Native Title in Australia: an Ethnographic Perspective

By Peter Sutton, Cambridge: Cambridge University Press, 2003, 280 pages, hardcover, $89.95. Reviewed by Christine Cheater in the October 2005 issue.

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According to Peter Sutton the Native Title Act of 1993 is an attempt to recognise customary rights by translating them into legal terms. Proving Native Title involves a process of cultural translation where rights to land are established through a procedure in which '...evidence about indigenous cultural understandings and practices comes under legal scrutiny and is tested, usually by non-indigenous professionals'. (p 1) Non-indigenous professionals include anthropologists, lawyers, historians and administrators. It is these men and women who are the intended readers of Sutton's book, which addresses the ethnographic dimensions of native title.

Under the 1993 Commonwealth Native Title Act claims have to be made by an identifiable Aboriginal group or community. For their claim to succeed the group or community must have a traditional connection with the land that is claimed under the laws and customs of the group in question; and there must have been substantial maintenance of that connection with the land in question by the Aboriginal group or community in question since the imposition of British sovereignty. The 1998 amendments to the act further stated that the chain of transmission of traditional connections to the land must have remained substantially unbroken. This means that non-indigenous professionals working in Native Title help to establish which groups under Aboriginal lore have traditional rights to a parcel of land and that these rights and connections have been maintained since 1788.

Mostly anthropologists have focused on establishing which groups had Native Title rights but the 1998 amendments have forced them into greater historical depths than before. As a result anthropologists have to come to grips with the notion of cultural change or fluidity which in turn has raised the question of how far a custom or tradition can change and still remain a custom. In Native Title in Australia: an ethnographic perspective Sutton attempts to deal with these issues by working through anthropological considerations of the key elements of Native Title claims. He devotes chapters to the kinds of rights and interests in country people hold under Aboriginal traditions, the process of establishing which groups have rights to a parcel of land, determining individual membership of a claimant group, the structure of traditional land tenure, the transmission of traditional laws and customs, the interrelationship between kinship systems and Aboriginal land tenure, and the kind of belonging that gives rise to customary rights capable of being recognised as Native Title rights. Throughout these chapters Sutton draws on actual Native Title cases to illustrate his points.

Also included is a chapter on the history of how anthropologists wrote about Aboriginal organisation and land tenure before the land claims era. Such a chapter is necessary for anthropologists have a tendency to use words and terms idiosyncratically: a word means precisely what a particular anthropologist means it to mean, no more no less. For instance the vital word 'estate' when used by AR Radcliffe Brown meant a 'collection of rights... with implied duties'; but when used by WEH Stanner meant 'the traditionally recognised locus (country, home, ground, dreaming place) of some kind of patrilineal descent-group forming the core or nucleus of the territorial group'. (p 68) Understanding the variations in the use of certain terms is necessary as one of the means of tracing continuous traditional connections with the land under claim is through the documentation contained in anthropological texts. Therefore an anthropologist working on native title cases has to deal not only with the fluid social structures of Aboriginal society but also with the historical changes within his or her own profession. Sutton underlines this through the structure of the chapters of the book.

Each chapter begins by laying out an issue arising from native title claims followed by an examination of anthropological arguments about the issue coupled with an analysis of relevant Aboriginal social structures. In a sense each chapter can be regarded as a mini treatise on a particular aspect of the native title process. This is both the strength and weakness of the book. The discrete nature of each chapter means the book can be dipped into by professionals interested in particular issues relating to native titles claims. But the chapters do not flow from one point to the next even though many of the issues raised in the book are interrelated. This problem is exaggerated by the seeming arbitrary organisation of the chapters. The opening chapter deals with numerous kinds and levels of rights an individual or group might have to country but information about why these rights are important and how they operate are not provided until the third and fourth chapter. While this may not present a problem to anthropologists cognisant with the latest arguments regarding Aboriginal land tenure or filiation, it might to the other professionals involved in native title claims.

In the book's introduction Sutton claims that 'specialist terminology and many anthropological concepts are introduced without an assumption of anthropological training on the part of the reader'. (p xvii) Despite this claim Sutton's academically dense writing style and liberal use of ethnographic terms (some of which are explained: some not) may present difficulties for the uninitiated. However, for professionals engaged in native title disputes or for those interested in the process the insights that can be gained from Sutton's ethnographic perspectives make persisting with his book worth the effort.

Citation

• Christine Cheater. 'Review: Native Title in Australia: an Ethnographic Perspective by Peter Sutton' [online]. Network Review of Books (Perth, Australian Public Intellectual Network), October 2005. Availability: <please cite the web address here> ISSN 1833-0932. [accessed 06 September 2010].

Back Cover Blurb

• Native title continues to be one of the most controversial political, legal and indeed moral issues in contemporary Australia. Ever since the High Court's Mabo decision of 1992, the attempt to understand and adapt native title to different contexts and claims has been an ongoing concern for that broad range of people involved with claims. In this book, Peter Sutton sets out fundamental anthropological issues to do with customary rights, kinship, identity, spirituality and so on that are highly relevant for lawyers and others working on title claims. Sutton offers a critical discussion of anthropological findings in the field of Aboriginal traditional interests in land and waters, focusing on the kinds of customary rights that are 'held' in Aboriginal 'countries', the types of groups whose members have been found to enjoy those rights, and how such groups have fared over the last 200 years of Australian history.

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