Customary land tenure and registration in Australia and Papua New Guinea : anthropological perspectives (Asia-Pacific Environment Monograph 3)

326 Pages·2011·4.42 MB·English

by  editors

Asia-Pacific Environment Monograph 3
Customary Land Tenure
and Registration in Australia
and Papua New Guinea:
Anthropological Perspectives

Asia-Pacific Environment Monograph 3
Customary Land Tenure
and Registration in Australia
and Papua New Guinea:
Anthropological Perspectives
Edited by James F. Weiner
and Katie Glaskin
Published by ANU E Press
The Australian National University
Canberra ACT 0200, Australia
Email: [email protected]
This title is also available online at: http://epress.anu.edu.au/customary_citation.html
National Library of Australia
Cataloguing-in-Publication entry
Customary land tenure and registration in Australia and
Papua New Guinea : anthropological perspectives.

Bibliography.
ISBN 9781921313264 (pbk.)
ISBN 9781921313271 (online)

1. Aboriginal Australians - Land tenure - Social aspects -
Australia. 2. Papuans - Land tenure - Social aspects -
Papua New Guinea. 3. Land titles - Registration and
transfer - Australia. 4. Land titles - Registration and
transfer - Papua New Guinea. 5. Land use - History -
Australia. 6. Land use - History - Papua New Guinea. I.
Weiner, James F. II. Glaskin, Katie. (Series : APEM
Monographs Series).

306.32

All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical,
photocopying or otherwise, without the prior permission of the publisher.
Cover design by Duncan Beard.
Cover photograph: Landowner of Goare Village, Goaribari Island, Gulf Province,
Papua New Guinea (photo by James F. Weiner).
This edition © 2007 ANU E Press
Table of Contents
Foreword ix
Abbreviations xv
Contributors xvii
1. Customary Land Tenure and Registration in Papua New Guinea and
Australia: Anthropological Perspectives, James F. Weiner and
Katie Glaskin 1
2. A Legal Regime for Issuing Group Titles to Customary Land: Lessons
from the East Sepik, Jim Fingleton 15
3. Land, Customary and Non-Customary, in East New Britain,
Keir Martin 39
4. Clan-Finding, Clan-Making and the Politics of Identity in a Papua New
Guinea Mining Project, Dan Jorgensen 57
5. From Agency to Agents: Forging Landowner Identities in Porgera,
Alex Golub 73
6. Incorporating Huli: Lessons from the Hides Licence Area,
Laurence Goldman 97
7. TheFoiIncorporatedLand Group: Group andCollective Action
in the Kutubu Oil Project Area, Papua New Guinea, James F. Weiner 117
8. Local Custom and the Art of Land Group Boundary Maintenance in
Papua New Guinea, Colin Filer 135
9. Determinacy of Groups and the ‘Owned Commons’ in Papua New Guinea
and Torres Strait, John Burton 175
10. Outstation Incorporation as Precursor to a Prescribed Body Corporate,
Katie Glaskin 199
11. The Measure of Dreams, Derek Elias 223
12. Laws and Strategies: The Contest to Protect Aboriginal Interests at
Coronation Hill, Robert Levitus 247
13. A Regional Approach to Managing Aboriginal Land Title on Cape York,
Paul Memmott, Peter Blackwood and Scott McDougall 273
Index 299
v

List of Figures
Figure 4-1: Nenataman location map. 61
Figure 4-2: Topographical and site map of Nenataman. 62
Figure 6-1: Percentage of landowner households dissatisfied with
different types of landowner organisation, 1998–2005. 101
Figure 6-2: Petroleum Development Licence areas in PNG. 102
Figure 6-3: A simplified model of the Huli descent and residence system. 107
Figure 6-4: Zone ILGs proposed for the Hides licence area (PDL 1). 109
Figure 6-5: Zone ILG structure proposed for the Hides licence area. 110
Figure 6-6: Landowner preferences for benefit distribution, 2005. 113
Figure 9-1: Area of common interest at Hidden Valley. 186
Figure 9-2: Approximate number of signatories for ‘Nauti’ by year 188
Figure 10-1: Approximate location of outstation groups in 2001. 207
Figure 10-2: General locations of Bardi and Jawi buru. 210
Figure 11-1: Diagram depicting places of significance for the Warlpiri
in relation to the licence area in initial year of exploration. 235
Figure 11-2: Diagram depicting places of significance for the Warlpiri
in second year of exploration with reduced licence area. 235
Figure 11-3: Diagram depicting broader areas of importance for Walpiri
in relation to the exploration licence area in initial year of exploration. 242
Figure 11-4: Diagram depicting mining lease area in relation to areas
of significance for Walpiri in the fifth year of mining. 242
Figure 12-1: Kakadu National Park, showing Coronation Hill and
reduced (post-1989) Conservation Zone. 252
Figure 12-2: Kakadu National Park, showing stages of declaration and
the original Conservation Zone. 254
Figure 13-1: Cape York Native Title Representative Body’s area of
administration and the subregions of Wik and Coen. 276
Figure 13-2: Wik subregion model. 288
Figure 13-3: Coen subregion model. 291
vii
List of Tables
Table 6-1: ILGs in petroleum licence areas, October 2004 103
Table 9-1: Distribution of living descendants of the ‘Nauti’ constituent 187
patrilines of Equta patronymic by village (in 2000)
Table 9-2: Some attributes related to commons ownership in four cases 189
in Torres Strait and Papua New Guinea
Table 13-1: Tenures on Cape York Peninsula showing potential for 279
overlapping Aboriginal ownership
Table 13-2: Model of harmonised rules for a PBC as trustee of a Land Trust 283
viii
Foreword
Anthropologists 50 years ago would probably have regarded a collaborative
presentation of essays on indigenous land tenure in Australia and Papua New
Guinea (PNG) as a dubious undertaking, if not a category error. Aboriginal and
Melanesian systems were functionally distinct, one adapted to the needs of a
hunting and gathering economy, the other to sedentary horticulture. Going back
another 50 years, such a conjunction would have been intelligible only if its
purpose was to exhibit lower and higher stages in cultural evolution. As the
authors of the present volume are not motivated by a desire either to overturn
functionalism or advance evolutionism, what brings them together in common
cause?
An important clue is to be found in the curious fact that the Native Title Act
of 1993, passed by the Federal Government on behalf of the indigenous people
of Australia, grew directly out of a High Court action by three Torres Strait
Islanders whose ancestors probably came from PNG and whose people
traditionally lived as subsistence cultivators. In the course of documenting the
denigration of Aborigines in colonial legal history, Justice Brennan made it clear
he would have no sympathy with any attempt to represent the plaintiffs as
belonging to a higher level of native society than any that existed on the mainland
(Bartlett 1993: 27). His colleague Justice Toohey acknowledged significant cultural
differences between the two peoples but insisted that the principles relevant to
a determination of interests in land were the same (ibid: 140).
Although the Mabo decision was the first positive determination by the
judiciary of the rights of native Australians to land at common law, it was
heralded by political and legislative forerunners in PNG as well as Australia. In
the early 1970s, government inquiries were carried out independently to consider
the issue of land rights in two Commonwealth territories — the Commission of
Inquiry into Land Matters (1973) in PNG, and the Aboriginal Land Rights
Commission (1973) in the Northern Territory. Two Acts of Parliament ensued
shortly afterwards: the PNG Land Groups Incorporation Act 1974 and the
Australian Aboriginal Land Rights (Northern Territory) Act 1976.
It need hardly be said that the consequences of this legislation for the intended
beneficiaries were profound. Less conspicuous, though no less profound, were
the side-effects on the practice of anthropology. Whereas in the first three
quarters of the twentieth century investigations of traditional land tenure in
Australia and PNG were pursued at a leisurely pace, in response to the needs of
an academic discipline, in the last quarter they were more often carried out
under contract and under pressure in the context of indigenous land claims or
externally-financed resource exploitation. While I am a relic of the old order,
all the other contributors in this book belong to the new.
ix
Customary Land Tenure and Registration in Australia and Papua New Guinea
My interest in customary land corporations began while I was an
undergraduate at Sydney University. In 1952, two years before I enrolled in
anthropology, A.R. Radcliffe-Brown published his collected essays and addresses
under the title of Structure and Function in Primitive Society, which enshrined
unilineal descent as a key principle in the occupation, ownership, and use of
land in pre-industrial social formations. In his first article on Aboriginal social
organisation, Three Tribes of Western Australia (1913), he identified the primary
territorial group in the Port Hedland region as a patrilineal clan. In his seminal
treatise, The Social Organization of Australian Tribes (1931), he argued that the
patrilineal clan formed the basis of landowning corporations throughout the
1
continent.
Radcliffe-Brown was professor of anthropology at Sydney University from
1926 to 1931. Scholars attracted by his theoretical approach after he returned
to England, particularly E.E. Evans-Pritchard and Meyer Fortes, emerged as
leading exponents of descent theory in the analysis of African societies. In
Aboriginal and Melanesian ethnography his abiding influence dominated the
research agenda throughout the 1950s, particularly following the establishment
of anthropology at The Australian National University. Most of my
contemporaries regarded themselves in some sense as ‘British structuralists’.
One of the most thoroughgoing applications of the school’s doctrines was carried
out by my teacher M.J. Meggitt, who first consolidated descent theory in the
Australian desert and then planted its flag in the New Guinea Highlands (Meggitt
1962, 1965).
While post-war anthropology was thus preoccupied with the documentation
of indigenous corporate culture, post-war native policy under the direction of
Paul Hasluck (Minister for Territories) viewed communal ideologies as barriers
to the assimilation of individuals into the workforce and lifestyle of Western
civilisation. As time passed, the pragmatic and philosophical assumptions
underpinning this approach came to be regarded as repressive by indigenous
activists as well as members of the Australian intelligentsia, and by the end of
the 1960s the policy had effectively given way to demands for autonomy and
self-determination. Of particular significance was a mounting support for land
rights. The rejection of communal title by Judge Blackburn in the Gove case of
1971, followed by the election of a Labour federal government in 1972 and the
approach of Independence in PNG, all helped to mobilise administrative and
legislative machinery in the desired direction. As we have seen, two progressive
Acts were passed in the mid-1970s, one by the Somare government in PNG and
the other by the Fraser government in Australia. The principle architects were
C.J. Lynch and A.E. Woodward respectively — both lawyers of liberal
inclination.
1 Neither of these two publications was included in Structure and Function in Primitive Society.
x