Whereas Blackburn J saw the Yolngu’s relationship with their land as spiritual – in fact, so spiritual as to disqualify them as property owners33– Moynihan J was happy to view the Meriam relationship with land as gratify-ingly utilitarian. That is, the Meriam relationship with their land was defined by competition for scarce resources and an emphasis on the rights of individual Islanders as against others, giving it the semblance of English property rights.
The High Court went on specifically to repudiate any idea that Native Title should be limited in its application by any social-evolutionist framework that stressed the superiority of horticulturalists over hunter-gatherers. However, rather than attack the eurocentrism of Blackburn J’s judgment, Moynihan J in the Determination of Issues of Fact in the Supreme Court of Queensland felt he owed a ‘considerable debt’ to his learned friend, adding ‘I am however dealing with a very different society and very different relationships with and attitudes towards land to those with which he was contending’.34
Yet there is clearly a ‘spiritual-religious’ core to the Meriam’s landholding system, a point continually stressed by Sharp:35
When Meriam people said in court, ‘I alone own this. This is my land’, their statements were not equivalent to ‘I alone own this’ of the English property system. Ownership confers a right to exclude. At the same time, in the Meriam situation, a right automatically confers a responsibility to make provision for the ‘proper’ people to use portions of it, and those ‘proper’ people are the gem kem le, the joint owners ... the exercise of rights is held in check by the associated duty. The ‘proper’ people include those who will come after, and Meriam thinking is saturated with taken-for-granted tenets of what will happen ‘later on in life’, by which they mean ‘in new generations’....
In the dominant stream of European thought, one side, ‘the land belongs to me’, is termed economic, and the other side, ‘I belong to the land’ is termed spiritual. Meriam ‘rights’ or interests in land encapsulate the idea of both
‘owning’ and ‘belonging to’. The strength of one’s right to have and one’s responsibility to share it with ged kem le, or joint owners, is inherent in the naming process. Simultaneously, the latter implies an obligation to the land itself – to look after it, to sow and make it bountiful.
Moreover, there is a growing understanding amongst anthropologists and others that the Meriam’s dual relationship to land – ‘owning’ and ‘belonging to’ – is shared by other indigenous people in Australia. Thus, Bill Stanner observes that in Aboriginal life the corporeal and the spiritual are indivisible, and so ‘the relation of ownership between persons and land could be dual at one and the same time’, that is, spiritual and material. Likewise, Nancy Williams finds that for the Yolngu the ‘religious’, ‘historic’, and ‘economic’ are not mutually exclusive categories; they are complementary and reinforcing
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33 ‘easier ... to say that the clan belongs to the land than that the land belongs to the clan’:
(1971) 17 FLR 141, 270.
34 Cited in Sharp, above n 19, 158.
35 Ibid, 78, 82.
modes of perceiving and using land and natural resources’.36Terry Widders and Greg Noble argue that the Aboriginal idea of ‘country’ encapsulates notions that in the West tend to be considered discretely as ‘political’,
‘religious/cultural’ and ‘economic’.37
Moynihan J’s misreading of the spiritual basis of Meriam landholding attests to the complexities of cross-cultural legal encounters. In particular, the necessity of framing claims within the terms of the common law may mean that many issues cease to be accessible to the court. Likewise, ‘the changes in Meriam society brought about by compulsory statute and regulation (for exam-ple, written wills), or by social processes which have led to emigration [and]
create a pressing need to make choices (for example, to decide which child will best preserve the Meriam custom of acting “on behalf of’’)’38bring to the fore the language of individual entitlement. Moynihan J’s misreading was com-pounded by his belief that the religious underpinning of Meriam society (the myth of Malo-Bomei) had been destroyed with the coming of Christian mis-sionaries to the island, resulting in little meaningful continuity between pre-and post-contact Meriam culture.39Sharp argues, then, that in terms of cross-cultural recognition, Mabo is a failure:40
Despite the well-grounded belief that the Meriam people had an especially good case to put to a court, the findings of fact divested them of the grounding principle of their cultural inheritance: their dual relationship of rights and responsibilities to land was reduced to a non-religious, non-spiritual one. The hearings merely provided the opportunity for their rights to become partly known to English law.
So there is another a paradox: whereas the High Court’s recognition and posi-tive evaluation of difference has enabled Aboriginal and Islander property rights to be protected as real estate, that process has in turn erased the cultural specificity of Aboriginal relationship to place. In Noel Pearson’s words,
‘Aboriginal culture is inseparable from the land to which Aboriginal title attaches. The loss or impairment of that title is not simply one of a loss of real estate, it is a loss of culture’.41This, says Mick Dodson, ‘is a natural conse-quence of the special relationship that most indigenous societies have with the lands upon which they reside’.42
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36 Williams, N, The Yolngu and Their Land, 1986, p 18, Canberra: Australian Institute of Aboriginal Studies.
37 Widders, T and Noble, G, ‘On the Dreaming Track to the Republic: Indigenous People and the Ambivalence of Citizenship’ in Ghassan Hage and Lesley Johnson (eds), Republicanism/
Citizenship/Community, 1993, pp 95, 102ff, Nepean: University of Western Sydney.
38 Sharp, above n 19, 79.
39 Ibid, 154–58, 168–70.
40 Ibid, 213.
41 Cited ibid, 219. The tendency to see native title as merely a land management problem is reflected in much legal commentary.
42 Dodson, M, ‘Human Rights and the Extinguishment of Native Title’ [1996] 2 Australian Aboriginal Studies 12, 17.
Yet to the extent that cultural specificity is stressed, a nascent social-evolutionist framework still permeates much thinking about Aboriginal relationships with the land.43According to this view, one of the central markers of cultural difference – the inalienability of land – makes land rights ‘an economic dead end’ because there is no incentive for Aboriginal landowning groups to ‘improve’ the land.44Historically, this may not have been much of a problem, for Aborigines were only granted marginal lands that were thought to be beyond ‘improvement’. Specifically, returning to Patrick Wolfe’s point, Aboriginal relationships with the land were tolerated and recognised to the extent that they did not conflict with Western expropriation of the land:45
‘Black fella business’ became what was left over – wet-season business, by definition ... marginal and non-pragmatic ... a truncated life-world whose continued co-existence need not pose a threat.
Here there is no conception of ‘need’ as a justification for land rights, but instead Aborigines are asked to enact the ‘severance between economic and other social spheres characteristic of European capitalism’.46This represents a move away from the Woodward Commission’s original recommendations for a Land Rights Act. The Commissioner argued that granting land was doing justice to a people ‘who have been deprived of their land without their consent and without compensation’, the ‘first essential step for people who are econom-ically depressed and who have at present no real opportunity of achieving a normal Australian standard of living’.47Yet the Land Rights Act (Northern Territory) 1976 (Cth) as enacted contained no ‘needs’ criterion for fear that this would create an invidious distinction based on race. As Bill Hassell, former president of the Western Australian Liberal Party, explained in relation to Native Title legislation, many people experience hardship and have a need for land; ‘the quality of need is no different, though Aboriginal attachment to land may be’.48(It is, Francesca Merlan points out, a concept of need that advocates a formal equality of rights regardless of inequalities and their historical formation.)49
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43 See, for example, Lumb, RH, ‘The Mabo Case: Public Law Aspects’ in Stephenson, MA and Ratnapula, S (eds), Mabo: A Judicial Revolution, 1993, pp 1, 5, St Lucia: University of Queensland Press; in the wake of the High Court’s decision in Wik(1996) 71 ALJR 173 – that Native Title and pastoral leases could co-exist – the deputy prime minister indicated that problems arose when the Native Title Act 1993 tried to extend a decision involving horticulturalists (Mabo) to the nomadic indigenous population of mainland Australia:
Australian, 17 January 1997.
44 Sharp, above n 19, 220, citing anthropologist Ron Brunton.
45 Wolfe, above n 9, 110.
46 Ibid, 110.
47 Cited in Merlan, F, ‘Entitlement and Need: Concepts Underlying and in Land Rights and Native Title Acts’ in Edmunds, M (ed), Claims to Knowledge, Claims to Country: Native Title, Native Title Claims and the Role of the Anthropologist, 1994, pp 12, 15, Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies.
48 Ibid, 16.
49 Ibid, 17.
Partly, then, the idea that Aboriginal links to land have little or no economic element – are an ‘economic dead-end’ – has served as a justification for land rights. That is, giving land to ‘traditional’ Aborigines so that they may preserve their spiritual links with it in no way unfairly advantages them economically over settler Australians because there is little or no economic or material advan-tage in it.50To the extent that Aborigines step outside of the ‘traditional’, they cease to be authentic and hence become less deserving of land rights. In this way, says Wolfe, the burden of history is shifted from the fact of expropriation to the character of the expropriated.51
Seen in this light, Mabo holds little promise: it is primarily about the legiti-mation of the existing system of landholding and title, and at the same time as it recognises Native Title it explicitly provides a formula for its extinguishment.
Wolfe observes of the Native Title Act 1993 that there is ‘nothing to suggest that the territorial beneficiaries of Mabo will not be so narrowly defined that, rather than removing terra nullius, the legislation will come to be seen as its fulfilment, as marking the point where terra nulliushad completed its historic task’.52 Rather than challenging the dominant system, it further limits and inhibits the flow of relationships between indigenous people and their land.