. In the cases known to me, people may succeed to local proximate title by some lawful pathway, or may be divested of it by some customary process, and in that sense the people, rather than the land, might be regarded

The relative stability of geographic units of land affiliation The classical Aboriginal approach to the geographical definition of units of land tenure is highly conservative, especially in the better watered parts of the country. That is, there is a documented tendency for these units to be maintained in essentially the same shape, or at least focused on the same key sites, over long periods. The role of drainage in stably demarcating such units is probably one aspect of their capacity to endure (cf. Peterson 1976, Sutton 1995b:50-51).

In western Cape York Peninsula, in a detailed, field-mapping-based study of traditional land interests, including disputed succession, I found that, in spite of the somewhat ragged facts of local claimancy in a number of cases:

The shape and content of the territories remain relatively constant and unambiguous, and provide a matrix for ecological and political stability. (Sutton 1978:59-60).

In the Princess Charlotte Bay region of south-eastern Cape York Peninsula, detailed mapping combined with linguistic research has shown that the local clan estates, the smallest territorial units of the area, have very ancient names, most of them probably centuries old. This conclusion arises from the fact that, on a very large sample, they frequently have different but cognate names in several of the languages of the region. These differences among cognate terms indicate their continuing use in those languages over the centuries during which they have been diverging from a common original stock. A significant number of the clan names are based on particular names of focal sites or areas within the estates (Sutton 1993:31). The clan names, if not their memberships, appear to have been highly stable.

Erich Kolig found that in the Kimberley region of Western Australia, there was always the possibility of a land-holding clan becoming defunct but the estates of such clans tended to be maintained as distinct:

As soon as a clan had effectively ceased to perform its life-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’s actually expanding its land holding. Those of the clan who were most closely affiliated with the new locality took over. However, within a few generations the ties between the two splinter groups and the recognition of a common origin would disappear since actual genealogical memory is traditionally very shallow. (Kolig 1978:62-63)

This accords with my own findings for the Cape Keerweer region of Cape York Peninsula, where evidence from clan totems, totemic personal names and language affiliations suggests very strongly that certain pairs of clans with geographically separated estates were formerly, in each case, a single clan with a single estate (Sutton 1978:82-83).

In writing of North-East Arnhem Land Ian Keen was at some pains to correct the existing ethnographic impression that the area had `rather clearly defined groups with determinate estates’, and said that Yolngu people `contested the definition of country, as well as rights over it. The definition of country was not ‘objective’ but relative to a person’s perspective, interest, and loyalties.’ (1994:102). He also said that the rich coastal countries tended to have definitions on which people agreed more than they did in relation to inland areas, and moiety and group identities of these coastal areas were less subject to dispute (1994:105). In a recent personal communication (15/5/96) he confirms that the `identity and location of focal sites are fairly consistent through the literature on the region, although ‘clan’ identity is not’. As the literature in this case dates back to the late 1920s (Warner 1937) this indicates that at least the geographic cores of the countries and their more important Dreaming identities have been relatively stable in the record for around seventy years.

In the pastoral district of the upper Roper River region of the Northern Territory, Francesca Merlan found a pattern of continuity of territorial boundaries, this time at the level of land units affiliated with particular language groups:

This situation strongly suggests that ‘Mangarayi country’, conceptually associated with the Mangarayi language, has in fact been much more stable an entity, at least over the past several generations since contact, than has the personnel. … The boundaries of Mangarayi country are permeable, so that new personnel may be recruited to it. (Merlan 1981:144-145)

Peterson’s theoretical model of long-term changes in relationships between estates and ranges allowed for the expansion and contraction of estate sizes, but he nevertheless regarded a particular size relationship between estates and band ranges as ‘modal’ (Peterson and Long 1986:147). While it has been suggested that demographic decline in a land-holding group might result in a diminution of the size of its landed estate (Peterson and Long 1986:58-59), documentation of such cases has not been substantial. Nor has that of the amalgamation of estates into other estates.3

The point here is that the system of localised land units is maintained by the custodians of a regional system, and the locations and extents of the units tend to be stable over time. That is, the wider system is far more stable than the descent-group identities of those who are recruited to fill the slots of the system from time to time. This is further evidence of the robustness of the underlying system of titles, rooted in and policed by the relevant wider social network, as compared with local entitlements held proximately by small groups.

The linguistic evidence

The linguistic evidence suggests on balance that classical conceptions of land-holding emphasise exactly that: ‘holding’, custodianship, belonging and landed origin rather than the kind of private ownership associated with chattels. Possession is nevertheless clearly implied.

In Aboriginal languages, possessive constructions are often used to describe the relationship between a person or group and their land, hence expressions that may be translated, for example, as `my/your/his country’ (using eg. dative or genitive pronouns), or `Topsy’s country’ (name + dative, + genitive or similar).

There is also a frequent expression translatable as `own country’, where the same word meaning ‘own’ is typically used also for one’s relatives (eg. one’s own family).’ In some languages there is a close connection between expressions for `own country’ or `owner of country’ and `own relatives’. For example:

Pitjantjatjara (Western Desert): ngura walytja 1. (one’s) own place; 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 who cares for you; 2. owner, someone who takes care of something; 3. doing something oneself. (Goddard 1987:83,170)

Eastern and Central Arrernte (Central Australia): apmereke-artweye an owner of land inherited patrilineally; someone who belongs to a country; from apmere country + -ke ‘for’ and artweye 1. owner; 2. one who belongs to a

Dreaming, ceremony or song; 3. relations, ancestors; 4. a particular 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’ to each other, although not as property. Something of this reciprocity is also 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 possessive relationship to land, and it is not often contested nowadays that certain traditional Aboriginal land relationships may be described loosely but correctly as forms of ‘ownership’ or examples of a system of ‘tenure’.25

In many languages regular locutions may refer to the person/country relationship without using possessives, as in the case of:

Kayardild (Wellesley Group, Gulf of Carpentaria): dulkuru dangkaa (literally `country person’), idiom: `Boss of country’, owner or custodian of territory or sacred site; (plural: dulkuru-dulkuru (country + reduplication)) (Evans 1992:44).

Pitjantjatjara (Western Desert): ngurara `resident, local, person that lives in a place’; nguraritja `someone that belongs to a place, traditional owner (from ngurara + -(i)tja `of, from’) (Goddard 1987:83)

Many Aboriginal languages have other regular locutions that consist of a place or country name plus some affix or similar device that 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 Yalga estate); Walmbarrwarra (members of clans holding the many constituent estates of the Walmbarr region; the Walmbarr ‘nation’). (Sutton 1993)

The relevant verbs in Aboriginal languages are most often those meaning to ‘hold’, `look after’, `be in charge of , `come from’ `belong to’ and so on. Few if any Aboriginal languages have a verb that corresponds to English ‘have’ or ‘own’. For example:

Nunggubuyu (Eastern Arnhem Land): warnaga- 1. to hold, grasp; 2. to be in charge of (people, country, ritual). This is the closest Nunggubuyu verb to English ‘have’. lhal-warnaga to hold or be in charge of country. (Heath 1982:204)

Wik-Ngathan (Cape York Peninsula): kooepe- 1. wait for; 2. look after, 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 Keerweer region (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 of any kind, including possession of a wife, but does not apply in this situation. Thus land tenure is more a type of established custodianship rather than inalienable or alienable possession. The possessive pronouns used in this context are more frequently oblique than genitive [ie. the forms used are more often benefactive rather than truly possessive in meaning] (e.g. /aak thananta/ rather than laak thananga/, `their country’). Established custodianship of this kind, which is the target or archetype of person-land relationships, must be distinguished from `minding the country’ for someone else. (Sutton 1978:57-58).

More recently, in about 1993, a senior Cape Keerweer man steeped in classical traditions but also a committed and practising Christian, spoke to me with some sadness, mixed with anger, about a dispute then raging between local groups over the tenure of a particular estate. He then said:

Brother, we don’t own the land. We are the stewards of the land. God owns the land.27

Thus another translation of kooepe- in his particular language would be `to act as steward of’. The question arises, then, as to how independently such land holders may act. Are they self-appointing, or, as the words ‘steward’ and kooepe- imply, are they placed in this role by something higher than themselves?


I consider the answer to this question to be: none of them absolutely and in principle, as far as assertions of tenure are concerned. In operational or day-to-day terms there is less autonomy for those who come from the harshest deserts than there is for those who come from the better favoured environments. In relation to the Pintupi of the Western Desert, Fred Myers writes:

Identification [with country] is an ongoing process, subject to claim and counterclaim, dependent on validation and acceptance or invalidation and nonacceptance. … Such rights exist only when they are accepted by others. (1986:128).

The primary basis on which identification [with country] is established is conception. Through such an incarnation, an individual is considered to be identified substantially with a place, as a mutual transformation of the same creative activity of The Dreaming. Yet however rooted it may be in the cosmological facts, identification becomes meaningful only when validated socially. It must be actualized and accepted by others through a process of negotiation. (1986:141)

Most other Aboriginal systems, even those of the northern neighbours of the Pintupi, the semi-desert Warlpiri and Warlmanpa, exhibit lesser degrees of operational negotiability for land affiliations. In the latter region, the land claim book for a Northern Territory land claim over Muckaty Station reads:

It would be tempting to regard the patrifiliates of Muckaty-area Dreamings such as Milwayi, Ngapa, Wirntiku or Yapayapa as in some sense the ‘basic’ landowners under Aboriginal tradition in the region. This would be neat and uncomplicated, and would resemble the European type of land tenure in which individuals or corporations hold exclusive title to discrete parcels of land. The actual system of relations with land in the region is far more subtle and complex than this.

No Aboriginal country is an island. It exists only as an element in a system of interrelations between landscapes and the kin associated with them. Indeed, without such relationships, the countries themselves have no particular reason for existence. They are essentially relational in function. Just as the words that belong to the class of ‘verbs’ or ‘nouns’ in a language are defined as such only because of syntactic relations between subjects, objects and indirect objects, so the nature of ‘countries’ in this region is constituted by the relationships between people, Dreamings, ceremonies and places. These relationships are not enforcible paper contracts but states of mutual assent between people that are subject to continual, if gradual, renegotiation. These states of assent are not merely symbolised in religious imagery but are frequently attained and maintained through the very process of creating such imagery in the organisation, diplomacy and decision-making that make ceremonial events possible.

The heart of the Aboriginal land tenure system in the Muckaty region thus lies not within the cell-like structures of the countries but in the local clustering of shared rights and interests in country, both agnatic and uterine, that provide the cultural, religious and political context for these apparent ‘units’. They are not so much units, or self-existent territorial entities, as the bones of the system which, when articulated, make up the body of the system. Just as there is no system without its constitutive building-blocks, so there are no Aboriginal territorial building blocks without the wider set of relations between regional kin and landscapes in which they play their part. A brick is a brick because of the way walls are made.

The customary use and exploitation of land, and decision-making about land in the new bureaucratic environment which is now so insistent, are also never by intention or even common usage carried on by members of highly local country groups exclusively. Again, knowledge of the land is never in principle that of members of the local country groups exclusively. This pattern is general. The local countries provide an elemental structure over which the real determination of authority over land is actually played out. (Sutton, Morel and Nash 1993:46-47)

In retrospect, and with regard to the last sentence above, I would now say that `real authority’ over the definition of local land ownership will often be a matter of negotiation, in the sense that there is typically a dialectical interplay between the drive for local autonomy and a respect for `the Law’ of the wider jural public.28 Wider jural publics, moreover, are recruited differentially to adjudge particular events or contests and are thus context-dependent `aggregate structures’ (Sansom 1980:259ff). What is not so labile is the Dreaming content of country, the geographic definition of sites and cores of estates, the linguistic identity of country, and the rules for recruitment to local estateholding groups, which these wider publics and their senior practitioners know and apply to cases of disputed proximate title.

Small local groups often act with great autonomy in relation to land use, and such cases might be thought to alter the cast of my general argument. I will cite one example: In the early 1990s a small group of traditional land holders in the Western Desert region cut a private deal with a small mining operator to allow him to dig up chrysoprase on a Dreaming track. Strong disapproval among others in the region soon developed as many were highly critical that a few people had `gone it alone’ and had also agreed to the mining of a sacred site, thus literally `breaking the Law’. There was also much criticism that the men concerned had failed to negotiate through the regional land council and had done the deal `through the back door’. It became a case of a small group versus the rest of a large regional population. Talk of spearing and ensorcelling the offenders abounded but nothing apparently eventuated. In due course the regional land council held a meeting close to the mine site. At this meeting the decision to allow the mine was endorsed. The offenders were, in 1996, still held in a degree of opprobrium, however, and the verse of the song referring to the site has been deleted. (David Brooks (pers. comm. July 1996))

This was not, of course, a case about land ownership but one about site use and site destruction. Nevertheless it seems that, even where a region’s senior people disapprove, local forces may at times prevail in the contest between localism and regionalism. We cannot know how the region would react to a repeat offence in this case, so we also cannot know how long local forces could continue to prevail in the teeth of widespread opposition. It seems that the wider consensus in the region is that mining proposals should be dealt with through, and with the legal and other support of, their land council. Here is one of many instances of a desire to engage with modern bureaucratic institutions in order to present the buffer of a regional will to pressures originating from outside.

In regions heavily impacted by colonial and post-colonial developments, it is sometimes the case that some people maintain proximate entitlements to small areas such as classical estates as well as an identification with more widely-cast landed entities such as language groups, but at the same time others from the same region may maintain only the wider form of identification with land. Such a situation may lead to conflict. In the Birthday Mountain land claim in Cape York Peninsula (Land Tribunal 1995), this particular distinction came to a head when the claim was lodged solely on behalf of a small descent 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 same land. Just after the conclusion of the hearings the two sets of claimants came to a signed settlement to the effect that they agreed the southern Kaanju as a whole had traditional affiliation to the claimed land, the small descent group were the owners of the land under Aboriginal tradition, and the latter were therefore the appropriate people to act as trustees and grantees of the land under the Aboriginal Land Act (Queensland) 1991. This was reflected in the Tribunal’s recommendations, namely that (apart from a cemetery reserve) the land be granted in fee simple to the southern Kaanju, and that members of the small descent group be appointed as the grantees of the land as trustees for 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 group holding proximate title failed, not completely, but partially, and as a result of the assertion of interests by those speaking for a wider group that included them. Spokespersons for both sets formally agreed that each had a specific form of right and interest in the land. Although the legal process was novel, not to mention its particularly disturbing application in this case, and may have thrown interested parties into some disarray, it seems that some ancient principles concerned with the dual nature of customary title did emerge.


In writing a paper such as this, one is always wary of engaging in ‘codification’ of tradition, or what Francesca Merlan (1995) has called `the regimentation of customary practice’. Any legislation aimed at granting or recognising indigenous land titles, once enacted, immediately creates problems for those who wish to understand such titles in all their complexities, indeterminacies and contradictions, but who at the same time are assisting in their presentation and explanation to a tribunal or judge. The reductive impulse is usually something to resist as far as possible, but it is still an art form: one can schematise well, or badly.

Simple oppositions, such as the one I have considered here between underlying and proximate titles, easily sweep the complexities of real life under a rug. On the other hand, without the occasional sweeping generalisation it is difficult to advance discussion of a subject by anything other than slowly gained inches. I am given courage by the fact that failed hypotheses are often fecund ones. Given the present reality of an Australian native title apparatus that marches inexorably on and is soon to begin testing indigenous claims in the Federal Court, time is short for anthropologists seeking to work out some of the major implications of the new laws for the research they will have to do. One of the major directions of this research, I suggest, should be the relationship between what I have called underlying and proximate customary Aboriginal title in land and waters.


The writing of the first draft of most of this paper was funded by the Cape York Land Council in relation to the Wik Peoples’ native title action during their 1996 appeal to the High Court on the question of whether or not pastoral leases automatically extinguish native title. The specifically pastoral sections have been omitted from the present version. One part of the paper arises from work funded by the New South Wales Aboriginal Land Council in relation to the Peak Hill native title claim. I am grateful to the following people for comments on an earlier draft or the provision of helpful case material or both: John Avery, Geoffrey Bagshaw, Diane Bell, Robert Blowes, David Brooks, Scott Campbell-Smith, Andrew Chalk, Athol Chase, Jamie Dalziel, Katie Glaskin, Ian Keen, Patricia Lane, David Martin, David Nash, Graeme Neate, Nicolas Peterson, Bruce Rigsby, Deborah Bird Rose, Robert Tonkinson, David Trigger, Petronella Vaarzon-Morel, and the two anonymous reviewers appointed by Oceania.


1. I do not deal with Torres Strait Islander land relationships in this paper, although the arguments may well apply in that case. I have restricted myself to systems with which I am more familiar.

2. I use `whole-part’ here in the logical sense, with no implication that a cultural entity has an ascertainable ‘whole’ in the sense of a putative ‘complete’ account by an anthropologist.

3. Eg. Toohey J in Mabo and ors. v Queensland 2 at p146; ATSI Social Justice 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. It is no accident that initiation is widely referred to in Aboriginal English as `going through the rules’. Compare also the range of meanings listed for tjurunga by Strehlow (1947:85-86). Anthropological discourse has generally abandoned the term ‘custom’ 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’ for each of a set of non-overlapping regions, but there is remarkable agreement, as a rule, on the subject of who the authoritative elders are within any particular context, both the context of issues and that of a geographic area.

9.In the first draft of this paper I referred to these as radical and beneficial titles respectively. Lawyers who commented on that draft tended to suggest these terms be replaced, in order to avoid confusion with their function as key terms in Australian and other English-based land law. ‘Underlying’ is particularly apt in the sense that Aboriginal people will sometimes refer to the Dreaming as `underground culture’, as they did in the Elliott region in my experience, and for the Victoria River region see Daly Pulkara’s statement `The Earth got a culture inside’ in Rose (1992:229). ‘Proximate’ means, among other things, ‘1. next, nearest; 2. closely adjacent, very near; … 4. next in a chain of relation’ (Macquarie Dictionary 1991:1419).

10. In the High Court’s Mabo decision there is only occasional use of the term ‘underlying’ instead of `radical’ title. Eg. Brennan CJ in Mabo and ors. v Queensland 2 CLR at p53:

What the Crown acquired was an underlying title to land and a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land. Until recent times, the political power to dispose of land in disregard of native title 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 the descendants of indigenous citizens who can establish their entitlement to rights and interests which survived the Crown’s acquisition of sovereignty.

11. In a preliminary exploration of the topic of the present paper I also used this term: `Members of their wider regional group may be said to have an underlying or ‘residual’ interest in all the small estates of the region, somewhat in the sense that the Australian state has an underlying sovereign interest in all Australian lands’ (Sutton 1995d:8).

12. Writing of North-East Arnhem Land Ian Keen (1994) repeatedly cites evidence of variation between different versions of myths, song interpretations and other land-related cultural forms, but at the same time emphasises the fact that Yolngu have a form of social organisation and religion in which there are many universal categories and symbols and predominantly agreed ways of dealing with land tenure (see eg. pp. 12-15, 265-276). The question arises, however, as to whether or not a group with a radically unique sense of customary land law, one that was unmatched and unsupported by Aboriginal thought and practice in its own region, would have difficulty establishing a legal case for native title. There is not room to explore this here, although the issue may arise concretely in the future and if so it will ultimately have to be dealt with both anthropologically and legally.

13. ‘Tenure’ derives from Old French tenir which in turn is cognate with Latin tenere `to hold’ (Macquarie Dictionary 1991:1804). In feudal-based legal terms, ‘tenure’ does not refer to the holding of the land but to the relationship between Paramount Lord and tenant (Oxley-Oxland and Stein 1985:5; Brennan CJ in Mabo 2 CLR at p53). Land in Australian law is thus `held of, someone, not held absolutely, unless by the Crown. This fiction of ultimate ownership by an individual office is none the less legally real, just as the superorganic constructions of the Dreaming or Aboriginal Law have reality in Aboriginal culture and societv.

14. I do not refer here to physical absence from the land, but the absence of active claims as of right over the land, whether made in absentia or not.

15. Native Title Actl993: S223(1).

16. This has occurred in the case of certain Stormbird Dreaming sites on Muckaty Station in the Northern Territory. Senior men from the Tennant Creek region control this songline from Burke Creek south to near Willowra, and senior men from the Elliott region to their north control it south from about Mataranka to Murranji and probably south to Burke Creek. In the early 1990s senior members of the two regional ceremonial foci disagreed over the allocation of members of one particular patriline to Stormbird sites on Muckaty (Sutton, Morel and Nash 1993:40).

17. I have gone into considerable detail about the evidence for this proposition in relation to language areas in Sutton (in press). Quite often a superordinate mythic figure is explicitly not only the founder of cultural diacritica such as language but also of the Law, as in the case of Ngurunderi on the Lower Murray River (Berndt and Berndt 1993). Like other `mythic instigators’ of this level, Ngurunderi originated from outside the region of his greatest fame. Perhaps this pattern of external origins reflects the distinction of the underlying Law from its instantiations, since the ideology that normally applies to holders of established proximate entitlements to land is that they have been there since the start of everything, and immigration is denied. By contrast, for founding major Dreamings, a story of immigration or passage through the known region is extremely common.

18. There were also `secret waters’ for use only by senior local men (cf. Keen 1994:114 where a similar distinction applies in North-East Arnhem Land).

19. In one Northern Territory case a group of male elders drawn from the relevant wider region gave evidence which did not support a group’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 and fleshing it out for me.

22. W.E.H. Stanner (1965:230) said that totemic disinheritance was `not really possible’, but went on to cite cases where the children of men who married wrongly were said to ‘lose’ their paternal totems, and he knew personally of one case where a man had abandoned his totem and publicly 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 matter of right, but public ascription and agreement (disputes do arise) both seem necessary conditions.’

23. Amalgamation does occur regularly in one sense, in that heavily impacted regional groups whose subgroup estates become vacated extensively and suddenly may assign conjoint succession to all of the vacated estates by those surviving in a few of them, as in the case of the Malak Malak of Daly River, the Ydhuwarra of eastern Cape York, and the Larrakia of the Darwin region (see Aboriginal Land Commissioner 1982, Land Tribunal (Queensland) 1994a, Sutton 1995a respectively). But in these cases, even where an old vacant estate is still remembered, it is not combined with an estate of a surviving subgroup, but swept into the pool of the surviving regional or language group’s overall territory.

24. There are similarities here with English, as in `looking after your 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 vowels now being shown as lel instead of lal, and all underlying stems are now shown as consonant-final.

27. A somewhat similar syncretic view was reported in 1996 as coming from Jean George of Napranum (Weipa, Cape York Peninsula), while visiting 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 still our land… We’re not fighting for their land, we are talking about our land. The land was given to us by God.’ (in Kennedy et al 1996). Ian Keen reports local Christian Revival leaders in Arnhem Land asserting, in the late 1970s/early 1980s, that `God gave the various people of the world their lands, and God entrusted the ancestors with countries of Yolngu groups’ (1994:285)

28. T.G.H. Strehlow spent a lot of time emphasising the autonomy of clans in relation to their estates (nyenhenge sections) in the Arrernte region (see 1965,1970). On the other hand, he published richly detailed accounts of joint, large-scale involvement of members of many different clans in dealing with cases of sacrilege, including punitive action (eg. 1970:123-128). He also said that religious authority extended into the secular realm (1970:116).


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