An Australian example of an ‘owned commons’ case is the native title determination over Dauan Island in Torres Strait.^[7] I have chosen this because of the small size of the island (4.5 km²) and the easy grounds for saying that the Dauan people, the Dauanalgaw, form a single owning entity. While they recognise totemic divisions among themselves, and families identify with particular areas of gardening land, no ‘tribal’ divisions were noted as relating to land when the then very small community of 67 people was first visited by a government agent (Captain Pennefather) on 5 December 1879, and none are claimed today. In other words, such internal boundaries that exist are within the single polity represented by Dauanalgaw, and negotiations over access are a matter of discussion between families. In this sense, Dauan fits the owned commons model reasonably happily.

In PNG, a nationally important example is the Mining (Ok Tedi Agreement) Act 1976 that granted the Special Mining Lease around Mt Fubilan. Hyndman was present at the time and found that main ridges between drainage basins and the Ok Tedi River divided the landscape up in to ‘parishes’:

This led to the identification of the people of the Wopkaimin Iralim parish as the traditional owners of Mt Fubilan. The residents of Bultem and Finalbin villages, within Iralim parish, were treated for all intents and purposes as a single group of landowners (Welsch 1979; Jackson et al. 1981, Table 5.2).^[8]

I use this example because it is one of very few in PNG where anthropologists and government lands officers concurred on the absence of internal differentiation in ownership rights. For example:

Hyndman’s map (1994, Figure 1.4) shows that a parish is further subdivided into bounded ‘neighbourhoods’, though he does not say if parish members have differentiated rights among neighbourhoods. At all events, there are few impediments to Wopkaimin moving among hamlets that can spring up anywhere within the parish, and Hyndman himself recounts that in 1973–74 his was the first house built at a hamlet called Moiyokabip, in the upper part of the Kam Valley, which had seven houses by the end of his stay. A short time later, most of the Wopkaimin had relocated to new settlements on the Ok Tedi mine access road, and by 1985 only 12 of 700 Wopkaimin were still living anywhere in the Kam Valley where almost all had lived previously (Hyndman 1982, 1994: 108ff.).

The Mabo case, which concluded in 1992, is widely known for its effect of erasing the concept of terra nullius — the idea that Australia had been the ‘land of no-one’ prior to white settlement (Beckett 1995; Keon-Cohen 2000).

This achievement has overshadowed the effects of the case on the Meriam themselves.^[9] The Mabo plaintiffs did not present evidence to the Supreme Court of Queensland in the form of conceptual claims against the government, but as they had done for a century when litigating among themselves in the Murray Island Court. When the case was referred to the High Court in Canberra, and its judgement handed back to the Supreme Court of Queensland, the individual statements of claim were abandoned without resolution.

Subsequently, a PBC, Mer Gedkem Le (literally ‘Mer Landowning People’), was created to act as the holder of Mer’s native title. This promised to put Meriam customary ownership of land on a sound footing. The problem remained, however, that observations going back to the first moments of the annexation of Mer to Queensland in 1879 did not emphasise corporate or collective rights but personal ones.

In 1879, Captain Pennefather reported of Mer that the islanders ‘are very tenacious of their ownership of the land and the island is divided into small properties which have been handed down from generation to generation’.^[10] In 1886, John Douglas, the Government Resident at Thursday Island, wrote: ‘I do not see how it will be possible to administer these islands under the present laws of Queensland, more especially as touching the land question.’ In 1891, Douglas commissioned Captain Owen of the Queensland First Regiment to make a land survey of Mer showing all dwellings labelled by household head — the only island in Torres Strait where such a detailed survey was undertaken (Douglas 1894).^[11] Owen’s map, it should be added, remained undiscovered during the Mabo case. Wilkin, a member of the Cambridge expedition to Torres Strait in 1898, began his account of land tenure with the statement that ‘Queensland [in other words European property law] has not affected native land tenure’ (Wilkin 1908: 163). J.S. Bruce, who presided over the Murray Island Court from the 1890s, wrote in the 1904 annual report: ‘I was present at the hearing of 29 of the [42] cases … the land disputes are the source of a lot of trouble.’^[12]

The dispute cases among the surviving records of the Murray Island Court^[13] (1908–83) leave the reader in no doubt that the matters at issue are about the struggles of individuals to assert rights to marked out pieces of land in a system of inheritance:

An annual average of 10–15 land cases went before the court up to World War Two and 5–10 thereafter, dwindling to none by the end of the 1970s. The reduction in cases after 1960 is in part a reflection of new life choices being exercised by Meriam. For example, a reduction in the frequency of disputes over garden land parallels the decline in importance of garden cultivation at Mer. Similarly, when Meriam began to migrate to mainland Australian towns in significant numbers in the 1950s, it is likely that pressure on land for family housing in the village area slackened. Meriam land tenure, of course had not changed at all:

The final demise of the Murray Island Court may be laid at two institutional changes. The first is the evolution of the role of the council from mainly political representation in a system of colonial-style indirect rule — including presiding over the court — to acting as a service deliverer in the conventional manner of local government. The second is legislative change in the form of the Community Services (Torres Strait Islands) Act 1984, which included provision for a new, more formal island court system presided over by islander Justices of the Peace. This simply had the effect of killing off the previous system without replacing it. No Island Court is believed to have been convened in Torres Strait under this legislation; cases of a civil nature either go unresolved or are reformulated as offences that can be heard in the Magistrates Court on Thursday Island.

At Mer, disputes were put on hold from the inception of the Mabo case in 1982 until the High Court judgement of 1992, and after this until Mer Gedkem Le was registered (in 1999), and then until office bearers were successfully elected (around 2001). In the meantime, the disadvantages of living in a remote part of Queensland were now being addressed in the form of State and Federal grants for new housing, road sealing, reliable power generation, greatly improved access to education at all levels, better health care and care for the aged, new technology services such as electronic banking, and the ‘normal’ availability of telephones.^[14] This has stemmed the exodus of Meriam and it has led to a reversal of the direction of migration in some age groups.

These things have combined to create a heightened demand for housing land and a resurgence in land disputation. In 2002, the Council of Elders tried to hear eight dispute cases using provisions in the constitution of Mer Gedkem Le, but this escalated intra-community tensions when all eight decisions were immediately appealed. A workshop held in 2003, with funding from the Mer Island Council and the Torres Strait Regional Authority, was no more conclusive, but it did at least help to document more fully the backlog of at least 50 cases. A workshop in 2004, with the additional participation of the National Native Title Tribunal, probed the problems again with no greater success. The upshot is that the annual $2–3 million construction program is compromised. Houses are not being built for needy families and building materials are frequently moved from house block to house block, as disputes break out one after the other, until they spoil in the weather and cannot be used at all (Burton 2004, 2005).

‘Nauti’ is one of three landowner parties with rights to Hidden Valley, a gold mine prospect on an extension of the Owen Stanley Range near Wau.^[15] The Nauti people are Hamtai language speakers, otherwise known as Watuts. The other two parties are ‘Kwembu’ and ‘Winima’ in the Biangai language area. The three names, which are the names of the nearest three villages to Hidden Valley, emerged from a 1987 ruling of the Provincial Land Court in Morobe Province.^[16] In 2000 they joined formed the Nakuwi Association to negotiate with the mining company (Burton 2001). ^[17]

For the benefit of the current analysis I want to deconstruct the meaning of ‘Nauti’ from the point of view of landownership. In the first place Nauti, a village in the Watut Council, ^[18] is certainly not a ‘clan’. Agnatic members of the Yatavo patriline — the descendants of a man called Yatavo — of Equta patronymic, whose spokesmen were the appellants in the Provincial Land Court case, made up no more than 26 per cent of the residents of the village, who numbered 330 in 2000. Their spouses and recently Nauti-born non-agnatic cognates (mainly sisters’ children) formed another 26 per cent, and more distant relatives (mainly grandfathers’ sisters’ descendants) in six other patronymics (together with their spouses) make up the remaining 48 per cent.^[19]

The word ‘Nauti’ is actually derived from the name of the Nautiya patronymic, which currently has no members resident in the main part of the village. It was probably first applied by the patrol officer K.W.T. Bridge who took up station at the nearby Otibanda Patrol Post in 1935, as shown in Blackwood’s map of the area at the time of her fieldwork in 1937 (Blackwood 1950, Map 1; 1978). This was a correct designation at the time, but the original population of the Nauti area — who were of Nautiya patronymic — was almost completely replaced after epidemics of disease swept across Morobe at the end of World War Two.^[20]

Because of this complication, a meeting of hundreds of would-be claimants, from perhaps 20 villages in the Watut Council area, was held at a hamlet called Tontomea before the court case. At this meeting it was resolved to endorse the understanding that the Yatavo patriline at Nauti, the nearest village downstream of Hidden Valley on the Watut River, and their close relatives at Yokua, Akikanda and Minava villages,^[21] which are located in other parts of the Watut Council, would be designated as ol man i go pas (‘those who go first’), and the remainder of the Watut claimants would sanap baksait (‘stand behind them’) to receive secondary benefits. This is referred to as the Tontomea Agreement.

The coalition had no name for itself so the spokesmen approached Guyo Saweo, the senior man of Nautiya patronymic living on the forested tracts of Nautiya land where Nauti had been in Blackwood’s time (Saweo and Saris 1995). They asked for, and were given, permission to use the name of Guyo’s sit paia (hearth), the place name ‘Nauti’.

There was a strong expectation that the magistrate, whether an expatriate (as he was) or from another part of PNG, would only be capable of dealing with the most straightforward group name possible. The Watut claimants knew that their Biangai neighbours were going to court with two village names of their own, Winima and Kwembu, the nearest settlements on their side of Hidden Valley. The name ‘Nauti’ would match these for simplicity.

To Watut ears, use of the term ‘Nauti’ also conveyed the fact that this was a ‘hearth’, a real place, or, in language, wa taka. Strictly, the exact location of the current village was not a wa taka, because it was of recent foundation. The name owned by Guyo, though, was a real wa taka: that is, it referred to the traditionally founded Nauti that existed in Blackwood’s time. When the spokesmen were granted the use of the name, it lent their litigation cultural authenticity.

The Provincial Land Magistrate duly set out a distribution of rights to an area of common interest at Hidden Valley among the three parties, and Nauti won 50 per cent of this area (Figure 9-1).

The compression of a multiplicity of Watut interests into the single entity ‘Nauti’ for the purposes of going to court — and even allowing the court recorder to represent it as a ‘clan’ — was a contrivance for the purpose of representing Watut rights in Hidden Valley to the outside world. In reality, ‘Nauti’ was made up of the 332 descendants of closely related patriline ancestors spread among five villages (Table 9-1).

* In agreements and in the business group name ‘Yakaya’, Pakieo’s descendants area collected together as ‘Yandiyamango’ though Yandiyamango was strictly the name of the eldest of five brothers.

After the case the solidarity of ‘Nauti’ wavered. This can be seen in the subsequent evolution of the payment arrangements for occupation fees and bush damage compensation with the mining company. For several years, these cleared legal debts and earlier advances. The few bankable amounts left over were made out to ‘Nauti Land Owners’ and witnessed by patriline spokesmen.

In 1991, Yakaya Business Group^[22] was formed to be a new organisational umbrella. But this also failed to satisfy, and the government’s Project Liaison Officer spent most of 1992 brokering a percentage distribution formula among the constituent groups.

From this point, cheques were raised for each subgroup separately. Then the Yatavo and Qavaingo groups fell into dispute and for a period in 1993–94 asked that no payments be made to them. At the same time, the number of signatories proliferated in each village (Figure 9-2).

This tendency to break down into ever-smaller groups is sometimes taken as evidence of a society fragmenting under the pressure of modernisation. But here we can see that a collection of people with joint rights in a property created a contrived owning entity to win recognition from a court. That accomplished, what is seen is not fragmentation but a reversion to normality.