Social scientists and native title cases in Australia

Abstract

Recent legal developments in Australia have led the courts to reject the doctrine of terra nullius, which denied pre-existing Aboriginal rights to land ownership, and Aboriginal prior occupation and ownership of land are now acknowledged. However, in the absence of consent determinations the courts have to evaluate the justification for legally recognizing native title based on specific local evidence for continuities in the traditional customs and laws of Aboriginal claimants since British sovereignty. Much of the evidence for such continuities can come from the Aboriginal claimants themselves. However, proving the time, depth and relevance of these continuities and presenting them in a form that is considered acceptable by the courts has drawn upon the ‘expertise’ of academics. This paper considers the types of evidence that anthropologists, linguists, historians and archaeologists are able to present and makes some suggestions as to how this could be improved in the future.     

‘A Beautiful Fiction of Law’: Rhetorical Engagements with Terra Nullius in the British Periodical Press in the 1840s

This paper analyses two critiques of the jurisprudential basis of settler colonialism in Australia published in the early Victorian periodical press. Review articles in the North British Review and Fraser's Magazine in the 1840s deployed claims of legal sophistry to dispute the fiction that Australian colonies were settled, rather than conquered, and that the country was a terra nullius. By examining the politics and rhetoric of each article, the significance of legal ideology for both literature promoting colonization and humanitarian critiques of colonial policy is assessed. Through a combination of discourse analysis and intellectual history, the North British Review article is read as fusing Scottish Enlightenment concepts of social evolution with the rhetoric of sensibility to defend the existence of Indigenous rights to land and to argue for the degenerative implications of colonial social practices. Similarly, the Fraser's Magazine article offers an epitome of the place of law in colonial policy-making by invoking utilitarian and pragmatic approaches to law to rationalize doctrines of sovereignty and jurisdiction, minimizing legal protections for Aborigines while maximizing the legal powers of colonists. By tracing the use of jurisprudential rhetoric in reviews published in two leading metropolitan journals, the paper offers evidence that the literary sphere contributed to the emergent culture of colonial legality.     

John Locke on Native Right,Colonial Possession,and the Concept of Vacuum domicilium

The early paragraphs of John Locke’s Second Treatise of Government (1690) describe a poetic idyll of property acquisition widely supposed by contemporary theorists and historians to have cast the template for imperial possessions in the New World. This reading ignores the surprises lurking in Locke’s later chapters on conquest, usurpation, and tyranny, where he affirms that native rights to lands and possessions survive to succeeding generations. Locke warned his readers that this “will seem a strange doctrine, it being quite contrary to the practice of the world.” His doctrine of native right is equally strange to recent scholars who see in Lockean theory the ideological prototype for England’s colonial expropriation in the “vacant lands” of North America. This interpretation, dignified by the elusive principle of vacuum domicilium, is considerably weakened when Locke’s arguments are placed in the historical context of the sixteenth and early seventeenth-century English colonial experience. Locke’s Second Treatise, with its literary flourish of a vast and idyllic state of nature, was written in the full appreciation of Amerindian agriculture, its established populations, the acknowledgement of native property rights, and the policy and practice of purchasing land from the native inhabitants.     

Mare Nullius: Indigenous Rights in Saltwater Environments

This article uses two case studies to illustrate the subjection of indigenous peoples’ marine territories to a ‘double jeopardy’ of exclusion — jurisdictional and proprietary — through the legal and administrative practices of European ‘settler’ states in Australia and Canada. While the fiction of terra nullius as a legal rationale for refuting indigenous rights of property and governance has steadily eroded in recent decades, its counterpart mare nullius has proven, so far, more resistant. The authors examine how state conceptions of jurisdiction, property and boundary‐making in coastal areas accomplish the distortion and fragmentation of the coastal and marine spaces of Torres Strait Islanders in northern Queensland, Australia, and of the Cree and Inuit peoples of James and Hudson Bays in northern Que´bec, Canada. Assumptions of land–sea continuity underlie these peoples’ cultural constructions of coastal and marine environments. In examining the progress that each has made in reasserting ownership and control of coast and sea, it seems that recognition and reinforcement of their institutions for managing marine spaces and resources offer the best prospect for reconnecting fractured jurisdictional domains, and for bringing about social equity, environmental protection, and self‐determined regional development.     

In Loving Memory of Mary Belshaw,May McRidge,and the Nyungar People of the Badjaling Mission, 1930–1954

Using examples from his family and religious history, Patrick O’Farrell analysed the transition from Irish emigrant to assimilated colonial in what was perceived as vacant land. Like O’Farrell, this article will also use family history to address the issues of memory, religion, and assimilation. The Irish weaver Mary Belshaw (1879–1960) came to Australia in 1913 and was instrumental in the emigration of her family to Australia during the 1920s. She worked as a Protestant missionary among Aboriginal Australians from 1915, until her retirement in 1953. Although the grave she shares with her co‐worker May McRidge (1882–1943) bears the words “Ever remembered by what she has done,” her story was largely forgotten by her family. In 1986, the Nyungar people erected a memorial stone to Belshaw and McRidge and the thirty‐nine Nyungar families who lived at the Badjaling Mission in Western Australia from 1930 to 1954. This article will address the wider issues in twentieth‐century Australia which contributed to the neglect of the story by Belshaw's Irish Australian family and then led to its recovery. It will reveal how an Irish heritage was rediscovered because the story lived within a Nyungar community who had survived terra nullius and assimilation policies to return to their land at Badjaling.     

Representations as practices: producing a native space in Sarawak,Malaysia

The study looks at historical and contemporary representations of rural native communities in Sarawak, East Malaysia. Through the analysis of representations, the study underlines the production of a distinct space for native rural communities in Sarawak and highlights its material implications. The first part of the paper focuses on representations deployed by the colonial administrations to govern native populations of Sarawak. The consequences of specific representations that produced native territorial communities based on codified customs and ethnic presuppositions are identified. Second, the paper focuses on representations deployed to support a corporate agricultural development project on customary land referred to as the Konsep Baru. It demonstrates that these representations reify essential characteristics of the native space as it was produced by colonial regimes and position native rural communities in duality with modern society. In turn, the scrutiny of representations produced by native land rights advocates in response to problematic forms of rural development in Sarawak highlights the dualisms portrayed in specific accounts and stresses their links with colonial constructions of the native space. Overall the paper suggests ways to reflect on the implication of representations about native communities in Sarawak, as representations are intertwined with development practices.     

Balance of Power vs. Perpetual Peace: Paradigms of European Order from Utrecht to Vienna, 1713–1815

Over the course of the eighteenth century, two major models of European international order emerged as alternatives to universal monarchy: one was based on the balance of power; the other centred on the idea of perpetual peace. This article traces each back to its origins in debates around the moment of the Peace of Utrecht in 1713. In particular, it examines the evolution of the doctrine of balance of power in early eighteenth-century English political thought and then as a legal principle incorporated into the Treaty of Utrecht, before proceeding to the counter-proposal in the form of the Abbé de Saint-Pierre's Plan of Perpetual Peace and the objections it raised. It then shows how Saint-Pierre's paradigm of a league of European states found (albeit in altered form) its way into the Treaty of the Holy Alliance (1815) proposed by Tsar Alexander I after the defeat of Napoleon. It concludes by highlighting the fundamental soundness of the idea of European league, as well as the flaws inherent in the early model of Saint-Pierre.     

The Títulos de Ebtún,Yucatan, Mexico: Mapping Maya Communal Identity in a Colonial Spanish Notarial Context

ABSTRACT

The main focus in this article is on four maps from colonial Yucatan, Mexico (c.1542?1821). The maps illustrate a two-volume set of Maya notarial documents called the Títulos de Ebtún and concern disputed communal rights to Tontzimin, one of the sparse water sources (cenotes) of this arid limestone region, and its surrounding arable land. Mention is also made of two maps of the province of Mani that were included in treaties agreed with the Spanish authorities as a final record of Maya claims to traditional agricultural rights. Although all these maps were produced by Spanish officials, they relate to broader colonial mapping traditions in Yucatan and embody a clear Maya influence. At the same time, they reveal the effect of Maya mapping practices on Spanish notarial and mapping traditions at the close of the colonial period.     

The ‘Society’ at Bora Ceremonies: A Manifestation of a Body of Traditional Law and Custom in Aboriginal Australia relevant to Native Title Case Law

Anthropologists working on native title cases in Australia are commonly asked to identify the Aboriginal ‘society’ that holds the body of laws and customs that confer land ownership rights on certain groups of people. In this paper I investigate how the early documentation of bora initiation ceremonies is relevant to understanding contemporary Aboriginal societies and the normative laws and customs that give rise to rights and interests in land. The vast ethnographic oeuvre of R.H. Mathews (1841–1918) includes detailed documentation of bora gatherings, which allows the reconstruction of the wider social reaches of people's networks in the lower Darling Downs of eastern Australia, and can in turn be understood as the ‘society’ so often sought in current native title case law.     

Governing the Bottle: Alcohol,Race and Class in Nineteenth-Century India

Following a series of aggressive military campaigns across India, by the early nineteenth century, the East India Company had secured a more definitive political space for itself in India. However, in taking over the administration of the diwani, or administration and revenue collection duties in Bengal, the Company gained responsibility for the taxes that governed the production and sale of alcohol and drugs—the abkari system. The abkari duties represented an opportunity and challenge for the colonial state. What followed changed the social landscape of India as the Company developed a series of regulations to govern alcohol in both military and civil space. These laws quickly moved beyond earlier Mughal dictates on alcohol, revealing the state’s intent to mould society through taxation.

This article frames these colonial taxes on alcohol as a tool of governmentality. It argues that the state utilised the abkari department not simply as a means of generating revenue, but as a means of managing social relations and economic life in nineteenth-century India. It explores the path that the colonial state sought to forge between arguing for the ‘moral uplift’ of drinking populations and securing reliable revenue for Company (and later Crown) coffers. The laws themselves were often race- (and class-) specific, suggesting, for example, the pre-disposition of certain peoples to particular drinks. Moreover, the drinks themselves, whether toddy or ‘European’-style distilled spirits, were assigned a racial identity. While European observers viewed toddy as ‘natural’ and even beneficial when drunk by poor Indian labourers, in the throats of European soldiers it was labelled ‘dangerous’ or even lethal. Conversely, later Indian campaigners warned that ‘alien’ distilled spirits, such as whisky or rum, were completely foreign to India and that their introduction suggested a darker, less benevolent, side to India’s colonial rule. As such, these colonial controls on alcohol, and the debates that swirled around them, illuminate the ways in which the colonial state both understood and attempted to shape its subjects and servants.     

Oliver O'Donovan's Critique of Autonomy

Abstract

More than any other contemporary theologian, Oliver O'Donovan has revived political theology as a field of enquiry. Yet O'Donovan has been consistent in his critique of the modern idea of autonomy, judging it to be at odds with the more communitarian idea of covenanted community found in the Hebrew Bible/Old Testament. He contrasts this modern idea, and its political implications, with the older biblical idea, also adding some basic points from Aristotle's idea of the polis. But unlike many contemporary communitarians, O'Donovan is also able to incorporate the idea of human rights into his political theology. He sees this supposedly modern idea having fuller precedence in the biblical idea of mishpat ("justice"), which he takes to be God's primordial claim on His covenanted community, a claim that sufficiently grounds both individual rights and communal rights and which enables them to function together. However, O'Donovan draws the line when it comes to the modern social contract theory, arguing that it is at odds with biblical teaching that the primary responsibility of rulers is to divine law. While agreeing with O'Donovan's rejection of autonomy and his acceptance of human rights, this paper argues against O'Donovan's theological rejection of social contract theory. Instead, it argues that a social contract is consistent with the doctrine of the covenant; indeed that the very possibility of the social contract is best explained by the doctrine of the covenant, and that this acceptance of the social contract serves the best political interests of covenanted communities (like the Jewish People and the Christian Church) in an otherwise secular world.     

‘It is not fair that he is treated as a commoner’: lower-level native lords in the repartimiento of Macha (Charcas) under colonial rule, 1540–1619

This article studies the impact of colonial rule on Andean hierarchies of power, underlining the role of lower-level native leaders who enabled paramount lords to organize labor services, levy tribute, and govern Andean polities. Using the repartimiento of Macha (Charcas) as a case study, this article examines the impact of external colonial authorities' actions against the backdrop of rising internal tensions within Andean polities. Segmented polities such as Macha faced increasing tensions, giving rise to new mediating roles for lesser-ranking native leaders, placing the subordinate lords' fight for status at the center of debate. This article starts by exploring the first interrelations between lesser-ranking lords and colonial authorities under the encomienda system through the late 1560s. It then turns to the impact of Viceroy don Francisco de Toledo's reforms in the early 1570s, which simplified and standardized native hierarchies of power within each repartimiento while also fragmenting local Andean elites between tribute-paying lords and those exempted of from it. Finally, the article examines the reactions of lower-level native leaders in the face of new constraints regarding tribute exemption and related obligations in the early seventeenth century, as exemplified by indio principal don Diego Chambi.     

Appeals for European solidarity as calls for colonial violence: British and German public debates around 1900

Abstract

While recent scholarship has emphasized the role of the colonial experience in the development of the idea of Europe and European integration, notions of European solidarity in the age of imperialism have largely been ignored. This paper investigates the specific context in which journalists and politicians voiced such pleas for solidarity, explores the motivations for them, and probes their limits in times of tension. A closer look at the actors involved illustrates the strictures placed on ideas of European solidarity and illuminates the limited potential of projects of integration prior to 1914. However, latter considerations notwithstanding, a discourse on European solidarity in a colonial context did emerge in the decades before the First World War, allowing early proponents of integration to view colonialism as a field for common European action.     

The south pacific ‘experiment’: Reflections on the origins of regional identity

Abstract

When colonial administrators decided to encourage a sense of unity among the members of the emergent élite of their Pacific Island territories in the late 1940s, they regarded their project as novel. Rather than a sense of tapping a pre‐existing affinity, it seemed that what was being attempted was social engineering on a grand scale. The first South Pacific Conference of Pacific Island representatives held at Nasinu, Fiji, in April‐May 1950, was seen by European officials and observers as an ‘experiment’.

The attempt to forge a sense of regional unity was seen as pushing against the perceived gulf between Melanesian and Polynesian cultures and as expecting too much in the way of conference skills from ‘undeveloped’ societies. But the ‘experiment’ was considered necessary for other important post‐war goals. Although the Nasinu conference is to be seen broadly as an experiment in the promotion of trusteeship, or ‘native welfare’, principles, there was by no means agreement on its ultimate purposes. For some it offered the best (if risky) chance of minimising United Nations interference in the continuation of colonial control, for others a way of ensuring the demise of empire by serving the needs of self‐determination. Finally, the promotion of a sense of region among Pacific Islanders was seen by some as part of an experiment in keeping the region from Communist influence.     

Le postmoderne expliqué aux enfants. Correspondance 1982–85

In the early modern period, the European concept of “nobility” was rarely used to describe the upper classes of the societies born in the British or in the French Americas. The presence of French nobles in New France or in the French West Indies and the emergence of the native gentry in parts of the British Empire have been much studied. But the social impact of elites has not been fully recognized by Atlantic historians—due, perhaps, to a bias towards “authentically” New World systems of social recognition based upon wealth, emphasizing supposedly greater possibilities of social mobility. This paper takes a comparative perspective to the social meanings of being a noble or being a gentleman in both empires. It concludes that there were few substantive differences between French nobles living in the metropolis and in the colonies because legal definitions of the French noblesse were strictly determined by the Crown. The essence of the French nobility was, in theory, the same in Versailles, in a remote rural parish of France or in Quebec. The story was very different for British colonial gentlemen who encountered countless difficulties to be socially accepted by their metropolitan counterparts. The paper explores the consequences of the chasm between British metropolitan and colonial upper classes and assesses solutions taken by colonial gentlemen to be fully integrated in the gentry of Great Britain.     

Acts of Faith: Muscular Christianity and Masculinity among the Gogodala of Papua New Guinea

This article examines the way Gogodala men in Western Province experienced colonialism and change not simply in terms of alienation or emasculation but as a dynamic process that reinforced many aspects of their work ethic, bodily capacities and lifestyle. Through an analysis of local narratives and colonial reports encompassing the way Sosola, a Gogodala leader, instigated and negotiated European contact, I discuss how, despite colonial changes, he continues to embody the male way of life or dala ela gi. As the only ‘faith’ based mission to enter Papua prior to World War II, I propose that the Unevangelized Fields Mission's muscular approach to evangelism enabled Gogodala men to determine their own response to Christianity. The early evangelical missionary disposition of demonstrating faith through action, through a reliance on the virtues of physical strength, work and tenacity rather than theological knowledge, resonated strongly with a Gogodala masculinity that was epitomised by displays of strength through work. Rather than rendered powerless by colonial authority, I discuss some of the ways men have experienced and interpret the colonial past in ways that assert the continuing dynamics of dala ela gi.     

Ruling by Record: The Meaning of Rights,Rules and Registration in an Andean Comunidad

This contribution looks at land property relations in a peasant community in the central highlands of Peru. Rather than using a rights‐based approach, the authors propose a ‘practice force field approach’ for their analysis of property relations under communal land tenure regimes. Their study combines qualitative ethnographic case studies with quantitative analysis of data on land distribution. In contrast to rights‐based approaches, this perspective understands the legal discourses that people draw upon to explain property relations as ‘justifying rule talk’ rather than the reflection of a system of property rights. It is shown how property relations are shaped in mediated interactive processes, where official rules, moral principles, shared histories and strategic games come together. The authors use this practice force field approach to study Usibamba, an Andean community that has developed a true disciplinary regime of communal governance based on control over land. The role of ‘rule talk’ and the function of elaborate local systems of land registration are examined in the context of the annual reallocation of communal land. Particular attention is paid to the performance of the president of the comunidad during this delicate process and his reflections on the course of events.     

The more‐than‐minimal state defended against Nozick

Robert Nozick's book, Anarchy, State, and Utopia provides one of the most influential statements of the argument that the welfare state is lacking in moral justification because it infringes property rights. Most previous criticisms of Nozick's work have been concerned to reject the concept of abstract individual rights that forms his starting point. While sound, these criticisms may have little influence on those who find the concept of abstract rights plausible. In this paper Nozick's assumptions about rights are accepted and it is shown that a much more extensive state than Nozick's minimal defensive agency can be supported. Under the specified conditions this stage does not violate these rights. If so much of the argument of those who accept abstract rights is undermined.     

History in Prehistory: The Oral Traditions of the Rarotongan Land Court Records

The records of the early 20th century Rarotongan land courts are an invaluable source of ethnohistoric information regarding pre-contact land tenure, social and political relations, and historical processes affecting tenure and relations. They are analysed here from the point of view of contextualising the archaeological record of the island. Pre-contact Rarotongan society is shown to have been fluid and flexible, although one notable trend is the gradual aggrandisement of ariki power. This trend continues into the missionary and early colonial periods, where political unity and ariki hegemony become established. European intervention was a single, though defining, episode in a long history. Although it transformed the political order, Rarotonga remained resolutely Rarotongan.     

On Authority and Political Destination: Michael Polanyi and the Threshold of Postmodernism

ABSTRACT

This study challenges a prevalent view that Aquinas's political thought develops over time on the question of legitimate resistance to tyranny. Many scholars argue that Aquinas gradually restricts the scope of legitimate political resistance and morally permissible tyrannicide. On this view Aquinas defends tyrannicide in his early Commentary on the Sentences, adds strong qualifications in the Summa Theologiae, and finally repudiates tyrannicide in De Regno. This study finds the evidence for such a development lacking and seeks to rehabilitate a long and diverse Thomistic tradition of legitimate resistance including tyrannicide. Indeed, a close reading of De Regno shows that Aquinas upholds a doctrine of political resistance and defends the legitimacy of tyrannicide under certain circumstances. Moreover, Aquinas's doctrine of political resistance is wide open and underdeveloped. Later attempts to clarify and qualify Aquinas's doctrine of political resistance, therefore, are appropriate and even necessary.