Customary land tenure & registration in Australia and Papua New Guinea: anthropological perspectives

Abstract

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. 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 continent. Show more