This panel invites anthropologists working in Australia's Native Title sector to reflect on its underlying ethical, symbolic and theoretical issues. Participants will be addressing issues related to ethics, professionality, advocacy and the law, social justice and community and State politics.
This panel takes the conference theme 'Shifting States' as an opportunity to reflect on the Australian Nation State and Native Title in an evolving context. Since the Native Title Act 1993 (Cth) was passed 25 years ago anthropologists working under its legal requirements have wrestled with imminent problems such as identifying the right group of Native Title claimants, the relevant laws and customs, the society at Sovereignty, historical adaptations and presentation of cultural information in a legal setting. Underlying ethical, symbolic and theoretical as well as ideological issues of Native Title can go unheeded as tight deadlines loom in difficult and sometimes protracted legal procedure.
We invite anthropologists in Australia's Native Title sector, particularly those working in or for NTRBs, to think about the meaning of Native Title for the State and Native Title holders in their community and its implications. The evolving effects of Native Title on relationships in a community vary, and can include tensions between people who have Native Title and other residents who do not, and within Native Title holder groups. These effects are real and caused (but not limited) by matters such as development, State power (e.g. to fund or not to fund something), competition for access to resources or the economies of knowledge. Participants of this panel may also want to address issues related to ethics, professionality, advocacy and the law and social justice.
This panel is closed to new paper proposals.
An ethnographic perspective of the institutional context of Native Title in Australia
Native Title research ordinarily focuses the ethnographic eye firmly on Indigenous subjects. In this paper we make a case for broadening that ethnographic purview. Here we frame a determination of native title by the Federal Court of Australia as a rite of passage.
Native Title is highly institutionalised in Australia. It is also highly symbolic. Key purposes of the Native Title Act 1993 (Cth) are carried out by Representative Bodies (NTRB) who manage claimant groups and take charge of the legal process which takes their claim to a Determination by the Federal Court of Australia. When a claim is successful a Prescribed Body Corporate (PBC) comes into existence to hold the native title rights of the group.
Native Title research ordinarily focuses the ethnographic eye firmly on Indigenous subjects. In this paper we make a case for broadening that ethnographic purview. Here we frame a determination of native title by the Federal Court of Australia as a rite of passage. A ritualised sitting of the Court marks a critical transition of Indigenous people from native title claimants to common law right holders and their groups from native title claim groups to groups of native title holders. We suggest this passage is more impoverished than it might be. We argue that the work of native title anthropologists is left behind at the pivot of determination. In particular, we show that documents recording the cultural knowledge of claimants seldom make the transition with them and remain in the secured holdings of Representative Bodies.
'Law's anthropology' and the potential for state consent
Paul Burke's Law's Anthropology provides a model of anthropological agency in native title, but his case studies are weighted towards litigation. I look at his model in relation to claims where there is some expectation of State consent. Case material from Victoria and Queensland is discussed.
In Paul Burke's view (Law's Anthropology, 2011), anthropologists' active production of knowledge in native title is a function of the interplay of two fields, one anthropological, the other juridical; but anthropological agency within this scheme has a basically triangular shape, with attention being given to: 1) an anthropological archive; 2) the evidence of contemporary claimants; and 3) legal doctrine embodied in legislation and case law. The cases Burke discusses (Mabo, Rubibi, De Rose Hill and, to a lesser extent, Yulara) were all concluded under adversarial conditions and largely reflect the pre-Yorta Yorta landscape, after which came a turn towards mediated outcomes by consent. In this paper, I reflect on the ways this post-Yorta Yorta environment altered the terms by which anthropologists can participate in native title, examining cases in Victoria and Queensland in which I have been involved (employed by both representative bodies and state governments). In relation to these cases (Gunditjmara, Gunai/Kurnai, Darumbal and Mandandanji) I draw particular attention to Burke's idea of a 'robust academic model' - one which admits to complexity and heterogeneity in both Aboriginal life-worlds and the anthropological modelling available to describe them, and does not pretend that 'there is always an easy fit between ethnography and legal doctrine' (p. 30). I discuss examples of both deployment and avoidance of such 'robust' modelling, which can be measured by degrees, and how these instances appear to have affected the outcomes of particular claims through effects upon 'the State'.
This paper describe some common expectations arising from Native Title claims in order to discuss how they emerge and why, once formed on all sides, they become so static. It also discusses some of the ethical issues faced by anthropologists in Native Title which result from these expectations.
Through the Native Title Act, the State seeks to legitimise its identity in the wake of Mabo while claimants seek State recognition of the primacy of their relationship with their respective countries. Within this context, inquiries into identity routinely involve anthropologists discussing cultural beliefs, practices and 'norms' with Aboriginal people on country in order to describe these things for lawyers and judges.
While this approach has had its successes and failures, it not particularly reflexive. Another way to understand identity in Native Title is to understand the expectations different parties bring to the table and seek a better grasp of how these expectations are formed and why they become, in so many instances, intractable obstacles in the resolution of claims. This might also offer insights into the role of the anthropologist for the claimants, the State and the various respondents to claims (potential or otherwise) in discussing expectations which might present serious ethical problems for Native Title researchers.
This paper seeks to describe some of the more common expectations expressed by parties to Native Title claims and to raise some issues involved in understanding how these expectations emerge and why, once formed on all sides, they become so static. It also discusses some of the ethical issues faced by anthropologists in Native Title which result from these expectations.
Flows of knowledge in Native Title
This paper discusses anthropological materials created in the course of native title claims and raises questions about what sort of knowledge these materials are and what might be involved in returning it in post-determination contexts.
As the focus of native title transitions from the determination of native title to the management of determined lands the issue of what to do with the connection reports, genealogies, maps, photographs and film that anthropologists have created to substantiate claims, emerges. Within the Northern Territory, and perhaps elsewhere, it is likely that it will be Prescribed Bodies Corporate that will be one of the main vehicles for the transferal of these materials to Aboriginal people. As we are at the beginning of this process it is useful to think through some of the issues surrounding the creation and return of anthropological materials. Key to this thinking is the recognition that these materials are not only information, but are forms of knowledge that undergo physical (from oral and performative acts to written and visual documents) and social transformation. This latter, social transformation, can be characterised as proceeding from an Aboriginal social system that genealogically identifies individuals to store, transmit and retrieve knowledge, which is then reconfigured by anthropologists into written and visual documents to be used as evidence in claims. If Prescribed Bodies Corporate are to be the primary vehicle through which this body of knowledge is re-introduced back into the hands of the Aboriginal people who originally produced it, some appreciation of what it actually is that that is being made available should be useful to consider. Issues that will be discussed include; making and transforming knowledge, the authority of documents, knowledge and person, and, socialising knowledge.
This panel is closed to new paper proposals.