Table of Contents
The means of owning and managing customary land (also known as traditional land) in Australia and the Pacific has been treated in many ways in the century and a quarter since Sir Arthur Gordon’s initiatives in Fiji (France 1969) — the first large-scale attempt to accommodate native ownership in the framework of a Western system of administration.[2] In Australia, discussions of the essence of native title, the local vehicle for customary ownership, have been framed in terms of a ‘recognition space’ where Western law and customary law intersect but remain separate. However, I deal in this paper with cases where this concept is not an especially useful prism through which to view the situation, and I choose not to pursue this line of argument.[3] In the cases I present, indigenous groups have been successful in pursuing their claims to land through various processes of landowner identification, including through litigation, but have found the outcomes extremely difficult to work with afterwards. In several cases, the key problem is that the indigenous system had either to be misrepresented by witnesses or misinterpreted by state officials in order for any outcome to be arrived at. This happened in a different way in each case, but the result was essentially the same: landowners have been left to their own devices struggling to make their custom inter-operable with their state’s administrative system.
The administrative systems of both Papua New Guinea (PNG) and Australia provide a variety of legal mechanisms for recognising the ownership of customary land. In both cases the solution has two steps: the recognition of owning entities, and the description of land estates and the connections that the owning entities have to them.[4]
In both PNG and Australia landowners often emerge in a political context prior to more specific identification. Sutton (2003: 116) suggests that indigenous custom in Australia reflects a dual system:
The living holders of specific traditional land interests, often now called the ‘traditional owners’ … hold title in the proximate sense, while underlying titles are maintained by the wider regional cultural and customary-legal system of the social networks of which they are members.
There is no provision to recognise ‘underlying title’ in Australia other than politically. It is manifested in the creation of Native Title Representative Body areas based on criteria such as occupation of ethno-geographic regions (for example ‘Torres Strait’) or modern political regions (for example ‘Victoria’). Another illustration is the 12 per cent of Western Australia held by the State’s Aboriginal Lands Trust, which was established by the Aboriginal Affairs Planning Authority Act 1972. Many of the reserves that this includes are leased or occupied by Aboriginal corporations, but quite a number are not, and might therefore be considered as falling under indigenous commons ownership (see Glaskin, this volume).
In PNG, the equivalent of ‘underlying title’ is, I suggest, also shown by political representation. One example is the creation of 296 Local-Level Governments that are intended to group together people of ethnic and linguistic affinity or, in Sutton’s terms, people who share the same ‘cultural and customary-legal system’.
When land is required for a non-customary use, a Land Investigation Report (under the Land Act 1996) must be carried out for each separately owned parcel by a government Lands Officer. A Schedule of Landowners, with attached signatures (or thumbprints), is attached to a survey plan and other descriptive details. The Schedule of Landowners is not an ‘owning entity’ but a list of people who attest to the fact that the description of the land is accurate and that they have interests in it.
A formal kind of body that has the potential to be an owning entity for indigenous land in PNG is the Incorporated Land Group (ILG), under the provisions of the Land Groups Incorporation Act 1974. The main usage of ILGs has been in forestry, where legislation requires their formation, and in the Southern Highlands oil and gas projects (see Filer, this volume). The key defect in the administration of this legislation is that applicants merely pay a fee to the Registrar General’s office to register an ILG. No branch of government exists, or is contemplated, for the purpose of vetting applications, in other words seeing that they are properly formed or even that they really exist.[5] In consequence, there are now believed to be over 10,000 registered ILGs, with the number increasing at 10–15 per day (Fingleton 2004: 117).
Not only is it easy for ILGs to proliferate in terms of absolute numbers, the absence of provisions for the governance of ILGs has created ideal conditions for existing ILGs to undergo rapid fission. Among the Foi and Fasu (Weiner, this volume), members of subgroups within incorporated clans complained that the executives and passbook signatories failed to distribute benefits fairly and they split off to form new groups.
I can suggest here that the checks and balances provided by proper governance — the holding of regular meetings freely attended by members, the keeping of minutes, the election of and submission to accountability of the office bearers — could have counteracted this propensity to fission. As I point out below, in PNG the system is full of owning groups but empty of governance, whereas in Australia the equivalent system is full of governance but empty of owning groups.
All the ‘title’ forms of indigenous tenure in Australia require that some kind of incorporated group be formed first. In the Northern Territory the vehicle used by the Aboriginal Land Rights Act is the Aboriginal Land Trust. In the Queensland legislation, a land trust is used with trustees appointed by the Minister for Aboriginal and Torres Strait Islander Policy. The High Court, in the second Mabo decision,[6] was not prejudicial to any particular form of traditional ownership, such that the wording used by the majority (Brennan J at 61) was copied in Section 223(1) of the Native Title Act as ‘communal, group or individual rights and interests’ which are said to belong to the ‘common law holders’.
Be that as it may, the Act goes on to makes it clear that the standard means of implementation is for the ‘communal, group or individual rights and interests’ to be loaded into a Prescribed Body Corporate (PBC) after a successful claim. This is the pointy end of the native title process and there is little provision for anything beyond incorporation (Mantziaris and Martin 1999, Chapter 2 and Figure 2).
Integrity in native title is maintained by at least three levels of vetting. A Native Title Representative Body will in the first instance endeavour to avoid the formation of overlapping claim groups and overlapping claim areas by holding meetings with members of communities in its representative area. Next, the National Native Title Tribunal, through the application of the registration test (Section 190 of the Native Title Act) and its Geospatial Services, in checking for overlapping or geographically invalid claims, will screen out invalid claims and claimant groups. Last, contested claims that cannot reach negotiated settlement can be subject to trial in the Federal Court.
Examples of improperly constituted claim groups are groups consisting of only one person, containing non-indigenous people, or containing so-called ‘historical’ people — for example, indigenous people living in another group’s area (Sutton 2003: 19–20). While the Office of the Registrar of Aboriginal Corporations (ORAC), in its acceptance of PBCs, does not have a role in the determination process, it is meant to continue to make sure that PBCs continue to correctly represent traditional owners by holding Annual General Meetings, electing office bearers with correct procedures, and submitting (brief) annual reports. In practice, PBCs often fall behind with compliance, whether they are ‘empty’ PBCs set up in anticipation of winning native title or PBCs that hold native title following successful determinations. Given that these bodies are unfunded, policy makers have no current answer to this situation — successfully claimed native titles could hardly be forfeited — so the effectiveness of the oversight role of ORAC in the governance of PBCs is moot.
The irony with these arrangements is that, with only 53 successful claims so far, Australia has an elaborate system that is empty of owning groups, while PNG has 10,000 owning groups but nothing like the National Native Title Tribunal to vet applications or ORAC to ensure that each of the groups is properly formed and sticks to its rules.