One way to incorporate the missing voice from the above role-play is to invite a guest speaker from an indigenous community who is happy to talk about Aboriginal struggles for land. Yet even here, Anderson’s perspective sounds a note of caution. Reflecting on engaging in question-and-answer sessions with unfamiliar people, he comments:18
Rather than sharing skills or knowledge, it is not uncommon for Koori participants to have to explain their Aboriginality. Statements such as
‘I don’t understand why you don’t acknowledge your white heritage?’
demand legitimation and self-justification from Koori participants, making them vulnerable to questions such as ‘What do Aborigines really want anyway?’. These questions result from the confrontation of non-Aboriginal people with an Aboriginality which is dissonant with their notions of Aboriginality. The passion which is often evident when non-Aboriginal Australians interrogate Aboriginal people about their identity emerges because the identity of non-Aboriginal Australia is also being questioned. What Koori participants usually want is for non-Aboriginal Australia to acknowledge its Koori heritage.
Of course, the fact that something like the sea is not currently propertised may not necessarily reveal an area free from a market-oriented, privatised, ‘real estate’ mindset: the decision not to propertise is often as integrally tied up with that mindset as the decision to propertise, and the enclosures which effaced common usage rights in England in favour of private property in land also effaced local common sea rights in favour of a notion of ‘high seas’ suitable for imperial adventure.20David Allen explains it in the following way:21
It has been said that ‘white man got no dreaming’. I disagree. In the beginning of the white fella’s world – in the Western Judeo-Christian tradition – God divided the land from the waters. This had a deep impact on the conceptual construction of the world and the law story about ownership of the land and the sea, and waters generally. Its repercussions today affect the prospects of Australian common law recognising ownership of indigenous marine estates – salt-water country.
The first written record of the of the legal status of the sea is found in the text of the 2nd century Roman jurist Marcianus which states that the sea and its shores are common to all men. The writings of Cicero, Seneca, Paulus and Ovid continued this line of reasoning, where nature is thought to dictate that the sea must have the status of res communes: a category of things incapable of becoming the subject of private ownership.
That famous old Junggayi of the English common law, Blackstone, asserted in his Commentariesthat ‘water is a movable, wandering thing and must of neces-sity continue common by the law of nature ... This is the dreaming of the white fella’s common law. The absence of any exclusive, private property in running water and the sea is constructed not merely as a convenient social rule: it is seen as originating in the law of nature, it stemmed from the inherent charac-ter of the world and the elements of creation.
Commercial fishermen slinging out their nets off the coast of Bamaga and Numbulwar are fairly unlikely to appeal to the Book of Genesis or the Commentaries of Blackstone, but they and recreational fishermen in Beagle Bay and elsewhere have a deep sense of their right to be there and to enjoy the common property of the seas. In contrast, the traditional Aboriginal owners of these waters sit on the coast and watch the salt-water country of their grand-fathers used without any power to protect their country, to control its use, or to benefit from it.
Allen points out that if the ambit of Native Title is to be established with refer-ence to native custom and tradition, then customary marine tenure must fall within the compass of Native Title. Yet whether such tenure really is a propri-etary interest or merely an exclusive right to use marine resources is what
__________________________________________________________________________________________________________________________________________
20 Sharp, N, ‘ReImaging Sea Space: From Grotius to Mabo’ (1996) 7 Arena Journal111, 117.
21 Allen, D, ‘Salt-Water Dreaming’ in Jull, P, Mulrennan, M, Sullivan, M, Crough, G and Lea, D (eds), Surviving Columbus: Indigenous Peoples, Political Reform and Environmental Management in Northern Australia, 1994, p 39, Darwin: Northern Australian Research Unit, ANU.
baffled Moynihan J in the Murray Islands case, as the following exchange indicates:22
Witness (Rev Dave Passi): I remember my father telling me that I’m to use it [the lagoon] ... I remember my father telling me that any fish, turtle that was caught in those waters had come to my ancestors and have my ancestors’
permission. If my ancestors said ‘I’ll have all of it’, that was it, if he claimed all of it. If he didn’t, he would share it.
His Honour: See, I suppose in the end it’s a matter of ultimate resolution, but from the dialogue he and I just had, his claim is not to the waters at all. His claim is to the first right of refusal to whatever’s taken from particular waters, and it’s not the same thing.
Witness: I am sorry Your Honour, the waters and what is taken from the waters.
Mr Keon-Cohen: Both, so that we’re clear.
His Honour: I’m not sure what a claim to the waters then means.
Mr Keon-Cohen: Do you understand Mr Passi the distinction between claiming the waters as if you own them like the pieces of rocks and earth that you own on the land, and claiming the fish and turtles and the eggs that might from time to time be found in the waters? Do you appreciate that distinction?
Witness: Yes, we claim all, the waters and the fish and turtle, everything found in it.
LEARNING ACTIVITY
The passage just cited goes to the heart of cultural difference and legal mis-understandings regarding the meanings of ‘property’. Here are some questions to guide discussion of the above passage that might help students unpack some of these issues and to think about their own ideas as to what constitutes property:
What is the distinction being drawn by Moynihan J here?
__________________________________________________________________________________________________________________________________________
22 Cited in Sharp, above n 19, 196.
Does the distinction matter? If you cannot have property in sea, can you have property in fish?
Consider what you think Rev Dave Passi’s reaction to the judge’s comments might be. Will he feel his evidence is being received with an open mind? Can it be?
Regarding this last question, teachers might like to address further practical or procedural ways for bridging cross-cultural misunderstanding in land claims. For example, the Native Title Tribunal tries to surmount the prob-lem by including as members an Aboriginal person, lawyers with long experience in Aboriginal affairs and anthropologists, a research section which both provides independent anthropological advice and training of members and staff, and case managers to liaise with parties to a claim.
Given that many claims proceed from the Tribunal to the Federal Court, a case may also be made for similar resources to assist the Federal Court.23
__________________________________________________________________________________________________________________________________________
23 See Burke, P, ‘Law’s Anthropology’ in Heritage and Native Title: Anthropological and Legal Perspectives, 1996, pp 215, 225–26, Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies.
A discussion of sea country raises a related issue, that of the ‘global commons’, and can be used to begin explorations of what might lie outside of the private property paradigm. An oft-used starting point for discussions of common property and ownership is Garrett Hardin’s ‘The Tragedy of the Commons’.24 Hardin’s warning concerning the overuse of scarce resources through unre-strained competition really only provides a Hobbesian post hocjustification for private property regimes, rather than a historical or culturally sensitive exami-nation of the way many resources have been – and still are – actually managed.
He uses the term ‘commons’ to refer to both local and global commons and so gets the history and practice relating to each confused. Historically, local com-mons were precisely that: they developed in specific, local territorial and social contexts and their usage was ‘carefully and painstakingly regulated’ by a mix-ture of bylaw and bioethic.25 In this respect, ‘commons’ might not be a particularly apt word to describe public access to national parks or deep sea fishing. Nevertheless, both the sea and the ‘wilderness’ have historically pro-vided peoples with resources that privately held land could not, and so have also been conceived as local commons in so far as they serve the needs of local communities, and again are often regulated by customary forms that give the lie to Hardin’s ‘tragedy’.26
This insensitivity to cross-cultural and historical data is not just Hardin’s, but common to many theoretical examinations of property. ‘Too often’, com-ments Robert Ellickson, ‘the notion of private property in land has prompted a monolithic reaction. Some observers, like Blackstone, have been overly booster-ish. Others, like Marx, have been unpardonably hostile.’27Ellickson’s own exhaustive cross-cultural survey, ‘Property in Land’, ranges from Israeli kib-butzim, the ejido of Mexico, Anabaptist colonies and medieval open-field villages to library carrels and North American urban multimember house-holds. Any one of his short studies would make a good starting point for classroom discussion of concepts of ownership, property regimes and resource management; taken together, they show that ‘actual land systems are far more nuanced than one would anticipate from reading armchair philosophies of property’.28
__________________________________________________________________________________________________________________________________________
24 Hardin, G, ‘The Tragedy of the Commons’ (1968) 162 Science 1243.
25 Cox, S, ‘No Tragedy on the Commons’ (1985) 7 Environmental Ethics49.
26 See, eg, Matthews, R and Phyne, J, ‘Regulating the Newfoundland Inshore Fishery:
Traditional Values Versus State Control in the Regulation of a Common Property Resource’
(1988) 23 Journal of Canadian Studies158.
27 Ellickson, R, ‘Property in Land’ (1993) 102 Yale Law Journal 1315, 1397.
28 Ibid, 1387. Ellickson is actually quite conservative – or, at least, economistic – in his approach; he starts from the same ‘rational actor’ model as Hardin, but comes to the more
‘upbeat’ proposition that land rules evolve toward forms of co-operation: 1320.
LEARNING ACTIVITY
The case studies which Robert Ellickson scatters through his article average two to three pages each, making them easy to use to promote class discus-sion. Teachers could easily select a few that cover contrasting approaches to alienability and varieties of group ownership, public ownership and gover-nance of resources. The following could focus class discussion:
The Victorian Premier, Jeff Kennett, responded to the High Court’s Wik decision regard-ing the co-existence of pastoral leases and native title with his own ‘armchair philosophy’
of property:29
In this case it [the High Court] was saying that two bodies each can have rights and access to land, which to me is most extraordinary because if you have a piece of land then in real terms only one group, person or company can own it.
In the light of a comparative study of regimes of ownership, is the High Court’s decision really so extraordinary?
As you study in more detail the common law rules of property, bear in mind whether the Premier’s sentiments accurately reflect the position at common law.
__________________________________________________________________________________________________________________________________________
29 ‘Kennett Urges Action on Title’, Age, 28 December 1996, p 1.