Australia
was colonized on the basis of the legal fiction that, because they are nomadicand
do not ‘improve’ the soil, hunter-gatherers cannot be said to own land. When,
in 1971, three Yolngu clans undertook the first attempt to demonstrate in an
Australian court that they held title to their traditional land, the case
failed at least in part because an erroneous account of Aboriginal land tenure
was put to the court by anthropologists appearing on their behalf.
It was
argued that each clan held a territory and its sacred sites through a charter, presented
by the totemic *ancestors, which they had never surrendered. The clan was said to
have exclusive foraging rights over its territory. Unfortunately, the Yolngu
testimony contradicted two elements of this account. Some clans had died out,
and others had succeeded to their land. Rather than arguing for a legitimate
mode of succession, the anthropologists suggested this was the consequence of
*warfare. While clans excluded others from their sacred sites, permission to
forage elsewhere on their land was freely given. In his judgement against the
Yolngu, Mr Justice Blackburn ruled that they had failed to satisfy two of the
three legal criteria for ownership, which he identified as: first, the right to
exclude others; and second, the right to alienate (which the Yolngu had disclaimed
in arguing for an ancestral charter). He conceded that the third criterion, the
right to use and enjoy, had been demonstrated in court.
This
case had a considerable impact on anthropology as well as on Aboriginal rights,
for shortly afterwards a new Federal Parliament decided to write a definition
of Aboriginal *land tenure into the legal system. It commissioned the lawyer
who had represented the Yolngu and an anthropologist, Peterson, to research the
basis of traditional land ownership and draft an Act of Parliament that would
encapsulate it. The consequent Act of Parliament defined traditional Aboriginal
landowners as members of a local *descent group who have common spiritual
affiliations to the land which place the group in a position of primary
spiritual responsibility for sacred sites on that land. Claimants were also
required to demonstrate that they foraged as of right over that land, and had
retained their attachment to it despite the colonial impact. Given the
technical nature of this definition, it was inevitable that anthropologists
would be called upon as expert witnesses. Although the Act only applied in the
Northern Territory, it provided a novel testing ground for anthropological
expertise. Some of the insights into Aboriginal society gained, and aspects of
the theoretical debates that ensued, have been published. Perhaps the most
important of these has been recognition of temporal process in the constitution
of social groups, despite the vicissitudes of colonization, finally breaking with
the continuous present/mythic time model of Aboriginal social being perpetuated
by Spencer and Gillen. A related issue has been the recognition of Aboriginal
traditional law in relation to court sentencing procedures.